STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION

COUNTY OF WAKE No. 19 CVS 012667

REBECCA HARPER, et al. 

Plaintiffs,
PLAINTIFF 8? MOTION FOR

A 

REPRESENTATIVE DAVID R. LEWIS, IN HIS OFFICIAL
CAPACITY AS SENIOR CHAIRMAN OF THE HOUSE
SELECT COMMITTEE ON REDISTRICTING, et al.,

 

Defendants.

 


I

4- 

TABLE OF CONTENTS

Page
INTRODUCTION 1
FACTUAL BACKGROUND 2
A. Federal Courts Strike Down the 2011 Plan as an Illegal Racial 2
B. Legislative Defendants Create the 2016 Plan with the Explicit Partisan Goal
of Guaranteeing a 10-3 Republican Advantage in Congressional Seats 4
C. The 2016 Plan Achieves Its Intended Effect of Propelling Ten Republican
Congressional Candidates to Electoral Victory Every Two Years 11
D. The 2016 Plan Packs and Cracks Democratic Voters in Every District 13
E. The US. Supreme Court Holds that Partisan Gerrymandering Claims Are
Left to State Courts Applying State Constitutions 27
F. A Three?Judge Panel of the Superior Court Strikes Down North Carolina?s
State Legislative Maps Under the North Carolina Constitution 28
G. The 2016 Plan Harms Plaintiffs and Other Democratic Voters 29
ARGUMENT 30
I. Legal Standard 30
II. Plaintiffs Are Likely To Succeed on the Merits of their Claims that the 2016 Plan
Violates the North Carolina Constitution 32
A. The 2016 Plan Violates North Carolina?s Free Elections Clause 32
B. The 2016 Plan Violates North Carolina?s Equal Protection Clause 35
C. The 2016 Plan Violates North Carolina?s Freedom of Speech and Assembly
Clauses 38
l. The 2016 Plan Unconstitutionally Discriminates Against Protected
Expression and Association 39
2. The 2016 Plan Unconstitutionally Retaliates Against Protected
Expression and Association 42
D. All Plaintiffs Have Established a Likelihood of Standing 43
Plaintiffs Are Likely To Suffer Irreparable Harm Absent a Preliminary Injunction 46
IV. There Is Adequate Time to Implement a Remedy Before the 2020 Primaries 48
V. The Balance of Equities Strongly Favors a Preliminary Injunction 49

CONCLUSION 50

TABLE OF AUTHORITIES

Page(s)

Cases
A.E.P. Indus, Inc. v. McClure,

308 NC. 393, 302 754 (1983) 30, 50
Action NC v. Strach,

216 F. Supp. 3d 597 (M.D.N.C. 2016) 44
Anderson v. Town of Waynesville,

203 NC. 37, 164 SE. 583 (1932) 30, 31
Auto. Dealer Res, Inc. v. Occidental Life Ins. Co. of N. C.,

15 NC. App. 634, 190 729 (1972) 31, 46
Bd. of Light Water Comm ?rs of City of Concord v. Parkwood Sanitary Dist,

49 NC. App. 421, 271 402 (1980) 31
Citizens United v. FEC,

558 US. 310 (2010) 40
Common Cause v. Lewis,

358 F. Supp. 3d 505 (E.D.N.C. 2019) 2, 31, 32
Common Cause v. Rucho,

279 F. Supp. 3d 587 (M.D.N.C. 2018) 27
Cooper v. Harris,

137 S. Ct. 1455 (2017) 47
Council of Alternative Political Parties v. Hooks,

121 F.3d 876 (3d Cir. 1997) 47
Davis v. New Zion Baptist Church,

811 725 (NC. Ct. App. 2018) 43, 44
Elrod v. Burns,

427 US. 347 (1976) 46
Erfer v. Commonwealth,

794 A.2d 325 (Pa. 2002) 46
Goldston v. State,

361 NC. 26, 637 876 (2006) 43, 44

ii

Harris v. McCrory,

159 F. Supp. 3d 600 (M.D.N.C. 2016) 3, 5, 47, 50
League of Women Voters of N. C. v. North Carolina,

769 F.3d 224 (4th Cir. 2014) 46
Libertarian Party of N. C. v. State,

365 NC. 41, 707 199 (2011) 39
Mangum v. Raleigh Bd. of Aayustment,

362 NC. 640, 669 279 (2008) 44
McDonald v. Morrow,

119 NC. 666, 26 SE. 132 (1896) 50
Roberts v. Madison Cry. Realtors Ass Inc,

344 NC. 394, 474 783 (1996) 31
Rucho v. Common Cause,

139 S. Ct. 2484 (2019) 27, 28, 32, 36
State v. Bishop,

368 NC. 869, 787 814 (2016) 39
State v. Petersilie,

334 NC. 169, 432 832 (1993) 42, 50
Staton v. Russell,

151 NC. App. 1, 565 103 (2002) 50
Stephenson v. Bartlett,

355 NC. 354, 562 377 (2002) 35, 49
Triangle Leasing Co. v. McMahon,

327 NC. 224, 393 854 (1990) 30, 46
Statutes and Rules
NC. Gen. Stat. 1-485 1
NC. Gen. Stat. 49
NC. R. Civ. P. 65 1
NC R. Civ. P. 65(0) 50
NC. R. Evid. 201(b) 1 1



Pursuant N.C. R. Civ. P. 65 and NC. Gen. Stat. 1?485, Plaintiffs hereby move for a
preliminary injunction (1) barring Defendants ?om administering, preparing for, or moving
forward with the 2020 primary and general elections for the U.S. House of Representatives using
the current congressional redistricting plan; and (2) setting forth a remedial process to create a
new plan that complies with the North Carolina Constitution, including a court-ordered remedial
plan if the North Carolina General Assembly fails timely to enact a new plan comporting with
the North Carolina Constitution. In support of this motion, Plaintiffs state as follows:

INTRODUCTION

This is a straightforward case. No discovery or extensive expert analysis is needed for
this Court to issue a preliminary injunction. The Court can and should enjoin North Carolina?s
2016 congressional redistricting plan (the ?2016 Plan?) based solely on the of?cial legislative
criteria for creation of the plan and the admissions of Legislative Defendants and their
mapmaker, Dr. Thomas Hofeller. Legislative Defendants ?eely admitted during the 2016
redistricting process that they were seeking to predetermine congressional election outcomes.
They adopted ?Partisan Advantage? as an of?cial criterion, directing that the districts be drawn
to produce a congressional delegation of ?10 Republicans and 3 Democrats.? Representative
Lewis said that this was the maximum gerrymander possible, and that he was drawing the
districts this way because he believes the viewpoints of Democratic voters are worse ?for the
country.? Sure enough, just as Legislative Defendants and Dr. Hofeller intended, Republicans
have won 10 of 13 seats in both elections under the 2016 Plan, including in 2018 when
Democratic congressional candidates won a majority of the two-party statewide vote after
accounting for an uncontested race. All of the relevant facts in this case are incontrovertible and

undisputed.

The law is as clear as the facts. In Common Cause v. Lewis, a unanimous three?judge
panel of this Court held that ?the constitutional rights of North Carolina citizens are in?inged
when the General Assembly draws district maps with a predominant intent to favor voters
aligned with one political party at the expense of other voters.? 18-CVS-014001, slip. op. at 6
(N .C. Sup. Ct. Sept. 3, 2019). Irrespective of federal law, partisan gerrymandering violates the
North Carolina Constitution?s Free Elections Clause, Equal Protection Clause, and Freedom of
Speech and Assembly Clauses. Id. at 9, 307-31. The 2016 Plan is an extreme partisan
gerrymander that unquestionably violates the North Carolina Constitution under Common Cause.

While this Court could push back the March 2020 congressional primaries, the Court
avoid that step by proceeding expeditiously. In particular, the Court can resolve this preliminary
injunction motion and, if it is granted, oversee a remedial process that will conclude with the
?nal adoption of a remedial plan in late November, which is adequate time for the State Board of
Elections to use the remedial plan in the March 2020 primaries. The General Assembly recently
adopted two remedial plans for 77 state House and Senate districts over just an 8-day period.
The remedial process in this case will involve just one plan with only 13 districts. There is
ample time to brief and decide this motion, allow the General Assembly two weeks to draw a
new plan, and review their remedial plan with the assistance of a referee.

North Carolinians have voted in unconstitutional congressional districts in every election
this decade. They should not be forced to do so again. This Court should issue a preliminary
injunction enjoining the 2016 Plan and ordering a new, fair plan for the 2020 elections.

FACTUAL BACKGROUND
A. Federal Courts Strike Down the 2011 Plan as an Illegal Racial Gerrymander

?In the 2010 elections, as a part of a national Republican effort to ?ip state legislative

chambers in order to gain control of redistricting after the 2010 Census, Republicans won

2

majorities in the North Carolina House of Representatives and the North Carolina Senate for the
?rst time since 1870.? Common Cause, 18-CVS-014001, slip op. FOF 1. With their newfound
control of both chambers of the General Assembly, Republican legislative leaders set out in 2011
to redraw the boundaries of the State?s 13 congressional districts. As senior chairs of the House
and Senate Redistricting Committees, Legislative Defendant Representative David Lewis and
Senator Robert Rucho oversaw the drawing of the 2011 congressional redistricting plan (the
?2011 Plan?). Decl. of Elisabeth S. Theodore (?Theodore Decl.?) Ex. B, Deposition of
Representative David Lewis (?Lewis Dep.?) at 14:15-15:24, Common Cause v. Rucho, No. 16-
cv-1026 (M.D.N.C. Jan. 26, 2017). They engaged Dr. Thomas Hofeller to draw the plan.
Theodore Decl. Ex. A, Deposition of Thomas B. Hofeller (?Hofeller Dep.?) at 12328-23, Rucho,
No. 16-cv-1026 (M.D.N.C. Jan. 24, 2017).

On February 5, 2016, a three-judge federal district court struck down the 2011 Plan as
racially gerrymandered in violation of the Fourteenth Amendment?s Equal Protection Clause.
See Harris v. McCrory, 159 F. Supp. 3d 600 (M.D.N.C. 2016). In defense of the 2011 Plan, the
State contended that, rather being than a racial gerrymander, the 2011 Plan was ??strictly? 
political gerrymander.? Cooper v. Harris, 137 S. Ct. 1455, 1473 (2017). In af?rming the three-



judge panel?s ruling, the US Supreme Court noted that the State?s sorting of voters on the
grounds of their race remains suspect even if race is meant to ?mction as a proxy for other
(including political) characteristics.? Id. at 1455 n.7.

North Carolina conducted two congressional elections using the 2011 Plan before it was

struck down. The plan?s unconstitutional racial gerrymander resulted in the election of 9

Republicans and 4 Democrats in 2012, and 10 Republican and 3 Democrats in 2014.

B. Legislative Defendants Create the 2016 Plan with the Explicit Partisan Goal
of Guaranteeing a 10-3 Republican Advantage in Congressional Seats

Following the decision in Harris, the General Assembly set out in 2016 to draw a new
congressional plan. With Republicans at that time holding supermajority control of both
chambers, Representative Lewis and Senator Rucho again took charge of the mapmaking process
and again engaged Dr. Hofeller to draw the remedial plan. On February 9, 2016, in a meeting at
Dr. Hofeller?s home, Representative Lewis and Senator Rucho told Dr. Hofeller to create the
new districts using political data, including precinct-level election results from statewide
elections dating back to 2008. See Hofeller Dep. at 178:14-19, 180:10-181:5 Lewis Dep. at
38:15-40:4, 49:3-7, 52:9-53:5, 55:1?7, 60:1-8; Theodore Decl. Ex. J, Deposition of Senator
Robert A. Rucho (?Rucho Dep.?) at 31:16-32:13, 33:6-20, 35:16-21, 36:17-37:8, Rucho, No. 16-
cv-1026 (M.D.N.C. Jan. 25, 2017). Speci?cally, they instructed Dr. Hofeller ?to create a map
that was likely to elect 10 Republicans and 3 Democrats.? See Hofeller Dep. at 175:19?23,
178114?20, 188219-1902.

Dr. Hofeller admitted that he sought to achieve Legislative Defendants? partisan
objectives by drawing Districts 1, 4, and 12 to be ?predominantly Democratic districts.?
Hofeller Dep. at 192210?16. With respect to the 10 remaining districts, Dr. Hofeller ?assign[ed]
voters to the districts based on their voting history? in order to make all 10 of these districts
?Republican opportunity-to-elect districts.? Hofeller Dep. at 128222?1292.

Dr. Hofeller carried out this gerrymandering through a partisanship formula he created
that scored the partisan performance of every voting tabulation district (VTD) in North Carolina.
His partisanship formula measured the average Democratic and Republican vote share in each
VTD across seven statewide elections from 2008 to 2014. Hofeller Dep. at 212116?21517;

Theodore Decl. Ex. H, Second Deposition of Thomas Hofeller (?Hofeller Dep. at 260: 18-

267: 17, Rucho, No. 16-cv-1026 (M.D.N.C. Feb. 10, 2017); see Theodore Decl. Ex. G, Hofeller
Dep. II Ex. 42 (Dr. Hofeller?s partisanship formula). Dr. Hofeller testi?ed that he used the
averaged results ?om these seven elections ?to get a pretty good cross section of what the past
vote had been,? Hofeller Dep. at 212:16-21329, and give [him] an indication of the two-
party partisan characteristics of Hofeller Dep. II at 266:24-267:6. He believed that the
formula would give him use?il information regarding the ?partisan characteristics? of the VTDs,
because individual VTDs ?tend to carry the same characteristics through a string of elections? in
that they ?line up from one end of the political spectrum to the other in roughly the same
order.? Id. at 274: 1-16. Dr. Hofeller had previously testi?ed that ?he had drawn numerous plans
in the state of North Carolina over decades,? and in his experience, ?the underlying political
nature of the precincts in the state does not change no matter what race you use to analyze it.?
Theodore Decl. Ex. L, Trial Testimony of Thomas Hofeller (?Hofeller Testimony?) at 52526-10,
Harris v. McCrory, No. 13-cv-949 (M.D.N.C. Oct. 14, 2015), a??d by Cooper, 137 S. Ct. 1455;
see Hofeller Dep. at 149:5-18. ?So once a precinct is found to be a strong Democratic precinct,?
Dr. Hofeller explained, ?it?s probably going to act as a strong Democratic precinct in every
subsequent election. The same would be true for Republican precincts.? Hofeller Testimony at
525: 14-17.

Dr. Hofeller testi?ed that he then used this formula re?ecting ?past voting behavior? to
?assign[] VTDs to various congressional districts in drafting the 2016 plan.? Hofeller Dep. at
132:14-18, 212:16-21527; see Hofeller Dep. II at 26727-17 (Dr. Hofeller testifying that he ?used
this [partisanship] formula? in deciding ?where [he] would put the lines for districts?). More
speci?cally, working in Maptitude, Dr. Hofeller color-coded VTDs based on their partisan

performance and assigned VTDs to districts based on this partisan color-coding. Hofeller Dep.

at 212: 16-215z7, Hofeller Dep. II at 260:18-267: 17. In other words, he ?us[ed] this formula to
create a [colored] thematic to show a percentage of [the] Republican vote? share in each

VTD. Hofeller Dep. II at 271:11-273:3. Dr. Hofeller used a ?rainbow? color scheme to display
partisanship in Maptitude based on his formula. Id. at 270:7-9. He testi?ed that he ?satisf[ied]
the legislature?s desire to obtain a partisan advantage? by using the thematic.? Id. at
28127-11. In addition to assigning VTDs to districts based on partisanship, Dr. Hofeller used his
partisanship formula to assess the partisan performance of draft plans as a whole. Hofeller Dep.
II at 28221-7.

Dr. Hofeller testi?ed that he advised Representative Lewis of the projected partisan
performance of districts for which the partisan result was not ?really obvious.? Id. at 290:17-25.
Representative Lewis testi?ed that early every time? he reviewed Dr. Hofeller?s draft plans,
he assessed the plans? partisan performance using the results from North Carolina?s 2014 Senate
race, because this election was ?in [his] mind the closest political race with equally matched
candidates who spent about the same amount of money.? Lewis Dep. at 63:9-64: 17.

Representative Lewis and Dr. Hofeller admitted that Dr. Hofeller had nearly ?nished the
?nal plan before the Joint Redistricting Committee ever met, and that Dr. Hofeller pre-drew the
plan with partisan intent. Dr. Hofeller recalled that ?the plan was actually brought into a form to
be presented to the legislature long before [February] 16th.? Hofeller Dep. at 175: 10-18.

From roughly February 10 to 13, 2016, Representative Lewis and Senator Rucho met
with Dr. Hofeller to review draft plans. Lewis Dep. at 58:13?61:17, 73:7-7427. Those draft plans
were ?near-?nal versions of the 2016 map? that Representative Lewis intended to submit to the

General Assembly for approval. Id. at 77:7-20. Dr. Hofeller and Representative Lewis agreed

on a draft plan on February 12 or 13, 2016, id, and that plan was ?ultimately adopted with a
minor distinction for an incumbency issue.? Id. at 77:21-24.

On February 12, 2016, after the 2016 Plan was already nearly ?nished, the Republican
legislative leaders appointed Representative Lewis and Senator Rucho as co-chairs of the newly
formed Joint Select Committee on Redistricting (the ?Joint Committee?). The Joint Committee
consisted of 24 Republicans and 12 Democrats. See Theodore Decl. Ex. E, Feb. 17, 2016 Tr. of
Proceedings, Joint Comm. on Redistricting (?Feb 17 Joint Comm. at 329?6: 17.

At a meeting on February 16, 2016, the Joint Committee adopted a set of criteria (the
?Adopted Criteria?) to govern creation of the 2016 Plan. Theodore Decl. Ex. D, Feb. 16, 2016
Tr. of Proceedings, Joint Comm. on Redistricting (?Feb 16 Joint Comm. at 14:16-98:20.
Most notably, the Joint Committee adopted ?Partisan Advantage? as an of?cial criterion,
explicitly directing that the new plan preserve Republicans? existing 10?3 advantage in North
Carolina?s congressional delegation. Id. at 6722-6923. This criterion stated:

Partisan Advantage: The partisan makeup of the congressional delegation under the

enacted plan is 10 Republicans and 3 Democrats. The Committee shall make reasonable

efforts to construct districts in the 2016 Contingent Congressional Plan to maintain the
current partisan makeup of North Carolina?s congressional delegation.
Theodore Decl. Ex. C, Adopted Criteria.

Representative Lewis described the ?Partisan Advantage? criterion as requiring the
mapmaker ?to seek partisan advantage for the Republicans.? Theodore Decl. Ex. F, Feb. 19,
2016 Tr. of Proceedings, N.C. House of Representatives, Floor Session One (?Feb 19 House
Floor at 34:16-18. He told the Committee that he would ?draw the maps to give a partisan

advantage to 10 Republicans and 3 Democrats because I do not believe it?s possible to draw a

map with 11 Republicans and 2 Democrats.? Feb. 16 Joint Comm. Tr. at 5026?10 (emphasis

added). Representative Lewis ?acknowledge[d] freely that this would be apolitical
gerrymander.? Id. at 48:4-5 (emphasis added).

The Joint Committee adopted ?Political Data? as another criterion. Feb. 16 Joint Comm.
Tr. at 43:21-47:5. This criterion stated:

Political Data: The only data other than population data to be used to construct

congressional districts shall be election results in statewide contests since January 1,

2008, not including the last two presidential contests. Data identifying the race of

individuals or voters shall not be used in the construction or consideration of districts in

the 2016 Contingent Congressional Plan. Voting districts should be split only
when necessary to comply with the zero deviation population requirements set forth
above in order to ensure the integrity of political data.

See Adopted Criteria.

Leaving no doubt as to how this political data would be used, Representative Lewis told
the Joint Committee that he ?want[ed] to make clear that to the extent [we] are going to use
political data in drawing this map, it is to gain partisan advantage on the map. I want that criteria
to be clearly stated and understood.? Feb. 16 Joint Comm. Tr. at 53:24-54:4.

The remaining criteria adopted by the Joint Committee were to provide for equal
population, to make the districts contiguous, to eliminate the then-current con?guration of
District 12, to improve the compactness of the existing districts, to keep more counties and
VTDs whole than the existing districts, and to avoid pairing incumbents. See id. at 14: 16-1823,
21:9-24:18, 91:17-94:17, 95 :15-98z20; see also Adopted Criteria.

The Joint Committee adopted the Political Data and Partisan Advantage criteria on party-
line votes. The other criteria were passed on a bipartisan basis. Representative Lewis told the
Committee that ?the criteria that will be available to the mapmaker will only be the criteria

that this committee has adopted,? Feb. 16 Joint Comm. Tr. at 140:8-13, despite knowing that

the 2016 Plan was ?for the most part ?nished by the time the criteria were formally adopted by

the committee,? Hofeller Dep. at 177:9-14. He later emphasized that ?the criteria that this
committee debated and adopted are the criteria that were used to draw these maps.? Feb. 17
Joint Comm. Tr. at 4324-14.

Legislative Defendants then formally engaged Dr. Hofeller, who downloaded the 2016
Plan, which he had completed several days earlier, onto a state legislative computer. See Lewis
Dep. at 13826-8; Hofeller Dep. at 197:22-198zl7. Dr. Hofeller later testi?ed that the 2016 Plan
?conformed to the criteria? adopted by the Joint Committee, which included the criteria
concerning Partisan Advantage and Political Data. Hofeller Dep. at 178:20; see id at 129: 10?15.

On February 17, 2016, just one day a?er the Joint Committee adopted the omcial criteria,
Representative Lewis and Senator Rucho presented the 2016 Plan to the Committee. See Feb. 17
Joint Comm. Tr. at 11:8-15. During the presentation, Representative Lewis discussed the
partisan performance of the proposed districts and asserted that the 2016 Plan would ?produce an
opportunity to elect ten Republican members of Congress.? Id. at 1223-7. To prove it,
Representative Lewis provided Committee members with spreadsheets showing the partisan
performance of the preposed districts in previous statewide elections. id. at 17:4-18223.
The Committee then approved the 2016 Plan on a party-line vote.

On February 19, 2016, the ?ill House debated the 2016 Plan. During the debate,
Representative Lewis ??eely acknowledge[d] that [he] sought partisan advantage.? Feb. 19
House Floor Tr. at 31:14-17. He defended the Partisan Advantage criterion by stating: think
electing Republicans is better than electing Democrats. So I drew this map in a way to help
foster what I think is better for the country.? Id. at 34:21-23.

The North Carolina House and Senate approved the 2016 Plan on February 18 and

February 19, 2016, reSpectively. No Democrat in either chamber voted for the 2016 Plan. See

Theodore Decl. Ex. K, Defendants? Response to Plaintiffs? First RFAs at No. 25, Rucho, No. 16?
cv- 1026.

Senator Rucho testi?ed that the 2016 Plan ?satis?ed? ?all criteria,? including the criteria
requiring a 10?3 partisan advantage for Republicans. Rucho Dep. 193:24?194114. In a sworn
declaration submitted in the federal case, Dr. Hofeller calculated the projected partisan
performance of all 13 districts under the 2016 Plan using his seven-election partisanship
formula. Theodore Decl. Ex. 1, Second Decl. of Thomas B. Hofeller (?Hofeller Decl.?) at 9,
Rucho, No. 16-cv-1026 (M.D.N.C. Oct. 26, 2017). He concluded that the 2016 Plan (labeled the
?Contingent Plan?) would result in three Democratic districts and 10 Republican districts where
the Republicans had at least 53% of the vote based on his formula. Id. Dr. Hofeller?s

calculations are displayed below:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Contingent Plan
Dist. Rep.
01 31.20%
02 55.63%
03 55.04%
04 37.02%
05 55.71%
06 54.41%
07 53.68%
08 54.94%
09 55.72%
10 57.95%
11 57.08%
12 36.18%
13 53.51%

 

 

 

 

10

C. The 2016 Plan Achieves Its Intended Effect of Propelling Ten Republican
Congressional Candidates to Electoral Victory Every Two Years

The 2016 Plan has achieved precisely its intended partisan effects?a guaranteed 10-3
Republican advantage in North Carolina?s congressional delegation.

In the 2016 elections, Democratic congressional candidates in North Carolina won a
combined 47% of the two-party statewide vote, yet won only 3 of 13 seats See SBOE,
Nov. 8, 2016 Available Election-related Files (?2016 Results?), 

The results were even more striking in 2018. Despite the blue wave that year, Democrats
were unable to ?ip a single seat. In fact, adjusting for a district that a Republican won in an
uncontested race in 2018, Democrats won a majority of the two-party statewide vote in the 2018
congressional elections, but still won only the same 3 of 13 seats. See SBOE, Nov. 6, 2018
Available Election-related Files (?2018 Results?), 

The results of the individual races in 2018 reveal how Legislative Defendants achieved
this feat. The following table shows each party?s share of the two-party vote in the districts that

the party won in 2018:2

 

All of the prior election results in this brief were calculated using the ?nal election results posted on the State
Board of Elections website. This Court can take judicial notice of this information. N.C. R. Evid. 201(b).

2 Data for this table was gathered from of?cial North Carolina SBOE election results. See 2018 Results. For
District 9, this table uses the results of the September 2019 special elections. See SBOE, Sep. 10, 2019 Unof?cial
Local Election Results - Statewide (2019), To adjust for the uncontested race in District 3,
this table assigns the Democratic and Republican candidates the share of the two-party vote received by the
Democratic and Republican candidates in the special election held in District 3 in September 2019.

11

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

District Democratic Vote Share Republican Vote Share
1 69.9%
4 75.1%
12 73.1%
2 52.8%
'3 100.0%
5 57.0%
6 56.5%
7 56.5%
8 55.3%
9 51.0%
10 59.3%
11 60.4%
13 53.1%
Statewide Vote Share
Before Adjusting for 48.9% 51.1%
Uncontested Race
Statewide Vote Share
After Adjusting for 50.9% 49.1%
Uncontested Race
Percentage of Seats Won 23.1% 76.9%

 

 

This table illustrates the 2016 Plan?s packing and cracking in action. In the three packed
districts, Democrats won enormously lopsided victories, with between 69.9% and 75.1% of the
vote in each district. By contrast, victorious Republican candidates won their seats by much
smaller margins, with between 51.0% and 60.4% of the vote in all contested districts. The 2016
Plan thus guaranteed that Democrats would win three seats by very large margins, while
Republicans would win the other ten seats by much smaller, although still comfortable, margins.

While not necessary to resolve this motion, extensive expert analysis conducted for
purposes of the federal partisan gerrymandering challenge to the 2016 Plan con?rms that the
2016 Plan is an intentional, extreme partisan gerrymander that dilutes Democratic votes and
prevents Democratic voters ?'om electing candidates of their choice. Dr. Jowei Chen, a
professor of political science at the University of Michigan, generated thousands of nonpartisan
simulated maps respecting North Carolina?s political geography and traditional redistricting

12

principles including equal population, contiguity and compactness, and avoiding splitting
counties and VTDs. Based on this simulation methodology, Dr. Chen concluded that the 2016
Plan is extraordinarily anomalous and heavily gerrymandered, and that the gerrymander caused a
shift of three to ?ve seats in favor of the Republican Party. See Expert Report of Jowei Chen,
Rucho, No. l6-cv-1026 (M.D.N.C. Mar. 1, 2017).3 Dr. Jonathan Mattingly, the chairman of the
Duke Mathematics Department, generated over 24,000 nonpartisan simulated maps respecting
North Carolina?s political geography and traditional redistricting principles including equal
population, contiguity and compactness, and avoiding splitting counties and VTDs. Based on
this simulation methodology, Dr. Mattingly likewise concluded that the 2016 Plan is
extraordinarily anomalous and heavily and that the gerrymander caused several
seats to shift in favor of the Republican Party. See Declaration and Expert Report of Jonathan C.
Mattingly, Rucho, No. l6?cv-1026 (M.D.N.C. Mar. 6, 2017).4

D. The 2016 Plan Packs and Cracks Democratic Voters in Every District

The 2016 Plan meticulously packs and cracks Democratic voters in each and every
district?without exception.
Congressional District 1
District 1 is a packed Democratic district that stiches together the heavily Democratic
areas of Durham, Wilson, and Pitt Counties with a handful of rural Democratic counties in the
northeastern portion of the State. Dr. Hofeller admitted that he intentionally drew District 1 to be

?predominantly Democratic.? Hofeller Dep. at 19227-16.

 

3 Submitted as LDTX244 in Common Cause v. Lewis.

4 :li?s 

13

The following image (and others below) shows the district?s boundaries and the
partisanship of its VTDs using the results of the 2016 North Carolina Attorney General race,
with darker blue shading representing larger Democratic vote margins and darker red shading

indicating larger Republican vote margins (both normalized by acreage):5

 

 

 

 

 

CD1

 

 



Decl. at 3.

The 2016 Plan divides Pitt County for partisan ends, placing Pitt County?s most
Democratic VTDs in District 1 to the north, while putting the county?s more moderate and
Republican VTDs in District 3 to the south. It does the same to Wilson County. In dividing
Wilson County, the plan builds a fence between Democratic and Republican voters, nearly
straight down the middle of the county, putting the Democratic VTDs in District 1 to the east and

the Republican VTDs in District 2 to the west.

 

5 Plaintiffs? expert, Blake created all of the images in this brief using map data and election results
obtained from the North Carolina General Assembly. See Decl. of Blake Decl.?) 1] 6.

14

The 2016 Plan?s packing of Democratic voters in District 1 has produced an
overwhelmingly Democratic district. In 2016 and 2018, the Democratic candidate won District 1
with 70.3% and 69.9% of the vote, respectively.

Congressional District 2

District 2 cracks Democratic voters. It care?illy avoids the most Democratic areas of
Wake County and Wilson County, instead picking up only those counties? moderate and
Republican-leaning VTDs. The map further cracks the Democratic voters of Johnston County,

splitting them between District 2 to the north and District 7 to the south.



 

 

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15

Legislative Defendants? extreme gerrymandering of this district has ensured that it
remains a Republican seat. The Republican candidate won District 2 with 56.7% and 52.8% of
the vote in 2016 and 2018, respectively.

Congressional District 3

Legislative Defendants likewise engineered District 3 to be a safe Republican seat.
Whereas District 1 was the recipient of all of Pitt County?s most Democratic VTDs, District 3
contains all of Pitt County?s most Republican VTDs. The district further avoids a handful of

moderate and Democratic counties in eastern North Carolina.

 

CD2 --

   

CD3

CD7

Decl. at 5.

16

District 3 has performed as designed. The Republican candidate won 67.2% of the vote

in 2016, and won uncontested in 2018.

Congressional District 4

District 4 is a clear example of the subordination of traditional districting principles to

partisan ends. Dr. Hofeller admitted that he intentionally drew District 4 to be ?predominantly

Democratic.?

Hofeller Dep. at 192:7-16. To achieve maximum packing of Democratic voters,

District 4 connects Wake County?s most Democratic VTDs with the extremely Democratic

VTDs in southern Durham County as well as the entirety of Democratic-leaning Orange County.

This allowed Wake County?s more Republican VTDs to be put into District 2 to ensure a

Republican seatera-=?41.21 
CD4 mill
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 Decl. at 6.

The result of this packing is that the Democratic candidate has

won District 4 by lopsided

margins, with 68.2% and 75.1% of the vote in 2016 and 2018, respectively.

Congressional District 5

Legislative Defendants constructed District 5 to minimize the voting power of

Democratic voters in County. The 2016 Plan connects Winston-Salem?s predominantly

Democratic voters with far-?ung rural communities to the west.

 

 





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Decl. at 7.

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Legislative Defendants succeeded in wasting the votes of the Democratic voters of

County. District 5 elected a Republican by comfortable margins in the 2016 and 2018

elections, with 58.4% and 57.3% of the vote, respectively.

18

Congressional District 6

Greensboro is the third-largest city in North Carolina and home to one of the largest
concentrations of Democratic voters in the State. It also fell victim to one of the most egregious
examples of cracking in the 2016 Plan.

As shown in the image below, the 2016 Plan splits Greensboro?and Guilford County?
and subsumes each half within a much larger concentration of Republican voters. The
southwestern half of Guilford County is now part of District 13 and the other half belongs to
District 6, cracking that causes both districts to be safe Republican seats. As noted previously,
the map also separates the Democratic voters in both of these districts from County?s

Democratic voters in District 5.

 



 

 

 

CD6

 

 

 

 

 

ff CD 3

 

19

 Decl. at 8.

In cracking Greensboro?s Democratic voters, Legislative Defendants split the campus of
North Carolina State University, which is the largest historically black university in the
country. The district boundary cuts straight through the campus, placing the west side of campus

in District 13 and the east side of campus in District 6, as shown below:

 

 

         
    

 

   
 

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Decl. at 16.

As a result of this cracking, the Republican candidate has won District 6 by comfortable
margins, with 59.2% and 56.5% of the vote in 2016 and 2018, respectively.
Congressional District 7
The 2016 Plan cracks Democratic voters in District 7. As already explained, at the north

end of District 7, the map cracks Johnston County?s Democratic voters between Districts 7 and

20

2. Likewise, on the west side of District 7, the map cracks Democratic voters in Bladen County,

splitting the most heavily Democratic VTDs between Districts CD3





 

Decl. at 9.

As a result of this cracking, District 7 has remained a safe Republican seat. The
Republican candidate won District 7 with 60.9% and 56.5% of the vote in 2016 and 2018,
respectively.

Congressional District 8

Fayetteville is North Carolina?s sixth most?populous city and is heavily Democratic. The

2016 Plan cracks Fayetteville?s Democratic voters nearly down the middle, placing one group in

District 8 and the other in District 9. District 8 then slices to the west, picking up Republican

21

voters in county after county until stopping halfway through Rowan County, right before the
district would hit the Democratic voters of Salisbury, who are care?illy excluded from District 8

and placed into District 13 instead{Eh it'd .
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Decl. at 10.

As a result of this cracking, District 8 has remained a safe Republican seat. The
Republican candidate won District 8 with 58.8% and 55.3% of the vote in 2016 and 2018,
respectively.

Congressional District 9

District 9 is a near mirror image of District 8. District 9 contains the other half of
Fayetteville?s Democratic voters and then, like District 8, stretches west to pick up Republican
voters. District 9 reaches into Mecklenburg County and picks up the ?pizza slice? in

Mecklenburg County that contains the county?s most Republican-leaning VTDs. District 9?3

22

boundaries exclude virtually all of Mecklenburg County?s Democratic VTDs, which

instead are packed into District 12*Ea?wille

CD 9
CD 7

 

Decl. at 11.

In the elections under the 2016 Plan, District 9 has bent but not broken, remaining a
Republican seat. Even the fact that District 9?s 2018 Republican candidate was involved in a
high-pro?le election-fraud scandal that resulted in the invalidation of the 2018 election results
for the district could not counterbalance the extreme gerrymander. The Republican candidate
won the September 2019 special election in District 9 with 51% of the vote.

Congressional Districts 10 and 11

The 2016 Plan egregiously cracks Asheville?s Democratic voters between Districts 10

and 11 to create two safe Republican seats. This cracking dilutes the voting power of

Asheville?s Democratic voters and ensures that they cannot elect a candidate of their choice.

23

 

 

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Decl. at 12-13.
The boundary between Districts 10 and 11 splits the campus of UNC Asheville in two,
even going so far as to place students living on different sides of the same residential dormitory

into different congressional districts, as shown in the image below:6

 

 

6 See Two UNC Asheville Dorms Are Bisected by Gerrymandered District Boundaries, Districks (Oct. 26, 2018),
districkscom/ZO 18/1 

24

 Decl. at 17.

The cracking of Asheville?s Democratic voters has been successful. The Republican
candidates in Districts 10 and 11 won both seats with between 58% and 63% of the vote in the
2016 and 2018 elections.

Congressional District 12

District 12 is another packed Democratic district. Dr. Hofeller admitted in sworn
testimony that he intentionally drew District 12 to be ?predominantly Democratic.? Hofeller
Dep. 19227-16. District 12 packs all of Mecklenburg County?s most Democratic VTDs, carefully
excluding the Republican-leaning ?pizza slice? in the southern part of Mecklenburg County to

ensure that District 12 is an overwhelmingly Democratic district.

.. new no 1;

 

25

 Decl. at 14.

As a result of this packing, the Democratic candidate won District 12 with 67.0% and
73.1% of the vote in 2016 and 2018, respectively.

Congressional District 13

District 13 contains the other cracked half of Guilford County. District 13 is a dog-
shaped district that groups Guilford County?s heavily Democratic voters in and around
Greensboro and High Point with overwhelmingly Republican areas in Davidson, Davie, Rowan,
and Iredell Counties, ensuring that Guilford County?s Democratic voters cannot elect a

Democrat.

    
 

 

  

 

aw
{gig?lgdirtt
. 

CE

   

 

 

 

Decl. at 15.

The Republican candidate won District 13 in 2016 and 2018 with 56.1% and 53.1% of

the vote, respectively.

26

E. The U.S. Supreme Court Holds that Partisan Gerrymandering Claims Are
Left to State Courts Applying State Constitutions

In August 2016, the North Carolina Democratic Party, Common Cause, and more than a
dozen individual North Carolina voters sued Representative Lewis, Senator Rucho, and other
state defendants in federal court, asserting that the 2016 Plan was a partisan gerrymander in
violation of the federal constitution. Rucho v. Common Cause, 139 S. Ct. 2484, 2491 (2019).

After a four-day trial, a three?judge federal district court unanimously concluded that the
General Assembly ?drew and enacted the 2016 Plan with intent to subordinate the interests of
non-Republican voters and entrench Republican control of North Carolina?s congressional
delegation.? Common Cause v. Rucho, 279 F. Supp. 3d 587, 672 (M.D.N.C. 2018). The court
further found that ?the 2016 Plan achieved the General Assembly?s discriminatory partisan
objective.? Id The court therefore held the 2016 Plan violated the Fourteenth Amendment?s
Equal Protection Clause and Article I of the US. Constitution. The court ?rrther held, with one
dissenter, that the 2016 Plan also violated the First Amendment. Id. at 683.

The US. Supreme Court reversed, holding that partisan gerrymandering claims are not
justiciable under the federal constitution. Rue/10, 139 S. Ct. at 2506-07. Nonetheless, the Court
observed that partisan gerrymanders like the 2016 Plan are ?incompatible with democratic
principles.? Id. And, of particular relevance here, the Court recognized that the 2016 Plan is
?highly partisan, by any measure,? and a ?blatant example[] of partisanship driving districting
decisions.? Id. at 2491, 2505. Despite holding that ?partisan gerrymandering claims present
political questions beyond the reach of the federal courts,? the Court made clear that it ?does not
condone excessive partisan gerrymandering[,] [n]or does [its] conclusion condemn complaints

about districting to echo into a void.? Id. at 2507 (emphasis added).

27

Instead, the U.S. Supreme Court noted that ?[t]he States are actively addressing the
issue on a number of ?onts? under state constitutional provisions. See id The Court made clear
that ?[p]rovisions in state statutes and state constitutions can provide standards and guidance for
state courts to apply.? Id. (emphases added).

F. A Three-Judge Panel of the Superior Court Strikes Down North Carolina?s
State Legislative Maps Under the North Carolina Constitution

On September 3, 2019, a three?judge panel of this Court unanimously invalidated North
Carolina?s 2017 state House and Senate plans under the North Carolina Constitution. See
Common Cause, slip op. at 10. The Court found that the 2017 state legislative plans ?do not
permit voters to freely choose their representative, but rather representatives are choosing voters
based upon sophisticated partisan sorting.? Id.

The Court determined that the plaintiffs had standing to challenge the state legislative
maps, and that their challenges were justiciable under the North Carolina Constitution. Id. at
292-98, 331-41. And, on the merits, the Court held that the state legislative maps were partisan
gerrymanders that violated the North Carolina Constitution?s Free Elections Clause, art. I, 10,
Equal Protection Clause, art. I, 19, and Freedom of Speech and Assembly Clauses, art. I, 12,
14. See Common Cause, slip op. at 7-10.

The Common Cause Court explained that North Carolina?s 2017 state legislative plans
and the 2016 Congressional Plan ?arose in remarkably similar circumstances.? Id. at COL 11 18.
?[B]oth the 2016 Congressional map and the 2017 legislative maps were required after a federal
court declared existing maps unconstitutional; both were drawn under the direction of many of
the same actors working on behalf of the Republican-controlled General Assembly; both were
drawn by Dr. Thomas Hofeller; both were drawn in large part before the General Assembly?s

redistricting committee met and approved redistricting criteria; and both were drawn with the

28

intent to maximize partisan advantage and, in fact, achieved their intended partisan e??ects.? Id.
(emphasis added).

G. The 2016 Plan Harms Plaintiffs and Other Democratic Voters

Plaintiffs in this action are North Carolina voters from each of the State?s 13
congressional districts. Each Plaintiff consistently votes for Democratic congressional
candidates. See Veri?ed Compl. 111] 6-19. The 2016 Plan harms Plaintiffs and other Democratic
voters in North Carolina by packing and cracking them to reduce their electoral in?uence.

Plaintiffs Amy Clare Oseroff, John Bella, and Virginia Walters Brien reside in
Districts 1, 4, and 12, respectively. See Veri?ed Compl. 6, 9, 18. The 2016 Plan dilutes the
voting power of these Plaintiffs and other Democratic voters by packing Democratic voters into
these three districts. See Hofeller Dep. at 126:14-25, 127:1?3, 127223?25, 128:1-6, 128217?1292,
192:7-16. The 2016 Plan places the remaining Plaintiffs?Rebecca Harper, Donald Rumph,
Richard R. Crews, Lily Nicole Quick, Gettys Cohen, Jr., Shawn Rush, Jackson Thomas Dunn,
Jr., Mark S. Peters, Joseph Thomas Gates, Kathleen Barnes, and David Dwight Brown?into ten
cracked districts. See Veri?ed Compl. 6?19. The 2016 Plan fractures Democratic voters
across those ten districts to ensure that each district will remain reliably Republican. See
Hofeller Dep. at 126:14?25, 12721-3, 128:1-6, 128:17?129:2, 19227-16.

Expert analysis by Plaintiffs? expert Dr. owei Chen illustrates the harm to each Plaintiff
Dr. Chen created computer simulations for North Carolina?s congressional districts in Rucho
that, like the simulations he created in Common Cause, strictly adhere to the nonpartisan
traditional redistricting criteria within the 2016 Adopted Criteria. See Decl. of Dr. Jowei Chen
(?Chen Decl.?) 7-10. As in Common Cause, Dr. Chen created one congressional simulation
set that ignores incumbency and another set that avoids pairing the incumbents in of?ce in 2016

when the 2016 Plan was drawn. Id. Using these simulations, which were previously produced to

29

Legislative Defendants in the federal partisan gerrymandering case, Dr. Chen has identi?ed the
extent to which each Plaintiff in the instant case lives in a congressional district that is a partisan
outlier relative to the district in which he or she would live under neutral maps. Dr. Chen has
conducted this analysis using two different partisanship measures: and (1) the elections speci?ed
in the 2016 Adopted Criteria, which are all statewide elections from 2008 to 2014 except for the
two presidential elections; and (2) Dr. Hofeller?s seven-elections formula. Id 1111 12-14.

Dr. Chen ?nds that nine Plaintiffs who currently live in Republican-leaning districts
would live in a more Democratic district in at least 91% of the 1,000 Simulation Set 1 plans
(Cohen, Quick, Rumph, Dunn, Barnes, Peters, Gates, Brown, and Harper). See Chen Decl. 1] 17,
Figures 1-2. Dr. Chen ?nds that the remaining ?ve Plaintiffs would live in a less Democratic
district in at least 86% of his Simulation Set 1 plans (Rush, Balla, Brien, Osero??, Crews), and
three of these ?ve Plaintiffs are extreme outliers above the 98% level. Id. Dr. Chen ?nds largely
similar results using his Simulation Set 2. Id. 1] 17, Figures 3-4.

ARGUMENT

1. Legal Standard

A preliminary injunction should issue if (1) the plaintiff can ?show likelihood of success
on the merits of his case,? (2) the plaintiff ?is likely to sustain irreparable loss unless the
injunction is issued,? and (3) a ?balancing of the equities? supports injunctive relief. Triangle
Leasing Co. v. McMahon, 327 NC. 224, 227, 393 854, 856?57 (1990); A.E.P. Indus., Inc.
v. McClure, 308 NC. 393, 400, 302 754, 759 (1983).

These standards apply because Plaintiffs seek a prohibitory preliminary injunction,
namely ?to restrain the defendant[s]? from using the 2016 Plan in administering the 2020
congressional elections. Anderson v. Town of Waynesville, 203 NC. 37, 164 SE. 583, 588

(1932). Plaintiffs seek to prevent Defendants ?om ?permitting [the 2016 Plan] to operate.? Id.

30

In remanding Common Cause v. Lewis to state court, the federal district court con?rmed that
suits seeking to bar use of unconstitutional redistricting plans do not call for ?an injunction
compelling the Legislative Defendants to act.? Common Cause v. Lewis, 358 F. Supp. 3d 505,
511 (E.D.N.C. 2019). Instead, such complaints seek to enjoin defendants from acting. Id

Plaintiffs thus do not seek to require Defendants to ?perform a positive act,? the trigger
for a ?mandatory? preliminary injunction. Auto. Dealer Res, Inc. v. Occidental Life Ins. Co. of
NC, 15 NC. App. 634, 639, 190 729, 732 (1972); see also Bd. of Light Water
Comm ?rs of Concord v. Parkwood Sanitary Dist, 49 NC. App. 421, 424, 271 402, 404
(1980) (similar). But even if the heightened standard for mandatory injunctions applied, it is
satis?ed here because Plaintiffs? injuries are ?immediate, pressing, irreparable, and clearly
established.? Auto. Dealer Res, 15 NC. App. at 639, 190 at 732. ?[T]here is no doubt
that the court has jurisdiction to issue a preliminary mandatory injunction where the case is
urgent and the right is clear; and, if necessary to meet the exigencies of a particular situation, the
injunctive decree may be both preventive and mandatory.? Id. (quotation marks omitted); see
also Roberts v. Madison Cty. Realtors Ass Inc, 344 NC. 394, 400, 474 783, 788
(1996) (recognizing availability of mandatory preliminary injunctions).

The relevant facts are admitted by Legislative Defendants and are already a matter of
public record. This Court con?rmed the governing legal principles just weeks ago in Common
Cause v. Lewis, which Defendants have not appealed. And administrative deadlines for the 2020
elections are fast approaching. If ever there were an instance where ?the case is urgent and the

right is clear,? Auto. Dealer Res, 15 NC. App. at 639, 190 at 732, it is this one.

31

II. Plaintiffs Are Likely To Succeed on the Merits of their Claims that the 2016 Plan
Violates the North Carolina Constitution

Plaintiffs are all but certain to succeed on their claims in this case. Under the principles
announced in Common Cause v. Lewis, the 2016 Plan plainly violates the North Carolina
Constitution?s Free Elections Clause, Equal Protection Clause, and Freedom of Speech and
Assembly Clauses. And all Plaintiffs have standing to sue.

A. The 2016 Plan Violates North Carolina?s Free Elections Clause

The Free Elections Clause of the North Carolina Constitution declares that ?[a]ll elections
shall be free.? N.C. Const., art. I, 10. ?The Free Elections Clause, Article I, 10, is one of the
clauses that makes the North Carolina Constitution more detailed and speci?c than the federal
Constitution in the protection of the rights of its citizens.? Common Cause, slip op. COL 1] 24.
?The federal Constitution contains no similar counterpart.? Id; see Rucho, 139 S. Ct. at 2507.

Since its original adoption in 1776, North Carolina has twice ?broadened and
strengthened? the Free Elections Clause, ?rst to expand its reach ?om state legislative elections
to all elections, and second to add mandatory language to ?make it clear that the Free Elections
Clause and the other rights secured to the people by the Declaration of Rights are commands and
not mere admonition.? Common Cause, slip op. COL 1] 43 (internal quotation marks omitted).

In Common Cause, this Court held that ?the meaning of the Free Elections Clause is that
elections must be conducted ?eely and honestly to ascertain, fairly and truthfully, the will of the
people.? Id. 1] 31. ?This is a ?mdamental right of the citizens enshrined in our Constitution?s
Declaration of Rights, a compelling governmental interest, and a cornerstone of our democratic
form of government.? Ia?.

As the Common Cause Court held, ?partisan gerrymandering strikes at the heart of the

Free Elections Clause.? Id. 1] 45. ?[E]xtreme partisan gerrymandering,? the Court explained, ?is

32

contrary to the fundamental right of North Carolina citizens to have elections conducted freely
and honestly to ascertain, fairly and truth?illy, the will of the people.? Id. TI 36. ?Extreme
partisan gerrymandering does not fairly and truthfully ascertain the will of the people? because
?[v]oters are not ?eely choosing their representatives.? Id. 11 36. ?Rather, representatives are
choosing their voters.? Id. ?It is not the will of the peeple that is fairly ascertained through
extreme partisan gerrymandering? but instead ?the will of the map drawer that prevails.? Id

11 37. Applying these principles, the Court struck down the 2017 state House and Senate plans as
partisan gerrymanders that violated the Free Elections Clause.

The 2016 Congressional Plan violates the Free Elections Clause even more ?agrantly
than the invalidated 2017 state legislative plans. The 2016 Adopted Criteria on their face violate
the Free Elections Clause. The General Assembly adopted ?Partisan Advantage? and ?Political
Data? as official criteria for the creation of the 2016 Plan, explicitly instructing the mapmaker,
Dr. Hofeller, to ?make reasonable efforts to construct districts in the [2016 Plan] to maintain the
current [10-3] partisan makeup of North Carolina?s congressional delegation.? Adopted Criteria.
Thus, the 2016 Plan explicitly and unambiguously sought ?to predetermine election outcomes?
across the state as a whole and in ?speci?c districts.? Common Cause, slip op. COL 11 47.

Legislative Defendants and Dr. Hofeller con?rmed?on the record in legislative hearings
and in sworn deposition testimony?that the 2016 Plan was ?speci?cally and systematically
design[ed] for partisan purposes and a desire to preserve power,? which this Court held
violates the Free Elections Clause. Id. Representative Lewis ?acknowledge[d] ?'eely? that the
2016 Plan ?would be a political gerrymander.? Feb. 16 Joint Comm. Tr. at 4824-5. He stated: 
want to make clear that to the extent [we] are going to use political data in drawing this map, it is

to gain partisan advantage on the map.? Id. at 53:24-54z4. And he left no room for doubt that, as

33

with the invalidated 2017 state legislative plans, Legislative Defendants were seeking partisan
advantage ?to the greatest extent possible.? Common Cause, slip op. COL 1] 46. Representative
Lewis said that the 2016 Plan sought a 10-3 Republican advantage only because he ?did not
believe it would be possible to draw a map with 11 Republicans and 2 Democrats.? Feb. 16 Joint
Comm. Tr. at 50:6?10. Senator Rucho agreed that the map was drawn to be 10-3 because 10-3
?was doable? but 11-2 ?is not.? Rucho Dep. at 121:10-122z2.

Dr. Hofeller admitted that he followed the Adopted Criteria?s directive and drew the
district lines to predetermine a 10-3 Republican advantage. Hofeller Dep. at 175219?23, 178214-
20, 188:19-190:2. Speci?cally, he packed Democratic voters into Districts 1, 4, and 12, and
cracked the remaining Democratic voters across the other 10 districts. See Hofeller Dep. at
127: 14-129z2, 192:10?16. He did this by color-coding every VTD on the basis of partisanship
and assigning VTDs to districts based on their partisan performance. See Hofeller Dep. at
132214-18, 212:16-215:7; Hofeller Dep. II at 260:18-267217, 269:7-9, 271:11-273z3, 274:1-16,
281:7?11, 282:1-7. His formula predicted a 10-3 Republican advantage. Hofeller Decl. at 9.

Legislative Defendants have successfully ?predetermjne[d] election outcomes,? just as
they intended. Common Cause, slip op. COL 1] 47. Even though the 2016 and 2018 elections
were very different electoral environments, Republicans won 10 of 13 seats in both elections.
Republicans won 10 of 13 seats in the blue wave year of 2018 even though Democrats received a
majority of the two-party statewide vote after adjusting for the one uncontested race. See 2016
Results; 2018 Results. The district-level results from 2018 show how the 2016 Plan withstood
this blue wave; Republicans had enough cushion in the ten cracked districts to withstand a swing
in the Democrats? direction, while Democrats only added to their already huge majorities in the

three packed districts. See id. Just like the invalidated 2017 state legislative plans, the 2016

34

Congressional Plan makes it ?nearly impossible for the will of the people?should that will be
contrary to the will of the partisan actors drawing the maps?to be expressed through their
votes.? Common Cause, slip op. COL 1[ 46.

While Dr. Chen and Dr. Mattingly presented copious expert analysis in Rucho
demonstrating that the 2016 Plan is an extreme outlier that has cost Democrats several seats, this
Court need not rely on such expert analysis to reach the same conclusion here. There is certainly
no need for such expert analysis in order to conclude that Plaintiffs are likely to prevail on the
merits, the standard for a preliminary injunction. Given the o?icial legislative criteria mandating
a 10-3 ?Partisan Advantage? through the use of ?Political Data,? as well as Legislative
Defendants? and Dr. Hofeller?s admissions and the 2016 and 2018 election outcomes, there is no
conceivable factual or legal defense of the 2016 Plan. It manipulates North Carolina?s
congressional elections for partisan gain, in violation of the Free Elections Clause.

B. The 2016 Plan Violates North Carolina?s Equal Protection Clause

The North Carolina Constitution?s Equal Protection Clause declares that person
shall be denied the equal protection of the laws.? N.C. Const., art. I, 19. This clause provides
greater protection for voting rights than its federal counterpart. Common Cause, slip op. COL
52-57. Speci?cally, North Carolina?s Equal Protection Clause protects ?the ?mdamental right
of each North Carolinian to substantially equal voting power.? Stephenson v. Bartlett, 355 NC.
354, 3379, 562 377, 394 (2002). ?It is well settled in this State that ?the right to vote on
equal terms is a fundamental right.?? Id. at 378, 562 at 393 (quoting Northampton any.,
326 NC. at 747, 392 at 356). ?These principles apply with full force in the redistricting
context.? Common Cause, slip op. COL 1] 53. In Common Cause, this Court held that extreme
partisan gerrymandering infringes upon this ??lndamental right,? because ?the intentional

classi?cation of voters? based on partisanship in order to pack and crack them into districts is an

35

impermissible distinction among similarly situated citizens aimed at denying equal voting
power.? Id. 111] 53, 63 (internal quotation marks omitted).

In evaluating whether an alleged partisan gerrymander violates North Carolina?s Equal
Protection Clause, this Court applies a three-part test. Id. 1] 58. ?First, the plaintiffs challenging
a districting plan must prove that state of?cials? predominant purpose in drawing district lines
was to entrench their party in power by diluting the votes of citizens favoring their rival.? Id.
(quotation marks and brackets omitted). ?Second, the plaintiffs must establish that the lines
drawn in fact have the intended effect by substantially diluting their votes.? Id. (quotation marks
omitted). ?Finally, if the plaintiffs make those showings, the State must provide a legitimate,
non-partisan justi?cation that the impermissible intent did not cause the effect) to preserve
its map.? Id. The 2016 Plan easily satis?es each prong.

First, entrenching Republicans in power was not just the General Assembly?s
?predominant purpose? in drawing the 2016 Plan?it was the express, overriding goal. The US.
Supreme Court described the 2016 Plan as a ?blatant example[] of partisanship driving
districting decisions.? Rucho, 139 S. Ct. at 2505. As set forth extensively above, the official
written criteria as well as the admissions by Dr. Hofeller and Legislative Defendants
conclusively establish that Legislative Defendants? predominant purpose was to gerrymander the
2016 Plan to entrench Republicans? 10-3 advantage. The Adopted Criteria expressly
subordinated traditional nonpartisan redistricting criteria to ?political impact,? meaning
Republican partisan advantage. See Adopted Criteria. And Dr. Hofeller did not even calculate
the compactness of the 2016 Plan before it was enacted. Hofeller Dep. at 216:8-21.

Second, the 2016 Plan has had its ?intended effect? of diluting the votes of Plaintiffs and

other Democratic voters, depriving them of substantially equal voting power and the right to vote

36

on equal terms. Common Cause, slip op. COL 1[ 58. The Common Cause Court noted that the
2016 Plan, like the invalidated 2017 state legislative plans, was ?drawn with the intent to
maximize partisan advantage and, in fact, achieved [its] intended partisan e??ects.? Id. 1] 18
(emphasis added). As detailed above, the 2016 and 2018 election results con?rm that Legislative
Defendants succeeded in their goal of creating a 10-3 map. See 2016 Results; 2018 Results. The
2016 Plan achieves this result by ?packing and cracking Democratic voters? across the 13
districts, just like the 2017 state legislative plans struck down under the Equal Protection Clause
in Common Cause. See Common Cause, slip op. COL 1[ 70. As under those 2017 state
legislative plans, the margins of victory under the 2016 Plan?and not just the seat counts??
con?rm the vote dilution. Democrats won their three districts with between 69.9% and 75.1% of
the vote, while Republicans never exceeded 60.4% in the then Republican districts. ?This
packing and cracking diminishes the ?voting power? of Democratic voters? in all 13 of these
districts. Common Cause, slip op. COL 1] 70. The votes of Democratic voters in the three
packed districts ?are substantially less likely to ultimately matter in deciding the election results?
when compared to Republican voters in the ten cracked districts. Id.

The 2016 Plan ?not only deprive[s] Democratic voters of equal voting power in terms of
electoral outcomes, but also deprive[s] them of substantially equal legislative representation.?
Common Cause, slip op. COL 1[ 71. ?When a district is created solely to effectuate the interests
of one group??as Legislative Defendants have admitted the districts in the 2016 Plan 
elected official ?om that district is more likely to believe that their primary obligation is to
represent only the members of that group, rather than their constituency as a whole.? Id.

(internal quotation marks omitted).

37

Dr. Chen?s analysis in this case independently con?rms that the 2016 Plan deprives
Plaintiffs of substantially equal voting power and the right to vote on equal terms. Dr. Chen
concluded that nine Plaintiffs who are currently in Republican districts would be in Democratic
leaning or more competitive districts under a map that was not drawn to maximize Republican
advantage, but instead was drawn using traditional nonpartisan criteria. Chen Dec]. 1] 17.

Finally, there is no legitimate, nonpartisan justi?cation for the 2016 Plan?s extreme
partisan bias. In Common Cause, Legislative Defendants offered only ?limited neutral
justi?cations for the enacted [state legislative] maps,? arguing that those maps satis?ed certain
traditional redistricting criteria, such as equal population, county grouping and traversal rules,
compactness, minimizing VTD splits, and protecting incumbents. Common Cause, slip op. COL
74. But Legislative Defendants failed to show that these neutral criteria rather than
predominantly partisan intent could actually explain the maps? ?discriminatory effects.? Id. 76.
Here, given Legislative Defendants? and Dr. Hofeller?s admissions about the 2016 congressional
redistricting process, Legislative Defendants cannot conceivably show that the 2016 Plan is
narrowly tailored to achieve a compelling government interest. Indeed, Legislative Defendants?
own criteria permitted the subversion of neutral criteria for partisan ends.

In short, it is clear that, in drawing the 2016 Plan, Legislative Defendants engaged in the
?intentional ?classi?cation of voters? based on partisanship in order to pack and crack them into
districts? and to ?deprive [them] of the right to vote on equal terms.? Common Cause, slip op.
COL 63, 66. Plaintiffs are likely to succeed on their Equal Protection Clause claim.

C. The 2016 Plan Violates North Carolina?s Freedom of Speech and Assembly
Clauses

The 2016 Plan burdens protected expression and association by making Democratic votes

less effective and by preventing Democratic voters ?om assembling together and instructing

38

their representatives. Because Defendants cannot establish that the 2016 Plan was narrowly
tailored to achieve a compelling government interest, it fails strict scrutiny.

1. The 2016 Plan Unconstitutionally Discriminates Against Protected
Expression and Association

The North Carolina Constitution?s Freedom of Speech Clause provides that ?[?reedom of
speech and of the press are two of the great bulwarks of liberty and therefore shall never be
restrained.? N.C. Const., art. I, 14. The Freedom of Assembly Clause provides in relevant part
that ?[t]he people have a right to assemble together for their common good, to instruct their
representatives, and to apply to the General Assembly for redress of grievances.? Id 12.

These clauses provide greater protection for speech and association than their federal
counterparts. Common Cause, slip op. COL 1111 82-85.

In Common Cause, this Court held that ?[v]oting for the candidate of one?s choice and
associating with the political party of one?s choice are core means of political expression
protected by? these clauses. Id. 1] 86. ?Voting provides citizens a direct means of expressing
support for a candidate and his views,? and ?is no less protected ?merely because it involved the
act? of casting a ballot.? Id. 1111 87-88 (quoting State v. Bishop, 368 NC. 869, 874, 787 
814, 818 (2016)). Similarly, ?[c]itizens form political parties to express their political beliefs
and to assist others in casting votes in alignment with those beliefs.? Id. 1] 90 (quoting
Libertarian Party of N. C. v. State, 365 NC. 41, 49, 707 199, 204-05 (2011)). ?[B]anding
together with likeminded citizens in a political party? thus ?is a form of protected association.?
Id. Both of those holdings apply in the context of congressional elections just as they did in the
context of state legislative elections in Common Cause.

a. A districting plan is subject to strict scrutiny where it burdens protected

expression based on viewpoint by discriminatorily making the votes cast for one party?s

39

candidates less effective. ?The guarantee of free expression ?stands against attempts to disfavor
certain subjects or viewpoints.?? Id. 93 (quoting Citizens United v. FEC, 558 US. 310, 340
(2010)). Here, Representative Lewis ?eely admitted that the 2016 Plan was drawn to disfavor
the vieWpoints of Democratic voters. According to Representative Lewis himself, the district
lines were drawn to advantage Republicans because Representative Lewis ?think[s] electing
Republicans is better? ?for the country? ?than electing Democrats.? Feb. 19 House Floor Tr. at
34:21-23.

The 2016 Plan has exactly the same features that led the Common Cause Court to
conclude that the 2017 state legislative plans violated the Freedom of Speech Clause. Here too,
the mapmaker ?analyzed the voting histories of every VTD in North Carolina, identi?ed VTDs
that favor Democratic candidates, and then singled out the voters in those VTDs for disfavored
treatment by packing and cracking them into districts with the aim of diluting their votes and, in
the case of cracked districts, ensuring that these voters are signi?cantly less likely, in comparison
to Republican voters, to be able to elect a candidate who shares their views.? Common Cause,
slip op. COL 11 95; see also 101 (similar). Dr. Hofeller admitted that he did exactly this in
drawing the 2016 Plan, at Legislative Defendants? direction. Hofeller Dep. at 127:14?129z2,
132214-18, 175:19-23, 178:14?20, 188:19-19022, 192210-16, Dep. II at
260: 18?267: 17, 26927-9, 271:11?273z3, 274:1-16, 281:7-11, 282:1-7.

While a plan ?need not explicitly mention any particular viewpoint to be impermissibly
discriminatory,? Common Cause, slip op. COL 1] 99, the 2016 Plan does explicitly announce an
intent to burden a particular viewpoint. Legislative Defendants adopted an explicit written

policy of seeking ?Partisan Advantage? to favor one political viewpoint. See Adopted Criteria.

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As in Common Cause, it ?changes nothing? that ?Democratic voters can still cast ballots
under gerrymandered maps.? Common Cause, slip op. COL 11 96. ?The government
unconstitutionally burdens speech where it renders disfavored speech less effective, even if it
does not ban such speech outright.? Id. Like the invalidated 2017 state legislative plans, the
2016 Plan?s ?sorting of Plaintiffs and other Democratic voters based on disfavor for
their political views has burdened their speech by making their votes less effective.? Id. ?l 102.
?Plaintiffs and other Democratic voters live in districts where their votes are guaranteed to be
less effective?either because the districts are packed such that Democratic candidates will win
by astronomical margins or because the Democratic voters are cracked into seats that are safely
Republican.? Id. Dr. Hofeller?s own analysis of projected vote margins under the 2016 Plan
using his partisanship formula shows this to be true. See Hofeller Decl. at 9 (concluding that
2016 Plan has three packed Democratic districts where Democrats have at least 63% of the vote,
and ten districts that Republicans win with 53% to 58% of the vote).

b. The 2016 Plan independently violates Article I, 12 by burdening the ability of
Democratic voters to associate effectively. The Common Cause Court held that a districting plan
is subject to strict scrutiny where it burdens disfavored association by restricting ?the ability of
like?minded people across the State to affiliate in a political party and carry out [their] activities
and objects.? Common Cause, slip op. COL 1] 107 (internal quotation marks omitted). The
Court concluded that under the 2017 state legislative plans, ?Democratic voters who live in
cracked districts have little to no ability to instruct their representatives or obtain redress from
their representatives on issues important to those voters.? Id. The same is true under the 2016
Plan. The 2016 Plan places Democrats in ten cracked districts that diminish their voting

strength. The Democratic voters in these cracked districts have virtually no chance of

41

successfully banding together to elect a candidate of their choice, and their Republican
representatives have little incentive to consider the views of Democratic constituents.

c. The 2016 Plan fails strict scrutiny?and indeed any scrutiny. ?Discriminating
against citizens based on their political beliefs does not serve any legitimate government
interest.? Common Cause, slip op. COL 1] 111. ?Blatant examples of partisanship driving
districting decisions are unrelated to any legitimate legislative objective.? Id 1] 61 (internal
quotation marks omitted). Id. 1] 61. ?[P]artisan gerrymanders are incompatible with democratic
principles? and are ?contrary to the compelling governmental interests established by the North
Carolina Constitution ?in having fair, honest elections,? where the ?will of the people? is
ascertained ?fairly and truth?illy.? Id. 61-68 (quoting Petersilie, 334 NC. at 182, 432 
at 840, and Skinner, 169 NC. at 415, 86 at 356)).

2. The 2016 Plan Unconstitutionally Retaliates Against Protected
Expression and Association

The 2016 Plan independently violates the Freedom of Speech and Assembly Clauses by
retaliating against voters based on their protected speech and association. ?In addition to
forbidding discrimination,? North Carolina?s Freedom of Speech and Assembly Clauses ?also
bar retaliation based on protected speech? or conduct. Id. 1] 112. To prevail on a retaliation
theory, a plaintiff must show that the [challenged plan] take[s] adverse action against them,
(2) the [plan] w[as] created with an intent to retaliate against their protected speech or conduct,
and (3) the [plan] would not have taken the adverse action but for that retaliatory intent.? Id.

Like the 2017 state legislative plans invalidated in Common Cause, the 2016 Plan
satis?es all three of these requirements. As to adverse action, relative terms, Democratic
voters under the [2016 Plan] are far less able to succeed in electing candidates of their choice

than they would be under plans that were not so care?illy crafted to dilute their votes. And in

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absolute terms, Plaintiffs are signi?cantly foreclosed from succeeding in electing preferred
candidates.? Common Cause, slip op. COL 11 114. As to intent, Dr. Hofeller and Legislative
Defendants have acknowledged?and the Adopted Criteria required?that the 2016 Plan
?intentionally targeted Democratic voters based on their voting histories.? Common Cause, slip
op. COL 1] 115. And as to causation, ?[t]he adverse effects described above would not have
occurred if Legislative Defendants had not cracked and packed Democratic voters and thereby
diluted their votes.? Common Cause, slip op. COL 1] 116. As he did in Common Cause, Dr.
Chen ?compared the districts in which the Individual Plaintiffs currently reside under the enacted
plan[] with districts in which they would have resided under each of his simulated plans,? and all
?of the Individual Plaintiffs? actual districts are extreme partisan outliers when compared with
their districts under the simulated plans.? Id; see Chen Decl. 1] 17.

D. All Plaintiffs Have Established a Likelihood of Standing

All fourteen Plaintiffs have established a likelihood of standing to sue in this case.
?[B]ecause North Carolina courts are not constrained by the ?case or controversy? requirement of
Article of the United States Constitution, our State?s standing jurisprudence is broader than
federal law.? Davis v. New Zion Baptist Church, 811 725, 727 (N .C. Ct. App. 2018)
(internal quotation marks omitted); accord Goldston v. State, 361 NC. 26, 35, 637 876,
882 (2006) (?While federal standing doctrine can be instructive as to general principles the
nuts and bolts of North Carolina standing doctrine are not coincident with federal standing
doctrine?). ?At a minimum, a plaintiff in a North Carolina court has standing to sue when it
would have standing to sue in federal court.? Common Cause, slip op. COL 1[ 2.

?The North Carolina Supreme Court has broadly interpreted Article I, 18 to mean that
a general matter, the North Carolina Constitution confers standing on those who suffer

harm.? Common Cause, slip op. COL 1] 3 (quoting Mangum v. Raleigh Bd. of Aay'ustment, 362
43

NC. 640, 642, 669 279, 281 (2008)). The ?gist? of standing under North Carolina law
involves ?whether the party seeking relief has alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of dif?cult constitutional questions.?
Goldston879 (quotation marks omitted). Although the North
Carolina Supreme Court ?has declined to set out speci?c criteria necessary to show standing in
every case, the Supreme Court has emphasized two factors in its cases examining standing:

(1) the presence of a legally cognizable injury; and (2) a means by which the courts can remedy
that injury.? Davis, 811 at727-28. Moreover, to obtain a preliminary injunction, a
plaintiff need only show ?a likelihood that plaintiff has standing.? Action NC v. Strach, 216 F.
Supp. 3d 597, 630 (M.D.N.C. 2016) (internal quotation marks omitted).

Here, as to the second factor, the ongoing remedial process in Common Cause
demonstrates that this Court is ?illy capable of remedying partisan gerrymandering. And as to
the ?rst, all fourteen Plaintiffs have suffered legally cognizable injuries in the drawing of their
individual districts. In Common Cause, this Court held that the plaintiffs had standing Where
they had introduced ?district-speci?c evidence that [they] live in districts that are outliers in
partisan composition relative to the districts in which they live under Dr. Chen?s nonpartisan
simulated plans.? Common Cause, slip op. COL 1] 14.

Here, Dr. Chen has performed precisely the same district-speci?c analysis that he
performed in Common Cause. Dr. Chen created computer simulations for North Carolina?s
congressional districts in Rucho that, like the simulations he created in Common Cause, strictly
adhere to the nonpartisan traditional redistricting criteria within the 2016 Adopted Criteria. Chen

Decl. 7-10. As in Common Cause, Dr. Chen created one congressional simulation set that

44

ignores incumbency and another set that avoids pairing the incumbents in of?ce when the 2016
Plan was drawn. See id Using these simulations, which were produced to Legislative
Defendants in Rucho, Dr. Chen has identi?ed the extent to which each Plaintiff here lives in a
congressional district that is a partisan outlier relative to the district in which he or she would
live under neutral maps. Dr. Chen does this analysis using two different partisanship measures:
(1) Dr. Hofeller?s seven-statewide-election formula; and (2) the elections speci?ed in the 2016
Adopted Criteria, which are all statewide elections ?om 2008 to 2014 except for the two
presidential elections. Id. 111] 12-14.

Dr. Chen ?nds that all fourteen Plaintiffs live in congressional districts that are partisan
outliers relative to their districts under his simulations. See Chen Decl. 1] 17, Figures 1-4. Dr.
Chen ?nds that nine Plaintiffs currently in Republican-leaning districts would live in a more
Democratic district in at least 91% of the 1,000 Simulation Set 1 plans. Id. 1] 17, Figures 1-2. He
?nds that the remaining ?ve Plaintiffs would live in a less Democratic district in at least 86% of
his Simulation Set 1 plans, and three of these five Plaintiffs are extreme outliers above the 98%
level. Id. Dr. Chen ?nds largely similar results using his Simulation Set 2. Id. 17, Figures 3-4.

As evidenced by Dr. Chen?s analysis, all fourteen Plaintiffs have established a likelihood
of standing to challenge both their own districts and the 2016 Plan as a whole. In Common
Cause, this Court held that a plaintiff with standing to challenge his or her individual district
necessarily had standing to challenge his or her entire county grouping ?because the manner in
which one district is drawn in a county grouping necessarily is tied to the drawing of some, and
possibly all, of the other districts within that grouping.? Common Cause, slip op. COL 11 15. But
congressional districts in North Carolina are not drawn in county groupings?the entire statewide

map is a single grouping. The drawing of every congressional district therefore ?is tied to the

45

drawing of some, and possibly all, of the other? districts. See also Erfer v. Commonwealth, 794
A.2d 325, 330 (Pa. 2002), abrogated on other grounds by League of Women Voters v.
Commonwealth, 178 A.3d 737 (Pa. 2018) (holding that individual voters have standing to
challenge entire congressional plan, because a congressional plan ?acts as an interlocking jigsaw
puzzle, each piece reliant upon its neighbors to establish a picture of the whole?). Plaintiffs with
standing to challenge their individual congressional districts thus have standing to challenge the
entire 2016 Plan.

Plaintiffs Are Likely To Suffer Irreparable Harm Absent a Preliminary Injunction

Absent a preliminary injunction, Plaintiffs are ?likely to sustain irreparable loss.?
Triangle Leasing, 327 NC. at 227, 393 at 856-57. Even if the standard for mandatory
injunctions applied, Plaintiffs satisfy that standard because their injuries are ?immediate,
pressing, [and] irreparable.? Auto. Dealer Res, 15 NC. App. at 639, 190 at 732.

If this Court does not issue an injunction, Plaintiffs will be forced to vote in 2020 in
unlawful districts that violate multiple fundamental rights guaranteed by the North Carolina
Constitution. That alone is an irreparable injury. ?Courts routinely deem restrictions on
fundamental voting rights irreparable injury.? League of Women Voters of N. C. v. North
Carolina, 769 F.3d 224, 247 (4th Cir. 2014). The loss of constitutional rights, ?for even minimal
periods of time, unquestionably constitutes irreparable injury,? Elrod v. Burns, 427 US. 347, 373
(1976), and an infringement of ?voting and associational rights cannot be alleviated after the
election.? Council of Alternative Political Parties v. Hooks, 121 .3d 876, 883 (3d Cir. 1997).

Courts have applied these principles in redistricting cases in North Carolina. In Harris v.
McCrory, which enjoined two districts in the 2011 congressional plan on the ground that they
constituted unconstitutional racial gerrymanders, the court found it ?clear . .. that the deprivation

of a fundamental right, such as limiting the right to vote in a manner that violates the Equal

46

Protection Clause, constitutes irreparable harm.? 2016 WL 6920368, at *1 (M.D.N.C. Feb. 9,
2016) (internal citations and quotation marks omitted); see also Harris, 2016 WL 6920368, at *1
(?To force the plaintiffs to vote again under the unconstitutional plan constitutes irreparable
harm to them, and to the other voters in [those The federal district court in
Covington v. North Carolina, which invalidated numerous 2011 state legislative districts as
unconstitutional gerrymanders, said the same thing. 2018 WL 604732, at *6 (M.D.N.C. Jan. 26,
2018). And this Court applied these same principles in Common Cause in enjoining use of the
2017 state legislative districts. This Court, on its own motion, denied a stay pending appeal
because failing to enjoin the plans immediately would cause substantial prejudice to the
Individual Plaintiffs and other voters. Common Cause, slip op. COL 1] 179. The Court
recognized that ?[t]he risk of harm is particularly acute where Plaintiffs and other North Carolina
voters have already cast their ballots under unconstitutional district plans in every election this
decade.? Id. (quoting Covington, 2018 WL 604732, at 

North Carolinians have been forced to vote in invalid, unlaw?il districts in every
congressional election so far since the 2010 decennial census. The 2011 congressional plan used
in the 2012 and 2014 elections was an unconstitutional racial gerrymander. See Cooper v.
Harris, 137 S. Ct. 1455 (2017). And the 2016 Plan used in the 2016 and 2018 elections is an
extreme unconstitutional partisan gerrymander. Absent an injunction, Plaintiffs and other North
Carolina voters will have gone a ?ill ten years without voting in valid, lawful congressional
districts. The harm to the named Plaintiffs here is concrete. Not only does Dr. Chen
demonstrate that all fourteen Plaintiffs would live in markedly different districts if a nonpartisan
remedial plan were put into place, only a nonpartisan remedial plan can ensure that all fourteen

Plaintiffs no longer live in districts that were not the product of intentional discrimination by

47

their government. The same is true for millions of other North Carolinians. It is difficult to
imagine a more immediate, pressing, and irreparable injury.
IV. There Is Adequate Time to Implement a Remedy Before the 2020 Primaries

There is more than enough time to establish a remedial plan for use in the March 2020
primaries. This is not a matter of speculation?the remedial process in Common Cause proves it.
In Common Cause, this Court gave Legislative Defendants two weeks to adopt remedial state
House and state Senate plans. Common Cause, slip op. Decree 1] 4. The General Assembly
adopted remedial plans in that time ?'ame; in fact, the General Assembly passed both the state
House and state Senate plans within 8 days of the ?rst legislative hearings, which were on
September 9, 2019.

Common Cause, moreover, involved more than ?ve times as many districts than are at
issue here. This Court invalidated a total of 77 districts across 21 different county groupings in
two different legislative bodies. This case involves just one statewide map consisting of 13
districts, and does not require application of the complicated Whole County Provision that
applies to state legislative districts. If the General Assembly could remedy 77 state legislative
districts in just eight days (in part by using one of Dr. Chen?s simulated maps as a base), it
certame can draw a new congressional plan in two weeks.

While suf?cient time remains to implement a remedial plan on the current election
schedule, the schedule can be adjusted if necessary to provide effective relief. The State Board
of Elections has authority ?to make reasonable interim rules and regulations? to move
administrative deadlines in the event that any North Carolina election law ?is held
unconstitutional or invalid by a State or federal court.? NC. Gen. Stat. l63A?742. And this
Court has remedial authority to move the 2020 congressional primary elections, if necessary.

See Common Cause, slip op. COL 11?? 181-82. The Court could move the primaries under one of
48

two approaches. First, the Court could move all of the State?s 2020 primaries, including for
of?ces other than the U.S. House. Alternatively, the Court could move the primaries for only the
U.S. House, while keeping the primaries for other offices on the currently scheduled date of
March 3, 2020. One possibility would be to move the congressional primaries to the ?Second
Primary? date that has taken place in every recent election cycle for primary run-offs.

There is precedent for both approaches. In 2002, the North Carolina Supreme Court in
Stephenson v. Bartlett enjoined the primaries for the state House and state Senate from occurring
on the originally scheduled date, 355 NC. 281, 282, 561 288, 288-289 (2002), causing all
of the State?s primaries to move to a different date, 357 NC. 301, 303, 582 247, 249
(2003). And in 2016, after a federal court enjoined the State?s congressional plan as an
unconstitutional racial gerrymander, the General Assembly moved only the congressional
primaries, while leaving other primaries (including the presidential primary) on the originally
scheduled date. See N.C. Sess. Law 2016-2 Such changes are not necessary at this stage,
however, as sufficient time remains for the Court to receive brie?ng and argument, issue a
preliminary injunction, and oversee a remedial process under the current election schedule.

V. The Balance of Equities Strongly Favors a Preliminary Injunction

Finally, ?a careful balancing of the equities,? A.E.P. Indus, 308 NC. at 400, 302 
at 759, weighs decidedly in favor of an injunction. Plaintiffs seek to vindicate interests of the
highest order. ?Fair and honest elections are to prevail in this state.? Common Cause, slip op.
COL 11 28 (quoting McDonald v. Morrow, 119 NC. 666, 673, 26 SE. 132, 134 (1896)). The
North Carolina Supreme Court ?has elevated this principle to the highest legal standard, noting
that it is a ?compelling interest? of the State ?in having fair, honest elections.?? Id. (quoting State

v. Petersilie, 334 NC. 169, 184, 432 832, 840 (1993)). Plaintiffs? claims implicate

49

?fundamental right[s] . .. enshrined in our Constitution?s Declaration of Rights, a compelling
governmental interest, and a cornerstone of our democratic form of government.? Id. 1] 31.

This case is about the rights not just of Plaintiffs, but of all North Carolina citizens to
vote in law?rl districts that will reveal, ?fairly and truth?rlly, the will of the people.? Id. 1132.
Moreover, Plaintiffs and their fellow citizens have been forced to cast their ballots in invalid,
unconstitutional congressional districts in every election so far this decade. It would be
inequitable in the extreme to force them do so yet again?and in ?a presidential election year,?
no less, ?when voter turnout is highest.? Harris, 2016 WL 6920368, at *1.7

CONCLUSION

For the foregoing reasons, the Court should enter a Preliminary Injunction in

substantially the form of the attached proposed order.

 

7 This Court should not require Plaintiffs to post a bond. North Carolina Rule of Civil Procedure 65(0) provides that
preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the
judge deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is
found to have been wrong?illy enjoined.? But it is well settled that there are ?some instances when it is proper for
no security to be required of a party seeking injunctive relief.? Staten v. Russell, 151 NC. App. 1, 12, 565 
103, 110 (2002) (quotation marks omitted). This is just such an instance. There is no prospect that any party to this
case will be ?wrong?illy enjoined? or incur any recoverable ?costs or damages? there?'om. And no security is
required where, as here, ?one purpose of the injunction is to preserve the court?s jurisdiction.? 151 NC. App. at
13, 565 at 110.

50

Respectfully submitted this the 30th day of September, 2019

PATTERSON HARKAVY LLP

?aw

Bui'ton Craige, NC Bar No. 9180
Narendra K. Ghosh, NC Bar No. 37649
Paul E. Smith, NC Bar No. 45014

100 Europa Dr., Suite 420

Chapel Hill, NC 27517

(919) 942-5200

beraige@pathlaw.com
nghosh@pathlaw.com
psmith@pathlaw.com

Counsel for Plaintg?fs

51

ARNOLD AND PORTER
KAYE SCHOLER LLP

R. Stanton Jones*

Elisabeth S. Theodore*

Daniel F. Jacobson*

William C. Perdue*

Sara Murphy D?Amico*
Graham W. White*

601 Massachusetts Avenue NW
Washington, DC 20001-3743
(202) 954-5000
stanton.jones@amo1dporter.com

PERKINS COIE LLP

Marc E. E1ias*

Aria C. Branch*

700 13th Street NW
Washington, DC 20005-3960
(202) 654?6200
melias@perkinscoie.com

Abha Khanna*

1201 Third Avenue, Suite 4900
Seattle, WA 98101?3099
(206) 359-8000
akhanna@perkinscoie.com

Counsel for Plainti?fs

*Pro Hac Vice Application Forthcoming

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a c0py of the foregoing to counsel for
Defendants North Carolina State Board of Elections and its members via e?mail, and served a
copy of the foregoing to the remaining defendants by US. mail, addressed to the following
persons at the following addresses which are the last addresses known to me:

Warren Daniel

300 N. Salisbury Street
Rm. 627

Raleigh, NC. 27603

Paul Newton

300 N. Salisbury Street
Rm. 3 12

Raleigh, NC. 27603

David R. Lewis

16 West Jones Street
Rm. 2301

Raleigh, NC. 27601

Ralph E. Hise

300 N. Salisbury St.
Rm. 300-A

Raleigh, NC. 27603

Timothy K. Moore
16 West Jones Street
Rm. 2304

Raleigh, NC. 27601

Philip E. Berger

16 West Jones Street
Rm. 2007

Raleigh, NC. 27601

This the 30th day of September, 2019.

f??na

Burton Craige, NC Bar No. 9180

52