IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
REBECCA HARPER, et al.,
Plaintiffs,
v.
REPRESENTATIVE DAVID R. LEWIS, IN
HIS OFFICIAL CAPACITY AS SENIOR
CHAIRMAN OF THE HOUSE SELECT
COMMITTEE ON REDISTRICTING, et al.
Defendants.
____________________________________

TO:

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Case No: _________

THE JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NORTH CAROLINA

Defendants Representative David R. Lewis, Senator Ralph E. Hise, Jr., Senator
Warren Daniel, Senator Paul Newton, Speaker Timothy K. Moore, and President Pro
Tempore Philip E. Berger, as agents of the General Assembly (the “General Assembly” or
“Legislative Defendants”) and the State of North Carolina, see N.C. Gen. Stat. §§ 1-72.2,
120-32.6(b) in accordance with the requirements of 28 U.S.C. § 1443(2) and 1446, hereby
give notice and remove to this court the civil action bearing the Case No.: 19-CVS-12667,
which is now pending in the General Court of Justice, Superior Court Division, Wake
County, North Carolina.
In support of this Notice of Removal, the General Assembly shows the Court as
follows:

Case 5:19-cv-00452-BO Document 5 Filed 10/14/19 Page 1 of 17

 1.

Plaintiffs initiated this action in the General Court of Justice, Superior Court

Division, Wake County, North Carolina, Civil Action No. 19-CVS-12667, on September
27, 2019, by filing the Complaint.
2.

The Legislative Defendants were served with the Summons and Complaint

on September 30, 2019. The North Carolina Department of Justice and Attorney General,
who is not a party, was served on September 27, 2019. A complete copy of all process,
pleadings, and orders served upon Legislative Defendants is attached as Exhibit 1 to this
Notice of Removal. 28 U.S.C. § 1446(a). These documents constitute the pleadings to
date.
3.

As required by 28 U.S.C. § 1446(b), this Notice of Removal is filed with this

Court within thirty (30) days of service of process on the Legislative Defendants and on
the North Carolina Department of Justice and Attorney General.
4.

The Complaint purports to allege claims under the North Carolina

Constitution.
5.

Nevertheless, removal here is appropriate under 28 U.S.C. § 1443(2).

6.

Removal is appropriate under 28 U.S.C. § 1443(2), which provides for

removal of state-court actions against state officials “for refusing to do any act on the
ground that would be inconsistent” with “any [federal] law providing for equal rights….”
7.

This provision is satisfied, and removal is appropriate, where there is “a

colorable conflict between state and federal law.” White v. Wellington, 627 F.2d 582, 587
(2d Cir. 1980) (quotations omitted). The state official’s federal-law defense need not
ultimately be meritorious so long as there is a colorable conflict between the official’s
2
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 federal-law duties under equal-rights law and the alleged state-law duties. See, e.g., New
Haven Firefighters Local 825 v. City of New Haven, 2004 WL 2381739, at *1 (D. Conn.
Sept. 28, 2004).
8.

The Complaint seeks equitable relief from all Defendants, including the

General Assembly. The equitable relief is not limited to enjoining the current congressional
redistricting plan; Plaintiffs also demand “a new congressional districting plan that
complies with” their view of the North Carolina Constitution. Complaint, Prayer for Relief
¶ (c); see also Compl. ¶ 5.
Plaintiffs’ requested relief, to be effective, will require affirmative

9.

cooperation from some agent of North Carolina. The General Assembly is the body
responsible for redistricting under the North Carolina Constitution, and Plaintiffs’ need for
equitable relief from the General Assembly stems from that role. Further, because an
official-capacity suit is, in truth, a suit against the State, and all its component parts,
Plaintiffs’ requested relief will require the affirmative cooperation of the State itself. Their
failure to name the State specifically as a party does not change the fundamental character
of their suit as one against the state for equitable relief.
10.

Affirmative cooperation can be refused. Plaintiffs’ demand for a court-

drawn map if the General Assembly does not redistrict in accord with Plaintiffs’ state-law
theory is a form of state-court coercion that triggers the possibility of refusal under 28
U.S.C. § 1443(2).
11.

Independently, Plaintiffs will seek to impose an obligation on North

Carolina, sued through its agents, to administer elections under Plaintiffs’ preferred
3
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 redistricting scheme. The General Assembly, through its officers named as Defendants
here, represents the State according to state statute. By comparison, the members of the
North Carolina Board of Ethics and Elections Enforcement are not tasked with representing
the State by any statute. The General Assembly, speaking for the State, can refuse
Plaintiffs’ demand for affirmative state cooperation in this second, independent sense.
12.

In both these independent senses, the General Assembly’s resistance to

Plaintiffs’ state-law theory qualifies as “refusing” an “act” within the meaning of 28 U.S.C.
§ 1443(2). The relevant “acts” here include both the act necessary to create new legislation
and the State’s “act” of implementing that new legislation.
13.

Section 2 of the Voting Rights Act (“VRA”) applies to the entire State of

North Carolina. VRA § 2 is a federal-law provision providing for “equal rights” within the
meaning of 28 U.S.C. § 1443(2).
14.

The Equal Protection Clause of the Constitution applies to the entire state of

North Carolina. The Equal Protection Clause is a federal-law provision providing for
“equal rights” within the meaning of 28 U.S.C. § 1443(2).
15.

A colorable conflict between state constitutional redistricting requirements

and the dictates of the Voting Rights Act and Equal Protection Clause supports removal
under Section 1443(2). Cavanagh v. Brock, 577 F. Supp. 176, 180 (E.D.N.C. 1983).
16.

Representative David R. Lewis is a state official covered under Section

1443(2). Representative Lewis is Senior Chairman of the House Select Committee on
Redistricting. Representative Lewis has been sued in this matter in his official capacity as
a representative of the General Assembly, which is alleged to have violated state-law
4
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 requirements related to redistricting and against which affirmative equitable relief is sought
requiring a new redistricting plan or, alternatively, state-court seizure of the General
Assembly’s redistricting authority. But, as described below, the affirmative relief sought
from Representative Lewis in his official capacity as a representative of the General
Assembly and the State would be inconsistent with federal law that protects racial equality
in voting.
17.

Senator Ralphs E. Hise, Jr., is a state official covered under Section 1443(2).

Senator Hise is Chairman of the Senate Committee on Redistricting. Senator Hise has been
sued in this matter in his official capacity as a representative of the General Assembly,
which is alleged to have violated state-law requirements related to redistricting and against
which affirmative equitable relief is sought requiring a new redistricting plan or,
alternatively, state-court seizure of the General Assembly’s redistricting authority. But, as
described below, the affirmative relief sought from Senator Hise in his official capacity as
a representative of the General Assembly and the State would be inconsistent with federal
law that protects racial equality in voting.
18.

Senator Warren Daniel is a state official covered under Section 1443(2).

Senator Daniel is Co-Chairman of the Senate Committee on Redistricting. Senator Daniel
has been sued in this matter in his official capacity as a representative of the General
Assembly, which is alleged to have violated state-law requirements related to redistricting
and against which affirmative equitable relief is sought requiring a new redistricting plan
or, alternatively, state-court seizure of the General Assembly’s redistricting authority. But,
as described below, the affirmative relief sought from Senator Daniel in his official
5
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 capacity as a representative of the General Assembly and the State would be inconsistent
with federal law that protects racial equality in voting.
19.

Senator Paul Newton is a state official covered under Section 1443(2).

Senator Daniel is Co-Chairman of the Senate Committee on Redistricting. Senator Newton
has been sued in this matter in his official capacity as a representative of the General
Assembly, which is alleged to have violated state-law requirements related to redistricting
and against which affirmative equitable relief is sought requiring a new redistricting plan
or, alternatively, state-court seizure of the General Assembly’s redistricting authority. But,
as described below, the affirmative relief sought from Senator Newton in his official
capacity as a representative of the General Assembly and the State would be inconsistent
with federal law that protects racial equality in voting.
20.

Speaker Timothy K. Moore is a state official covered under Section 1443(2).

Speaker Moore is Speaker of the House of Representatives. Speaker Moore has been sued
in this matter in his official capacity as a representative of the General Assembly, which is
alleged to have violated state-law requirements related to redistricting and against which
affirmative equitable relief is sought requiring a new redistricting plan or, alternatively,
state-court seizure of the General Assembly’s redistricting authority. But, as described
below, the affirmative relief sought from Speaker Moore in his official capacity as a
representative of the General Assembly and the State would be inconsistent with federal
law that protects racial equality in voting.
21.

President Philip E. Berger is a state official covered under Section 1443(2).

President Berger is President Pro Tempore of the Senate. President Berger has been sued
6
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 in this matter in his official capacity as a representative of the General Assembly, which is
alleged to have violated state-law requirements related to redistricting and against which
affirmative equitable relief is sought requiring a new redistricting plan or, alternatively,
state-court seizure of the General Assembly’s redistricting authority. But, as described
below, the affirmative relief sought from President Berger in his official capacity as a
representative of the General Assembly and the State would be inconsistent with federal
law that protects racial equality in voting.
22.

The Legislative Defendants have all been sued in their official capacities on

behalf of the General Assembly, which enacted the congressional plan challenged. They
have been sued for the purpose of obtaining affirmative relief in the form of a new plan to
by administered, under compulsion of court order, by North Carolina—which Legislative
Defendants also represent—in future elections. Plaintiffs claim that the 2016 maps violate
provisions of the North Carolina Constitution. The Prayer for Relief asks this Court to
enjoin the Legislative Defendants from taking these actions and to require the Legislative
Defendants to re-draw the 2016 plans or, alternatively, seize the Legislative Defendants’
legislative power and redistrict the state itself.
23.

As representatives of the State of North Carolina and the General Assembly,

which exercises the State’s sovereignty in the most immediate way, Legislative Defendants
are empowered to waive the State’s sovereign immunity for a suit purporting to enforce
state law against the State court. By filing this motion to remand, they waive the State’s
sovereign immunity for the purposes of this case.

7
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 24.

Both the actions Plaintiffs demand and their theories of relief create direct

conflicts with federal law guaranteeing equal protection—namely, the Voting Rights Act
and the Equal Protection Clause.
A.

The Voting Rights Act

25.

One conflict arises because one of the congressional districts challenged

satisfies the State’s obligations under the Voting Rights Act, and Plaintiffs demand that the
racial composition of this district be dramatically altered. In particular, Plaintiffs’
Complaint identifies multiple districts as containing a high percentage of Democratic Party
constituents. They refer to these districts as “packed.” But, in North Carolina, there is a
strong correlation between racial and political identity, so removing Democratic Party
constituents from these districts will necessary reduce the percentage of African American
voting-age persons.
26.

For example, paragraphs 78-82 of the Complaint attack Congressional

District 1 (“CD 1”). Plaintiffs claim that CD 1 is a “packed Democratic district.” Compl.
¶ 78. They assert that the packing is accomplished by placing the “most Democratic VTDs”
in certain counties in CD 1 instead of “more moderate and Republican VTDs.” Compl. ¶¶
80-81. The Complaint therefore calls for the legislature to replace “Democratic VTDs”
with “more moderate and Republican VTDs.”
27.

But the Legislative Defendants intend to defend this charge, inter alia, by

presenting evidence demonstrating that CD 1 is a minority “crossover” district. For
example, in Harris v. McCrory, 159 F.Supp.3d 600 (M.D.N.C. 2016), Congressman
Butterfield testified about the appropriate level of BVAP in CD 1. A copy of this testimony
8
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 is attached as Exhibit 2. Congressman Butterfield has been the U.S. Representative from
CD 1 since 2004. Ex. 2, at 160. Prior to that, he held numerous elected offices. Ex. 2, at
158-60. During private practice as a lawyer in this area of the state, Congressman
Butterfield engaged in voting rights litigation. Ex. 2, at 159. As such, he is intimately
familiar with the voting patterns in CD 1 and the extent to which racially polarized voting
affects elections. Ex. 2 at 172-75, 199-200. In Harris, Congressman Butterfield testified
that in his experience two out of three white voters in the area encompassing CD 1 would
not vote for a black candidate. Ex. 2 at 174, 199-200. In his experience, in order for black
voters to be able to elect their candidate of choice in CD 1, the district’s BVAP should
ideally be at 47% and no lower than 45%. Ex. 2 at 201-02. The current BVAP of the
district

is

44.46%

(https://www3.ncleg.gov/GIS/Download/District_Plans/DB_2016/Congress/2016_Contingent_C
ongressional_Plan_-_Corrected/Reports/DistrictStats/SingleDistAdobe/rptDistrictStats-1.pdf),

just shy of the 45% level at which Congressman Butterfield testified is necessary for black
voters to elect their candidate of choice. As such, the district is protected from being
intentionally dismantled under VRA § 2.
28.

To be sure, race was not the predominant factor in the creation of CD1, but

the VRA does not turn on motive, and recent Supreme Court precedent anticipates that
VRA districts should be drawn with minimal or no attention to racial data. A VRA plaintiff
would not have to prove anything with respect to the intent of how CD1 was drawn to
prove a VRA violation, and intent has no bearing on whether the VRA protects it from
being dismantled, as Plaintiffs demand.
9
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 29.

Although VRA § 2 cannot be used as a sword to require states to create

crossover districts, the Supreme Court has made clear that states may create crossover
districts “as a matter of legislative choice or discretion” in order “to choose their own
method of complying with the Voting Rights Act.” Bartlett v. Strickland, 556 U.S. 1, 23
(2009). Thus, creating a crossover district is a valid shield against a Voting Rights Act
claim that might otherwise by meritorious. CD 1, as a crossover district, therefore complies
with the Voting Rights Act and precludes a valid claim of liability under a law guaranteeing
equality.
30.

Plaintiffs’ theory of state law—which the Legislative Defendants contest—

would require the Legislative Defendants to drop the African American voting-age
population in CD 1 and thereby dismantle the district. It would no longer be a crossover
district. Importantly, Plaintiffs are not contending that CD 1 should be a majority-minority
district. To the contrary, they demand that African American voting-age population be
removed from the district.
31.

The need to drop CD1’s BVAP results from the correlation between race and

political affiliation in North Carolina. Removing Democratic residents of CD1 will
necessarily result in dropping its BVAP. Although polarized voting has been alleged to be
in decline in some portions of North Carolina, CD1 is in the northeastern part of the state,
populated by white voters who lean Republican. Given these dynamics, Congressman
Butterfield’s testimony about the appropriate level of BVAP in CD1 is credible and likely
to be born out be the evidence in this case.

10
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 32.

Legislative Defendants’ Voting Rights Act concerns are not merely

speculative. Instead, Legislative Defendants’ concerns are bolstered by two recent cases:
Common Cause v. Rucho, 139 S. Ct. 2484 (2019) (“Rucho”) and Common Cause v. Lewis,
2019 WL 4569584 (N.C.Super.) (Sept. 3, 2019) (“Lewis”).
33.

In Lewis, a three-judge panel of the Wake County Superior Court entered a

judgment finding that certain North Carolina legislative districts violated the state-law
theory Plaintiffs posit in their Complaint in this case. In concluding that the challenged
districts were supposedly partisan “outliers”, the court credited and relied upon the expert
analysis by Dr. Jowei Chen. 2019 WL 4569584, at *17-*28. Dr. Chen created an algorithm
that he used to draw thousands of simulated legislative districts. Dr. Chen’s algorithm
relied only on neutral, non-partisan criteria to draw the simulated districts. Dr. Chen’s
simulated districts therefore embodied the principles Plaintiffs contend apply under the
North Carolina Constitution. See id. at *18-*28.
34.

In Common Cause v. Rucho, a challenge to the very same congressional

redistricting plan at issue in this case, the United States Supreme Court recently decided
that partisan gerrymandering claims present a nonjusticiable issue for federal courts. 139
S. Ct. at 2506-07. In the district court proceedings, however, Dr. Chen used his algorithm
method to draw thousands of simulated congressional plans for North Carolina. As in
Lewis, Dr. Chen’s algorithm relied only on neutral, non-partisan criteria to draw the
simulated districts. As in Lewis, Dr. Chen’s simulated districts therefore embody the
principles Plaintiffs contend apply under the North Carolina Constitution. 318 F.Supp.3d
777, 874-877 (2018).
11
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 35.

On September 30, 2019, Plaintiffs in the instant case filed a motion for

preliminary injunction. In support of that motion, Plaintiffs attached a new expert report
from Dr. Chen analyzing the 2016 Congressional Plan. A copy of Dr. Chen’s report is
attached as Exhibit 3. In his report, Dr. Chen states that his analysis in the instant case is
based upon the same simulated districts he created in Rucho. Exhibit 3, at ¶¶ 7-8.
36.

In Lewis, the Superior Court’s Decree ordered the General Assembly to

redraw the challenged legislative districts according to Plaintiffs’ state-law theory. To
satisfy this state-court command, the General Assembly adopted maps simulated by Dr.
Chen, with minor modifications. As a result, the General Assembly incorporated the
political and racial outcomes that Dr. Chen’s simulated maps achieved. It had no choice
but to do so in some way, given the state-court order to redraw.1
37.

An order from the state court to apply neutral redistricting criteria for the

purpose of complying with Plaintiffs’ desire to replace “Democratic VTDs” with more
“moderate and Republican VTDs” will destroy CD 1’s status as a crossover district. This
is not speculative as evidence from Dr. Chen in Rucho demonstrates. As explained above,
Dr. Chen created thousands of non-partisan congressional maps using his computer

1

In that instance Plaintiffs presented—only at the remedial stage—evidence that they claimed
undercut any showing of polarized voting. That evidence, however, is not relevant here. CD1
comprises the following counties: Durham (partial), Granville, Vance, Warren, Halifax,
Northampton, Hertford, Gates, Bertie, Washington, Martin, Edgecombe, Pitt (partial), and
Wilson (partial). Out of all these counties, the Plaintiffs’ VRA filing in Lewis covered only Pitt
and therefore lacks probative value for assessing voting patterns in CD1. Other evidence in the
Lewis case also did not address all these counties or the most probative elections. No evidence
exists, to the General Assembly’s knowledge, undercutting Congressman Butterfield’s first-hand
knowledge and sworn testimony that a 45% BVAP is necessary to create an equal-opportunity
district.
12
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 algorithm. According to evidence admitted at the Rucho trial, not a single one of Dr.
Chen’s thousands of maps drew a district in the area of CD 1 with a BVAP at or above
45% or even 44%. Most of the districts were at a BVAP meaningfully below the BVAP
level Congressman Butterfield testified would be necessary to preserve the minority ability
to elect in CD1. See DX5038, attached as Exhibit 4. Moreover, as demonstrated by
DX5038, only 262 of Dr. Chen’s thousands of maps drew any district with a BVAP of at
least 40%. Many of the maps drew districts in the area of CD 1 that were below 40%.
Therefore, it is highly likely that the relief requested by the Plaintiffs in this case will
require the dismantling of CD 1 as a crossover district.
38.

The General Assembly’s contention that CD 1 preserves African American

voting strength to ensure equality in voting is a defense to Plaintiffs’ state-law challenge.
To satisfy Plaintiffs’ state law theory, a map with their criteria and the resulting political
and racial impact must be adopted. There appears to be no way to satisfy Plaintiffs’ statelaw theory and create a district in northeast North Carolina in which black residents can
maintain an equal opportunity to elect their preferred candidate of choice. Section 1443(2)
creates a federal forum for this defense. Under Section 1443(2), the defense need not be
proved as a factual matter at this time. The defense is colorable and supports removal.
B.

The Equal Protection Clause

39.

A conflict also arises between Plaintiffs’ asserted state-law theories and

Legislative Defendants’ obligations under federal law because affording Plaintiffs the
relief they request would require intentionally dismantling this crossover district.

13
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 40.

But intentionally dismantling this district would violate the equal-protection

prohibition on intentionally “cracking” communities composed of racial minorities. This
too is a direct conflict between the alleged state-law duties Plaintiffs assert (wrongly, in
the General Assembly’s view) and the dictates of a federal law guaranteeing equality.
Bartlett v. Strickland, 556 U.S. 1, 24 (2009) (“And if there were a showing that a State
intentionally drew district lines in order to destroy otherwise effective crossover districts,
that would raise serious questions under both the Fourteenth and Fifteenth Amendments.”);
see also Reno v. Bossier Parish School Bd., 520 U. S. 471, 481–482 (1997).
41.

The racial composition of CD1 is something the General Assembly, or a

court, cannot help but know, and it would be readily apparent that, in drawing it as Plaintiffs
demand, the General Assembly would be cracking the black community. The General
Assembly would then have a choice: (1) draw it at 45% BVAP or above in violation of
Plaintiffs’ state-law theory, (2) use racial data with a predominantly racial purpose to
achieve a “non-packed” district at 45% BVAP by intentionally excluding white Democratic
voters, or (3) draw it at 45% BVAP without that predominantly racial purpose and violate
Plaintiffs’ state-law theory. Options (1) and (2) violate the Equal Protection Clause; option
(3) violates Plaintiffs’ state-law theory. That is a “conflict.”
42.

Under Section 1443(2), these defenses need not be proved as a factual matter

at this time. The defenses are colorable and support removal.2

2

The General Assembly acknowledges that a judge in this district earlier this year remanded a
removal from Legislative Defendants in the Lewis case that was also based upon 28 U.S.C.
§ 1443(2). Common Cause v. Lewis, 358 F.Supp.3d 505 (2019). Legislative Defendants
respectfully disagreed with that decision and exercised their right to appeal it. Common Cause v.
14
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 43.

Consistent with 28 U.S.C. § 1446(d), the Legislative Defendants are

concurrently filing a Notice of Filing of Notice of Removal with the Clerk of Court for the
General Court of Justice, Superior Court Division, Wake County, North Carolina, a copy
of which is attached hereto as Exhibit 5. Consistent with Local Rule 5.3 a Civil Cover
Sheet is attached hereto as Exhibit 6, and a Supplemental Removal Cover Sheet, is
attached hereto as Exhibit 7.
44.

Venue is proper in this District under 28 U.S.C. § 1441(a) because this

District embraces the place where the removed state court action is pending.
45.

Consent from the other Defendants in this action who have not (at least as of

yet) sought removal is unnecessary because consent is only required when “a civil action
is removed solely under section 1441(a).” 28 U.S.C. § 1446(b)(2)(A). That is not the case
here.
WHEREFORE, the Legislative Defendants give notice that this action has been
removed to the United States District Court for the Eastern District of North Carolina.

Respectfully submitted, this the 14th day of October, 2019.

Lewis, No. 19-1091 (4th Cir. Jan. 24, 2019). As of the date of the instant removal petition, the
Fourth Circuit has not yet ruled on the merits of the appeal. Legislative Defendants believe that
the district court decision was erroneous for the reasons stated in their appellate briefing and that
the instant removal is therefore warranted by existing law or a nonfrivolous argument for
extending, modifying, or reversing the existing district court opinion, or establishing new law.
15
Case 5:19-cv-00452-BO Document 5 Filed 10/14/19 Page 15 of 17

 OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
By: /s/ Phillip J. Strach
Phillip J. Strach
N.C. State Bar No. 29456
Michael McKnight
N.C. State Bar No. 36932
phil.strach@ogletreedeakins.com
michael.mcknight@ogletreedeakins.com
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Telephone: (919) 787-9700
Facsimile: (919) 783-9412
Counsel for the Legislative Defendants

16
Case 5:19-cv-00452-BO Document 5 Filed 10/14/19 Page 16 of 17

 CERTIFICATE OF SERVICE
It is hereby certified that on this date the foregoing Notice of Removal was duly served
upon all other parties to this matter by mailing a copy thereof, via Federal Express addressed to:
Burton Craige,
Narendra K. Ghosh
Paul E. Smith
100 Europa Dr., Suite 420
Chapel Hill, NC 27517
(919) 942-5200
bcraige@pathlaw.com

R. Stanton Jones
David P. Gersch
Elisabeth S. Theodore
Daniel F. Jacobson
601 Massachusetts Ave. NW
Washington, DC 20001-3761
(202) 942-5000
Stanton.jones@arnoldporter.com

Counsel for Plaintiffs
Marc E. Elias
Aria C. Branch
700 13th Street NW
Washington, DC 20005-3960
(202) 654-6200
melias@perkinscoie.com

Paul Cox
Stephanie Brennan
North Carolina Department of
Justice
114 W. Edenton St
Raleigh, NC 27603
(919) 716-6932
pcox@ncdoj.gov

Abha Khanna
1201 Third A venue
Suite 4900
Seattle, WA 98101-3099
(206) 359-8000

Counsel for the State Board of
Elections

Counsel for Plaintiffs
DATED this the 14th day of October, 2019.

OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
By: Phillip J. Strach
Phillip J. Strach (N.C. Bar No. 29456)
4208 Six Forks Road, Suite 1100
Raleigh, NC 27609
Telephone: 919.787.9700
Facsimile: 919.783.9412
Phil.strach@ogletree.com
Attorneys for Legislative Defendants
40326283.1

17
Case 5:19-cv-00452-BO Document 5 Filed 10/14/19 Page 17 of 17

  

 

Exhibit 1 

 

 

 

Case Document 5-1 Filed 10/14/19 Page 1 of 662

q I

/
1...1

STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
Docket No.

REBECCA HARPER; AMY CLARE
OSEROFF; DONALD RUMPH; JOHN
BALLA; RICHARD R. CREWS; LILY
NICOLE QUICK; GETTYS COHEN JR.;
SHAWN RUSH; JACKSON THOMAS
DUNN, JR.; MARK S. PETERS; JOSEPH
THOMAS GATES; KATHLEEN BARNES;
VIRGINIA WALTERS BRIEN; DAVID
DWIGHT BROWN,

VERIFIED COMPLAINT
(Three-Judge Court Pursuant to
N.C. Gen. Stat § 1-267.1)

Plaintiffs,
v.
REPRESENTATIVE DAVID R. LEWIS, IN
HIS OFFICIAL CAPACITY AS SENIOR
CHAIR OF THE HOUSE STANDING
COMMITTEE ON REDISTRICTING;
RALPH HISE, IN HIS OFFICIAL
CAPACITY AS CO-CHAIR OF THE
SENATE STANDING COMMITTEE ON
REDISTRICTING; WARREN DANIEL, IN
HIS OFFICIAL CAPACITY AS CO-CHAIR
OF THE SENATE STANDING
COMMITTEE ON REDISTRICTING; PAUL
NEWTON, IN HIS OFFICIAL CAPACITY
AS CO-CHAIR OF THE SENATE
STANDING COMMITTEE ON
REDISTRICTING; SPEAKER OF THE
NORTH CAROLINA HOUSE OF
REPRESENTATIVES TIMOTHY K.
MOORE; PRESIDENT PRO TEMPORE OF
THE NORTH CAROLINA SENATE PHILIP
E. BERGER; THE NORTH CAROLINA
STATE BOARD OF ELECTIONS; DAMON
CIRCOSTA, IN HIS OFFICIAL CAPACITY
AS CHAIRMAN OF THE NORTH
CAROLINA STATE BOARD OF

-11
r
-o

(7)

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 2 of 662

 ELECTIONS; STELLA ANDERSON, IN
HER OFFICIAL CAPACITY AS
SECRETARY OF THE NORTH CAROLINA
STATE BOARD OF ELECTIONS;
KENNETH RAYMOND, IN HIS OFFICIAL
CAPACITY AS MEMBER OF THE NORTH
CAROLINA STATE BOARD OF
ELECTIONS; JEFF CARMON, IN HIS
OFFICIAL CAPACITY AS MEMBER OF
THE NORTH CAROLINA STATE BOARD
OF ELECTIONS; DAVID C. BLACK, IN HIS
OFFICIAL CAPACITY AS MEMBER OF
THE NORTH CAROLINA STATE BOARD
OF ELECTIONS,
Defendants.

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 3 of 662

 Plaintiffs, complaining of Defendants, say and allege:

INTRODUCTION
1.

“[T]he constitutional rights of North Carolina citizens are infringed when the
"[T]he

General Assembly . . . draws district maps with a predominant intent to favor voters aligned with

voters.” Common Cause v. Lewis, 18-CVS-014001,
one political party at the expense of other voters."
“strikes at the heart of the
slip. op. at 6 (N.C. Sup. Ct. Sept. 3, 2019). Partisan gerrymandering "strikes
Clause” of North Carolina's
Carolina’s Constitution, a provision with no federal analogue
Free Elections Clause"
“guarantees that all elections must be conducted freely and honestly to ascertain, fairly and
that "guarantees
truthfully, the will of the People."
People.” Id. at 9, 305. Partisan gerrymandering also violates the North
Constitution’s guarantees of equal protection and free expression, both of which
Carolina Constitution's
provide broader protections for voting rights than their federal counterparts. Id. at 307-31.
2.

This case concerns North Carolina's
Carolina’s 2016 congressional map, which may be the

most extreme and brazen partisan gerrymander in American history. There is no dispute that the
2016 congressional map reflects an extreme and intentional effort to maximize Republican

“Partisan
advantage. Legislative Defendants proudly admitted it at the time. They adopted "Partisan
Advantage” as an official criterion, directing that the districts be constructed to "maintain
“maintain the
Advantage"
Carolina’s congressional delegation,"
delegation,” namely "10
“10 Republicans
current partisan makeup of North Carolina's
Democrats.” Legislative Defendants admitted that they instructed their mapmaker, Dr.
and 3 Democrats."
Thomas Hofeller, to use partisan voting histories to rig the district lines to entrench a 10-3
Republican advantage. Defendant Representative David Lewis asserted that the map was drawn

“electing Republicans is better than electing Democrats,"
Democrats,” and
in this manner because he believes "electing
the only reason Legislative Defendants sought a 10-3 Republican advantage was because they

“did not believe it would be possible to draw a map with 11 Republicans and 2 Democrats."
Democrats.”
"did

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 4 of 662

 3.

Hofeller’s help, Legislative Defendants succeeded in rigging North
With Dr. Hofeller's

Carolina’s congressional elections. Republicans have won 10 of 13 seats in both elections under
Carolina's
the 2016 Plan, including in the blue wave of 2018 when Democratic congressional candidates
received a majority of the statewide vote after adjusting for an uncontested race. The 2016 map

“the will of the People."
People.” Common Cause, 18-CVS-014001, slip. op. at 9, 306.
is impervious to "the
4.

In 2019, in a case involving the same congressional map at issue here, the U.S.

Supreme Court held that partisan gerrymandering claims are not justiciable under the federal
federal
constitution. See Rucho v. Common Cause, 139 S. Ct. 2484 (2019). But in so holding, the Court

made clear that the solution to partisan gerrymandering lies with the states, because "[p]rovisions
“[p]rovisions
in state statutes and state constitutions can provide standards and guidance for state courts to

apply.” Id. at 2507. The courts of this State have now held that the North Carolina Constitution
apply."
three-judge
provides precisely such standards and guidance. Just weeks ago, a three
judge panel of this
Carolina’s state legislative maps as unlawful partisan gerrymanders in
Court invalidated North Carolina's
Carolina’s Free Elections Clause, Equal Protection Clause, and Freedom of
violation of North Carolina's
Speech and Assembly Clauses. See Common Cause, 18-CVS-014001, slip. op. at 298-331.
5.

Carolina’s 2016
As this Court explained in Common Cause v. Lewis, North Carolina's

“arose in remarkably similar circumstances"
circumstances” as the state legislative maps that
congressional map "arose
the Court struck down and ordered redrawn. Id. at 298. The 2016 congressional map should

now meet the same fate as the unconstitutional and invalidated state legislative maps. The facts
of this case are undisputed, and the law of North Carolina is now settled. This Court should
invalidate the gerrymandered 2016 congressional map immediately and order a new, fair map for
use in the 2020 elections.

2
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 5 of 662

 PARTIES
A.

Plaintiffs

6.

Plaintiff Amy Clare Oseroff is a teacher residing in Greenville, North Carolina,

within Congressional District 1. Ms. Oseroff is a registered Democrat who has consistently
voted for Democratic candidates for the U.S. House of Representatives. The General Assembly
packed the most heavily Democratic areas in Pitt County and Wilson County into District 1 to
create an overwhelmingly Democratic district, ensuring that nearby Districts 2 and 3 would favor
Republicans. In 2018, the Democratic candidate won District 1 with almost 70% of the vote.

7.

Plaintiff Rebecca Harper is a real estate agent residing in Cary, North Carolina,

within Congressional District 2. Ms. Harper is a registered Democrat who has consistently voted
for Democratic candidates for the U.S. House of Representatives. The General Assembly
carefully avoided the most Democratic areas of Wake County and Wilson County and cracked
the Democratic voters of Johnston County to create a district that favors Republicans. In 2018,
the Republican candidate won District 2 with nearly 53% of the vote.

8.

Plaintiff Donald Rumph is an Army and Air Force combat veteran and retired

registered nurse residing in Greenville, North Carolina, within Congressional District 3.
Mr. Rumph is a registered Democrat who has consistently voted for Democratic candidates for
the U.S. House of Representatives. District 3 is a Republican district because the General

Assembly packed the most Democratic voters from Pitt County into the adjoining District 1. In
2018, the Republican candidate ran unopposed.

9.

Plaintiff John Balla is a digital marketing strategist residing in Raleigh, North

Carolina, within District 4. Mr. Balla is a registered Democrat who has consistently voted for
Democratic candidates for the U.S. House of Representatives. District 4 is a packed Democratic

3
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 6 of 662

 County’s most Democratic
district that uses a strip of southern Durham County to connect Wake County's
areas with the heavily Democratic areas in Orange County. In 2018, the Democratic candidate
won District 4 with over 75% of the vote.
10.

Plaintiff Richard R. Crews is a retired stock broker residing in Newland, North

Carolina, within Congressional District 5. Mr. Crews is a registered Democrat who has
consistently voted for Democratic candidates for the U.S. House of Representatives. District 5
cracks Democratic voters in Forsyth County, connecting them with more Republican
communities in Winston-Salem rather than grouping them with neighboring Guilford County. In

2018, the Republican candidate won District 5 with over 57% of the vote.
11.

Plaintiff Lily Nicole Quick is a homemaker residing in Greensboro, North

Carolina, within Congressional District 6. Ms. Quick is a registered Democrat who has
consistently voted for Democratic candidates for the U.S. House of Representatives. The
General Assembly cracked District 6 by splitting Greensboro and Guilford County to ensure that
District 6 would favor Republicans. In 2018, the Republican candidate won District 6 with just
over 56% of the vote.
12.

Plaintiff Gettys Cohen Jr. is a dentist residing in Smithfield, North Carolina,

within Congressional District 7. Dr. Cohen is a registered Democrat who has consistently voted
for Democratic candidates for the U.S. House of Representatives. The General Assembly

cracked Democratic voters in District 7, in part by splitting Johnston County's
County’s Democratic voters
County’s most Democratic voters. In 2018, the Republican candidate won District 7
and Bladen County's
with over 56% of the vote.
13.

Plaintiff Shawn Rush is part owner of a marketing firm and a Meals on Wheels

organizer residing in East Spencer, North Carolina, within Congressional District 8. Mr. Rush is

4
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 7 of 662

 a registered Democrat who has consistently voted for Democratic candidates for the U.S. House

Fayetteville’s
of Representatives. The General Assembly manipulated District 8 by cracking Fayetteville's
Democratic voters between Districts 8 and 9. In 2018, the Republican candidate won with
roughly 55% of the vote.
14.

Plaintiff Jackson Thomas Dunn, Jr. is a retired attorney and law professor residing

in Charlotte, North Carolina, within Congressional District 9. Mr. Dunn is a registered Democrat
who has consistently voted for Democratic candidates for the U.S. House of Representatives. As
with District 8, the General Assembly manipulated District 9 to be as favorable as possible for

Republicans, with the Republican candidate winning by two percentage points in the 2019
special election in this district.
15.

Plaintiff Mark S. Peters is a retired physician assistant residing in Fletcher, North

Carolina, within Congressional District 10. Mr. Peters is registered as an unaffiliated voter and
has consistently voted for Democratic candidates for the U.S. House of Representatives. In

Asheville’s Democratic voters between
drawing the 2016 maps, the General Assembly cracked Asheville's
Districts 10 and 11 to make each district more favorable to Republican candidates. In the 2018
elections, the Republican candidate won District 10 with over 59% of the vote.
16.

Plaintiff Joseph Thomas Gates is a former Colonel in the Air Force and a retired

information technology project manager residing in Weaverville, North Carolina, within

Congressional District 11. Mr. Gates is a registered unaffiliated voter who has consistently voted
for Democratic candidates for the U.S. House of Representatives. As explained above, the
General Assembly made District 11 as favorable as possible for Republicans by cracking
Democratic voters between Districts 10 and 11. In 2018, the Republican candidate won District
11 with over 60% of the vote.

5
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 8 of 662

 17.

Plaintiff Kathleen Barnes is the owner of a small publishing company residing in

Brevard, North Carolina, within Congressional District 11. Ms. Barnes is a registered Democrat
who has consistently voted for Democratic candidates for the U.S. House of Representatives. As
explained above, the General Assembly made District 11 as favorable as possible for
Republicans by cracking Democratic voters between Districts 10 and 11. In 2018, the
Republican candidate won District 11 with over 60% of the vote.
18.

Plaintiff Virginia Walters Brien is a sales manager residing in Charlotte, North

Carolina, within Congressional District 12. Ms. Brien is a registered unaffiliated voter who has

consistently voted for Democratic candidates for the U.S. House of Representatives. District 12
is a packed Democratic district. In 2018, the Democratic candidate won District 12 with over
73% of the vote.
19.

Plaintiff David Dwight Brown is a retired computer systems analyst residing in

Greensboro, North Carolina, within Congressional District 13. Mr. Brown is a registered
Democrat who has consistently voted for Democratic candidates for the U.S. House of
Representatives. The General Assembly ensured that Republicans were favored in District 13 by
cracking the Guilford County Democratic voters and grouping them with overwhelmingly
Republican voters in nearby counties. In 2018, the Republican candidate won District 13 with
over 53% of the vote.
B.

Defendants

20.

Defendant David R. Lewis is a member of the North Carolina House of

Representatives and currently serves as the Senior Chair of the House Standing Committee on
Redistricting. In 2016, Representative Lewis served as Chairman of the North Carolina House

6
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 9 of 662

 Redistricting Committee for the 2016 Extra Session and Co-Chairman of the Joint Select
Committee on Congressional Redistricting. Defendant Lewis is sued in his official capacity only.
21.

Defendant Ralph E. Hise, Jr. is a member of the North Carolina Senate and

currently serves as a co-Chair of the Senate Standing Committee on Redistricting. Defendant
Hise is sued in his official capacity only.
22.

Defendant Warren Daniel is a member of the North Carolina Senate and currently

serves as a co-Chair of the Senate Standing Committee on Redistricting. Defendant Daniel is
sued in his official capacity only.

23.

Defendant Paul Newton is a member of the North Carolina Senate and currently

serves as a co-Chair of the Senate Standing Committee on Redistricting. Defendant Newton is
sued in his official capacity only.
24.

Defendant Timothy K. Moore is the Speaker of the North Carolina House of

Representatives. Defendant Moore is sued in his official capacity only.
25.

Defendant Philip E. Berger is the President Pro Tempore of the North Carolina

Senate. Defendant Berger is sued in his official capacity only.
26.

Defendant North Carolina State Board of Elections is an agency responsible for

the regulation and administration of elections in North Carolina.
27.

Defendant Damon Circosta is the Chair of the North Carolina State Board of

Elections. Mr. Circosta is sued in his official capacity only.
28.

Defendant Stella Anderson is the Secretary of the North Carolina State Board of

Elections. Ms. Anderson is sued in her official capacity only.
29.

Defendant Ken Raymond is a member of the North Carolina State Board of

Elections. Mr. Raymond is sued in his official capacity only.

7
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 10 of 662

 30.

Defendant Jeff Carmon III is a member of the North Carolina State Board of

Elections. Mr. Carmon is sued in his official capacity only.
31.

Defendant David C. Black is a member of the North Carolina State Board of

Elections. Mr. Black is sued in his official capacity only.
JURISDICTION AND VENUE
32.

This Court has jurisdiction of this action pursuant to Articles 26 and 26A of

Chapter 1 of the General Statutes.
33.

Under N.C. Gen. Stat. § 1-81.1, the exclusive venue for this action is the Wake

County Superior Court.
34.

three-judge
Under N.C. Gen. Stat. § 1-267.1, a three
judge court must be convened because

this action challenges the validity of redistricting plans enacted by the General Assembly.
FACTUAL ALLEGATIONS
A.

National Republican Party Officials Target North Carolina for Partisan
Gerrymandering Prior to the 2010 Elections

35.

In the years leading up to the 2010 decennial census, national Republican leaders

undertook a sophisticated and concerted effort to gain control of state governments in 13 critical
swing states such as North Carolina. The Republican State Leadership Committee (RSLC) codenamed the plan "the
“the REDistricting Majority Project"
Project” or "REDMAP."
“REDMAP.” REDMAP's
REDMAP’s goal was to

“control[] the redistricting process in . . . states [that] would have the greatest impact on
"control[]
drawn”
determining how both state legislative and congressional district boundaries would be drawn"
RSLC’s REDMAP website explained that fixing these district lines in
after the 2010 census. The RSLC's
“solidify conservative policymaking at the state level and maintain a
favor of Republicans would "solidify
decade.”
Republican stronghold in the U.S. House of Representatives for the next decade."

8
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 11 of 662

 36.

“target state."
state.” REDMAP aimed to flip both
North Carolina was a key REDMAP "target

chambers of the North Carolina General Assembly from Democratic to Republican control.
37.

To spearhead its efforts in North Carolina, the RSLC enlisted the most influential

conservative donor in North Carolina, Art Pope. Together, the RSLC and Pope targeted 22 races
in the North Carolina House and Senate. Pope helped create a new non-profit organization

“Real Jobs NC"
NC” to finance spending on the races, and the RSLC donated $1.25 million to
called "Real
this new group. Pope himself made significant contributions; in total, Pope, his family, and
groups backed by him spent $2.2 million on the 22 targeted races. This represented three-

quarters of the total spending by all independent groups in North Carolina on the 2010 state
legislative races.
38.

The money was well spent. Republicans won 18 of the 22 races the RSLC

targeted, giving Republicans control of both the House and Senate for the first time since 1870.
B.

Republican Mapmakers Create the 2011 Plan from Party Headquarters
With the Intent to Advantage Republicans and Disadvantage Democrats

39.

Following the 2010 election, the House and Senate each established redistricting

committees that were jointly responsible for preparing a congressional redistricting plan.
Representative David Lewis, in his capacity as the Senior Chair of the House Redistricting
Committee, and Senator Robert Rucho, in his capacity as Senior Chair of the Senate
Redistricting Committee, were responsible for developing the proposed congressional districting
plan (the "2011
“2011 Plan").
Plan”).
40.

The House and Senate Redistricting Committees engaged Dr. Thomas Hofeller,

who also served on a REDMAP redistricting team , to draw the 2011 Plan. Dr. Hofeller and his
team drew the 2011 Plan at the North Carolina Republican Party headquarters in Raleigh using

mapmaking software licensed by the North Carolina Republican Party.

9
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 12 of 662

 41.

Legislative Defendants did not make Dr. Hofeller available to Democratic

members of the General Assembly during the 2011 redistricting process, nor did Dr. Hofeller
communicate with any Democratic members in developing the 2011 Plan.
42.

Representative Lewis and Senator Rucho, both Republicans, orally instructed Dr.

Hofeller regarding the criteria he should follow in drawing the new plan. Dr. Hofeller later

“create as many districts as possible in
testified that the Committee Chairs instructed him to "create
office.” Deposition of Thomas
which GOP candidates would be able to successfully compete for office."
(“Hofeller Dep.")
Dep.”) at 123:8-23 (Jan. 24, 2017). Following these instructions, Dr.
Hofeller ("Hofeller
“minimize the number of districts in which Democrats would have an
Hofeller sought to "minimize
opportunity to elect a Democratic candidate.”
candidate." Hofeller Dep. at 123:1-7. Dr. Hofeller consulted

“political voting history"
history” as reflected in "past
“past election results,"
results,” which he testified is "the
“the most
"political
important information in trying to give one party or the other a partisan advantage in the

process,” because it is "the
“the best predictor of how a particular geographic area is
redistricting process,"
vote” in future elections. Hofeller Dep. at 14:7-15:14, 16:8-12, 132:14-134:13.
likely to vote"
43.

Dr. Hofeller sought to minimize the opportunities for Democratic voters to elect

Democratic representatives by using past election data to concentrate as many Democratic voters
as possible into Congressional Districts 1, 4, and 12. See Hofeller Dep. at 127:19-128:6. In his

“diminished the opportunity to
testimony, Dr. Hofeller admitted that the resulting 2011 Plan "diminished
elect a Democratic candidate in the districts in which [he] increased Republican voting strength."
strength.”
See Hofeller Dep. at 128:17-21.
44.

The scheme worked. North Carolina conducted two congressional elections using

the 2011 Plan, both of which handed outsized power to Republican congressional candidates. In
2012, Republicans won a minority of the statewide congressional vote but won 9 of the 13 seats.

10
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 13 of 662

 Year

2012
2014

C.

45.

North Carolina State-Wide
Votes in U.S. House Elections
Percentage of
Percentage of
Votes Received Votes Received
by Democratic
by Republican
Congressional
Congressional
Candidates
Candidates
51%
49%
46%

54%

Representatives Elected to U.S.
House for North Carolina
Percentage of
Percentage of
Seats Won by
Seats Won by
Democratic
Republican
Congressional
Congressional
Candidates
Candidates
69% (9 of 13)
31% (4 of 13)
23% (3 of 13)

77% (10 of 13)

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

three-judge
On February 5, 2016, a three
judge federal district court struck down the 2011

Amendment’s Equal Protection
Plan as racially gerrymandered in violation of the Fourteenth Amendment's
Clause. See Harris v. McCrory, 159 F. Supp. 3d 600 (M.D.N.C. 2016). The Court ordered the
General Assembly to draw a new congressional map.
46.

At that time, Republicans held supermajority control of both chambers of the

North Carolina General Assembly, and thus had the power to draw the new congressional district
lines unilaterally. Representative Lewis and Senator Rucho again took charge of the mapmaking
process, and again engaged Dr. Hofeller to draw the remedial congressional plan.
47.

Hofeller’s home, Representative Lewis
On February 9, 2016, in a meeting at Dr. Hofeller's

and Senator Rucho gave Dr. Hofeller oral instructions regarding the criteria he should use in
drawing the remedial plan, directing him to use political data to create the new districts. This
political data included precinct-level election results from all statewide elections, excluding

presidential elections, dating back to January 1, 2008. Representative Lewis and Senator Rucho
specifically instructed Dr. Hofeller to use this partisanship data to draw a map that would ensure
10 Republican seats and 3 Democratic seats. See Deposition of Representative David Lewis

11
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 14 of 662

 ("Lewis
(“Lewis Dep.")
Dep.”) at 162:24-163:7, 166:13-169:1 (Jan. 26, 2017); Hofeller Dep. at 175:19-23,
178:14-20, 188:19-190:2.
48.

Working on his personal computer, Dr. Hofeller sought to achieve Representative

Lewis and Senator Rucho's
Rucho’s partisan objectives through the use of a partisanship formula he
Hofeller’s
created to score every voting tabulation district (VTD) in North Carolina. Dr. Hofeller's
partisanship formula measured the average Democratic and Republican vote share in each VTD
across the following seven statewide elections: the 2008 Gubernatorial, U.S. Senate, and
Commissioner of Insurance elections; the 2010 U.S. Senate election; the 2012 Gubernatorial and

Commissioner of Labor elections; and the 2014 U.S. Senate election.
49.

Dr. Hofeller testified that he used the averaged results from these seven elections

“to get a pretty good cross section of what the past vote had been,"
been,” Hofeller Dep. at 212:16"to
“[t]o give [him] an indication of the two-party partisan characteristics of VTDs,"
VTDs,”
213:9, and "[t]o
(“Hofeller Dep. II”)
Deposition of Thomas Hofeller ("Hofeller
II") at 267:5-6 (Feb. 10, 2017). Dr. Hofeller said
“he had drawn numerous plans in the state of North Carolina over decades,"
decades,” and that in his
that "he
“the underlying political nature of the precincts in the state does not change no
experience, "the
it.” Trial Testimony of Thomas Hofeller ("Hofeller
(“Hofeller
matter what race you use to analyze it."
Testimony”)
Testimony") at 525:6-10, Common Cause v. Rucho, No. 1:13-cv-949, 2018 WL 421334
(M.D.N.C. Sept. 4, 2018), vacated by Rucho v. Common Cause, 139 S. Ct. 2484 (2019); see

Hofeller Dep. at 149:5-18. "So
“So once a precinct is found to be a strong Democratic precinct,"
precinct,” Dr.
“it’s probably going to act as a strong Democratic precinct in every
Hofeller explained, "it's
precincts.” Hofeller Testimony at
subsequent election. The same would be true for Republican precincts."
525:14-17.

12
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 15 of 662

 50.

As he drew the district lines in the Maptitude software program, Dr. Hofeller

color-coded VTDs on his screen based on his partisanship formula. Dr. Hofeller admitted that he

“to one congressional district or
used this partisan color-coding to guide him in assigning VTDs "to
another,” using red to show VTDs where voter history data was "the
“the most Democratic"
Democratic” and dark
another,"
“the most Republican."
Republican.” Hofeller Dep. at 102:14-104:22, 106:23-107:1.
blue for areas that were "the
He further admitted that he similarly used his partisanship formula to assess the partisan
performance of draft plans as a whole. Hofeller Dep. II at 282:1-7.

51.

Dr. Hofeller testified that he conveyed to Representative Lewis his assessment of

the partisan performance of districts for which the partisan result wasn't
wasn’t "really
“really obvious."
obvious.”
“[n]early
Hofeller Dep. II at 290:17-25. Representative Lewis admitted in sworn testimony that "[n]early
time” he reviewed Dr. Hofeller's draft plans, Representative Lewis assessed the plans'
plans’
every time"
Carolina’s 2014 Senate race between Senator
partisan performance using the results from North Carolina's
Thom Tillis and former Senator Kay Hagan, because it was "in
“in [his] mind the closest political
money.” Lewis Dep.
race with equally matched candidates who spent about the same amount of money."
at 63:9-64:17.

52.

Both Representative Lewis and Dr. Hofeller admitted that Dr. Hofeller had nearly

finished drawing the final 2016 Plan before the House and Senate Redistricting Committees ever
met, and that Dr. Hofeller pre-drew the plan with express partisan intent. Dr. Hofeller recalled

that "the
“the plan was actually brought into a form to be presented to the legislature long before
16th.” Hofeller Dep. at 175:10-18. Indeed, on February 10, 2016, Dr. Hofeller met
[February] 16th."
with Representative Lewis and Senator Rucho and showed them several draft plans. Lewis Dep.

Hofeller’s house several more times over the
at 58:13-61:17. Representative Lewis visited Dr. Hofeller's
next few days to review additional draft plans. Id. at 73:7-74:7, 77:7-20.

13
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 53.

The maps Representative Lewis reviewed with Dr. Hofeller over the three days

“near-final versions of the 2016 map"
map” that
following the February 10 meeting were "near-final
Representative Lewis intended to submit to the legislature for approval. Lewis Dep. at 77:7-20.
Dr. Hofeller and Representative Lewis agreed on a draft plan on either February 12 or 13, 2016.

“ultimately adopted with a minor distinction for an incumbency issue."
issue.” Id. at
Id. That plan was "ultimately
77:21-24.
54.

On February 12, 2016, after the 2016 Plan was already nearly finished, the

Republican leadership of the General Assembly appointed Representative Lewis and Senator

Rucho as co-chairs of the newly formed Joint Select Committee on Redistricting (the "Joint
“Joint
Committee”). The Joint Committee consisted of 25 Republicans and 12 Democrats.
Committee").
55.

The Joint Committee held a public hearing on February 15, 2016. But because

Dr. Hofeller finished drawing the 2016 Plan before the hearing took place, the final plan did not
reflect any public input.

56.

At a meeting on February 16, 2016, the Joint Committee adopted a set of criteria

“2016 Adopted Criteria")
Criteria”) to govern the creation of the 2016 Plan.
(the "2016
57.

The Joint Committee adopted "Partisan
“Partisan Advantage"
Advantage” as one official criterion. This

Republicans’ existing 10-3 advantage in North
criterion required the new plan to preserve Republicans'
Carolina’s congressional delegation. The criterion read as follows:
Carolina's
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
Carolina’s congressional delegation.
current partisan makeup of North Carolina's
58.

In explaining this Partisan Advantage criterion, Representative Lewis proposed

“draw the maps to give a partisan advantage to 10 Republicans and 3
that the Committee "draw

14
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 17 of 662

 Democrats because I do not believe it’s
it's possible to draw a map with 11 Republicans and 2

Democrats.” Joint Comm. Session, Feb. 16, 2016, at 50:6-10.
Democrats."
59.

“acknowledge[d] freely that this would be a political
Representative Lewis "acknowledge[d]

gerrymander.” Id. at 48:4-5.
gerrymander."
60.

The Joint Committee adopted "Political
“Political Data"
Data” as another criterion, which 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
(“VTDs”) should be split only
the 2016 Contingent Congressional Plan. Voting districts ("VTDs")
when necessary to comply with the zero deviation population requirements set forth
above in order to ensure the integrity of political data.
61.

Representative Lewis left no doubt as to how this political data would be used,

“want[ed] to make clear that to the extent [we] are going
telling the Joint Committee members he "want[ed]
to use political data in drawing this map, it is to gain partisan advantage on the map. I want that

understood.” Joint Comm. Session, Feb. 16, 2016, at 53:24-54:4.
criteria to be clearly stated and understood."
62.

The remaining criteria adopted by the Joint Committee were to provide for equal

population, to make the districts contiguous, to eliminate the then-current configuration 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.

63.

The Joint Committee adopted the Political Data and Partisan Advantage criteria

on a party-line vote. The other criteria were passed on a bipartisan basis. Representative Lewis
“the criteria that will be available to the mapmaker . . . will only be
reassured the Committee that "the
adopted,” id. at 140:8-13, despite knowing that the 2016
the criteria that this . . . committee has adopted,"
“for the most part finished by the time the criteria were formally adopted by the
Plan was "for
committee,” Hofeller Dep. at 177:9-14. He later emphasized that "the
“the criteria that this
committee,"

15
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 18 of 662

 maps.” Joint
committee debated and adopted . . . are the criteria that were used to draw these maps."
Comm. Session, Feb. 17, 2016, at 43:4-14 (emphasis added).

64.

The Joint Committee authorized Representative Lewis and Senator Rucho to

Committee’s Republican leadership in drawing the remedial
engage a consultant to assist the Committee's
plan. Representative Lewis and Senator Rucho immediately sent Dr. Hofeller an engagement

letter, which he signed the same day. Dr. Hofeller then downloaded the 2016 Plan, which he had
completed several days earlier, onto a state legislative computer.

65.

Democratic members of the Joint Committee were not allowed to consult with Dr.

Hofeller, nor were they allowed access to the state legislative computer on which he downloaded
the 2016 Plan.

66.

Committee’s Partisan
Dr. Hofeller later testified that the 2016 Plan followed the Committee's

Advantage and Political Data criteria. See Hofeller Dep. at 129:14-15.

67.

On February 17, 2016, just one day after the Joint Committee adopted the official

criteria, Representative Lewis and Senator Rucho presented the 2016 Plan to the Committee. See

Joint Comm. Session, Feb. 17, 2016, at 11:8-15. During the presentation, Representative Lewis
discussed the partisan performance of the proposed districts and asserted that the 2016 Plan

“produce an opportunity to elect ten Republicans members of Congress."
Congress.” Id. at 12:3-7.
would "produce
To prove it, Representative Lewis provided Committee members with spreadsheets showing the
partisan performance of the proposed districts in twenty previous statewide elections. E.g., id. at
17:4-18:23. The Committee then approved the 2016 Plan on a party-line vote.

68.

On February 19, 2016, the North Carolina House of Representatives debated the

“freely acknowledge[d] that [he] sought
2016 Plan. During the debate, Representative Lewis "freely
advantage.” N.C. House Floor Session, Feb. 19, 2016, at 31:14-17. He defended the
partisan advantage."

16
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 19 of 662

 “I think electing Republicans is better than electing
Partisan Advantage criterion by stating: "I
Democrats. So I drew this map in a way to help foster what I think is better for the country.”
country." Id.
at 34:21-23.

69.

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.

70.

In sworn testimony, Senator Rucho confirmed that the 2016 Plan "satisfied"
“satisfied” "all
“all

criteria,” including the criteria requiring a 10-3 partisan advantage for Republicans. Deposition
criteria,"
(“Rucho Dep.")
Dep.”) 193:24-194:14 (Jan. 25, 2017).
of Senator Robert A. Rucho ("Rucho
D.

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

71.

The 2016 Plan has achieved precisely its intended partisan effects—a guaranteed

Carolina’s congressional delegation.
10-3 Republican advantage in North Carolina's
72.

In the 2016 elections, Democratic congressional candidates in North Carolina

won a combined 47% of the statewide vote, and yet won only 3 of 13 seats (23%).

73.

The results are even more striking in 2018. Despite the blue wave that year, and

despite the fact the two-party statewide vote was essentially a tie, Democrats were unable to flip
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 statewide vote in the 2018 congressional elections, but

state’s 13 congressional seats.
still won only 3 of the state's
74.

The results of the individual races in 2018 reveal how Legislative Defendants

party’s share of the two-party
achieved this remarkable feat. The following table shows each party's
2018:1
vote in the districts that the party won in 2018:1

11 For District 9, this table uses the results of the September 2019 special elections. 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 each candidate in the special election held in District 3 in September 2019.

17
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 20 of 662

 District
1
4
12
2
3
5
6
7
8
9
10
11
13
Statewide Vote Share
Before Adjusting for
Uncontested Race
Statewide Vote Share
After Adjusting for
Uncontested Race
Percentage of Seats Won

75.

Democratic Vote Share
69.9%
75.1%
73.1%

Republican Vote Share

48.9%

52.8%
100.0%
57.0%
56.5%
56.5%
55.3%
51.0%
59.3%
60.4%
53.1%
51.1%

50.9%

49.1%

23.1%

76.9%

This table demonstrates the 2016 Plan's
Plan’s packing and cracking in action. In the

three seats that Democrats won, the Democratic candidate won enormously lopsided victories,
earning between 69.9% and 75.1% of the vote in each of these districts. In contrast, victorious
Republican candidates won their seats by much smaller margins, winning between 51.0% and

60.4% of the vote in all contested districts. The 2016 Plan thus guaranteed that Democrats
lion’s share of
would win three seats by very large margins, while Republicans would win the lion's
seats by much smaller, although still comfortable, margins.

76.

Extensive expert analysis conducted for purposes of the federal partisan

gerrymandering challenge to the 2016 Plan confirms that the 2016 Plan is an intentional, extreme
partisan gerrymander that dilutes Democratic votes and prevents Democratic voters from
electing candidates of their choice. Dr. Jowei Chen, a professor of political science at the

18
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 21 of 662

 University of Michigan, generated 3,000 nonpartisan simulated maps respecting North

Carolina’s political geography and traditional redistricting principles including equal population,
Carolina's
contiguity and compactness, and avoiding splitting counties and VTDs. Dr. Chen concluded that
the 2016 Plan was extraordinarily anomalous and heavily gerrymandered, and that the
gerrymander caused a three to five seat shift in favor of the Republican Party. Dr. Jonathan
Mattingly, the chairman of the Duke Mathematics Department, generated over 24,000

Carolina’s political geography and traditional
nonpartisan simulated maps respecting North Carolina's
redistricting principles including equal population, contiguity and compactness, and avoiding
splitting counties and VTDs. Dr. Mattingly likewise concluded that the 2016 Plan was
extraordinarily anomalous and heavily gerrymandered, and that the gerrymander caused as many
as three seats to shift in favor of the Republican Party.

E.
77.

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. The sections below describe some of the most egregious
examples of cracking and packing in each district.

19
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 22 of 662

 Congressional District I1
78.

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.
79.

district’s boundaries and the
The following image (and others below) shows the district's

partisanship of its VTDs using the results of the 2016 North Carolina Attorney General race,
with darker blue shading for the VTDs that voted more heavily Democratic, darker red for VTDs
that voted more heavily Republican, and lighter shading for VTDs that were closer to a tie:

80.

County’s most
The 2016 Plan divides Pitt County for partisan ends, placing Pitt County's

county’s more moderate and
Democratic VTDs in District 1 to the north, while putting the county's

Republican VTDs in District 3 to the south.
81.

The 2016 Plan does the same in Wilson County. In dividing Wilson County, the

plan builds a fence between Democratic and Republican voters, nearly straight down the middle

20
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 23 of 662

 of the county, putting the Democratic VTDs in District 1 to the east and the Republican VTDs in
District 2 to the west.
82.

Plan’s packing of Democratic voters in District 1 has produced an
The 2016 Plan's

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
83.

District 2 cracks Democratic voters. It carefully avoids the most Democratic

areas of Wake County (to the west) and Wilson County (to the east), instead picking up only
those counties'
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. The following image shows this extreme cracking of Democratic voters:

21
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 24 of 662

 84.

Defendants’ extreme gerrymandering of this district has ensured that it
Legislative Defendants'

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
85.

Legislative Defendants likewise engineered District 3 to be a safe Republican

County’s most Democratic VTDs,
seat. Whereas District 1 was the recipient of all of Pitt County's
County’s most Republican VTDs. The district further avoids a
District 3 contains all of Pitt County's

handful of moderate and Democratic counties in eastern North Carolina.

14

‘
r)

86.

District 3 has performed as designed. The Republican candidate won uncontested

in 2018, and won 67.2% of the vote in 2016.

22
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 25 of 662

 Congressional District 4
87.

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

principles to partisan ends. Dr. Hofeller admitted in sworn testimony that he intentionally drew
“predominantly Democratic."
Democratic.” Hofeller Dep. at 192:7-16. To achieve maximum
District 4 to be "predominantly
County’s most
packing of Democratic voters, Legislative Defendants connected Wake County's

Democratic VTDs with the extremely Democratic VTDs in southern Durham County as well as
County’s more
the entirety of Democratic-leaning Orange County. This allowed Wake County's

Republican VTDs to be put into District 2 to ensure a Republican seat.

88.

The result of this packing is that the Democratic candidate has won District 4 by

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

23
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 26 of 662

 Congressional District 5
89.

Legislative Defendants constructed District 5 to minimize the voting power of

Winston-Salem’s predominantly
Democratic voters in Forsyth County. The 2016 Plan connects Winston-Salem's
Democratic voters with far-flung rural communities to the west.

90.

Legislative Defendants succeeded in wasting the votes of the Democratic voters

of Forsyth 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.

24
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 27 of 662

 Congressional District 6
91.

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.
92.

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 Forsyth County's
County’s
Democratic voters in District 5.

25
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 28 of 662

 Greensboro’s Democratic voters, Legislative Defendants split the
In cracking Greensboro's

93.

campus of North Carolina A&T 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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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.

26
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 29 of 662

I
=2

 Congressional District 7
95.

The 2016 Plan cracks Democratic voters in District 7. As already explained, at

County’s Democratic voters between
the north end of District 7, the map cracks Johnston County's

Districts 7 and 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 7 and 9.

96.

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.

27
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 30 of 662

 Congressional District 8
97.

Carolina’s sixth most-populous city and is heavily
Fayetteville is North Carolina's

Fayetteville’s Democratic voters nearly down the middle,
Democratic. The 2016 Plan cracks Fayetteville's

placing one group in District 8 and the other in District 9. District 8 then slices to the west,
picking up Republican voters in county after county until stopping halfway through Rowan
County, right before the district would hit the Democratic voters of Salisbury, who are carefully
excluded from District 8 and placed into District 13 instead.

98.

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.

28
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 31 of 662

 Congressional District 9
99.

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
Fayetteville's
“pizza slice"
slice” in
voters. District 9 reaches into Mecklenburg County and picks up the "pizza
county’s most Republican-leaning VTDs. District 9's
9’s
Mecklenburg County that contains the county's
County’s Democratic VTDs, which
boundaries carefully exclude virtually all of Mecklenburg County's

instead are packed into District 12.

100.

Plan, District 9 has bent but not broken, remaining
In the elections under the 2016 Flan,

seat. Even the fact that District 9's
9’s 2018 Republican candidate was involved in a
a Republican seat

high-profile election-fraud scandal that resulted in the invalidation of the 2018 election results
for that district could not counterbalance the extreme gerrymander. The Republican candidate
won the September 2019 special election in District 9 with 51% of the vote.

29
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 32 of 662

 Congressional Districts 10 and 11
101.

Asheville’s Democratic voters between
The 2016 Plan egregiously cracks Asheville's

Districts 10 and 11 to create two safe Republican seats. This cracking dilutes the voting power
Asheville’s Democratic voters and ensures that they cannot elect a candidate of their choice.
of Asheville's

102.

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
below:2
dormitory into different congressional districts, as shown in the image below:2

2
2 See

Two UNC Asheville Dorms Are Bisected by Gerrymandered District Boundaries, Districks (Oct. 26, 2018),
https://blog.districks.com/2018/10/26/two-unc-asheville-dorms-are-bisected-by-gerrymandered-district-lines/.

30
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 33 of 662

 103.

Asheville’s Democratic voters has been successful. The
The cracking of Asheville's

Republican candidates in Districts 10 and 11 won both seats with between 58% and 63% of the
vote in the 2016 and 2018 elections.
12
Congressional District 12

104.

District 12 is another packed Democratic district. Dr. Hofeller admitted in sworn

testimony that he intentionally drew District 12 to be "predominantly
“predominantly Democratic."
Democratic.” Hofeller
County’s most Democratic VTDs, carefully
Dep. 192:7-16. District 12 packs all of Mecklenburg County's
“pizza slice"
slice” in the southern part of Mecklenburg County to
excluding the Republican-leaning "pizza

ensure that District 12 is an overwhelmingly Democratic district.

31
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 34 of 662

 105.

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.
13
Congressional District 13

106.

District 13 contains the other cracked half of Guilford County. District 13 groups

County’s heavily Democratic voters in and around Greensboro and High Point with
Guilford County's

overwhelmingly Republican areas in Davidson, Davie, Rowan, and Iredell Counties, ensuring
County’s Democratic voters cannot elect a Democrat.
that Guilford County's

32
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 35 of 662

 107.

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

53.1% of the vote, respectively.
F.

Legislative Defendants Did Not Draw Any District in the 2016 Congressional
Map to Comply with the Voting Rights Act

108.

Legislative Defendants and Dr. Hofeller expressly stated both during and after the

2016 redistricting process that they did not create any district in an effort to comply with the

Voting Rights Act (VRA). See Hofeller Dep. 145:9-146:8, 183:22-184:9.
109.

The 2016 Adopted Criteria provided as follows: "Data
“Data identifying the race of

districts.”
individuals or voters shall not be used in the construction or consideration of districts."
110.

Legislative Defendants stated over and over again that they were not making any

effort to draw districts on account of the VRA because they had concluded that the third Gingles
factor was not met with respect to any district. The third Gingles factor requires the existence of
legally sufficient white bloc voting against the candidate of choice of African Americans.

33
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 36 of 662

 Representative Lewis and Senator Rucho stated that, because they did not believe there was
sufficient racially polarized voting, they had concluded that the VRA did not require the creation
of any minority opportunity congressional districts. See Lewis Dep. at 38:15-19, 51:15-19, 86:2-

(“Lewis Dep. II”)
4, 118:23-119:23, 179:13-21; Deposition of Representative David Lewis ("Lewis
II") at
242:9-13 (Apr. 28, 2017); Rucho Dep. at 31:2-8. Representative Lewis told the Joint Committee

“the Harris opinion found that there was not racially polarized voting in the state, and
that "the
considered.” Joint Comm. Session, Feb. 16, 2016,
therefore, the race of the voters should not be considered."
at 27:11-14.

G.

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

111.

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

federal constitution. Rucho v. Common Cause, 139 S. Ct. 2484, 2491 (2019).
violation of the federal
112.

three-judge
After a four-day trial, a three
judge federal district court unanimously concluded

“drew and enacted the 2016 Plan with intent to subordinate the
that the General Assembly "drew
Carolina’s
interests of non-Republican voters and entrench Republican control of North Carolina's
delegation.” Common Cause v. Rucho, 279 F. Supp. 3d 587, 672 (M.D.N.C.
congressional delegation."
“the 2016 Plan achieved the General Assembly's
2018). The court further found that "the
objective.” Id. The court therefore held the 2016 Plan violated the
discriminatory partisan objective."
Amendment’s Equal Protection Clause and Article I of the U.S. Constitution. The
Fourteenth Amendment's
court further held, with one dissenter, that the 2016 Plan also violated the First Amendment. Id.
113.

The U.S. Supreme Court reversed, holding that partisan gerrymandering claims

are not justiciable under the federal
federal constitution. Rucho, 139 S. Ct. at 2506-07. Nonetheless, the

34
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 37 of 662

 “incompatible with democratic
Court observed that partisan gerrymanders like the 2016 Plan are "incompatible
principles.” Id. And, of particular relevance here, the Court recognized that the 2016 Plan is
principles."
“highly partisan, by any measure."
measure.” Id. at 2491. While the decision ultimately holds that
"highly
“partisan gerrymandering claims present political questions beyond the reach of the federal
federal
"partisan
courts,” the Court made clear that its conclusion "does
“does not condone excessive partisan
courts,"
gerrymandering[,] [n]or does [its] conclusion condemn complaints about districting to echo into

void.” Id. at 2507 (emphasis added).
a void."
114.

Instead, the U.S. Supreme Court noted that "[t]he
“[t]he States . . . are actively

addressing the issue on a number of fronts"
fronts” under state constitutional provisions. See id. The
“[p]rovisions in state statutes and state constitutions can provide standards
Court made clear that "[p]rovisions
apply.” Id. (emphases added).
and guidance for state courts to apply."
H.

The Superior Court Strikes Down North Carolina’s
Carolina's State Legislative Maps
Under the North Carolina Constitution

115.

three-judge
On September 3, 2019, a three
judge panel of this Court unanimously invalidated

Carolina’s state House and state Senate 2017 redistricting plans ("2017
(“2017 Plans")
Plans”) under the
North Carolina's
North Carolina Constitution. See Common Cause v. Lewis, 18-CVS-014001, slip. op. at 10.
116.

The Common Cause Court explained that North Carolina's
Carolina’s state legislative maps

“arose in remarkably similar circumstances.”
and the 2016 Congressional Plan "arose
circumstances." Id. at 298.
“[B]oth the 2016 Congressional map and the 2017 legislative maps were required after a federal
"[B]oth
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

Assembly’s
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, as has been found . . .

35
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 38 of 662

 with respect to the 2017 legislative maps, were drawn with the intent to maximize partisan
advantage and, in fact, achieved their intended partisan effects.”
effects." Id.
117.

The Court found that the 2017 state legislative maps "do
“do not permit voters to

freely choose their representative, but rather representatives are choosing voters based upon

sorting.” Id. at 10.
sophisticated partisan sorting."
118.

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
Constitution’s Free Elections Clause, Art.
I, § 10, Equal Protection Clause, Art. I, § 19, and Free Speech and Assembly Clauses, Art. I, §§
12, 14. See Common Cause, 18-CVS-014001, slip. op. at 7-10.
119.

The 2016 Plan violates the North Carolina Constitution in the exact same ways as

the 2017 state legislative maps that were recently invalidated in Common Cause.

COUNT ONE
Violation of the North Carolina Constitution’s
Constitution's
Free Elections Clause, Art. I, § 10
120.

Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein.

121.

Article I, Section 10 of the North Carolina Constitution, which has no counterpart

“All elections shall be free."
free.”
in the U.S. Constitution, provides that "All
122.

Carolina’s Free Elections Clause traces its roots to the 1689 English Bill of
North Carolina's

“Elections of members of Parliament ought to be free.”
Rights, which declared that "Elections
free." Bill of
Rights 1689, 1 W. & M. c. 2 (Eng.); see John V. Orth, North Carolina Constitutional History, 70
N.C. L. Rev. 1759, 1797-98 (1992).
123.

This provision of the 1689 English Bill of Rights was a product of the king's
king’s

efforts to manipulate parliamentary elections, including by changing the electorate in different
36
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 39 of 662

 “electoral advantage."
advantage.” J.R. Jones, The Revolution of 1688 in England 148
areas to achieve "electoral
(1972). The king's
king’s efforts to maintain control of parliament by manipulating elections led to a

“free and lawful
revolution. After dethroning the king, the revolutionaries called for a "free
parliament” as a critical reform. Grey S. De Krey, Restoration and Revolution in Britain: A
parliament"
Political History of the Era of Charles II and the Glorious Revolution 241, 247-48, 250 (2007).
124.

North Carolina has strengthened the Free Elections Clause since its adoption to

reinforce its principal purpose of preserving the popular sovereignty of North Carolinians. The

“elections of members, to serve as
original clause, adopted in 1776, provides that "elections
Representatives in the General Assembly, ought to be free."
free.” N.C. Declaration of Rights, VI
“[a]ll elections
(1776). Nearly a century later, North Carolina revised the clause to state that "[a]ll
ought to be free,”
free," thus expanding the principle to include all elections in North Carolina. N.C.
Const. art. I, § 10 (1868). And another century later, North Carolina adopted the current version

“[a]ll elections shall be free.”
which provides that "[a]ll
free." As the North Carolina Supreme Court later
“make [it] clear"
clear” that the Free Elections Clause and the
explained, this change was intended to "make
“are commands and not mere
other rights secured to the people by the Declaration of Rights "are
admonitions” to proper conduct on the part of the government. N.C. State Bar v. DuMont, 304
admonitions"
N.C. 627, 635, 639, 286 S.E.2d 89, 97 (1982) (internal quotations omitted).
125.

Carolina’s Free Elections Clause, "the
“the
Based on the text and history of North Carolina's

meaning of the Free Elections Clause is that elections must be conducted freely and honestly to
ascertain, fairly and truthfully, the will of the people. This . . . is a fundamental right of the

Constitution’s Declaration of Rights, a compelling governmental
citizens enshrined in our Constitution's
government.” Common Cause v. Lewis,
interest, and a cornerstone of our democratic form of government."
18-CVS-014001, slip. op. at 298-306.

37
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 40 of 662

 126.

“[P]artisan gerrymandering . . . strikes at the heart of the Free Elections Clause."
Clause.”
"[P]artisan

“[E]xtreme partisan gerrymandering—namely redistricting plans that entrench
Id. at 305. "[E]xtreme
politicians in power, that evince a fundamental distrust of voters by serving the self-interest of
political parties over the public good, and that dilute and devalue votes of some citizens
compared to others—is contrary to the fundamental right of North Carolina citizens to have

people.”
elections conducted freely and honestly to ascertain, fairly and truthfully, the will of the people."
“[e]lections are not free when partisan actors have tainted future elections
Id. at 302. Simply put, "[e]lections
by specifically and systematically designing the contours of the election districts for partisan

purposes and a desire to preserve power."
power.” Id. at 305.
127.

The 2016 Plan violates the Free Elections Clause in the same way as the

invalidated 2017 state legislative plans. In creating the 2016 Plan, Legislative Defendants

“specifically and systematically design[ed] the contours of the election districts for partisan
"specifically
power.” Id. at 305. The 2016 Plan "unlawfully
“unlawfully seek[s] to
purposes and a desire to preserve power."
districts” and across the state as a whole. Id.
predetermine election outcomes in specific districts"
Defendants’ extreme partisan gerrymandering of the 2016 Plan,
Because of Legislative Defendants'
“conducted freely and honestly to ascertain,
congressional elections in North Carolina are not "conducted
people.” Id. at 302.
fairly and truthfully, the will of the people."
128.

Legislative Defendants openly admitted all of this with respect to the 2016 Plan.

They expressly stated—and even made an official part of the 2016 Adopted Criteria—that they
“Partisan Advantage"
Advantage” such that, for each election under the new
were endeavoring to maintain "Partisan
Carolina’s congressional delegation and
map, Republicans would win 10 seats in North Carolina's
Democrats would win only 3 seats. The 2016 Adopted Criteria on their face violate the Free

Elections Clause.

38
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 41 of 662

 COUNT TWO
Violation of the North Carolina Constitution’s
Constitution's
Equal Protection Clause, Art. I, § 19
129.

Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein.

130.

Article I, Section 19 of the North Carolina Constitution provides in relevant part

that "[n]o
“[n]o person shall be denied the equal protection of the laws."
laws.”
131.

Carolina’s Equal Protection Clause affords broader protections to its
North Carolina's

Constitution’s equal protection provisions. See
citizens in the voting rights context than the U.S. Constitution's
N.C 354, 376-81 & n.6, 562 S.E.2d 377, 393-95 & n.6 (2002);
Stephenson v. Bartlett, 355 N.0
Blankenship v. Bartlett, 363 N.C. 518, 523-24, 681 S.E.2d 759, 763 (2009).
132.

Irrespective of its federal counterpart, North Carolina's
Carolina’s Equal Protection Clause

“substantially equal voting power."
power.” Stephenson, 355 N.C. at 379, 562
protects the right to "substantially
S.E.2d at 394. "It
“It is well settled in this State that the right to vote on equal terms is a
fundamental right.”
right." Id. at 378, 562 S.E.2d at 393 (internal quotation marks omitted). Thus, the
North Carolina Supreme Court has enforced the State’s
State's Equal Protection Clause to invalidate
other redistricting schemes, such as the combined use of single-member and multi-member

“impermissibly distin[guished] among similarly situated
districts in a redistricting plan that "impermissibly
citizens” and thus "necessarily
“necessarily implicate[d] the fundamental right to vote on equal terms."
terms.” Id. at
citizens"
377-78, 562 S.E.2d at 393.
133.

Carolina’s Equal Protection Clause.
Partisan gerrymandering violates North Carolina's

“[P]artisan gerrymandering runs afoul of the State’s
"[P]artisan
State's obligation to provide all persons with equal
protection of law because, by seeking to diminish the electoral power of supporters of a
disfavored party, a partisan gerrymander treats individuals who support candidates of one

party.”
political party less favorably than individuals who support candidates of another party."
Common Cause v. Lewis, 18-CVS-014001, slip. op. at 307.
39
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 42 of 662

 134.

The 2016 Plan violates North Carolina's
Carolina’s Equal Protection Clause in the same

ways as the invalidated 2017 state legislative plans. In drawing the 2016 Plan, Legislative

“acted with the intent, unrelated to any legitimate legislative objection, to classify
Defendants "acted
terms.” Id. at 312. The 2016 Plan's
Plan’s
voters and deprive citizens of the right to vote on equal terms."
intentional classification of, and discrimination against, Democratic voters is plain. The

“partisan advantage"
advantage” and "political
“political
Republican leaders of the Joint Committee explicitly used "partisan
data” as criteria in drawing the congressional district lines. Specifically, the 2016 Adopted
data"
Criteria required drawing congressional district lines to give Republicans control of 10 of the 13

congressional seats. See id. And Legislative Defendants succeeded in this goal. Republicans
maintained control of 10 of the 13 seats following the 2016 and 2018 congressional elections,

Committee’s intent is also laid bare by the
despite losing the statewide vote in 2018. The Joint Committee's
packing and cracking of particular Democratic communities.
135.

These efforts have produced discriminatory effects for Plaintiffs and other

Democratic voters. On a statewide basis, Democrats receive far fewer congressional seats than
they would absent the gerrymander. The grossly disproportionate number of seats that
Republicans have won and will continue to win in the congressional delegation relative to their

Carolina’s political
share of the statewide vote cannot be explained or justified by North Carolina's
geography or any legitimate redistricting criteria. The packing and cracking of Democratic

voters under the 2016 Plan burdens the representational rights of Democratic voters individually
and as a group and discriminates against Democratic candidates and organizations individually

“[P]acking dilutes the votes of Democratic voters such that their votes, when
and as a group. "[P]acking
compared to the votes of Republican voters, are substantially less likely to ultimately matter in

results.” Common Cause, 18-CVS-014001, slip. op. at 314. And "the
“the
deciding the election results."

40
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 43 of 662

 entire purpose of cracking likeminded voters across multiple districts is so they do not have

power’ to join together and elect a candidate of their choice."
choice.” Id. Legislative
sufficient ‘voting
'voting power'
Defendants can offer no legitimate justification for their overriding partisan intent in drawing the
2016 Plan.

COUNT THREE
Constitution’s
Violation of North Carolina Constitution's
Freedom of Speech and Freedom of Assembly Clauses, Art. I, §§ 12 & 14
136.

Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein.

137.

“The
Article I, § 12 of the North Carolina Constitution provides in relevant part: "The

people have a right to assemble together to consult for their common good, to instruct their
representatives, and to apply to the General Assembly for redress of grievances.”
grievances."
138.

Article I, § 14 of the North Carolina Constitution provides in relevant part:

“Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall
"Freedom
restrained.”
never be restrained."
139.

“[T]he North Carolina Constitution's
Constitution’s Free Speech Clause provides broader rights
"[T]he

law.” Common Cause, 18-CVS-014001, slip. op. at 318. "In
“In the context of
than does federal law."
partisan gerrymandering, it is especially important that North Carolina courts give independent

force to North Carolina's
Carolina’s constitutional protections."
protections.” Id. at 319.
140.

“Voting for the candidate of one's
one’s choice and associating with the political party
"Voting

of one's
one’s choice are core means of political expression protected by the North Carolina
Constitution’s Freedom of Speech and Freedom of Assembly Clauses."
Clauses.” Id. at 320. "Voting
“Voting
Constitution's
views.” Id. And
provides citizens a direct means of expressing support for a candidate and his views."
“[j]ust as voting is a form of protected expression, banding together with likeminded citizens in a
"[j]ust
association.” Id. at 321.
political party is a form of protected association."

41
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 44 of 662

 141.

Irrespective of the U.S. Constitution, the 2016 Plan violates Article I, § 14 of the

“burden[ing] protected expression based on viewpoint by making
North Carolina Constitution by "burden[ing]
effective.” Common Cause, 18-CVS-014001, slip. op. at 322.
Democratic votes less effective."
“Legislative Defendants identified certain preferred speakers (Republican voters), while
"Legislative
targeting certain disfavored speakers (Plaintiffs and other Democratic voters) for disfavored

treatment” because of disagreement with the views they express when they vote. Id. (alteration
treatment"
and internal quotation marks omitted). Just as they did in creating the 2017 state legislative

“Legislative Defendants analyzed the voting histories of every VTD in North Carolina,
plans, "Legislative
identified 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 significantly less likely,

views.” Id.
in comparison to Republican voters, to be able to elect a candidate who shares their views."
“The fact that Democratic voters can still cast ballots under gerrymandered maps
at 323. "The
changes nothing. The government unconstitutionally burdens speech where it renders disfavored

outright.” Id. at 323.
speech less effective, even if it does not ban such speech outright."
142.

Irrespective of the U.S. Constitution, the 2016 Plan independently violates Article

I, § 12 because it "severely
“severely burden[s]—if not outright preclude[s]"
preclude[s]” the ability of Democratic
“instruct” and "obtain
“obtain redress"
redress” from their members
voters to associate by eroding their ability to "instruct"
of Congress on issues important to them. Id. at 326-27.
143.

Irrespective of the U.S. Constitution, the 2016 Plan independently violates

Article 1, Sections 12 and 14 of the North Carolina Constitution by retaliating against Plaintiffs
and other Democratic voters based on their exercise of political speech. The 2016 Plan takes
adverse action against Plaintiffs and other Democratic voters, retaliates against their protected

42
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 45 of 662

 Defendants’
speech and conduct, and would not have taken the adverse action but for Legislative Defendants'
retaliatory intent to pack and crack Democratic voters because of their prior political speech and
associations.
144.

There is no legitimate state interest in discriminating and retaliating against

Plaintiffs because of their political viewpoints, voting histories, and affiliations. Nor can the

Carolina’s geography or any legitimate redistricting
2016 Plan be explained or justified by North Carolina's
criteria.

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter judgment
in their favor and against Defendants, and;
a.

Declare that the 2016 Plan is unconstitutional and invalid because it violates the

rights of Plaintiffs and all Democratic voters in North Carolina under the North Carolina

Constitution’s Free Elections Clause, Art. I, § 10; Equal Protection Clause, Art. I, § 19; and
Constitution's
Freedom of Speech and Freedom of Assembly Clauses, Art. I, §§ 12 & 14;
b.

Enjoin Defendants, their agents, officers, and employees from administering,

preparing for, or moving forward with the 2020 primary and general elections for Congress using
the 2016 Plan;
c.

Establish a new congressional districting plan that complies with the North

Carolina Constitution, if the North Carolina General Assembly fails to enact new congressional
districting plans comporting with the North Carolina Constitution in a timely manner;
d.

Enjoin Defendants, their agents, officers, and employees from using past election

Carolina’s congressional
results or other political data in any future redistricting of North Carolina's

43
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 46 of 662

 districts to intentionally dilute the voting power of citizens or groups of citizens based on their
political beliefs, party affiliation, or past votes.
e.

Enjoin Defendants, their agents, officers, and employees from otherwise

intentionally diluting the voting power of citizens or groups of citizens in any future redistricting

Carolina’s congressional districts based on their political beliefs, party affiliation, or
of North Carolina's
past votes.
f.

Grant Plaintiffs such other and further relief as the Court deems just and

appropriate.

44
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 47 of 662

 PATTERSON HARKAVY LLP

ARNOLD AND PORTER
KAYE SCHOLER LLP

Z,fdegy
r •
Burton 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
bcraige@pathlaw.com
nghosh@pathlaw.com
psmith@pathlaw.com

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@arnoldporter.com

Counselfor Plaintiffs
PERKINS COIE LLP
Marc E. Elias*
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
Counselfor Plaintiffs
* Applications for Pro Hac Vice
admissionsforthcoming

45

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 48 of 662

 VERIFICATION

I, AMY CLARE OSEROFF, hereby state that I am a Plaintiff in the above-titled action,
that I have read the contents of the foregoing VERIFIED COMPLAINT, and that the contents
therein are true and accurate as they pertain to me.

I

21

Amyl Clare sero f

Sworn and subscribed before me this the

(

day of September, 2019.

Notary Public
d-rtj_

Name:

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ilission expires:

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Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 49 of 662

9-3

 VERIFICATION

I, REBECCA HARPER, hereby state that I am a Plaintiff in the above-titled action, that I
have read the contents of the foregoing VERIFIED COMPLAINT, and that the contents therein
are true and accurate as they pertain to me.

Rebecca Harper

Sworn and subscribed before me this the

day of September, 2019.

PAIGE KISNER
NOTARY PUBLIC
Wake County
North Carolina
My Commission Expires December 27,2021

Notary Pubic
Name:
My commission expires:

/,) — 02 7 —9-

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 50 of 662

 VERIFICATION

I, DONALD ALLAN RUMPH, hereby state that I am a Plaintiff in the above-titled
action, that I have read the contents of the foregoing VERIFIED COMPLAINT, and that the
contents therein are true and accurate as they pertain to me.

tz-01
t,
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Dolfald Allan Rumph

Sworn and subscribed before me this the

1-11h

day of September, 2019.

6
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Notary Pjiblic
Name: Ch Irtilf3 ()11 be I
My commission expires: (. June

24, 2..023

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 51 of 662

 VERIFICATION

I, JOHN BALLA, hereby state that I am a Plaintiff in the above-titled action, that I have
read the contents of the foregoing VERIFIED COMPLAINT, and that the contents therein are
true and accurate as they pertain to me.

John Bal

Sworn and subscribed before me this the PI

day of September, 2019.

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My commission expires:. Dar.4410_(4910
JESSICA RAE LAM
NOTARY PUBUC
CPANYLLE (MINTY STATE OF MNYHCAPOilA
MY COWASSiON EXPRE5 5/132023

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 52 of 662

 Acknowledgement
STATE OF

MC-

COUNTY OF

Av

r( -205 personally appeared before me this day, acknowledging t I certify that RE-Vvac
to me that he or she signed the foregoing document:
Nathe or description of attached document u4..tcOi tta

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I further certify that (select one of the following identification options):
❑

I have personal knowledge of the identity of the principal(s)

I have seen satisfactory evidence of the principal's identity, by a current state or
federal identification with the principal's photograph in the form of a c. DL. telacklair
type of identification

❑

, has sworn or affirmed to me the

A credible witness,
name of credible witness

identity of the principal, and that he or she is not a named party to the foregoing
document, and has no interest in the transaction.

Date:
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'Typed or Printed Notary Name

My commission expires: N)0,5

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 53 of 662

t ,aoa

 VERIFICATION

I, LILY NICOLE QUICK, 'hereby state that am a Plaintiff in the above-titled action, that
Ihave read the contents of the foregoing VERIFIED COMPLAINT, and that the contents
therein are true and accurate as. they pertain to me.

Sworn and subscribed before the. this th .

of September, 2019.

No ary Public
Nam
My commission expi

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 54 of 662

 p.1

Sep 2519 06:00a

VERIFICATION
I. GETTYS COHEN JR., hereby state that I am a Plaintiff in the above-titled action. that
I have read the contents of the foregoing VERIFIED COMPLAINT, and that the contents
therein are true and accurate as they pertain to me.

Sworn and subscribed before me this the

2.!

day of September. 2019.

Amp
Notsp?Public
MARGARITA CORONA MARTINEZ
NOTARY PUBLIC
JOHNSTON COUNTY, NC

Name:

r-2.e

commission expires:

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 `VERIFICATION
I. JACKSON THOMAS DUNN, JR., hereb3'r state that I am a Plaintiff in the above-titled
action, that I have read the contents of the foregoing VERIFIED COMPLAINT, and that the
contents therein are true and accurate as they pertain to me.

n Thomas
Sworn and subscribed before me this

day of September, 2019.

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Plaintiff Mark S. Peters is a retired Physician Assistant residing in Fletcher,
North Carolina, within Congressional District 10. Mr. Peters is registered as
an unaffiliated voter and has consistently voted for Democratic candidates
for the U.S. House of Representatives. In drawing the 2016 maps, the
General Assembly cracked Asheville's Democratic voters between Districts
10 and 11to make each district more favorable to Republican candidates.
In the 2018 elections, the Republican candidate won District 10 with over
59% of the vote.

Mark Peters
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Kelly K McDill
NOTARY PUBLIC 1
Buncombe, NC

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Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 57 of 662

 VERIFICATION

I, JOSEPH GATES, hereby state that I am a Plaintiff in the above-titled action, that I
have read the contents of the foregoing VERIFIED COMPLAINT, and that the contents therein
are true and accurate as they pertain to me.

Sworn and subscribed before me this the

a4

day of September, 2019.

Name: M:cha, l
My commission expires:

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Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 58 of 662

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Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 59 of 662

 VERIFICATION

I, VIRGINIA BRIEN, hereby state that I am a Plaintiff in the above-titled action, that I
have read the contents of the foregoing VERIFIED COMPLAINT, and that the contents therein
are true and accurate as they pertain to me.

Virginia nen

Sworn and subscribed before me this the 2/1 — day of September, 2019.

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 VERIFICATION

I, DAVID DWIGHT BROWN, hereby state that I am a Plaintiff in the above-titled
action, that I have read the contents of the foregoing VERIFIED COMPLAINT, and that the
contents therein are true and accurate as they pertain to me.

David Dwight Brown
Sworn and subscribed before me this the

214

day of September, 2019.

LINDA HUGHES

Notary Public - North Carolina
Guilford County
My Commission Expires April 7,

2021

Name:

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My commission expires: A'(211— 7,ar-Y--1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 61 of 662

 131:

File No.

STATE OF NORTH CAROLINA
Wake

••"1

In The General Court Of Justice
❑ District ❑ Superior Court Division

County

Name Of Plaintiff

Rebecca Harper
Address

CIVIL SUMMONS

1841 Stonebanks Loop

❑ ALIAS AND PLURIES SUMMONS (ASSESS FEE)

City, State, Zip

Cary

NC

27518

VERSUS

G.S. 1A-1, Rules 3 and 4

Name Of Defendant(s)

Date Original Summons Issued

David R. Lewis, Ralph E. Hise, Warren Daniel, Paul Newton,
Timothy Moore, Philip Berger, NC State Board of Elections,

Date(s) Subsequent Summons(es) Issued

Damon Circosta, Stella Anderson, Ken Raymond, Jeff Carmon III,
David C. Black
To Each Of The Defendant(s) Named Below:
Name And Address Of Defendant 1

Name And Address Of Defendant 2

Timothy K. Moore
16 West Jones Street
Rm 2304
Raleigh

Philip E. Berger
16 West Jones Street
Rm. 2007
Raleigh

NC

27601

NC

27601

IMPORTANT! You have been sued! These papers are legal documents, DO NOT throw these papers out!
You have to respond within 30 days. You may want to talk with a lawyer about your case as soon as
possible, and, if needed, speak with someone who reads English and can translate these papers!
iIMPORTANTE! iSe ha entablado un proceso civil en su contra! Estos papeles son documentos legales.
INC) TIRE estos papeles!
Tiene que contestar a mas tardar en 30 dias. 'Puede querer consulter con un abogado lo antes posible
acerca de su caso y, de ser necesario, hablar con alguien que lea ingles y que pueda traducir estos
documentos!
A Civil Action Has Been Commenced Against You!
You are notified to appear and answer the complaint of the plaintiff as follows:
1. Serve a copy of your written answer to the complaint upon the plaintiff or plaintiff's attorney within thirty (30) days after you have been
served. You may serve your answer by delivering a copy to the plaintiff or by mailing it to the plaintiff's last known address, and
2. File the original of the written answer with the Clerk of Superior Court of the county named above.
If you fail to answer the complaint, the plaintiff will apply to the Court for the relief demanded in the complaint.
Name And Address Of Plaintiff's Attorney (if none, Address Of Plaintiff)

Burton Craige
100 Europa Dr.
Suite 420
Chapel Hill

Date

Is pdA

Signaturly v

NC

27517

Time

i -l ci

Deputy CSC

❑

Date Of Endorsement

❑ ENDORSEMENT (ASSESS FEE)
This Summons was originally issued on the date indicated
above and returned not served. At the request of the plaintiff,
the time within which this Summons must be served is
extended sixty (60) days.

9
(...-

Assistant CSC

❑

M

❑PM

Clerk Of Superior Court

Time

❑

AM

❑ PM

Signature

❑

Deputy CSC

❑

Assistant CSC

❑

Clerk Of Superior Court

NOTE TO PARTIES: Many counties have MANDATORY ARBITRATION programs in which most cases where the amount in controversy is $25,000 or
less are heard by an arbitrator before a trial. The parties will be notified if this case is assigned for mandatory arbitration, and, if
so, what procedure is to be followed.
(Over)
AOC-CV-100, Rev. 4/18
© 2018 Administrative Office of the Courts

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 62 of 662

 RETURN OF SERVICE
I certify that this Summons and a copy of the complaint were received and served as follows:
DEFENDANT 1
Date Served

Time Served

Name Of Defendant
❑

AM

❑ PM

❑ By delivering to the defendant named above a copy of the summons and complaint.
❑ By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a
person of suitable age and discretion then residing therein.
❑ As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the person named
below.
Name And Address Of Person With Whom Copies Left (if corporation, give title of person copies left with)

❑ Other manner of service (specify)

❑ Defendant WAS NOT served for the following reason:

DEFENDANT 2
Date Served

Time Served

Name Of Defendant
❑

AM

❑ PM

❑ By delivering to the defendant named above a copy of the summons and complaint.
❑ By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a
person of suitable age and discretion then residing therein.
❑ As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the person named
below.
Name And Address Of Person With Whom Copies Left (if corporation, give title of person copies left with)

❑ Other manner of service (specify)

❑ Defendant WAS NOT served for the following reason:

Service Fee Paid

Signature OfDeputy Sheriff Making Return

$
Date Received

Name Of Sheriff (type or print)

Date Of Return

County Of Sheriff

AOC-CV-100, Side Two, Rev. 4/18
© 2018 Administrative Office of the Courts

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 63 of 662

 1 9 cv 0 I 2 6 6 7
lloo. File No.

STATE OF NORTH CAROLINA
Wake

In The General Court Of Justice
❑ District ❑ Superior Court Division

County

Name Of Plaintiff

Rebecca Harper
Address

CIVIL SUMMONS

1841 Stonebanks Loop

❑ ALIAS AND PLURIES SUMMONS (ASSESS FEE)

City, State, Zip

Cary

NC

27518

VERSUS

G.S. 1A-1, Rules 3 and 4

Name Of Defendant(s)

Date Original Summons Issued

David R. Lewis, Ralph E. Hise, Warren Daniel, Paul Newton,
Timothy Moore, Philip Berger, NC State Board of Elections,

Date(s) Subsequent Summons(es) Issued

Damon Circosta, Stella Anderson, Ken Raymond, Jeff Carmon III,
David C. Black
To Each Of The Defendant(s) Named Below:
Name And Address Of Defendant 1

Name And Address Of Defendant 2

David R. Lewis
16 West Jones Street
Rm. 2301
Raleigh

Ralph E. Hise, Jr.
300 N. Salisbury St.
Rm. 300-A
Raleigh

A

NC

27601

NC

27603

IMPORTANT! You have been sued! These papers are legal documents, DO NOT throw these papers out!
You have to respond within 30 days. You may want to talk with a lawyer about your case as soon as
possible, and, if needed, speak with someone who reads English and can translate these papers!
iIMPORTANTE! iSe ha entablado un proceso civil en su contra! Estos papeles son documentos legales.
INO TIRE estos papeles!
Tiene que contestar a mas tardar en 30 dias. iPuede querer consultar con un abogado lo antes posible
acerca de su caso y, de ser necesario, hablar con alguien que lea ingles y que pueda traducir estos
documentos!

A Civil Action Has Been Commenced Against Youl
You are notified to appear and answer the complaint of the plaintiff as follows:
1. Serve a copy of your written answer to the complaint upon the plaintiff or plaintiff's attorney within thirty (30) days after you have been
served. You may serve your answer by delivering a copy to the plaintiff or by mailing it to the plaintiff's last known address, and
2. File the original of the written answer with the Clerk of Superior Court of the county named above.
If you fail to answer the complaint, the plaintiff will apply to the Court for the relief demanded in the complaint.
Name And Address Of Plaintiff's Attorney (if none, Address Of Plaintiff)

Burton Craige
100 Europa Dr.
Suite 420
Chapel Hill

Datepued4i

Time

'm

t,
Signakke

NC

WI

27517

Deputy CSC

Date Of Endorsement

❑ ENDORSEMENT (ASSESS FEE)
This Summons was originally issued on the date indicated
above and returned not served. At the request of the plaintiff,
the time within which this Summons must be served is
extended sixty (60) days.

❑ PM

C2 1
❑ Assistant CSC

❑

Clerk Of Superior Court

Time

❑

AM

❑ PM

Signature

❑ Deputy CSC

❑ Assistant CSC

❑

Clerk Of Superior Court

NOTE TO PARTIES: Many counties have MANDATORY ARBITRATION programs in which most cases where the amount in controversy is $25,000 or
less are heard by an arbitrator before a trial. The parties will be notified if this case is assigned for mandatory arbitration, and, if
so, what procedure is to be followed.
(Over)
AOC-CV-100, Rev. 4/18
© 2018 Administrative Office of the Courts

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 64 of 662

 RETURN OF SERVICE
I certify that this Summons and a copy of the complaint were received and served as follows:
DEFENDANT 1
Date Served

Time Served

Name Of Defendant
❑

AM

❑ PM

❑ By delivering to the defendant named above a copy of the summons and complaint.
❑ By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a
person of suitable age and discretion then residing therein.
❑ As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the person named
below.
Name And Address Of Person With Whom Copies Left (if corporation, give title of person copies left with)

❑ Other manner of service (specify)

❑ Defendant WAS NOT served for the following reason:

DEFENDANT 2
Date Served

Time Served

Name Of Defendant
❑AM

❑PM

❑ By delivering to the defendant named above a copy of the summons and complaint.
❑ By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a
person of suitable age and discretion then residing therein.
❑ As the defendant is a corporation, service was effected by delivering a copy of the summons arid complaint to the person named
below.
Name And Address Of Person With Whom Copies Left (if corporation, give title of person copies left with)

❑ Other manner of service (specify)

❑ Defendant WAS NOT served for the following reason:

Service Fee Paid

Signature Of Deputy Sheriff Making Return

$
Date Received

Name Of Sheriff (type or print)

Date Of Return

County Of Sheriff

AOC-CV-100, Side Two, Rev. 4/18
© 2018 Administrative Office of the Courts

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 65 of 662

 11 . File No.

STATE OF NORTH CAROLINA
Wake

In The General Court Of Justice
❑ District ❑ Superior Court Division

County

Name Of Plaintiff

Rebecca Harper
Address

CIVIL SUMMONS

1841 Stonebanks Loop

❑ ALIAS AND PLURIES SUMMONS (ASSESS FEE)

City, State, Zip

Cary

NC

27518

VERSUS

G.S. 1A-1, Rules 3 and 4

Name Of Defendant(s)

Date Original Summons Issued

David R. Lewis, Ralph E. Hise, Warren Daniel, Paul Newton,
Timothy Moore, Philip Berger, NC State Board of Elections,

Date(s) Subsequent Summons(es) Issued

Damon Circosta, Stella Anderson, Ken Raymond, Jeff Carmon III,
David C. Black
To Each Of The Defendant(s) Named Below:
Name And Address Of Defendant 1

Name And Address Of Defendant 2

Warren Daniel
300 N. Salisbury Street
Rm 627
Raleigh

Paul Newton
300 N. Salisbury St.
Rm. 312
Raleigh

NC

27603

NC

27603

IMPORTANT! You have been sued! These papers are legal documents, DO NOT throw these papers out!
You have to respond within 30 days. You may want to talk with a lawyer about your case as soon as
possible, and, if needed, speak with someone who reads English and can translate these papers!
IIMPORTANTE! iSe ha entablado un proceso civil en su contra! Estos papeles son documentos legales.
'NO TIRE estos papeles!
Tiene que contestar a mas tardar en 30 dias. iPuede querer consultar con un abogado lo antes posible
acerca de su caso y, de ser necesario, hablar con alguien que lea ingles y que pueda traducir estos
documentos!
A Civil Action Has Been Commenced Against You!
You are notified to appear and answer the complaint of the plaintiff as follows:
1. Serve a copy of your written answer to the complaint upon the plaintiff or plaintiff's attorney within thirty (30) days after you have been
served. You may serve your answer by delivering a copy to the plaintiff or by mailing it to the plaintiff's last known address, and
2. File the original of the written answer with the Clerk of Superior Court of the county named above.
If you fail to answer the complaint, the plaintiff will apply to the Court for the relief demanded in the complaint.
Name And Address Of Plaintiff's Attorney (if none, Address Of Plaintiff)

Burton Craige
100 Europa Dr.
Suite 420
Chapel Hill

Date I9ed

Signatu

1
NC

27517

d 41(1

PM

I

Deputy CSC

❑

Date Of Endorsement

❑ ENDORSEMENT (ASSESS FEE)
This Summons was originally issued on the date indicated
above and returned not served. At the request of the plaintiff,
the time within which this Summons must be served is
extended sixty (60) days.

a L-.mr ❑

Time

Assistant CSC

❑

Clerk Of Superior Court

Time

❑

AM

❑ PM

Signature

❑

Deputy CSC

❑

Assistant CSC

❑

Clerk Of Superior Court

NOTE TO PARTIES: Many counties have MANDATORY ARBITRATION programs in which most cases where the amount in controversy is $25,000 or
less are heard by an arbitrator before a trial. The parties will be notified if this case is assigned for mandatory arbitration, and, if
so, what procedure is to be followed.
(Over)
AOC-CV-100, Rev. 4/18
© 2018 Administrative Office of the Courts

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 66 of 662

 RETURN OF SERVICE
I certify that this Summons and a copy of the complaint were received and served as follows:
DEFENDANT 1
Date Served

Time Served
❑

Name Of Defendant
AM

❑ PM

❑ By delivering to the defendant named above a copy of the summons and complaint.
❑ By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a
person of suitable age and discretion then residing therein.
❑ As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the person named
below.
Name And Address Of Person With Whom Copies Left (if corporation, give title of person copies left with)

❑ Other manner of service (specify)

❑ Defendant WAS NOT served for the following reason:

DEFENDANT 2
Date Served

Time Served

Name Of Defendant
❑AM

❑PM

❑ By delivering to the defendant named above a copy of the summons and complaint.
❑ By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a
person of suitable age and discretion then residing therein.
❑ As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the person named
below.
Name And Address Of Person With Whom Copies Left (if corporation, give title of person copies left with)

❑ Other manner of service (specify)

❑ Defendant WAS NOT served for the following reason:

Service Fee Paid

Signature Of Deputy Sheriff Making Return

$
Date Received

Name Of Sheriff (type or print)

Date Of Return

County Of Sheriff

AOC-CV-100, Side Two, Rev. 4/18
© 2018 Administrative Office of the Courts

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 67 of 662

 STATE OF NORTH CAROLINAc-i _ I

1--, 1

3 IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
Case No. 19 CVS 12667

COUNTY OF WAKE
REBECCA HARPER, et al.,
Plaintiffs,
v.
REPRESENTATIVE DAVID R. LEWIS, IN
HIS OFFICIAL CAPACITY AS SENIOR
CHAIR OF THE HOUSE STANDING
COMMITTEE ON REDISTRICTING, et al.,

AFFIDAVIT OF SERVICE

Defendants.

The Affiant, Kimberly Stein, does hereby swear and depose the following:
1.

I am a legal assistant for Patterson Harkavy LLP, attorneys for the Plaintiffs in the abovecaptioned action.

2.

Copies of the Summons and Complaint were deposited with United Parcel Service (UPS)
in a post-paid envelope for mailing by Second Day Air, to each of the defendants.

3.

Copies of the Summons and Complaint were sent by UPS to defendant Philip E. Berger
addressed as follows:
Philip E. Berger
16 West Jones St.
Rm. 2007
Raleigh, NC 27601

4.

They were in fact received by the addressee on September 30, 2019. Attached is the
genuine tracking information.

5.

Copies of the Summons and Complaint were sent by UPS to the defendant Warren
Daniel, addressed as follows:
Warren Daniel
300 N. Salisbury St.
Rm. 627
Raleigh, NC 27603

6.

They were in fact received by the addressee on September 30, 2018. Attached is the
genuine tracking information.

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 68 of 662

 7.

Copies of the Summons and Complaint were sent by UPS to defendant Ralph E. Hise, Jr.
addressed as follows:
Ralph E. Hise, Jr.
300 N. Salisbury St.
Rm. 300-A
Raleigh, NC 27603

8.

They were in fact received by the addressee on September 30, 2019. Attached is the
genuine tracking information.

9.

Copies of the Summons and Complaint were sent by UPS to defendant David R. Lewis
addressed as follows:
David R. Lewis
16 West Jones St.
Rm. 2301
Raleigh, NC 27601

10.

They were in fact received by the addressee on September 30, 2019. Attached is the
genuine tracking information.

11.

Copies of the Summons and Complaint were sent by UPS to defendant Timothy K.
Moore addressed as follows:
Timothy K. Moore
16 West Jones St.
Rm. 2304
Raleigh, NC 27601

12.

They were in fact received by the addressee on September 30, 2019. Attached is the
genuine tracking information.

13.

Copies of the Summons and Complaint were sent by UPS to defendant Paul Newton
addressed as follows:
Paul Newton
300 N. Salisbury St.
Rm. 312
Raleigh, NC 27603

14.

They were in fact received by the addressee on September 30, 2019. Attached is the
genuine tracking information.
2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 69 of 662

 15.

Copies of the Summons and Complaint were sent by UPS to defendants North Carolina
Board of Elections, Damon Circosta, Jeff Carmon III, David Black, Stella Anderson, and
Ken Raymond addressed as follows:
Katelyn Love
Acting General Counsel
430 N. Salisbury St.
Suite 3128
Raleigh, NC 27603

16.

They were in fact received by the addressee on September 30, 2019. Attached is the
genuine acceptance of service.

17.

Copies of the Summons and Complaint were sent by email to counsel for defendants
North Carolina Board of Elections, Damon Circosta, Jeff Carmon III, David Black, Stella
Anderson, and Ken Raymond, addressed as follows:
Paul M. Cox
Special Deputy Attorney General
pcox @ ncdoj .gov

18.

On September 27, 2019, Mr. Cox agreed to receive service on behalf of those defendants,
as documented in the Return of Service section in the attached summonses forms.
This the 1st day of October, 2019.

A. 1
Kim

ly Stein

Sworn to and Subscribed before me
this the 1st day of October, 2019.

ZL
Notary Pu

tgsio,4244
Printed Willie
My commission expires: N
3

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 70 of 662

 Respectfully submitted, this the 1st day of October, 2019.

Narendra K. Ghosh, NC Bar No. 37649
nghosh@pathlaw.com
PATTERSON HARKAVY LLP
100 Europa Dr., Suite 420
Chapel Hill, NC 27517
Tel: (919) 942-5200
Fax: (866) 397-8671

Counsel for Plaintiffs

4

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 71 of 662

 Kimberly Stein
From:
Sent:
To:
Subject:

UPS Quantum View <pkginfo@ups.com>
Monday, September 30, 2019 10:12 AM
Kimberly Stein
UPS Delivery Notification, Tracking Number 1ZFA25850792204917

Your package has been delivered.
Delivery Date:

Monday, 09/30/2019

Delivery Time:

10:07 AM

At the request of Patterson Harkavy LLP this notice alerts you that the status of the shipment listed below
has changed.

Shipment Detail
Tracking Number:

1917

Ship To:

Philip E. Berger
300 N SALISBURY ST
RALEIGH, NC 27603
US

UPS Service:

UPS 2ND DAY AIR A.M

UPS Carbon Neutral:

Yes

Number of Packages:

1

Weight:

1:1)

Delivery Location:

DOCK
CRUZ

Reference Number 1:

NG - National Redistricting

Hundreds of travel deals offers,
updated daily.

1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 72 of 662

 r.he

Ile :Jot)

© 2019 United Parcel Service of America, Inc. UPS, the UPS brandmark, and the color brown are
trademarks of United Parcel Service of America, Inc. All rights reserved.
All trademarks, trade names, or service marks that appear in connection with UPS's services are the
property of their respective owners.
Please do not reply directly to this email. UPS will not receive any reply message.

Review the UPS Privacy Notice
ror .auestiqRs, Visit Our Help and Suppqrt Cgnter,

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 73 of 662

 Kimberly Stein
From:
Sent:
To:
Subject:

UPS Quantum View <pkginfo@ups.com>
Monday, September 30, 2019 10:12 AM
Kimberly Stein
UPS Delivery Notification, Tracking Number 1ZFA25850793590865

Your package has been delivered.
Delivery Date:

Monday, 09/30/2019

Delivery Time:

10:07 AM

At the request of Patterson Harkavy LLP this notice alerts you that the status of the shipment listed below
has changed.

Shipment Detail
Tracking Number:
Ship To:

warren Dan ieI
300 N SALISBURY ST
R.A1„EIGH, NC 27603
US

UPS Service:

UPS 2ND DAY AIR A.M

UPS Carbon Neutral:

Yes

Number of Packages:

1

Weight:

1.0 LBS

Delivery Location:

DOCK
CRUZ

Reference Number 1:

NG - National Redistricting

Hundreds of travel deals & offers,
updated daily.

UPS My Choice

1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 74 of 662

 UPS mobile. app

© 2019 United Parcel Service of America, Inc. UPS, the UPS brandmark, and the color brown are
trademarks of United Parcel Service of America, Inc. All rights reserved.
All trademarks, trade names, or service marks that appear in connection with UPS's services are the
property of their respective owners.
Please do not reply directly to this email. UPS will not receive any reply message.

R view the UPS Privacy Notice
uest

'Ask Our, Help nd u

t Center

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 75 of 662

 Kimberly Stein
From:
Sent:
To:
Subject:

UPS Quantum View <pkginfo@ups.com>
Monday, September 30, 2019 10:12 AM
Kimberly Stein
UPS Delivery Notification, Tracking Number 1ZFA25850793100876

Your package has been delivered.
Delivery Date:

Monday, 09/30/2019

Delivery Time:

10:07 AM

At the request of Patterson Harkavy LLP this notice alerts you that the status of the shipment listed below
has changed.

Shipment Detail
Tracking Number:
Ship To:

Ralph E. Hise, Jr.
300 N SP:ISBURY ST
RALEIGH, NC 27603
US

UPS Service:

UPS 2ND DAY AIR A.M

UPS Carbon Neutral:

Yes

Number of Packages:

1

Weight:

1.0 WS

Delivery Location:

DOCK
CRUZ

Reference Number 1:

NG - National RediStricting

Hundreds of travel deals
updated daily.

1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 76 of 662

 © 2019 United Parcel Service of America, Inc. UPS, the UPS brandmark, and the color brown are
trademarks of United Parcel Service of America, Inc. All rights reserved.
All trademarks, trade names, or service marks that appear in connection with UPS's services are the
property of their respective owners.
Please do not reply directly to this email. UPS will not receive any reply message.

Review the UPS Privacy Notice
For Outstions Visit Our Helix and_Support Center

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 77 of 662

 Kimberly Stein
From:
Sent:
To:
Subject:

UPS Quantum View <pkginfo@ups.com>
Monday, September 30, 2019 10:12 AM
Kimberly Stein
UPS Delivery Notification, Tracking Number 1ZFA25850793021283

Your package has been delivered.
Delivery Date:

Monday, 09/30/2019

Delivery Time:

10:07 AM

At the request of Patterson Harkavy LLP this notice alerts you that the status of the shipment listed below
has changed.

Shipment Detail
Tracking Number:
Ship To:

David R. Lewis
300 N SALISBURY:ST
RALEIGH, NC 27603
US

UPS Service:

UPS 2ND DAY AIR A,M

UPS Carbon Neutral:

Yes

Number of Packages:
Weight:

1.0 LBS

Delivery Location:

DOCK
CRUZ

Reference Number 1:

NG:- National Redistricting

Hundreds of travel deals
updated daily.

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 78 of 662

 © 2019 United Parcel Service of America, Inc. UPS, the UPS brandmark, and the color brown are
trademarks of United Parcel Service of America, Inc. All rights reserved.
All trademarks, trade names, or service marks that appear in connection with UPS's services are the
property of their respective owners.
Please do not reply directly to this email. UPS will not receive any reply message.

Review the UPS Privacy Notice
For Ouqstion,s, Visit Our tigo and Support Center

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 79 of 662

 Kimberly Stein
From:
Sent:
To:
Subject:

UPS Quantum View <pkginfo@ups.com>
Monday, September 30, 2019 10:12 AM
Kimberly Stein
UPS Delivery Notification, Tracking Number 1ZFA25850790168096

Your package has been delivered.
Delivery Date:

Monday, 09/30/2019

Delivery Time:

10;07 AM

At the request of Patterson Harkavy LLP this notice alerts you that the status of the shipment listed below
has changed.

Shipment Detail
Tracking Number:
Ship To:

Timothy K. Moore
300 N SALISBURY ST
RALEIGH, NC 27603
US

UPS Service:

UPS 2ND DAY AIR A.M

UPS Carbon Neutral:

Yes

Number of Packages:

1

Weight:

1.0 LBS

Delivery Location:

DOCK
CRUZ

Reference Number 1:

NG - National Redistricting

Hundreds of travel deals
updated daily.

1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 80 of 662

 © 2019 United Parcel Service of America, Inc. UPS, the UPS brandmark, and the color brown are
trademarks of United Parcel Service of America, Inc. All rights reserved.
All trademarks, trade names, or service marks that appear in connection with UPS's services are the
property of their respective owners.
Please do not reply directly to this email. UPS will not receive any reply message.

Review the UPS Privacy Notice
Ear Questions Visit Our Help and Support Center

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 81 of 662

 Kimberly Stein
From:
Sent:
To:
Subject:

UPS Quantum View <pkginfo@ups.com>
Monday, September 30, 2019 10:12 AM
Kimberly Stein
UPS Delivery Notification, Tracking Number 1ZFA25850794997308

Your package has been delivered.
Delivery Date:

Monday, 09/30/2019

Delivery Time:

10:07 AM

At.the request of Patterson Harkavy LLP this notice alerts you that the status of the shipment listed below
has changed.

Shipment Detail
Tracking Number:

r3OE

Ship To:

Paul Newton
300 N SALISBURY S-1
RALEIGH, NC 27603
US

UPS Service:

UPS 2ND DAY AIR A.M

UPS Carbon Neutral:

Yes

Number of Packages:

1

Weight:

1.0 LBS

Delivery Location:

DOCK
CRUZ

Reference Number 1:

NG - National Redistricting

Hundreds of travel deals & offer
updated daily.

1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 82 of 662

 Down!pa the UPS motitle app

© 2019 United Parcel Service of America, Inc. UPS, the UPS brandmark, and the color brown are
trademarks of United Parcel Service of America, Inc. All rights reserved.
All trademarks, trade names, or service marks that appear in connection with UPS's services are the
property of their respective owners.
Please do not reply directly to this email. UPS will not receive any reply message.

Review the UPS Privacy Notice

Apr questions, Visit Our Help and support Center

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 83 of 662

 Kimberly Stein
From:
Sent:
To:
Subject:

UPS Quantum View <pkginfo@ups.com>
Monday, September 30, 2019 10:08 AM
Kimberly Stein
UPS Delivery Notification, Tracking Number 1ZFA25850798884860

Your package has been delivered.
Delivery Date:

Monday, 09/30/2019

Delivery Time:

10:03 AM

At the request of Patterson Harkavy LLP this notice alerts you that the status of the shipment listed below
has changed.

Shipment Detail
Tracking Number:

Ship To:

Katelyn
430 N St\
FLOOR 3
RALEIGH, NC 27603
US

UPS Service:

UPS 2ND DAY AIR A.M

UPS Carbon Neutral:

Yes

Number of Packages:

1

Weight:

4.0 LBS

Delivery Location:

OFFICE
WATKINS

Reference Number 1:

NG - National Redistricting

Hundreds of travel deals
updated daily.

1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 84 of 662

 Gownload

UPS

Jou

© 2019 United Parcel Service of America, Inc. UPS, the UPS brandmark, and the color brown are
trademarks of United Parcel Service of America, Inc. All rights reserved.
All trademarks, trade names, or service marks that appear in connection with UPS's services are the
property of their respective owners.
Please do not reply directly to this email. UPS will not receive any reply message.

Review the UPS Privacy Notice
For Questions, Visit Our Help and Support Cents r

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 85 of 662

 19 CV 0 1 2 6 ,6 7
O o File No.

STATE OF NORTH CAROLINA
Wake

In The General Court Of Justice
• District ❑ Superior Court Division

County

Name OfPlaintiff

Rebecca Harper
Address

CIVIL SUMMONS

1841 Stonebanks Loop

• ALIAS AND PLURIES SUMMONS (ASSESS FEE)

City, State, Zip

NC

Cary

27518

VERSUS

G.S. 1A-1, Rules 3 and 4

Name Of Defendent(s)

Date Original Summons issued

David R. Lewis, Ralph E. Hise, Warren Daniel, Paul Newton,
Timothy Moore, Philip Berger, NC State Board of Elections,

Date(s) Subsequent Summons(es) Issued

Damon Circosta, Stella Anderson, Ken Raymond, Jeff Carmon III,
David C. Black
To Each Of The Defendant(s) Named Below:
Name And Address Of Defendant 1

Name And Address Of Defendant 2

North Carolina State Board of Elections
C/O Katelyn Love, Acting General Counsel
430 N. Salisbury St., Suite 3128
Raleigh

Damon Circosta
C/O Katelyn Love, Acting General Counsel
430 N. Salisbury St., Suite 3128
Raleigh

A

NC

27603

NC

27603

IMPORTANT! You have been sued! These papers are legal documents, DO NOT throw these papers out,
You have to respond within 30 days. You may want to talk with a lawyer about your case as soon as
possible, and, if needed, speak with someone who reads English and can translate these papers!
IIMPORTANTEI ISe ha entablado un proceso civil en su contra! Estos papeles son documentos legales.
IN° TIRE estos papelesi
Tiene que contestar a mas tardar en 30 dies. iPuede querer consulter con un abogado lo antes posible
acerca de su caso y, de ser necesario, hablar con alguien que lea ingles y que pueda traducir estos
documentos1

A Civil Action Has Been Commenced Against Youl
You are notified to appear and answer the complaint of the plaintiff as follows:
1. Serve a copy of your written answer to the complaint upon the plaintiff or plaintiff's attorney within thirty (30) days after you have been
served. You may serve your answer by delivering a copy to the plaintiff or by mailing It to the plaintiff's last known address, and
2. File the original of the written answer with the Clerk of Superior Court of the county named above,
If you fail to answer the complaint, the plaintiff will apply to the Court for the relief demanded in the complaint.
Name And Address Of Plaintiff's Attorney (If none, Address Of Plaintiff)

Burton
rt Craige
100 Europa Dr.
Suite 420
Chapel Hill

Date I

Time

sscu7 1 d

Signatu 1, n

ci

02 4
AM

9

I. PM

I / //..
NC

27517

\

Deputy CSC

El Assistant CSC

Dale Of Endorsement

Time

❑

AM

❑ PM

III Deputy

III

Signature

CSC

• ENDORSEMENT (ASSESS FEE)
This Summons was originally issued on the date indicated
above and returned not served. At the request of the plaintiff,
the time within which this Summons must be served is
extended sixty (60) days.

III Clerk Of Superior Court

Assistant CSC

El Clerk Of Superior Court

NOTE TO PARTIES: Many counties have MANDATORY ARBITRATION programs In which most cases where the amount In controversy is $25,000 or
less are heard by an arbitrator before a trial. The parties will be notified if this case is assigned for mandator/ arbitration, and, if
so, what procedure is to be followed,
(Over)
AOC-CV-100, Rev. 4/18
© 2018 Administrative Office of the Courts

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 86 of 662

 Nt

.,I

;:*E. ,:

RETURN OF SERVICE

I certify that this Summons and a copy of the complaint were received and served as follows:
DEFENDANT 1
Time Served

Date Served
q An

/2.=2(e,

161

Name Of DeXclant

NI AM

CSBe

11-P

By delivering to the defendant named above a copy of the summons and complaint,

•

By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a
person of suitable age and discretion then residing therein,
❑ As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the person named
below.
•

Name And Address Of Person With Whom Copies Left (If corporation, give title of person copies left with)

Er /Other

manner of service (specify)

/9-Cep 1. 4A0 d-t

,..4 ./

Co ,,t u,1..... _.....4

"

l

at 4-0 r Ke1,

e,&_,11.,,A.4 4-3

i

"‘1 --(

At

'-

❑ Defendant WAS NOT served for the following reason:

DEFENDANT 2
Date Served

`2/ 7 (7

Name Of Defendant

Time Served

/2- t 2‘.,

111 AM

..r.
i)

4 044 ".. re

re 0 5 71"*, ---.

•

By delivering to the defendant named above a copy of the summons and complaint.
By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a
person of suitable age and discretion then residing therein.

•

As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the person named
below.

•

Name And Address Of Person With Whom Copies Lett (if corporation, give title of person copies left with)

ErOther manner of service (specify)
•:"?..------?

(

--4-

.4-04.
❑ Defendant WAS NOT served for the following reason:

Service Fee Paid

Signature Of Deputy Sheriff Making Return

$
Date Received

Name Of Sheriff (type or print)

Date Of Return

County Of Sheriff

AOC-CV-100, Side Two, Rev. 4/18
© 2018 Administrative Office of the Courts

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 87 of 662

 cV 01 /-74.uui
illo File No.

STATE OF NORTH CAROLINA
Wake

In The General Court Of Justice
• District • Superior Court Division

County

Name Of Plaintiff

Rebecca Harper
Address

CIVIL SUMMONS

1841 Stonebanks Loop

ID ALIAS AND PLURIES SUMMONS (ASSESS FEE)

City State, Zip

Cary

NC

27518

VERSUS

G.S. 1A-1, Rules 3 and 4

Name Of Defendant(s)

Date Original Summons issued

David R. Lewis, Ralph E. Hise, Warren Daniel, Paul Newton,
Timothy Moore, Philip Berger, NC State Board of Elections,

Date(s) Subsequent Summons(es) Issued

Damon Circosta, Stella Anderson, Ken Raymond, Jeff Carmon III,
David C. Black
To Each Of The Defendant(s) Named Below:
Name And Address Of Defendant 1

Name And Address Of Defendant 2

Jeff Carmon III
C/O Katelyn Love, Acting General Counsel
430 N. Salisbury St., Suite 3128
Raleigh

David C. Black
C/O Katelyn Love, Acting General Counsel
430 N. Salisbury St., Suite 3128
Raleigh

A

NC

27603

NC

27603

IMPORTANT! You have been sued! These papers are legal documents, DO NOT throw these papers out!
You have to respond within 30 days. You may want to talk with a lawyer about your case as soon as
possible, and, if needed, speak with someone who reads English and can translate these papers!
IIMPORTANTE! ISe ha entablado un proceso civil en su contra! Estos papeles son documentos legales.
iNO TIRE estos papelesl
Tiene que contestar a mas tardar en 30 dies. iPuede querer consultar con un abogado lo antes posible
acerca de su caso y, de ser necesarlo, hablar con algulen que lea ingles y que pueda traducir estos
documentos!

A Civil Action Has Been Commenced Against You!
You are notified to appear and answer the complaint of the plaintiff as follows:
1. Serve a copy of your written answer to the complaint upon the plaintiff or plaintiff's attorney within thirty (30) days after you have been
served. You may serve your answer by delivering a copy to the plaintiff or by mailing it to the plaintiffs last known address, and
2. File the original of the written answer with the Clerk of Superior Court of the county named above.
If you fail to answer the complaint, the plaintiff will apply to the Court for the relief demanded In the complaint.
Name And Address OfPlaintiff's Attorney (if none, Address Of Plaintiff)

Burton Craige
100 Europa Dr.
Suite 420
Chapel Hill

Date Issued

,

Time
AM

IIII PM

091C

itAi\

Signature t,

NC

27517

ADeputy CSC

Date Of Endorsement

• ENDORSEMENT (ASSESS FEE)
This Summons was originally issued on the date indicated
above and returned not served. At the request of the plaintiff,
the time within which this Summons must be served is
extended sixty (60) days.

111 Assistant CSC

IIII Clerk Of Superior Court

Time
IIII AM

NI PM

signature

III Deputy CSC

III Assistant CSC

Li Clerk Of Superior Court

NOTE TO PARTIES: Many counties have MANDATORY ARBITRATION programs in which most cases where the amount In controversy Is $25,000 or
less are heard by art arbitrator before a trial The parties will be notified if this case is assigned for mandatory arbitration, and, if
so, what procedure is to be followed.
(Over)
AOC-CV-100, Rev. 4118
© 2018 Administrative Office of the Courts

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 88 of 662

 RETURN OF SERVICE
I certify that this Summons and a copy of the complaint were received and served as follows:
DEFENDANT i
Date Served

Time Served

2-1/ I 9

7 /

/ 2, .., 242

0

AM

EK

Name Of Defendant

'Tea

C'lrrlOA

El By delivering to the defendant named above a copy of the summons and complaint.
171 By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a
person of suitable age and discretion then residing therein.
•

As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the person named
below.
Name And Address Of Person With Whom Copies Left (if corporation, give title of person copies left with)

Other manner of service (specify)

lice-epi",..cd_

•

61 co —se-+ 1 7

1

44€A,e,e-wr i 64---/-6r-44---1,

---- m.

Defendant WAS NOT served for the following reason:

DEFENDANT 2
1406,

Time Served

Date Served

10 AM
fl- k 2.--(e,

1 I .P..-1 i 1 1

z

Name Of Defendant
.2) 4 V ;,

C

31..4.,

•

By delivering to the defendant named above a copy of the summons and complaint.

•

By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a
person of suitable age and discretion then residing therein.

•

As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the person named
below.
Name And Address OfPerson With Whom Copies Left (if corporation, give title of person copies left with)

Other manner of service (specify)
G___

•

c,

5

G

aVC.,

Defendant WAS NOT served for the following reason:

Service Fee Paid

Signature Of Deputy Sheriff Making Return

$
Date Received

Name Of Sheaf (type or print)

Date Of Return

County Of Sheriff

AOC-CV-100, Side Two, Rev. 4/18
© 2018 Administrative Office of the Courts

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 89 of 662

 1 Y cv 0 1 2 6 6 ."
I

STATE OF NORTH CAROLINA
Wake

File No.

In The General Court Of Justice
• District • Superior Court Division

County

Name Of Plaintiff

Rebecca Harper
Address

CIVIL SUMMONS

1841 Stonebanks Loop

ALIAS AND PLURIES SUMMONS (ASSESS FEE)

City, State, Zip

Cary

NC

27518

VERSUS

G.S. 1A-1, Rules 3 and 4

Name OfDefendants)

Date Original Summons Issued

David R Lewis, Ralph E. Hise, Warren Daniel, Paul Newton,
Timothy Moore, Philip Berger, NC State Board of Elections,

Date(s) Subsequent Summons(es) Issued

Damon Circosta, Stella Anderson, Ken Raymond, Jeff Carmon III,
David C. Black
To Each Of The Defendant(s) Named Below:
Name And Address Of Defendant 1

Name And Address Of Defendant 2

Stella Anderson
C/O Katelyn Love, Acting General Counsel
430 N. Salisbury St., Suite 3128
Raleigh

Ken Raymond
CIO Katelyn Love, Acting General Counsel
430 N. Salisbury St., Suite 3128
Raleigh

A

NC

27603

NC

27603

IMPORTANT! You have been sued! These papers are legal documents, DO NOT throw these papers out!
You have to respond within 30 days. You may want to talk with a lawyer about your case as soon as
possible, and, if needed, speak with someone who reads English and can translate these papers!
IIMPORTANTEI iSe ha entablado un proceso civil en su contra! Estos papeles son documentos legales.
MO TIRE estos papelesi
Ilene que contestar a mas tardar en 30 dias. iPuede querer consultar con un abogado lo antes posible
acerca de su caso y, de ser necesario, hablar con alguien que lea ingles y que pueda traducir estos
documentos!

A Civil Action Has Been Commenced Against Youl
You are notified to appear and answer the complaint of the plaintiff as follows:
1, Serve a copy of your written answer to the complaint upon the plaintiff or plaintiff's attorney within thirty (30) days after you have been
served. You may serve your answer by delivering a copy to the plaintiff or by mailing it to the plaintiff's last known address, and
2. File the original of the written answer with the Clerk of Superior Court of the county named above.
If you fail to answer the complaint, the plaintiff will apply to the Court for the relief demanded in the complaint.
Name And Address Of Plaintiff's Attorney (If none, Address Of Plaintiff)

Burton Craige
100 Europa Dr.
Suite 420
Chapel Hill

,

Date IssuAd

C/1.'4-

')

Time

(91

0

r..1

PM

Signature

NC

27517

M g Deputy CSC

Date Of Endorsement

• ENDORSEMENT (ASSESS FEE)
This Summons was originally issued on the date Indicated
above and returned not served. At the request of the plaintiff,
the time within which this Summons must be served is
extended sixty (60) days.

11 Assistant CSC

In Clerk Of Superior Court

Time

❑

AM

III PM

Signature

IIII Deputy CSC

II Assistant CSC

•

Clerk Of Superior Court

NOTE TO PARTIES: Many counties have MANDATORY ARBITRATION programs in which most cases where the amount in controversy Is $25, 000 or
less are heard by an arbitrator before a trial. The parties will be notified if this case is assigned for mandatory arbitration, and, If
so, what procedure Is to be followed.
(Over)
AOC-CV-100, Rev, 4/18
© 2018 Administrative Office of the Courts

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 90 of 662

 RETURN OF SERVICE
I certify that this Summons and a copy of the complaint were received and served as follows:
DEFENDANT 1
Date Served

Time Served

/

1 1/

i

c?

2— I. 2- C,

si AM

iTh<

Name Of Defendant

5-71-4/ --

,4

'Ll--/-5 et.'"

•

By delivering to the defendant named above a copy of the summons and complaint.

•

By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a
person of suitable age and discretion then residing therein,

•

As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the person named
below.
Name And Address Of Person With Whom Copies Left (if corporation, give title of person copies left with)

[KrOther manner of service (specify)

ti ----( 19 -4 -

C 0 '1-5CA.t.

j 7

At-

A-, e`Y- -4 S.

4""f-114 f1914/t1

•

itA.-

(

❑ Defendant WAS NOT served for the following reason:

DEFENDANT 2
Date Serve

Time Served
/ 24 114

/2

Name Of Defendant
III
• AM

1.

P141

(4-6.1„,1

4,e2,4,7 (.....0 .1,

....e

•

By delivering to the defendant named above a copy of the summons and complaint.

•

By leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a
person of suitable age and discretion then residing therein,

•

As the defendant is a corporation, service was effected by delivering a copy of the summons and complaint to the person named
below.
Name And Address Of Person With Whom Copies Left (if corporation, give title of person copies left with)

[Other manner of service (specify)

5

,- 0_,Ler

•

. 1. 6

ta_L is," c____ ,

A.el

4

Defendant WAS NOT served for the following reason:

Service Fee Paid

Signature Of Deputy Sheriff Making Return

$
Date Received

Name Of Sheriff (type or print)

Date Of Return

County Of Sheriff

AOC-CV-100, Side Two, Rev. 4/18
0 2018 Administrative Office of the Courts

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 91 of 662

-0(

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

Warren Daniel
300 N. Salisbury Street Rm. 627
Raleigh, N.C. 27603
Paul Newton
300 N. Salisbury Street Rm. 312
Raleigh, N.C. 27603
David R. Lewis
16 West Jones Street Rm. 2301
Raleigh, N.C. 27601
Ralph E. Hise
300 N. Salisbury St. Rm. 300-A
Raleigh, N.C. 27603
Timothy K. Moore
16 West Jones Street Rm. 2304
Raleigh, N.C. 27601
Philip E. Berger
16 West Jones Street Rm. 2007
Raleigh, N.C. 27601

This the lst day of October, 2019.

Narendra K. Ghosh, NC Bar No. 37649

5

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 92 of 662

 Case Document 5-1 Filed 10/14/19 Page 93 of 662

STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
2
19 CVS 012667

REBECCA HARPER, et al.,
Plaintiffs,
v.
REPRESENTATIVE DAVID R. LEWIS, IN
HIS OFFICIAL CAPACITY AS SENIOR
CHAIR OF THE HOUSE STANDING
COMMITTEE ON REDISTRICTING, et al.,

MOTION FOR EXPEDITED BRIEFING
AND RESOLUTION OF
PLAINTIFFS' MOTION FOR A
PRELIMINARY INJUNCTION

Defendants.

Plaintiffs, who are individual voters from each of North Carolina's 13 congresssional
districts, respectfully request that the Court expedite briefing and resolution of their Motion for a
Preliminary Injunction, filed simultaneously with this motion. In support of their motion to
expedite, Plaintiffs state as follows:
1.

Plaintiffs filed the Verified Complaint in this action on September 27, 2019,

challenging North Carolina's 2016 congressional redistricting plan (the "2016 Plan") as an
illegal partisan gerrymander in violation of the North Carolina Constitution's Free Elections
Clause, Equal Protection Clause, and Freedom of Speech and Assembly Clauses. Defendants are
the chairs of the state House and state Senate redistricting committees, the Speaker of the state
House, the President Pro Tempore of the state Senate (collectively, "Legislative Defendants"),
and the State Board of Elections and its members (collectively, "State Defendants"). As of
today, Plaintiffs have effectuated service on all Defendants.
2.

Today, one business day after filing this action, Plaintiffs filed a motion for a

preliminary injunction (1) barring Defendants from administering, preparing for, or moving

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 94 of 662

 forward with the 2020 primary and general congressional elections using the 2016 Plan; and
(2) establishing a remedial process to create a new plan that complies with the North Carolina
Constitution, including a court-ordered remedial plan if the General Assembly fails timely to
enact a new plan comporting with the North Carolina Constitution.
3.

Plaintiffs and the public have a strong interest in resolving this motion for

preliminary injunction as expeditiously as possible to ensure that new, lawful districts can be
established for the 2020 primary and general elections. In nearly every state and federal

legislative election held in North Carolina since 2010, voters have been forced to cast their
ballots in districts that the courts ruled unconstitutional. The 2011 state House and Senate plans
were unconstitutional racial gerrymanders, and the 2017 replacements were unconstitutional
partisan gerrymanders, as a three-judge panel of this Court recently held. Likewise, the 2011
congressional plan was an unconstitutional racial gerrymander. See Harris v. McCrory, 159 F.

Supp. 3d 600, 604 (M.D.N.C. 2016), aff'd
aff’d sub nom. Cooper v. Harris, 137 S. Ct. 1455 (2017).
And the 2016 Plan at issue in this case is an unconstitutional partisan gerrymander. North
Carolinians should not be forced again to vote in unconstitutional districts.
4.

While this Court could push back the March 2020 congressional primaries to

provide more time to decide the preliminary injunction motion and establish a remedial plan, the
Court can avoid that step by proceeding expeditiously. In Common Cause v. Lewis, the State
Board of Elections advised that the final state legislative districts had to be in place by the end of
November 2019 or potentially early December 2019 to be used in the March 2020 primaries. If
the same timeline applies for the congressional districts, there is adequate time to resolve

Plaintiffs’ preliminary injunction motion on the merits and establish a remedial plan.
Plaintiffs'

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 95 of 662

 5.

On the merits, this is a straightforward case. No discovery or extensive expert

Plaintiffs’ motion
analysis is needed for this Court to issue a preliminary injunction. As Plaintiffs'
explains, the Court can and should enjoin the 2016 Plan based on the official legislative criteria

for creation of the plan and the admissions of Legislative Defendants and their mapmaker, Dr.
Hofeller. All of the relevant facts pertinent to the preliminary injunction are incontrovertible and
undisputed.

6.

The law is as clear as the facts. In Common Cause, this Court established that

“the constitutional rights of North Carolina citizens are infringed when the General Assembly ...
"the
draws district maps with a predominant intent to favor voters aligned with one political party at

voters.” 18-CVS-014001, slip. op. at 6 (N.C. Sup. Ct. Sept. 3, 2019).
the expense of other voters."
Irrespective of federal law, partisan gerrymandering violates the North Carolina Constitution's
Constitution’s
Free Elections Clause, Equal Protection Clause, and Freedom of Speech and Assembly Clauses.

Defendants’ own contemporaneous admissions, the 2016 Plan is
Id. at 9, 307-31. By Legislative Defendants'
an extreme partisan gerrymander and therefore violates the North Carolina Constitution under

Common Cause.
7.

Sufficient time likewise remains to establish and implement a remedial plan on

the current election schedule, without moving the March 2020 primaries. During the recent
remedial phase in Common Cause, the General Assembly adopted two separate remedial plans
revising a total of 77 state House and state Senate districts over a mere 8-day period. The
remedial phase in this case will be much easier, as it involves just one remedial plan with only
13 districts. There is ample time for the Court to decide this motion, allow the General
Assembly two weeks to redraw the map, and review the remedial map with the assistance of a
referee.
3

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 96 of 662

 8.

To promote a timely resolution and establish a remedial plan for use in the March

2020 primaries, Plaintiffs propose the following schedule:
••

Plaintiffs’ motion for preliminary injunction
Defendants shall file their responses to Plaintiffs'
on or before October 14, 2019.

••

Plaintiffs shall file their reply on or before October 18, 2019.

••

Any hearing on the motion shall be held the week of October 21 to 25, 2019, with the
specific date and time to be set by the Court.

••

A decision on the motion for preliminary injunction will issue by November 1, 2019.

9.

Plaintiffs’ proposed schedule will allow adequate time for the establishment and
Plaintiffs'

implementation of a remedial plan for use in 2020 on the current election schedule. Specifically,
if the Court grants the preliminary injunction, it can give the General Assembly two weeks—
until November 15, 2019—to enact a new plan that comports with the North Carolina
Constitution, and direct the General Assembly to transmit the new plan to the Court (both a PDF
and the shape file and block assignment files) by November 18. Next, the parties would submit

Assembly’s
simultaneous briefs supporting, objecting to, or otherwise addressing the General Assembly's
proposed new plan by 5:00 p.m. on November 22, 2019. The Court then could review the

Assembly’s proposed plan with the assistance of a referee, and publish the final
General Assembly's
remedial plan one week later—by 5:00 p.m. on November 29, 2019. This will allow the State
Board of Elections to implement the remedial plan for use in the March 2020 primaries.
10.

Plaintiffs’ preliminary injunction motion
While sufficient time remains to resolve Plaintiffs'

and implement a remedial plan on the current election schedule, the schedule can be adjusted to

“to make reasonable interim
provide effective relief. The State Board of Elections has authority "to
regulations” to move administrative deadlines in the event that any North Carolina
rules and regulations"
“is held unconstitutional or invalid by a State or federal court."
court.” N.C. Gen. Stat.
election law "is
4

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 97 of 662

 § 163A-742. And this Court has remedial authority to move the 2020 congressional primary
elections, if necessary. See Lewis, slip op. COL ¶¶ 181-82. The Court could move the primaries
under one of two approaches. First, the Court could move all of the State’s
State's 2020 primaries,
including for offices other than the U.S. House, to a later date in 2020. Alternatively, the Court
could move the primaries for only the U.S. House to a later date, while keeping the primaries for
other offices on the currently scheduled date of March 3, 2020. One possibility would be to

“Second Primary"
Primary” date that has taken place in every
move the congressional primaries to the "Second
recent election cycle for primary run-offs.
11.

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 N.C. 281, 282, 561 S.E.2d 288 (2002), causing
all of the State’s
State's primaries to be moved to a different date, 357 N.C. 301, 303, 582 S.E.2d 247,
249 (2003). And in 2016, after the federal court in Harris enjoined the State’s
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 Session Law 2016-2 § 1(b). Such changes are not necessary at
this stage, however, as the Court has sufficient time to receive briefing and argument, issue a
preliminary injunction, and oversee a remedial process under the current election schedule.

briefing and
WHEREFORE, Plaintiffs request that the Court enter an order expediting briefmg
Plaintiffs’ motion for preliminary injunction on the schedule set out above.
decision on Plaintiffs'

5

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 98 of 662

 Respectfully submitted this the 30th day of September, 2019.
PATTERSON HARKAVY LLP

ARNOLD & PORTER
KAYE SCHOLER LLP

Burton Craige, NC Bar N'o. 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
bcraige@pathlaw.com
nghosh@pathlaw.com
psmith@pathlaw.com

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@arnoldporter.com

Counsel for Plaintiffs
PERKINS COTE LLP
Marc E. Elias*
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
Counselfor Plaintiffs
* Pro hac vice motionsforthcoming

6

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 99 of 662

 CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy 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 U.S. 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, N.C. 27603
Paul Newton
300 N. Salisbury Street
Rm. 312
Raleigh, N.C. 27603
David R. Lewis
16 West Jones Street
Rm. 2301
Raleigh, N.C. 27601
Ralph E. Hise
300 N. Salisbury St.
Rm. 300-A
Raleigh, N.C. 27603
Timothy K. Moore
16 West Jones Street
Rm. 2304
Raleigh, N.C. 27601
Philip E. Berger
16 West Jones Street
Rm. 2007
Raleigh, N.C. 27601
This the 30th day of September, 2019.

Burton Craige, NC Baf No. 9180

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 100 of 662

 STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL CO* OEJU VCE
SUPERIOR COURTT DIVISION
No. 19 CVS 012667 r-c"-•

REBECCA HARPER, et al.,
Plaintiffs,
N FOR
PLAINTIFFS' MO
A PRELIMI
RY
INJUNCTION

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

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 101 of 662

 TABLE OF CONTENTS
Page
INTRODUCTION ......................................................................................................................1
1
FACTUAL BACKGROUND......................................................................................................2
2
A.

Federal Courts Strike Down the 2011 Plan as an Illegal Racial Gerrymander ....... 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 U.S. Supreme Court Holds that Partisan Gerrymandering Claims Are
Left to State Courts Applying State Constitutions
Constitutions............................................... 27

F.

Carolina’s
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
Standard

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
Carolina’s Free Elections Clause ......................... 32

B.

The 2016 Plan Violates North Carolina's
Carolina’s Equal Protection Clause ..................... 35

C.

The 2016 Plan Violates North Carolina's
Carolina’s Freedom of Speech and Assembly
Clauses .............................................................................................................. 38

D.

1.

The 2016 Plan Unconstitutionally Discriminates Against Protected
Expression and Association ....................................................................39

2.

The 2016 Plan Unconstitutionally Retaliates Against Protected
Expression and Association ....................................................................42

All Plaintiffs Have Established a Likelihood of Standing ................................... 43

III.

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

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 102 of 662

 TABLE OF AUTHORITIES
Page(s)
Cases
A.E.P. Indus., Inc. v. McClure,
308 N.C. 393, 302 S.E.2d 754 (1983) ............................................................................ 30, 50

Action NC v. Strach,
216 F. Supp. 3d 597 (M.D.N.C. 2016) ................................................................................. 44
of Waynesville,
Anderson v. Town of
Waynesville,
203 N.C. 37, 164 S.E. 583 (1932) .................................................................................. 30, 31
of N.C.,
Auto. Dealer Res., Inc. v. Occidental Life Ins. Co. of
15 N.C. App. 634, 190 S.E.2d 729 (1972) ..................................................................... 31, 46
of Light & Water
of City of
of Concord v. Parkwood Sanitary Dist.,
Bd. of
Water Comm’rs
Comm'rs of
49 N.C. App. 421, 271 S.E.2d 402 (1980) ........................................................................... 31
Citizens United v. FEC,
558 U.S. 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
of Alternative Political Parties v. Hooks,
121 F.3d 876 (3d Cir. 1997) ................................................................................................ 47
Davis v. New Zion Baptist Church,
811 S.E.2d 725 (N.C. Ct. App. 2018) ............................................................................ 43, 44

Elrod v. Burns,
427 U.S. 347 (1976) ............................................................................................................ 46
Erfer v. Commonwealth,
794 A.2d 325 (Pa. 2002)...................................................................................................... 46

Goldston v. State,
361 N.C. 26, 637 S.E.2d 876 (2006) .............................................................................. 43, 44

ii

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 103 of 662

 Harris v. McCrory,
159 F. Supp. 3d 600 (M.D.N.C. 2016) ................................................................... 3, 5, 47, 50

of Women
of N.C. v. North Carolina,
League of
Women Voters
Voters of
769 F.3d 224 (4th Cir. 2014) ............................................................................................... 46
of N.C. v. State,
Libertarian Party of
365 N.C. 41, 707 S.E.2d 199 (2011) .................................................................................... 39
of Adjustment,
Mangum v. Raleigh Bd. of
362 N.C. 640, 669 S.E.2d 279 (2008) .................................................................................. 44
McDonald v. Morrow,
119 N.C. 666, 26 S.E. 132 (1896) ........................................................................................ 50

Ass’n, Inc.,
Roberts v. Madison Cty. Realtors Ass'n,
344 N.C. 394, 474 S.E.2d 783 (1996) .................................................................................. 31
Rucho v. Common Cause,
139 S. Ct. 2484 (2019) ...................................................................................... 27, 28, 32, 36
State v. Bishop,
368 N.C. 869, 787 S.E.2d 814 (2016) .................................................................................. 39

State v. Petersilie,
334 N.C. 169, 432 S.E.2d 832 (1993) ............................................................................ 42, 50
Staton v. Russell,
151 N.C. App. 1, 565 S.E.2d 103 (2002) ............................................................................. 50
Stephenson v. Bartlett,
355 N.C. 354, 562 S.E.2d 377 (2002) ............................................................................ 35, 49

Triangle Leasing Co. v. McMahon,
327 N.C. 224, 393 S.E.2d 854 (1990) ............................................................................ 30, 46
Statutes and Rules
N.C. Gen. Stat. § 1-485 ............................................................................................................... 1

163A-742....................................................................................................... 49
N.C. Gen. Stat. § 163A-742
N.C. R. Civ. P. 65 ....................................................................................................................... 1
N.C. R. Civ. P. 65(c) ................................................................................................................. 50
N.C. R. Evid. 201(b) ................................................................................................................. 11

iii

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 104 of 662

 Pursuant N.C. R. Civ. P. 65 and N.C. Gen. Stat. § 1-485, Plaintiffs hereby move for a
preliminary injunction (1) barring Defendants from 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
Carolina’s
this Court to issue a preliminary injunction. The Court can and should enjoin North Carolina's
“2016 Plan")
Plan”) based solely on the official legislative
2016 congressional redistricting plan (the "2016
criteria for creation of the plan and the admissions of Legislative Defendants and their
mapmaker, Dr. Thomas Hofeller. Legislative Defendants freely admitted during the 2016
redistricting process that they were seeking to predetermine congressional election outcomes.

They adopted "Partisan
“Partisan Advantage"
Advantage” as an official criterion, directing that the districts be drawn
“10 Republicans and 3 Democrats."
Democrats.” Representative
to produce a congressional delegation of "10
Lewis said that this was the maximum gerrymander possible, and that he was drawing the
“for the
districts this way because he believes the viewpoints of Democratic voters are worse "for
country.” Sure enough, just as Legislative Defendants and Dr. Hofeller intended, Republicans
country."
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.

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 105 of 662

 The law is as clear as the facts. In Common Cause v. Lewis, a unanimous three-judge
“the constitutional rights of North Carolina citizens are infringed
panel of this Court held that "the
when the General Assembly ... draws district maps with a predominant intent to favor voters

voters.” 18-CVS-014001, slip. op. at 6
aligned with one political party at the expense of other voters."
(N.C. Sup. Ct. Sept. 3, 2019). Irrespective of federal law, partisan gerrymandering violates the

Constitution’s Free Elections Clause, Equal Protection Clause, and Freedom of
North Carolina Constitution's
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

final
fmal 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 flip state legislative
"In
chambers in order to gain control of redistricting after the 2010 Census, Republicans won
2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 106 of 662

 majorities in the North Carolina House of Representatives and the North Carolina Senate for the

first time since 1870."
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
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").
Plan”). Decl. of Elisabeth S. Theodore ("Theodore
(“Theodore Decl.")
Decl.”) Ex. B, Deposition of
"2011
(“Lewis Dep.")
Dep.”) at 14:15-15:24, Common Cause v. Rucho, No. 16Representative David Lewis ("Lewis
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
(“Hofeller Dep.")
Dep.”) at 123:8-23, 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

Amendment’s Equal Protection Clause.
racially gerrymandered in violation of the Fourteenth Amendment's
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'
“‘strictly’ [a]
gerrymander.” Cooper v. Harris, 137 S. Ct. 1455, 1473 (2017). In affirming the threepolitical gerrymander."
panel’s ruling, the U.S. Supreme Court noted that the State’s
“sorting of voters on the
judge panel's
State's "sorting
grounds of their race remains suspect even if race is meant to function as a proxy for other

characteristics.” Id. at 1455 n.7.
(including political) characteristics."
North Carolina conducted two congressional elections using the 2011 Plan before it was

plan’s unconstitutional racial gerrymander resulted in the election of 9
struck down. The plan's
Republicans and 4 Democrats in 2012, and 10 Republican and 3 Democrats in 2014.

3

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 107 of 662

 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

Hofeller’s home, Representative Lewis and Senator Rucho told Dr. Hofeller to create the
Dr. Hofeller's
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

(“Rucho Dep.")
Dep.”) at 31:16-32:13, 33:6-20, 35:16-21, 36:17-37:8, Rucho, No. 16Robert A. Rucho ("Rucho
“to create a map
cv-1026 (M.D.N.C. Jan. 25, 2017). Specifically, they instructed Dr. Hofeller "to
Democrats.” See Hofeller Dep. at 175:19-23,
that was likely to elect 10 Republicans and 3 Democrats."
178:14-20, 188:19-190:2.

Defendants’ partisan
Dr. Hofeller admitted that he sought to achieve Legislative Defendants'
“predominantly Democratic districts."
districts.”
objectives by drawing Districts 1, 4, and 12 to be "predominantly
“assign[ed]
Hofeller Dep. at 192:10-16. With respect to the 10 remaining districts, Dr. Hofeller "assign[ed]
history” in order to make all 10 of these districts
voters to the districts …
... based on their voting history"
“Republican opportunity-to-elect districts."
districts.” Hofeller Dep. at 128:22-129:2.
"Republican
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 212:16-215:7;

Theodore Decl. Ex. H, Second Deposition of Thomas Hofeller ("Hofeller
(“Hofeller Dep. II”)
II") at 260:184

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 108 of 662

 267:17, Rucho, No. 16-cv-1026 (M.D.N.C. Feb. 10, 2017); see Theodore Decl. Ex. G, Hofeller

Hofeller’s partisanship formula)
formula). Dr. Hofeller testified that he used the
Dep. II Ex. 42 (Dr. Hofeller's
“to get a pretty good cross section of what the past
averaged results from these seven elections "to
been,” Hofeller Dep. at 212:16-213:9, and "[t]o
“[t]o give [him] an indication of the twovote had been,"
VTDs,” Hofeller Dep. II at 266:24-267:6. He believed that the
party partisan characteristics of VTDs,"
formula would give him useful information regarding the "partisan
“partisan characteristics"
characteristics” of the VTDs,
“tend to carry the same characteristics through a string of elections"
elections” in
because individual VTDs "tend
“line up from one end of the …
that they "line
... political spectrum to the other in roughly the same
order.” Id. at 274:1-16. Dr. Hofeller had previously testified that "he
“he had drawn numerous plans
order."
decades,” and in his experience, "the
“the underlying political
in the state of North Carolina over decades,"
it.”
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
(“Hofeller Testimony”)
Testimony") at 525:6-10,
aff’d by Cooper, 137 S. Ct. 1455;
Harris v. McCrory, No. 13-cv-949 (M.D.N.C. Oct. 14, 2015), aff'd
“So once a precinct is found to be a strong Democratic precinct,"
precinct,”
see Hofeller Dep. at 149:5-18. "So
“it’s probably going to act as a strong Democratic precinct in every
Dr. Hofeller explained, "it's
precincts.” Hofeller Testimony at
subsequent election. The same would be true for Republican precincts."
525:14-17.
“past voting behavior"
behavior” to
Dr. Hofeller testified that he then used this formula reflecting "past
“assign[] VTDs to various congressional districts in drafting the 2016 plan."
plan.” Hofeller Dep. at
"assign[]
“used
132:14-18, 212:16-215:7; see Hofeller Dep. II at 267:7-17 (Dr. Hofeller testifying that he "used
formula” in deciding "where
“where [he] would put the lines for districts").
districts”). More
this [partisanship] formula"
specifically, 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.

5
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 109 of 662

 “us[ed] this formula to
at 212:16-215:7, Hofeller Dep. II at 260:18-267:17. In other words, he "us[ed]
vote” share in each
create a [colored] thematic to show a percentage of [the] Republican vote"
“rainbow” color scheme to display
VTD. Hofeller Dep. II at 271:11-273:3. Dr. Hofeller used a "rainbow"
“satisf[ied]
partisanship in Maptitude based on his formula. Id. at 270:7-9. He testified that he "satisfied]
legislature’s desire to obtain a partisan advantage"
advantage” by using the "VTD
“VTD thematic."
thematic.” Id. at
the legislature's
281:7-11. 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 282:1-7.
Dr. Hofeller testified that he advised Representative Lewis of the projected partisan

“really obvious."
obvious.” Id. at 290:17-25.
performance of districts for which the partisan result was not "really
“[n]early every time"
time” he reviewed Dr. Hofeller's
Hofeller’s draft plans,
Representative Lewis testified that "[n]early
plans’ partisan performance using the results from North Carolina's
Carolina’s 2014 Senate
he assessed the plans'
“in [his] mind the closest political race with equally matched
race, because this election was "in
money.” Lewis Dep. at 63:9-64:17.
candidates who spent about the same amount of money."
finished the
Representative Lewis and Dr. Hofeller admitted that Dr. Hofeller had nearly fmished
final
fmal plan before the Joint Redistricting Committee ever met, and that Dr. Hofeller pre-drew the
“the plan was actually brought into a form to
plan with partisan intent. Dr. Hofeller recalled that "the
16th.” Hofeller Dep. at 175:10-18.
be presented to the legislature long before [February] 16th."
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, 73:7-74:7. Those draft plans

“near-final versions of the 2016 map"
map” that Representative Lewis intended to submit to the
were "near-final
General Assembly for approval. Id. at 77:7-20. Dr. Hofeller and Representative Lewis agreed

6
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 110 of 662

 “ultimately adopted with a
on a draft plan on February 12 or 13, 2016, id., and that plan was "ultimately
issue.” Id. at 77:21-24.
minor distinction for an incumbency issue."
On February 12, 2016, after the 2016 Plan was already nearly finished,
fmished, the Republican

legislative leaders appointed Representative Lewis and Senator Rucho as co-chairs of the newly
“Joint Committee").
Committee”). The Joint Committee
formed Joint Select Committee on Redistricting (the "Joint
consisted of 24 Republicans and 12 Democrats. See Theodore Decl. Ex. E, Feb. 17, 2016 Tr. of

Comm. on Redistricting ("Feb.
(“Feb. 17 Joint Comm. Tr.”),
Proceedings, Joint Comm
Tr."), at 3:9-6:17.
At a meeting on February 16, 2016, the Joint Committee adopted a set of criteria (the

“Adopted Criteria")
Criteria”) to govern creation of the 2016 Plan. Theodore Decl. Ex. D, Feb. 16, 2016
"Adopted
Tr. of Proceedings, Joint Comm. on Redistricting ("Feb.
(“Feb. 16 Joint Comm. Tr.”),
Tr."), at 14:16-98:20.
“Partisan Advantage"
Advantage” as an official criterion,
Most notably, the Joint Committee adopted "Partisan
Republicans’ existing 10-3 advantage in North
explicitly directing that the new plan preserve Republicans'
Carolina’s congressional delegation. Id. at 67:2-69:23. This criterion stated:
Carolina's
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
Carolina’s congressional delegation.
current partisan makeup of North Carolina's
Theodore Decl. Ex. C, Adopted Criteria.
“Partisan Advantage"
Advantage” criterion as requiring the
Representative Lewis described the "Partisan
“to seek partisan advantage for the Republicans."
Republicans.” Theodore Decl. Ex. F, Feb. 19,
mapmaker "to
(“Feb. 19 House
2016 Tr. of Proceedings, N.C. House of Representatives, Floor Session One ("Feb.
“draw the maps to give a partisan
Floor Tr.”),
Tr."), at 34:16-18. He told the Committee that he would "draw
possible to draw a
advantage to 10 Republicans and 3 Democrats because I do not believe it’s
it's possible
Democrats.” Feb. 16 Joint Comm. Tr. at 50:6-10 (emphasis
map with 11 Republicans and 2 Democrats."

7

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 111 of 662

 “acknowledge[d] freely that this would be a political
political
added). Representative Lewis "acknowledge[d]
gerrymander.” Id. at 48:4-5 (emphasis added).
gerrymander."
The Joint Committee adopted "Political
“Political Data"
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
(“VTDs”) should be split only
the 2016 Contingent Congressional Plan. Voting districts ("VTDs")
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
“want[ed] to make clear that to the extent [we] are going to use
the Joint Committee that he "want[ed]
political data in drawing this map, it is to gain partisan advantage on the map. I want that criteria

understood.” Feb. 16 Joint Comm. Tr. at 53:24-54:4.
to be clearly stated and understood."
The remaining criteria adopted by the Joint Committee were to provide for equal
population, to make the districts contiguous, to eliminate the then-current configuration 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 14:16-18:3,
21:9-24:18, 91:17-94:17, 95:15-98:20; see also Adopted Criteria.

The Joint Committee adopted the Political Data and Partisan Advantage criteria on partyline votes. The other criteria were passed on a bipartisan basis. Representative Lewis told the
“the criteria that will be available to the mapmaker ... will only be the criteria
Committee that "the
adopted,” Feb. 16 Joint Comm
Comm. Tr. at 140:8-13, despite knowing that
that this ... committee has adopted,"
“for the most part finished by the time the criteria were formally adopted by
the 2016 Plan was "for

8
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 112 of 662

 committee,” Hofeller Dep. at 177:9-14. He later emphasized that "the
“the criteria that this
the committee,"
maps.” Feb. 17
committee debated and adopted ... are the criteria that were used to draw these maps."
Joint Comm. Tr. at 43:4-14.
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 138:6-8; Hofeller Dep. at 197:22-198:17. Dr. Hofeller later testified that the 2016 Plan

“conformed to the criteria"
criteria” adopted by the Joint Committee, which included the criteria
"conformed
concerning Partisan Advantage and Political Data. Hofeller Dep. at 178:20; see id. at 129:10-15.
On February 17, 2016, just one day after the Joint Committee adopted the official 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
“produce an
partisan performance of the proposed districts and asserted that the 2016 Plan would "produce
Congress.” Id. at 12:3-7. To prove it,
opportunity to elect ten Republican members of Congress."
Representative Lewis provided Committee members with spreadsheets showing the partisan
performance of the proposed districts in previous statewide elections. E.g., id. at 17:4-18:23.

The Committee then approved the 2016 Plan on a party-line vote.
On February 19, 2016, the full House debated the 2016 Plan. During the debate,

“freely acknowledge[d] that [he] sought partisan advantage."
advantage.” Feb. 19
Representative Lewis "freely
“I think
House Floor Tr. at 31:14-17. He defended the Partisan Advantage criterion by stating: "I
electing Republicans is better than electing Democrats. So I drew this map in a way to help

country.” Id. at 34:21-23.
foster what I think is better for the country."
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

9
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 Defendants’ Response to Plaintiffs'
Plaintiffs’ First RFAs at No. 25, Rucho, No. 16Theodore Decl. Ex. K, Defendants'

cv-1026.
“satisfied” "all
“all criteria,"
criteria,” including the criteria
Senator Rucho testified that the 2016 Plan "satisfied"

requiring a 10-3 partisan advantage for Republicans. Rucho Dep. 193:24-194:14. In
Inaa sworn
declaration submitted in the federal case, Dr. Hofeller
Hotelier calculated the projected partisan
performance of all 13 districts under the 2016 Plan using his seven-election partisanship
Decl. of Thomas B. Hofeller
(“Hofeller Decl.")
Decl.”) at 9,
formula. Theodore Decl. Ex. I, Second Doi
Hotelier ("Hotelier

Rucho, No. 16-cv-1026 (M.D.N.C. Oct. 26, 2017). He concluded that the 2016 Plan (labeled the
“Contingent Plan”)
"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. Hotelier's
Hofeller’s

calculations are displayed below:

Contingent Plan
Dist.
01
02
03
04
05
06
07
08
09
10
11
12
13

% Rep.
31.23%
55.63%
55.04%
37.02%
55.71%
54.41%
53.68%
54.94%
55.72%
57.95%
57.08%
36.18%
53.51%

10
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 114 of 662

 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
Carolina’s congressional delegation.
Republican advantage in North Carolina's
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 (23%). See SBOE,

(“2016 Results"),
Results”), https://bit.ly/2nM2N1S.1
https://bit.ly/2nM2NlS.1
Nov. 8, 2016 Available Election-related Files ("2016
The results were even more striking in 2018. Despite the blue wave that year, Democrats
were unable to flip 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

(“2018 Results"),
Results”), https://bit.ly/2mW8CNx.
Available Election-related Files ("2018
The results of the individual races in 2018 reveal how Legislative Defendants achieved
party’s share of the two-party vote in the districts that
this feat. The following table shows each party's
2018:2
the party won in 2018:2

11 All of the prior election results in this brief were calculated using the final 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
2

Data for this table was gathered from official 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 Unofficial
Local Election Results - Statewide (2019), http://bit.ly/2nC6LgU. 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

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 115 of 662

 District
1
4
12
2
3
5
6
7
8
9
10
11
13
Statewide Vote Share
Before Adjusting for
Uncontested Race
Statewide Vote Share
After Adjusting for
Uncontested Race
Percentage of Seats Won

Democratic Vote Share
69.9%
75.1%
73.1%

Republican Vote Share

52.8%
100.0%
57.0%
56.5%
56.5%
55.3%
51.0%
59.3%
60.4%
53.1%
48.9%

51.1%

50.9%

49.1%

23.1%

76.9%

This table illustrates the 2016 Plan's
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 confirms that the
2016 Plan is an intentional, extreme partisan gerrymander that dilutes Democratic votes and
prevents Democratic voters from electing candidates of their choice. Dr. Jowei Chen, a
professor of political science at the University of Michigan, generated thousands of nonpartisan

Carolina’s political geography and traditional redistricting
simulated maps respecting North Carolina's
12

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 116 of 662

 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 five seats in favor of the Republican Party. See Expert Report of Jowei Chen,

2017).3 Dr. Jonathan Mattingly, the chairman of the
Rucho, No. 16-cv-1026 (M.D.N.C. Mar. 1, 2017).3
Duke Mathematics Department, generated over 24,000 nonpartisan simulated maps respecting

Carolina’s political geography and traditional redistricting principles including equal
North Carolina's
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 gerrymandered, and that the gerrymander caused several
seats to shift in favor of the Republican Party. See Declaration and Expert Report of Jonathan C.

2017).4
Mattingly, Rucho, No. 16-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."
Democratic.” Hofeller Dep. at 192:7-16.
"predominantly

3
3

Submitted as LDTX244 in Common Cause v. Lewis.

4
4

http://s10294.pcdn.co/wp-content/uploads/2016/05/Expert-Report-of-Jonathan-Mattingly.pdf.

13

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 117 of 662

 The following image (and others below) shows the district's
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

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

Esselstyn Decl. at 3.
The 2016 Plan divides Pitt County for partisan ends, placing Pitt County's
County’s most
county’s more moderate and
Democratic VTDs in District 1 to the north, while putting the county's
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

5 Plaintiffs’
Plaintiffs' expert, Blake Esselstyn, 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 Esselstyn ("Esselstyn
(“Esselstyn Decl.")
Decl.”) ¶
¶ 6.

14

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 118 of 662

 The 2016 Plan's
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 carefully avoids the most Democratic areas of

counties’ moderate and
Wake County and Wilson County, instead picking up only those counties'
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.

CD 4

CD 1

,

CD 6

CD 2

CD 3
CD 8

CD 7

/\Esselstyn Decl. at 4.

15
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 119 of 662

 Legislative Defendants'
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.
County’s most Democratic VTDs, District 3
Whereas District 1 was the recipient of all of Pitt County's
County’s most Republican VTDs. The district further avoids a handful of
contains all of Pitt County's
moderate and Democratic counties in eastern North Carolina.

,5
t

Esselstyn Decl. at 5.

16

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 120 of 662

 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

“predominantly
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,
Democratic."
County’s most Democratic VTDs with the extremely Democratic
District 4 connects Wake County's
VTDs in southern Durham County as well as the entirety of Democratic-leaning Orange County.

This allowed Wake County's
County’s more Republican VTDs to be put into District 2 to ensure a
Republican seat.

17

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 121 of 662

 Esselstyn 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 Forsyth County. The 2016 Plan connects Winston-Salem’s
Winston-Salem's predominantly
Democratic voters with far-flung rural communities to the west.

Esselstyn Decl. at 7.
Legislative Defendants succeeded in wasting the votes of the Democratic voters of
Forsyth 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

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 122 of 662

 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,

County’s
the map also separates the Democratic voters in both of these districts from Forsyth County's
Democratic voters in District 5.

19
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 123 of 662

 Decl. at 8.
Esselstyn Dect
Greensboro’s Democratic voters, Legislative Defendants split the campus of
In cracking Greensboro's
North Carolina A&T 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.
Esselstyn Dect
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
County’s Democratic voters between Districts 7 and
20

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 124 of 662

 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 7 and 9.
CD 1

Esselstyn 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

Carolina’s sixth most-populous city and is heavily Democratic. The
Fayetteville is North Carolina's
Fayetteville’s Democratic voters nearly down the middle, placing one group in
2016 Plan cracks Fayetteville's
District 8 and the other in District 9. District 8 then slices to the west, picking up Republican

21

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 125 of 662

 voters in county after county until stopping halfway through Rowan County, right before the
district would hit the Democratic voters of Salisbury, who are carefully excluded from District 8
and placed into District 13 instead.

Esselstyn 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
Fayetteville's
“pizza slice"
slice” in
voters. District 9 reaches into Mecklenburg County and picks up the "pizza
Mecklenburg County that contains the county's
county’s most Republican-leaning VTDs. District 9's
9’s

22

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 126 of 662

 County’s Democratic VTDs, which
boundaries carefully exclude virtually all of Mecklenburg County's
instead are packed into District 12.

Esselstyn Decl. at 11.
In the elections under the 2016 Plan, District 9 has bent but not broken, remaining a

9’s 2018 Republican candidate was involved in a
Republican seat. Even the fact that District 9's
high-profile 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
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.
Asheville's

23

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 127 of 662

 Esselstyn 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

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

6
6 See Two UNC Asheville Dorms Are Bisected by Gerrymandered District Boundaries, Districks (Oct. 26, 2018),
https://blog.districks.com/2018/10/26/two-unc-asheville-dorms-are-bisected-by-gerrymandered-district-lines/.
https://blog.districks.com/2018/10/26/two-unc-asheville-dorrns-are-bisected-by-gerrymandered-district-lines/.

24

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 128 of 662

 Esselstyn Decl. at 17.
The cracking of Asheville's
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

“predominantly Democratic."
Democratic.” Hofeller
testimony that he intentionally drew District 12 to be "predominantly
County’s most Democratic VTDs, carefully
Dep. 192:7-16. District 12 packs all of Mecklenburg County's
“pizza slice"
slice” in the southern part of Mecklenburg County to
excluding the Republican-leaning "pizza
ensure that District 12 is an overwhelmingly Democratic district.

25

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 129 of 662

 Esselstyn 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-

County’s heavily Democratic voters in and around
shaped district that groups Guilford County's
Greensboro and High Point with overwhelmingly Republican areas in Davidson, Davie, Rowan,

County’s Democratic voters cannot elect a
and Iredell Counties, ensuring that Guilford County's
Democrat.

Esselstyn Decl. at 15.
The Republican candidate won District 13 in 2016 and 2018 with 56.1% and 53.1% of
the vote, respectively.

26

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 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

federal constitution. Rucho v. Common Cause, 139 S. Ct. 2484, 2491 (2019).
violation of the federal
After a four-day trial, a three-judge federal district court unanimously concluded that the

“drew and enacted the 2016 Plan with intent to subordinate the interests of
General Assembly "drew
Carolina’s congressional
non-Republican voters and entrench Republican control of North Carolina's
delegation.” Common Cause v. Rucho, 279 F. Supp. 3d 587, 672 (M.D.N.C. 2018). The court
delegation."
further found that "the
“the 2016 Plan achieved the General Assembly's
Assembly’s discriminatory partisan
objective.” Id. The court therefore held the 2016 Plan violated the Fourteenth Amendment's
Amendment’s
objective."
Equal Protection Clause and Article I of the U.S. Constitution. The court further held, with one
dissenter, that the 2016 Plan also violated the First Amendment. Id. at 683.

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

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

27

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 131 of 662

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

A Three-Judge Panel of the Superior Court Strikes Down North Carolina’s
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
Carolina's
Common Cause, slip op. at 10. The Court found that the 2017 state legislative plans "do
“do not
permit voters to freely choose their representative, but rather representatives are choosing voters

sorting.” Id.
based upon sophisticated partisan sorting."
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

Constitution’s Free Elections Clause, art. I, § 10,
gerrymanders that violated the North Carolina Constitution's
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
Carolina’s 2017 state legislative plans
“arose in remarkably similar circumstances."
circumstances.” Id. at COL ¶
¶ 18.
and the 2016 Congressional Plan "arose
“[B]oth the 2016 Congressional map and the 2017 legislative maps were required after a federal
"[Moth
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

Assembly’s
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

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 132 of 662

 intent to maximize partisan
partisan advantage and, infact,
fact, achieved their intended partisan
partisan effects."
effects.” 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
State's 13

congressional districts. Each Plaintiff consistently votes for Democratic congressional
¶¶ 6-19. The 2016 Plan harms Plaintiffs and other Democratic
candidates. See Verified Compl. In
voters in North Carolina by packing and cracking them to reduce their electoral influence.
Plaintiffs Amy Clare Oseroff, John Balla, and Virginia Walters Brien reside in

¶¶ 6, 9, 18. The 2016 Plan dilutes the
Districts 1, 4, and 12, respectively. See Verified Compl. 'Irlf
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, 127:23-25, 128:1-6, 128:17-129:2,
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 Verified Compl. 'Irlf
¶¶ 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, 127:1-3, 128:1-6, 128:17-129:2, 192:7-16.

Expert analysis by Plaintiffs'
Plaintiffs’ expert Dr. Jowei Chen illustrates the harm to each Plaintiff.
Carolina’s congressional districts in Rucho
Dr. Chen created computer simulations for North Carolina's
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.")
Decl.”) I¶¶ 7-10. As in Common Cause, Dr. Chen created one congressional simulation
("Chen
set that ignores incumbency and another set that avoids pairing the incumbents in office in 2016
when the 2016 Plan was drawn. Id. Using these simulations, which were previously produced to
29

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 133 of 662

 Legislative Defendants in the federal partisan gerrymandering case, Dr. Chen has identified 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 specified
in the 2016 Adopted Criteria, which are all statewide elections from 2008 to 2014 except for the

Hofeller’s seven-elections formula. Id. I¶¶ 12-14.
two presidential elections; and (2) Dr. Hofeller's
Dr. Chen finds 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

¶ 17,
(Cohen, Quick, Rumph, Dunn, Barnes, Peters, Gates, Brown, and Harper). See Chen Decl. ¶
Figures 1-2. Dr. Chen finds that the remaining five Plaintiffs would live in a less Democratic
district in at least 86% of his Simulation Set 1 plans (Rush, Balla, Brien, Oseroff, Crews), and
three of these five Plaintiffs are extreme outliers above the 98% level. Id. Dr. Chen finds largely

¶ 17, Figures 3-4.
similar results using his Simulation Set 2. Id. ¶
ARGUMENT

I.

Legal Standard
“show likelihood of success
A preliminary injunction should issue if (1) the plaintiff can "show

case,” (2) the plaintiff "is
“is likely to sustain irreparable loss unless the
on the merits of his case,"
issued,” and (3) a "balancing
“balancing of the equities"
equities” supports injunctive relief. Triangle
injunction is issued,"
Leasing Co. v. McMahon, 327 N.C. 224, 227, 393 S.E.2d 854, 856-57 (1990); A.E.P. Indus., Inc.

v. McClure, 308 N.C. 393, 400, 302 S.E.2d 754, 759 (1983).
These standards apply because Plaintiffs seek a prohibitory preliminary injunction,
“to restrain the defendant[s]"
defendant[s]” from using the 2016 Plan in administering the 2020
namely "to
of Waynesville,
congressional elections. Anderson v. Town of
Waynesville, 203 N.C. 37, 164 S.E. 583, 588
“permitting [the 2016 Plan] to operate."
operate.” Id.
(1932). Plaintiffs seek to prevent Defendants from "permitting
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 In remanding Common Cause v. Lewis to state court, the federal district court confirmed that
“an injunction
suits seeking to bar use of unconstitutional redistricting plans do not call for "an
act.” Common Cause v. Lewis, 358 F. Supp. 3d 505,
compelling the Legislative Defendants to act."
511 (E.D.N.C. 2019). Instead, such complaints seek to enjoin defendantsfrom
from acting. Id.
“perform a positive act,"
act,” the trigger
Plaintiffs thus do not seek to require Defendants to "perform
for a "mandatory"
“mandatory” preliminary injunction. Auto. Dealer Res., Inc. v. Occidental Life Ins. Co. of
of
N.C., 15 N.C. App. 634, 639, 190 S.E.2d 729, 732 (1972); see also Bd. of
of Light & Water
NC.,
Water
Comm’rs
of Concord v. Parkwood Sanitary Dist., 49 N.C. App. 421, 424, 271 S.E.2d 402, 404
Comm'rs of
(1980) (similar). But even if the heightened standard for mandatory injunctions applied, it is

Plaintiffs’ injuries are "immediate,
“immediate, pressing, irreparable, and clearly
satisfied here because Plaintiffs'
established.” Auto. Dealer Res., 15 N.C. App. at 639, 190 S.E.2d at 732. "[T]here
“[T]here is no doubt
established."
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

mandatory.” Id. (quotation marks omitted); see
injunctive decree may be both preventive and mandatory."
Ass’n, Inc., 344 N.C. 394, 400, 474 S.E.2d 783, 788
also Roberts v. Madison Cty. Realtors Ass'n,
(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 confirmed the governing legal principles just weeks ago in Common

Cause v. Lewis, which Defendants have not appealed. And administrative deadlines for the 2020
“the case is urgent and the
elections are fast approaching. If ever there were an instance where "the
clear,” Auto. Dealer Res., 15 N.C. App. at 639, 190 S.E.2d at 732, it is this one.
right is clear,"

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 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
Constitution's
Assembly Clauses. And all Plaintiffs have standing to sue.
A.

The 2016 Plan Violates North Carolina’s
Carolina's Free Elections Clause

The Free Elections Clause of the North Carolina Constitution declares that 101
“[a]ll elections
free.” N.C. Const., art. I, § 10. "The
“The Free Elections Clause, Article I, § 10, is one of the
shall be free."
clauses that makes the North Carolina Constitution more detailed and specific than the federal

citizens.” Common Cause, slip op. COL ¶
¶ 24.
Constitution in the protection of the rights of its citizens."
“The federal Constitution contains no similar counterpart."
counterpart.” Id.; see Rucho, 139 S. Ct. at 2507.
"The
Since its original adoption in 1776, North Carolina has twice "broadened
“broadened and
strengthened” the Free Elections Clause, first to expand its reach from state legislative elections
strengthened"
“make it clear that the Free Elections
to all elections, and second to add mandatory language to "make
Clause and the other rights secured to the people by the Declaration of Rights are commands and
admonition.” Common Cause, slip op. COL ¶
¶ 43 (internal quotation marks omitted).
not mere admonition."
In Common Cause, this Court held that "the
“the meaning of the Free Elections Clause is that
elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the

people.” Id. ¶
¶ 31. "This
“This ... is a fundamental right of the citizens enshrined in our Constitution's
Constitution’s
people."
Declaration of Rights, a compelling governmental interest, and a cornerstone of our democratic

government.” Id.
form of government."
“partisan gerrymandering ... strikes at the heart of the
As the Common Cause Court held, "partisan
Clause.” Id. ¶
¶ 45. "[E]xtreme
“[E]xtreme partisan gerrymandering,"
gerrymandering,” the Court explained, "is
“is
Free Elections Clause."
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 contrary to the fundamental right of North Carolina citizens to have elections conducted freely

people.” Id. ¶
¶ 36. "Extreme
“Extreme
and honestly to ascertain, fairly and truthfully, the will of the people."
people” because
partisan gerrymandering does not fairly and truthfully ascertain the will of the people"
“[v]oters are not freely choosing their representatives."
representatives.” Id. ¶
¶ 36. "Rather,
“Rather, representatives are
"[v]oters
voters.” Id. "It
“It is not the will of the people that is fairly ascertained through
choosing their voters."
gerrymandering” but instead "the
“the will of the map drawer that prevails."
prevails.” Id.
extreme partisan gerrymandering"
¶ 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 flagrantly
than the invalidated 2017 state legislative plans. The 2016 Adopted Criteria on their face violate

“Partisan Advantage"
Advantage” and "Political
“Political
the Free Elections Clause. The General Assembly adopted "Partisan
Data” as official criteria for the creation of the 2016 Plan, explicitly instructing the mapmaker,
Data"
“make reasonable efforts to construct districts in the [2016 Plan] to maintain the
Dr. Hofeller, to "make
Carolina’s congressional delegation."
delegation.” Adopted Criteria.
current [10-3] partisan makeup of North Carolina's
Thus, the 2016 Plan explicitly and unambiguously sought "to
“to predetermine election outcomes"
outcomes”
“specific districts."
districts.” Common Cause, slip op. COL ¶
¶ 47.
across the state as a whole and in "specific
Legislative Defendants and Dr. Hofeller confirmed—on the record in legislative hearings
“specifically and systematically
and in sworn deposition testimony—that the 2016 Plan was "specifically
power,” which this Court held
design[ed] …
... for partisan purposes and a desire to preserve power,"
“acknowledge[d] freely"
freely” that the
violates the Free Elections Clause. Id. Representative Lewis "acknowledge[d]
“would be a political gerrymander."
gerrymander.” Feb. 16 Joint Comm. Tr. at 48:4-5. He stated: "I
“I
2016 Plan "would
want to make clear that to the extent [we] are going to use political data in drawing this map, it is

map.” Id. at 53:24-54:4. And he left no room for doubt that, as
to gain partisan advantage on the map."

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 with the invalidated 2017 state legislative plans, Legislative Defendants were seeking partisan

“to the greatest extent possible."
possible.” Common Cause, slip op. COL ¶
¶ 46. Representative
advantage "to
Lewis said that the 2016 Plan sought a 10-3 Republican advantage only because he "did
“did not
Democrats.” Feb. 16 Joint
believe it would be possible to draw a map with 11 Republicans and 2 Democrats."
Comm. Tr. at 50:6-10. Senator Rucho agreed that the map was drawn to be 10-3 because 10-3
Comm
“was doable"
doable” but 11-2 "is
“is not."
not.” Rucho Dep. at 121:10-122:2.
"was
Criteria’s directive and drew the
Dr. Hofeller admitted that he followed the Adopted Criteria's
district lines to predetermine a 10-3 Republican advantage. Hofeller Dep. at 175:19-23, 178:1420, 188:19-190:2. Specifically, 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
127:14-129:2, 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
132:14-18, 212:16-215:7; Hofeller Dep. II at 260:18-267:17, 269:7-9, 271:11-273:3, 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 "predetermine[d]
“predetermine[d] election outcomes,"
outcomes,” just as
¶ 47. Even though the 2016 and 2018 elections
they intended. Common Cause, slip op. COL ¶
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

Democrats’ direction, while Democrats only added to their already huge majorities in the
in the Democrats'
three packed districts. See id. Just like the invalidated 2017 state legislative plans, the 2016

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 “nearly impossible for the will of the people—should that will be
Congressional Plan makes it "nearly
contrary to the will of the partisan actors drawing the maps—to be expressed through their

votes.” Common Cause, slip op. COL ¶
¶ 46.
votes."
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 official legislative criteria mandating

“Partisan Advantage"
Advantage” through the use of "Political
“Political Data,"
Data,” as well as Legislative
a 10-3 "Partisan
Defendants’ and Dr. Hofeller's
Hofeller’s admissions and the 2016 and 2018 election outcomes, there is no
Defendants'
Carolina’s
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
Carolina's Equal Protection Clause

The North Carolina Constitution's
Constitution’s Equal Protection Clause declares that "[n]o
“[n]o person
shall be denied the equal protection of the laws."
laws.” N.C. Const., art. I, § 19. This clause provides
greater protection for voting rights than its federal counterpart. Common Cause, slip op. COL

Carolina’s Equal Protection Clause protects "the
“the fundamental right
I¶¶ 52-57. Specifically, North Carolina's
power.” Stephenson v. Bartlett, 355 N.C.
of each North Carolinian to substantially equal voting power."
“It is well settled in this State that ‘the
354, 3379, 562 S.E.2d 377, 394 (2002). "It
'the right to vote on
right.’” Id. at 378, 562 S.E.2d at 393 (quoting Northampton Cnty.,
equal terms is a fundamental right.'"
“These principles apply with full force in the redistricting
326 N.C. at 747, 392 S.E.2d at 356). "These
context.” Common Cause, slip op. COL ¶
¶ 53. In Common Cause, this Court held that extreme
context."
“fundamental right,"
right,” because "the
“the intentional
partisan gerrymandering infringes upon this "fundamental
voters’ based on partisanship in order to pack and crack them into districts is an
classification of voters'
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 impermissible distinction among similarly situated citizens aimed at denying equal voting

power.” Id. I¶¶ 53, 63 (internal quotation marks omitted).
power."
In evaluating whether an alleged partisan gerrymander violates North Carolina's
Carolina’s Equal
¶ 58. "First,
“First, the plaintiffs challenging
Protection Clause, this Court applies a three-part test. Id. ¶
officials’ predominant purpose in drawing district lines
a districting plan must prove that state officials'
rival.” Id.
was to entrench their party in power by diluting the votes of citizens favoring their rival."
“Second, the plaintiffs must establish that the lines
(quotation marks and brackets omitted). "Second,
votes.” Id. (quotation marks
drawn in fact have the intended effect by substantially diluting their votes."
“Finally, if the plaintiffs make those showings, the State must provide a legitimate,
omitted). "Finally,
non-partisan justification (i.e., that the impermissible intent did not cause the effect) to preserve

map.” Id. The 2016 Plan easily satisfies each prong.
its map."
Assembly’s
First, entrenching Republicans in power was not just the General Assembly's
“predominant purpose"
purpose” in drawing the 2016 Plan—it was the express, overriding goal. The U.S.
"predominant
Supreme Court described the 2016 Plan as a "blatant
“blatant example[] of partisanship driving
decisions.” Rucho, 139 S. Ct. at 2505. As set forth extensively above, the official
districting decisions."
written criteria as well as the admissions by Dr. Hofeller and Legislative Defendants

Defendants’ predominant purpose was to gerrymander the
conclusively establish that Legislative Defendants'
Republicans’ 10-3 advantage. The Adopted Criteria expressly
2016 Plan to entrench Republicans'
“political impact,"
impact,” meaning
subordinated traditional nonpartisan redistricting criteria to "political
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.

“intended effect"
effect” of diluting the votes of Plaintiffs and
Second, the 2016 Plan has had its "intended
other Democratic voters, depriving them of substantially equal voting power and the right to vote

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 ¶ 58. The Common Cause Court noted that the
on equal terms. Common Cause, slip op. COL ¶
“drawn with the intent to
2016 Plan, like the invalidated 2017 state legislative plans, was "drawn
[its] intended partisan
partisan effects."
effects.” Id. ¶
¶ 18
maximize partisan advantage and, in fact, achieved [its]
(emphasis added). As detailed above, the 2016 and 2018 election results confirm that Legislative
Defendants succeeded in their goal of creating a 10-3 map. See 2016 Results; 2018 Results. The

“packing and cracking Democratic voters"
voters” across the 13
2016 Plan achieves this result by "packing
districts, just like the 2017 state legislative plans struck down under the Equal Protection Clause

¶ 70. As under those 2017 state
in Common Cause. See Common Cause, slip op. COL ¶
legislative plans, the margins of victory under the 2016 Plan—and not just the seat counts—
confirm the vote dilution. Democrats won their three districts with between 69.9% and 75.1% of

“This
the vote, while Republicans never exceeded 60.4% in the then Republican districts. "This
power’ of Democratic voters"
voters” in all 13 of these
packing and cracking diminishes the ‘voting
'voting power'
¶ 70. The votes of Democratic voters in the three
districts. Common Cause, slip op. COL ¶
“are substantially less likely to ultimately matter in deciding the election results"
results”
packed districts "are
when compared to Republican voters in the ten cracked districts. Id.

The 2016 Plan "not
“not only deprive[s] Democratic voters of equal voting power in terms of
representation.”
electoral outcomes, but also deprive[s] them of substantially equal legislative representation."
Common Cause, slip op. COL ¶
¶ 71. "When
“When a district is created solely to effectuate the interests
group”—as Legislative Defendants have admitted the districts in the 2016 Plan are—"the
are—“the
of one group"—as
elected official from that district is more likely to believe that their primary obligation is to

whole.” Id.
represent only the members of that group, rather than their constituency as a whole."
(internal quotation marks omitted).

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 Chen’s analysis in this case independently confirms that the 2016 Plan deprives
Dr. Chen's
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
¶ 17.
advantage, but instead was drawn using traditional nonpartisan criteria. Chen Decl. ¶
Plan’s extreme
Finally, there is no legitimate, nonpartisan justification for the 2016 Plan's
“limited neutral
partisan bias. In Common Cause, Legislative Defendants offered only "limited
maps,” arguing that those maps satisfied certain
justifications for the enacted [state legislative] maps,"
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
¶
maps’ "discriminatory
“discriminatory effects."
effects.” Id. ¶
¶ 76.
predominantly partisan intent could actually explain the maps'
Defendants’ and Dr. Hofeller's
Hofeller’s admissions about the 2016 congressional
Here, given Legislative Defendants'
redistricting process, Legislative Defendants cannot conceivably show that the 2016 Plan is

Defendants’
narrowly tailored to achieve a compelling government interest. Indeed, Legislative Defendants'
permitted the subversion of neutral criteria for partisan ends.
own criteria permitted
In short, it is clear that, in drawing the 2016 Plan, Legislative Defendants engaged in the
“intentional ‘classification
voters’ based on partisanship in order to pack and crack them into
"intentional
'classification of voters'
districts” and to "deprive
“deprive [them] of the right to vote on equal terms."
terms.” Common Cause, slip op.
districts"
¶¶ 63, 66. Plaintiffs are likely to succeed on their Equal Protection Clause claim.
COL 'Irlf
C.

The 2016 Plan Violates North Carolina’s
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 from assembling together and instructing
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 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
Constitution’s Freedom of Speech Clause provides that "[f]reedom
“[f]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
restrained."
“[t]he people have a right to assemble together for their common good, to instruct their
that "[t]he
grievances.” Id. § 12.
representatives, and to apply to the General Assembly for redress of grievances."
These clauses provide greater protection for speech and association than their federal
counterparts. Common Cause, slip op. COL I¶¶ 82-85.

In Common Cause, this Court held that "[v]oting
“[v]oting for the candidate of one's
one’s choice and
one’s choice are core means of political expression
associating with the political party of one's
by” these clauses. Id. ¶
¶ 86. "Voting
“Voting provides citizens a direct means of expressing
protected by"
views,” and "is
“is no less protected ‘merely
support for a candidate and his views,"
'merely because it involved the
act’ of casting a ballot."
ballot.” Id. I¶¶ 87-88 (quoting State v. Bishop, 368 N.C. 869, 874, 787 S.E.2d
act'
814, 818 (2016)). Similarly, "[c]itizens
“[c]itizens form political parties to express their political beliefs
beliefs.” Id. ¶
¶ 90 (quoting
and to assist others in casting votes in alignment with those beliefs."
of N.C. v. State, 365 N.C. 41, 49, 707 S.E.2d 199, 204-05 (2011)). "[B]anding
“[B]anding
Libertarian Party of
party” thus "is
“is a form of protected association."
association.”
together with likeminded citizens in a political party"
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

party’s
expression based on viewpoint by discriminatorily making the votes cast for one party's
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 “The guarantee of free expression ‘stands
candidates less effective. "The
'stands against attempts to disfavor
viewpoints.’” Id. ¶
¶ 93 (quoting Citizens United v. FEC, 558 U.S. 310, 340
certain subjects or viewpoints.'
(2010)). Here, Representative Lewis freely admitted that the 2016 Plan was drawn to disfavor
the viewpoints of Democratic voters. According to Representative Lewis himself, the district

“think[s] electing
lines were drawn to advantage Republicans because Representative Lewis "think[s]
better” "for
“for the country"
country” "than
“than electing Democrats."
Democrats.” Feb. 19 House Floor Tr. at
Republicans is better"
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,

“analyzed the voting histories of every VTD in North Carolina, identified VTDs
the mapmaker "analyzed
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 significantly less likely, in comparison

views.” Common Cause,
to Republican voters, to be able to elect a candidate who shares their views."
¶ 95; see also ¶
¶ 101 (similar). Dr. Hofeller admitted that he did exactly this in
slip op. COL ¶
Defendants’ direction. Hofeller Dep. at 127:14-129:2,
drawing the 2016 Plan, at Legislative Defendants'
132:14-18, 175:19-23, 178:14-20, 188:19-190:2, 192:10-16, 212:16-215:7; Hofeller Dep. II at
260:18-267:17, 269:7-9, 271:11-273:3, 274:1-16, 281:7-11, 282:1-7.

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

“Partisan Advantage"
Advantage” to favor one political viewpoint. See Adopted Criteria.
policy of seeking "Partisan

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 “changes nothing"
nothing” that "Democratic
“Democratic voters can still cast ballots
As in Common Cause, it "changes
maps.” Common Cause, slip op. COL ¶
¶ 96. "The
“The government
under gerrymandered maps."
unconstitutionally burdens speech where it renders disfavored speech less effective, even if it

outright.” Id. Like the invalidated 2017 state legislative plans, the
does not ban such speech outright."
Plan’s "sorting
“sorting of Plaintiffs and other Democratic voters based on disfavor for
2016 Plan's
effective.” Id. ¶
¶ 102.
their political views has burdened their speech by making their votes less effective."
“Plaintiffs and other Democratic voters live in districts where their votes are guaranteed to be
"Plaintiffs
less effective
effective—either
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
Hofeller’s own analysis of projected vote margins under the 2016 Plan
Republican."
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

“the ability of
is subject to strict scrutiny where it burdens disfavored association by restricting "the
like-minded people across the State to affiliate in a political party and carry out [their] activities
objects.” Common Cause, slip op. COL ¶
¶ 107 (internal quotation marks omitted). The
and objects."
“Democratic voters who live in
Court concluded that under the 2017 state legislative plans, "Democratic
cracked districts have little to no ability to instruct their representatives or obtain redress from

voters.” Id. The same is true under the 2016
their representatives on issues important to those voters."
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

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 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
“Discriminating

against citizens based on their political beliefs does not serve any legitimate government

interest.” Common Cause, slip op. COL ¶
¶ 111. "Blatant
“Blatant examples of partisanship driving
interest."
objective.” Id. ¶
¶ 61 (internal
districting decisions are unrelated to any legitimate legislative objective."
¶ 61. "[P]artisan
“[P]artisan gerrymanders are incompatible with democratic
quotation marks omitted). Id. ¶
principles” and are "contrary
“contrary to the compelling governmental interests established by the North
principles"
elections,’ where the ‘will
people’ is
Carolina Constitution ‘in
'in having fair, honest elections,'
'will of the people'
truthfully.’” Id. I¶¶ 61-68 (quoting Petersilie, 334 N.C. at 182, 432 S.E.2d
ascertained ‘fairly
'fairly and truthfully.'"
at 840, and Skinner, 169 N.C. at 415, 86 S.E.2d 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
“In addition to
retaliating against voters based on their protected speech and association. "In
forbidding discrimination,"
discrimination,” North Carolina's
Carolina’s Freedom of Speech and Assembly Clauses "also
“also
speech” or conduct. Id. ¶
¶ 112. To prevail on a retaliation
bar retaliation based on protected speech"
“(1) the [challenged plan] take[s] adverse action against them,
theory, a plaintiff must show that "(1)
(2) the [plan] w[as] created with an intent to retaliate against their protected speech or conduct,

intent.” Id.
and (3) the [plan] would not have taken the adverse action but for that retaliatory intent."
Like the 2017 state legislative plans invalidated in Common Cause, the 2016 Plan
“[i]n relative terms, Democratic
satisfies all three of these requirements. As to adverse action, "[i]n
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 carefully crafted to dilute their votes. And in
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 absolute terms, Plaintiffs are significantly foreclosed from succeeding in electing preferred

candidates.” Common Cause, slip op. COL ¶
¶ 114. As to intent, Dr. Hofeller and Legislative
candidates."
Defendants have acknowledged—and the Adopted Criteria required—that the 2016 Plan

“intentionally targeted Democratic voters based on their voting histories."
histories.” Common Cause, slip
"intentionally
¶ 115. And as to causation, "[t]he
“[t]he adverse effects described above would not have
op. COL ¶
occurred if Legislative Defendants had not cracked and packed Democratic voters and thereby

votes.” Common Cause, slip op. COL ¶
¶ 116. As he did in Common Cause, Dr.
diluted their votes."
“compared the districts in which the Individual Plaintiffs currently reside under the enacted
Chen "compared
plans,” and all
plan[] with districts in which they would have resided under each of his simulated plans,"
“of the Individual Plaintiffs'
Plaintiffs’ actual districts are extreme partisan outliers when compared with
"of
plans.” Id.; see Chen Decl. ¶
¶ 17.
their districts under the simulated plans."
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
controversy’ requirement of
"[B]ecause
'case or controversy'
Article III of the United States Constitution, our State’s
State's standing jurisprudence is broader than
federal law."
law.” Davis v. New Zion Baptist Church, 811 S.E.2d 725, 727 (N.C. Ct. App. 2018)
(internal quotation marks omitted); accord Goldston v. State, 361 N.C. 26, 35, 637 S.E.2d 876,

882 (2006) ("While
(“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
“At a minimum, a plaintiff in a North Carolina court has standing to sue when it
doctrine.").
court.” Common Cause, slip op. COL ¶
¶ 2.
would have standing to sue in federal court."
“The North Carolina Supreme Court has broadly interpreted Article I, § 18 to mean that
"The
‘[a]s
' [a]s a general matter, the North Carolina Constitution confers standing on those who suffer
harm.’” Common Cause, slip op. COL ¶
¶ 3 (quoting Mangum v. Raleigh Bd. of
of Adjustment, 362
harm.'"
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 “gist” of standing under North Carolina law
N.C. 640, 642, 669 S.E.2d 279, 281 (2008)). The "gist"
“whether the party seeking relief has alleged such a personal stake in the outcome of the
involves "whether
controversy as to assure that concrete adverseness which sharpens the presentation of issues

questions.”
upon which the court so largely depends for illumination of difficult constitutional questions."
Goldston, 361 N.C. at 30, 637 S.E.2d at 879 (quotation marks omitted). Although the North
“has declined to set out specific criteria necessary to show standing in
Carolina Supreme Court "has
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

injury.” Davis, 811 S.E.2d at727-28. Moreover, to obtain a preliminary injunction, a
that injury."
“a likelihood that plaintiff has standing."
standing.” Action NC v. Strach, 216 F.
plaintiff need only show "a
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 fully capable of remedying partisan gerrymandering. And as to
the first, 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

“district-specific evidence that [they] live in …
they had introduced "district-specific
... districts that are outliers in
Chen’s nonpartisan
partisan composition relative to the districts in which they live under Dr. Chen's
plans.” Common Cause, slip op. COL ¶
¶ 14.
simulated plans."
Here, Dr. Chen has performed precisely the same district-specific analysis that he

Carolina’s
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

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

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 ignores incumbency and another set that avoids pairing the incumbents in office when the 2016
Plan was drawn. See id. Using these simulations, which were produced to Legislative
Defendants in Rucho, Dr. Chen has identified 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:
Hofeller’s seven-statewide-election formula; and (2) the elections specified in the 2016
(1) Dr. Hofeller's
Adopted Criteria, which are all statewide elections from 2008 to 2014 except for the two
presidential elections. Id. I¶¶ 12-14.
Dr. Chen finds that all fourteen Plaintiffs live in congressional districts that are partisan

¶ 17, Figures 1-4. Dr.
outliers relative to their districts under his simulations. See Chen Decl. ¶
Chen finds that nine Plaintiffs currently in Republican-leaning districts would live in a more

¶ 17, Figures 1-2. He
Democratic district in at least 91% of the 1,000 Simulation Set 1 plans. Id. ¶
finds
fmds that the remaining five 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 finds largely similar results using his Simulation Set 2. Id. ¶
¶ 17, Figures 3-4.
Chen’s analysis, all fourteen Plaintiffs have established a likelihood
As evidenced by Dr. Chen's
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
“because the manner in
necessarily had standing to challenge his or her entire county grouping "because
which one district is drawn in a county grouping necessarily is tied to the drawing of some, and

grouping.” Common Cause, slip op. COL ¶
¶ 15. But
possibly all, of the other districts within that grouping."
congressional districts in North Carolina are not drawn in county groupings—the entire statewide

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

45

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

Plaintiffs Are Likely To Suffer Irreparable Harm Absent a Preliminary Injunction
“likely to sustain irreparable loss."
loss.”
Absent a preliminary injunction, Plaintiffs are "likely

Triangle Leasing, 327 N.C. at 227, 393 S.E.2d at 856-57. Even if the standard for mandatory
“immediate,
injunctions applied, Plaintiffs satisfy that standard because their injuries are "immediate,
irreparable.” Auto. Dealer Res., 15 N.C. App. at 639, 190 S.E.2d at 732.
pressing, [and] irreparable."
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
“Courts routinely deem restrictions on
injury.” League of
of Women
of N.C. v. North
fundamental voting rights irreparable injury."
Women Voters
Voters of
Carolina, 769 F.3d 224, 247 (4th Cir. 2014). The loss of constitutional rights, "for
“for even minimal
injury,” Elrod v. Burns, 427 U.S. 347, 373
periods of time, unquestionably constitutes irreparable injury,"
“voting and associational rights …
(1976), and an infringement of "voting
... cannot be alleviated after the
election.” Council of
of Alternative Political Parties v. Hooks, 121 F.3d 876, 883 (3d Cir. 1997).
election."
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

“clear …
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

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 harm.” 2016 WL 6920368, at *1 (M.D.N.C. Feb. 9,
Protection Clause, constitutes irreparable harm."
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
("To
districts].”). The federal district court in
harm to them, and to the other voters in [those districts].").
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 ¶
¶ 179. The Court
“[t]he risk of harm is particularly acute where Plaintiffs and other North Carolina
recognized that "[t]he
voters have already cast their ballots under unconstitutional district plans in every election this

decade.” Id. (quoting Covington, 2018 WL 604732, at *6).
decade."
North Carolinians have been forced to vote in invalid, unlawful 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 full 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

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 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
¶ 4. The General Assembly
House and state Senate plans. Common Cause, slip op. Decree ¶
adopted remedial plans in that time frame; in fact, the General Assembly passed both the state
House and state Senate plans within 8 days of the first legislative hearings, which were on

September 9, 2019.
Common Cause, moreover, involved more than five
five 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
Chen’s simulated maps as a base), it
districts in just eight days (in part by using one of Dr. Chen's
certainly can draw a new congressional plan in two weeks.
While sufficient 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

“to make reasonable interim rules and regulations"
regulations” to move
of Elections has authority "to
“is held
administrative deadlines in the event that any North Carolina election law "is
court.” N.C. Gen. Stat. § 163A-742. And this
unconstitutional or invalid by a State or federal court."
Court has remedial authority to move the 2020 congressional primary elections, if necessary.
See Common Cause, slip op. COL I¶¶ 181-82. The Court could move the primaries under one of
48

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 two approaches. First, the Court could move all of the State’s
State's 2020 primaries, including for
offices 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

“Second
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.
Primary"
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 N.C. 281, 282, 561 S.E.2d 288, 288-289 (2002), causing all
of the State’s
State's primaries to move to a different date, 357 N.C. 301, 303, 582 S.E.2d 247, 249
(2003). And in 2016, after a federal court enjoined the State’s
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 § 1(b). Such changes are not necessary at this stage,

briefing and argument, issue a
however, as sufficient time remains for the Court to receive briefmg
preliminary injunction, and oversee a remedial process under the current election schedule.
V.

The Balance of Equities Strongly Favors a Preliminary Injunction
“a careful balancing of the equities,"
equities,” A.E.P. Indus., 308 N.C. at 400, 302 S.E.2d
Finally, "a

at 759, weighs decidedly in favor of an injunction. Plaintiffs seek to vindicate interests of the

“Fair and honest elections are to prevail in this state."
state.” Common Cause, slip op.
highest order. "Fair
¶ 28 (quoting McDonald v. Morrow, 119 N.C. 666, 673, 26 S.E. 132, 134 (1896)). The
COL ¶
“has elevated this principle to the highest legal standard, noting
North Carolina Supreme Court "has
interest’ of the State ‘in
elections.’” Id. (quoting State
that it is a ‘compelling
'compelling interest'
'in having fair, honest elections.'"
v. Petersilie, 334 N.C. 169, 184, 432 S.E.2d 832, 840 (1993)). Plaintiffs'
Plaintiffs’ claims implicate

49

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 “fundamental right[s] …
Constitution’s Declaration of Rights, a compelling
"fundamental
... enshrined in our Constitution's
government.” Id. ¶
¶ 31.
governmental interest, and a cornerstone of our democratic form of government."
This case is about the rights not just of Plaintiffs, but of all North Carolina citizens to
“fairly and truthfully, the will of the people."
people.” Id. ¶
¶ 32.
vote in lawful districts that will reveal, "fairly
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

“a presidential election year,"
year,”
inequitable in the extreme to force them do so yet again—and in "a
“when voter turnout is highest."
highest.” Harris, 2016 WL 6920368, at *1.7
*1.7
no less, "when
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(c) provides that
“[n]o …
"[n]o
... 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 wrongfully enjoined.”
“some instances when it is proper for
enjoined." But it is well settled that there are "some
relief.” Staton v. Russell, 151 N.C. App. 1, 12, 565 S.E.2d
no security to be required of a party seeking injunctive relief."
103, 110 (2002) (quotation marks omitted). This is just such an instance. There is no prospect that any party to this
“wrongfully enjoined”
“costs or damages"
damages” therefrom. And no security is
case will be "wrongfully
enjoined" or incur any recoverable "costs
“one purpose of the …
court’s jurisdiction."
jurisdiction.” 151 N.C. App. at
required where, as here, "one
... injunction is to preserve the court's
13, 565 S.E.2d at 110.

50
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 154 of 662

 Respectfully submitted this the 30th day of September, 2019
PATTERSON HARKAVY LLP

ARNOLD AND PORTER
KAYE SCHOLER LLP

Burton 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
bcraige@pathlaw.com
nghosh@pathlaw.com
psmith@pathlaw.com

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@arnoldporter.com

Counsel for Plaintiffs
PERKINS COIE LLP
Marc E. Elias*
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
Counselfor Plaintiffs
*Pro Hac Vice Application Forthcoming

51

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 155 of 662

 CERTIFICATE OF SERVICE
I hereby certify that 1 have this day served a copy 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 U.S. 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, N.C. 27603
Paul Newton
300 N. Salisbury Street
Rm. 312
Raleigh, N.C. 27603
David R. Lewis
16 West Jones Street
Rm. 2301
Raleigh, N.C. 27601
Ralph E. Hise
300 N. Salisbury St.
Rm. 300-A
Raleigh, N.C. 27603
Timothy K. Moore
16 West Jones Street
Rm. 2304
Raleigh, N.C. 27601
Philip E. Berger
16 West Jones Street
Rm. 2007
Raleigh, N.C. 27601
This the 30th day of September, 2019.

Burton Craige, NC Bar No. 9180

52

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 STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
No. 19-cv-012667

REBECCA HARPER, et al.,
Plaintiffs,

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

DECLARATION OF DR.
JOWEI CHEN

Defendants.

I, Dr. Jowei Chen, upon my oath, declare and say as follows:
1.

I am over the age of eighteen (18) and competent to testify as to the matters set

forth herein.
2.

I am an Associate Professor in the Department of Political Science at the

University of Michigan, Ann Arbor. I am also a Research Associate Professor at the Center for
Political Studies of the Institute for Social Research at the University of Michigan and a
Research Associate at the Spatial Social Science Laboratory at Stanford University. In 2007, I
received a M.S. in Statistics from Stanford University, and in 2009, I received a Ph.D. in
Political Science from Stanford University.
3.

I have published academic papers on legislative districting and political

geography in several political science journals, including The American Journal of Political

Science and The American Political Science Review, and Election Law Journal. My academic
areas of expertise include legislative elections, spatial statistics, geographic information systems

(GIS) data, redistricting, racial politics, legislatures, and political geography. I have expertise in

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 157 of 662

 the use of computer simulations of legislative districting and in analyzing political geography,
elections, and redistricting.
4.

I have testified either at deposition or at trial in the following cases: Rene Romo

et al. v. Ken Detzner et al. (Fla. 2d Judicial Cir. Leon Cnty. 2013); Missouri National
Association for the Advancement of Colored People v. Ferguson-Florissant School District and

St. Louis County Board of Election Commissioners (E.D. Mo. 2014); Raleigh Wake Citizens
Association et al. v. Wake County Board of Elections (E.D.N.C. 2015); City of Greensboro et al.
v. Guilford County Board of Elections (M.D.N.C. 2015); Common Cause et al. v. Robert A.
Rucho et al. (M.D.N.C. 2016); The League of Women Voters of Pennsylvania et al. v.
Commonwealth of Pennsylvania et al. (No. 261 M.D. 2017); Georgia State Conference of the
NAACP et al. v. The State of Georgia et al. (N.D. Ga. 2017); The League of Women Voters of
Michigan et al. v. Ruth Johnson et al. (E.D. Mich. 2017); William Whitford et al. v. Beverly Gill
et al. (W.D. Wis. 2018); Common Cause et al. v. David Lewis et al. (N.C. Super. 2019).

5.

I have been retained by Plaintiffs in the above-captioned matter. My Curriculum

Vitae is attached to this Declaration. I am being compensated $500 per hour for my work in this
case.

6.

Plaintiffs’ counsel have asked me to analyze the effect of North Carolina's
Carolina’s 2016
Plaintiffs'

“2016 Plan")
Plan”) on the partisan composition of the
enacted congressional districting plan (the "2016
Plaintiffs’ congressional districts.
individual Plaintiffs'
7.

To analyze this question, I rely upon two sets of simulated congressional

districting plans that I have created. I originally created these simulated plans for use in the

federal lawsuit Common Cause v. Rucho. The simulated plans I use for my analysis in this

2

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 Declaration are the same 2,000 simulated plans that comprised my Simulation Set 1 and

Simulation Set 2 in Rucho.
8.

Simulation Set 1 and Simulation Set 2 use the same general approach that I

employed in creating simulated state House and state Senate plans in Common Cause v. Lewis.

Specifically, I instructed the computer to generate congressional districting plans that strictly
follow all of the non-partisan criteria enumerated in the February 16, 2016 Adopted Criteria of

“2016 Adopted Criteria").
Criteria”).
the Joint Select Committee on Congressional Redistricting (the "2016
9.

In Simulation Set 1, the computer algorithm created 1,000 independent simulated

plans following the five traditional districting criteria from the 2016 Adopted Criteria:

Carolina’s 2010 Census population was 9,535,483, so
a) Population Equality: North Carolina's
districts in the 13-member plan have an ideal population of 733,498.7.

Specifically, then, the computer simulation algorithm populated each districting
plan such that precisely nine districts have a population of 733,499, while the
remaining four districts have a population of 733,498.
b) Contiguity: The simulations required districts to be geographically contiguous.
As described in the Adopted Criteria, water contiguity is permissible.
c) Minimizing County Splits: The simulations avoided splitting any of North

Carolina’s 100 counties, except when doing so is necessary to avoid violating one
Carolina's
of the aforementioned criteria. Furthermore, as mandated by the 2016 Adopted
Criteria, the computer always avoided splitting a county into more than two
simulated districts.
d) Minimizing VTD Splits: North Carolina is divided into 2,692 VTDs. The
computer simulation algorithm attempted to keep these VTDs intact and not split

3

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 159 of 662

 them into multiple districts, except when doing so is necessary for creating
equally-populated districts.
e) Geographic Compactness: The simulation algorithm prioritized the drawing of
geographically compact districts whenever doing so does not violate any of the
aforementioned criteria.
10.

In Simulation Set 2, the computer algorithm created 1,000 independent simulated

plans following the same five traditional districting criteria specified above, plus avoiding
pairing the incumbents who were in office at the time of the 2016 redistricting.
11.

I evaluated the congressional districts in which each Plaintiff would live under the

2,000 computer-simulated using the following list of residential addresses for the Plaintiffs that
counsel for the Plaintiffs provided me. I used these addresses to identify the specific district in
which each Plaintiff would be located under each computer-simulated plan, as well as under the
2016 Plan.
a) Amy Clare Oseroff: 119 N Longmeadow Rd. Greenville, NC 27858
b) Rebecca Harper: 1841 Stonebanks Loop, Cary, NC 27518
c) David Dwight Brown: 18 Laurel Brook Ct. Greensboro, NC 27407
d) Joseph Gates: 419 Kyfields, Weaverville, NC 28787
e) Mark S. Peters: 5 Carter Crest Ln, Fletcher, NC 28732

f) Virginia Walters Brien: 3028 Airlie St, Charlotte, NC, 28205
g) John Balla: 7353 Newport Ave., Raleigh, NC 27613
h) Kathleen Barnes: 392 Sunny Acre Lane, Brevard, NC 28712
i) Jackson Thomas Dunn, Jr.: 1629 Providence Rd, Charlotte NC 28207
j) Donald Allan Rumph: 3238 Quail Pointe Dr., Greenville, NC 27858-7335

4

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 k) Lily Nicole Quick: 4338 Clovelly Drive, Greensboro, NC 27406

l) Shawn Rush: 104 South Long Street, East Spencer, NC 28144
1)
m) Gettys Cohen: 3 Aspen Dr, Smithfield, NC 27577
n) Richard R. Crews: 1503 Land Harbor, Newland NC, 28657
12.

To compare the partisanship of the districts in which each Plaintiff would live

under the simulated plans and the 2016 Plan, I use two different measures of partisanship.
13.

First, I use the statewide elections specified in the 2016 Adopted Criteria. The

2016 Adopted Criteria state that when evaluating the political composition of congressional

“election results in statewide contests since
districts, the General Assembly would consider "election
January 1, 2008, not including the last two presidential contests."
contests.” There were 20 nonpresidential statewide elections between January 1, 2008 and the adoption of the 2016 Plan, and I

Plaintiff’s
use these 20 statewide elections to measure the average Democratic vote share in each Plaintiffs
district under the simulated plans and under the 2016 Plan.
14.

Second, I use the partisanship formula that Dr. Hofeller disclosed in the Rucho

case that he had used in drawing the 2016 Plan. The Hofeller formula aggregates together, with
equal weights, the partisan results from seven statewide elections: The 2008 Gubernatorial, U.S.

Senate, and Commissioner of Insurance elections; the 2010 U.S. Senate election; the 2012
Gubernatorial and Commissioner of Labor elections; and the 2014 U.S. Senate election. I use

Plaintiff’s
these seven statewide elections to measure the average Democratic vote share in each Plaintiff's
district under the simulated plans and under the 2016 Plan.
15.

Figures 1 to 4 present the results of this analysis. These Figures each list the

Plaintiff’s district of residence in the
individual Plaintiffs and describe the partisanship of each Plaintiffs
2016 Plan, as well as in one of the sets of 1,000 simulated congressional districting plans.

5
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 Specifically, Figures 1 and 2 describe each Plaintiffs
Plaintiff’s district of residence in the 2016 House
Plan and compare it to the district in which that Plaintiff would reside under each of the 1,000
simulated plans in Simulation Set 1. Figure 1 uses the 20 statewide elections from 2008-2014 to
measure the partisanship of districts, and Figure 2 uses the Hofeller formula to measure the
partisanship of districts. Figures 3 and 4 repeat this analysis but using Simulation Set 2 rather
than Simulation Set 1.
16.

To explain these analyses with an example, in Figure 1, each row corresponds to a

particular individual Plaintiff. In the first row, describing plaintiff Amy Clare Oseroff, the red

Plaintiff’s 2016 Plan district (CD-1), as measured by
star depicts the partisanship of the Plaintiffs
Democratic vote share using the 20 statewide elections from 2008-2014. The 1,000 gray circles
on this row depict the Democratic vote share of each of the 1,000 simulated districts in which the
Plaintiff would reside in each of the 1,000 simulated plans in Simulation Set 1, based on that

Plaintiff’s current home address. In the far right margin, to the right of each row, I list in
Plaintiffs
parentheses how many of the 1,000 simulated plans would place the plaintiff in a more
Republican-leaning district (on the left) and how many of the 1,000 simulations would place the

Plaintiff’s 2016 Plan
plaintiff in a more Democratic-leaning district (on the right) than the Plaintiffs
district. Thus, for example, the first row of Figure 1 reports that 100% of the 1,000 computersimulated plans in Simulation Set 1 would place Plaintiff Amy Clare Oseroff in a less
Democratic-leaning district than her actual 2016 Plan district (CD-1). Therefore, I can conclude

Oseroff’ss 2016 Plan district is a partisan statistical outlier when compared to her district
that Oseroff
under the 1,000 Simulation Set 1 plans.
17.

Figures 1 and 2 show 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

6
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 162 of 662

 plans (Cohen, Quick, Rumph, Dunn, Barnes, Peters, Gates, Brown, and Harper). Figures 1 and 2
show that the remaining five Plaintiffs would live in a less Democratic district in at least 86% of
the Simulation Set 1 plans (Oseroff, Rush, Crews, Balla, and Brien), and three of these five
Plaintiffs are extreme outliers above the 98% level. Figures 3 and 4 show largely similar results

for Simulation Set 2.

I declare under penalty of perjury that the foregoing is true and correct to the best of my
knowledge.

This 30th day of September, 2019.

___________________________
Dr. Jowei Chen

7

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 163 of 662

 1
Simulation Set 1
Legend:
● Plaintiffs
Plaintiff's District in each of the 1,000 Simulation Set 1 Plans

*

Plaintiff's District in the Enacted Congressional Plan (2016)
Plaintiffs
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Amy Clare Oseroff (CD-1)
(CD−1)

(CD−2)
Rebecca Harper (CD-2)

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(100%, 0%)

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Donald Allan Rumph (CD-3)
(CD−3)

John Balla (CD-4)
(CD−4)
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(CD−5)
Richard R. Crews (CD-5)—

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(2.8%, 97.2%)

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(98.7%, 1.3%)

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(93.5%, 6.5%)

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Lily Nicole Quick (CD-6)
(CD−6)

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Gettys Cohen (CD-7)
(CD−7)

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(CD−8)
Shawn Rush (CD-8)—

(0.9%, 99.1%)

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(3.2%, 96.8%)

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(CD−9)
Jackson Thomas Dunn, Jr. (CD-9)

(86%, 14%)

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(2.9%, 97.1%)

Mark S. Peters (CD-10)
(CD−10)

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(0%, 100%)

(CD−11)
Joseph Thomas Gates (CD-11)

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(0%, 100%)

Kathleen Barnes (CD-11)
(CD−11)

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Virginia Walters Brien (CD-12)
(CD−12)

David Dwight Brown (CD-13)
(CD−13)

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0.35

0.4

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0.45

0.5

0.55

0.6

_NV

(100%, 0%)

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(8.3%, 91.7%)

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0.65

0.7

Democratic Vote Share of District in which Plaintiff Resides
2008−2014)
(Measured using votes summed across all 20 statewide elections during 2008-2014)

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 164 of 662

 1
Simulation Set 1
Legend:
● Plaintiffs
Plaintiff's District in each of the 1,000 Simulation Set 1 Plans

Plaintiff's District in the Enacted Congressional Plan (2016)
Plaintiffs

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Amy Clare Oseroff (CD-1)
(CD−1)

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(CD−2)
Rebecca Harper (CD-2)

(0.1%, 99.9%)

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Donald Allan Rumph (CD-3)
(CD−3)

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John Balla (CD-4)
(CD−4)

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(CD−5)
Richard R. Crews (CD-5)—

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Lily Nicole Quick (CD-6)
(CD−6)
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Gettys Cohen (CD-7)
(CD−7)

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(2.2%, 97.8%)

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(97.2%, 2.8%)

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(93.5%, 6.5%)

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(0.9%, 99.1%)

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(4.7%, 95.3%)

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(CD−8) ●
Shawn Rush (CD-8)—
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(88.1%, 11.9%)

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(CD−9)
Jackson Thomas Dunn, Jr. (CD-9)

(100%, 0%)

(2.9%, 97.1%)

Mark S. Peters (CD-10)
(CD−10)

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(0%, 100%)

(CD−11)
Joseph Thomas Gates (CD-11)

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(0%, 100%)

Kathleen Barnes (CD-11)
(CD−11)

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(0%, 100%)

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Virginia Walters Brien (CD-12)
(CD−12)

●

David Dwight Brown (CD-13)
(CD−13)

I
0.35

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I
0.4

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I
0.45

I
0.5

I
0.55

I
0.6

(100%, 0%)
●
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I
0.65

(7.4%, 92.6%)

I
0.7

Democratic Vote Share of District in which Plaintiff Resides
seven−election formula)
(Measured using Dr. Hofeller's seven-election

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 165 of 662

 Simulation Set 2
Legend:
● Plaintiffs
Plaintiff's District in each of the 1,000 Simulation Set 2 Plans

*

Plaintiff's District in the Enacted Congressional Plan (2016)
Plaintiffs
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Amy Clare Oseroff (CD-1)
(CD−1)

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(CD−2)
Rebecca Harper (CD-2)

(0%, 100%)

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Donald Allan Rumph (CD-3)
(CD−3)

(14.7%, 85.3%)

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John Balla (CD-4)
(CD−4)

(CD−5)
Richard R. Crews (CD-5)—

(91.3%, 8.7%)

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Lily Nicole Quick (CD-6)
(CD−6)

(98.9%, 1.1%)

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(7%, 93%)

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Gettys Cohen (CD-7)
(CD−7)

(CD−8)
Shawn Rush (CD-8)—

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(CD−9)
Jackson Thomas Dunn, Jr. (CD-9)

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(100%, 0%)

(18.4%, 81.6%)

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(90.4%, 9.6%)

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(11%, 89%)

Mark S. Peters (CD-10)
(CD−10)

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(0%, 100%)

(CD−11)
Joseph Thomas Gates (CD-11)

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(0%, 100%)

Kathleen Barnes (CD-11)
(CD−11)

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(0%, 100%)

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Virginia Walters Brien (CD-12)
(CD−12)

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David Dwight Brown (CD-13)
(CD−13)

1
0.35

1
0.4

1
0.45

1
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1
0.55

1
0.6

(100%, 0%)

(25.4%, 74.6%)

●

1
0.65

1
0.7

Democratic Vote Share of District in which Plaintiff Resides
2008−2014)
(Measured using votes summed across all 20 statewide elections during 2008-2014)

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 166 of 662

 Simulation Set 2
Legend:
● Plaintiffs
Plaintiff's District in each of the 1,000 Simulation Set 2 Plans

*

Plaintiff's District in the Enacted Congressional Plan (2016)
Plaintiffs
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(CD−1)

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(CD−2)
Rebecca Harper (CD-2)

(0%, 100%)

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(9.8%, 90.2%)

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John Balla (CD-4)
(CD−4)

(CD−5)
Richard R. Crews (CD-5)—

(87.2%, 12.8%)

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Lily Nicole Quick (CD-6)
(CD−6)

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(98.9%, 1.1%)

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(6.8%, 93.2%)

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Gettys Cohen (CD-7)
(CD−7)

(20.9%, 79.1%)

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(CD−9)
Jackson Thomas Dunn, Jr. (CD-9)

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(100%, 0%)

(89.7%, 10.3%)

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(11%, 89%)

Mark S. Peters (CD-10)
(CD−10)

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(0%, 100%)

(CD−11)
Joseph Thomas Gates (CD-11)

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(0%, 100%)

Kathleen Barnes (CD-11)
(CD−11)

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(0%, 100%)

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Virginia Walters Brien (CD-12)
(CD−12)

David Dwight Brown (CD-13)—
(CD−13)

I
0.35

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I
0.4

I
0.45

I
0.5

I
0.55

I
0.6

(100%, 0%)

(23.7%, 76.3%)

●

I
0.65

I
0.7

Democratic Vote Share of District in which Plaintiff Resides
seven−election formula)
(Measured using Dr. Hofeller's seven-election

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 167 of 662

 Jowei Chen
Curriculum Vitae

Department of Political Science
University of Michigan
5700 Haven Hall
505 South State Street
Ann Arbor, MI 48109-1045
Phone: 917-861-7712, Email: jowei@umich.edu
http://www.umich.edu/~jowei
Website: http://www.umich.edu/—jowei

Academic Positions:
Associate Professor (2015-present), Assistant Professor (2009-2015), Department of Political
Science, University of Michigan.
– Present.
Faculty Associate, Center for Political Studies, University of Michigan, 2009 —
W. Glenn Campbell and Rita Ricardo-Campbell National Fellow, Hoover Institution, Stanford
University, 2013.
Principal Investigator and Senior Research Fellow, Center for Governance and Public Policy
– Present.
Research, Willamette University, 2013 —

Education:
Ph.D., Political Science, Stanford University (June 2009)
M.S., Statistics, Stanford University (January 2007)
B.A., Ethics, Politics, and Economics, Yale University (May 2004)

Publications:
Chen, Jowei
and Neil
Neil Malhotra.
Malhotra. 2007.
2007. "The
“The Law
of k/n:
The Effect
Chen,
Jowei and
Law of
k/n: The
Effect of Chamber Size on
Government Spending
in Bicameral
Bicameral Legislatures.”
Government
Spending in
Legislatures."
American Political Science Review. 101(4): 657-676.
Chen, Jowei,
2010. "The
“The Effect
of Electoral
Geography on
on Pork
Pork Barreling
Barreling in
Electoral Geography
in Bicameral
Chen,
Jowei, 2010.
Effect of
Legislatures.”
Legislatures."
of Political Science. 54(2): 301-322.
American Journal of
Chen, Jowei,
2013. "Voter
“Voter Partisanship
Partisanship and
and the
the Effect
of Distributive
Distributive Spending
on Political
Political
Chen,
Jowei, 2013.
Effect of
Spending on
Participation.”
Participation."
of Political Science. 57(1): 200-217.
American Journal of
Chen, Jowei
and Jonathan
Rodden, 2013.
2013. "Unintentional
“Unintentional Gerrymandering:
Gerrymandering: Political
Political Geography
Geography
Chen,
Jowei and
Jonathan Rodden,
and Electoral
Bias in
in Legislatures"
Legislatures”
and
Electoral Bias
Quarterly Journal of
of Political Science, 8(3): 239-269.

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 168 of 662

 Bradley, Katharine
Katharine and
and Jowei
Chen, 2014.
2014. "Participation
“Participation Without
Without Representation?
Representation? Senior
Bradley,
Jowei Chen,
Senior
Opinion,
Legislative Behavior,
Opinion, Legislative
Behavior, and
and Federal
Federal Health
Health Reform."
Reform.”
of Health Politics, Policy and Law. 39(2), 263-293.
Journal of
Chen, Jowei
and Tim
Tim Johnson,
2015. "Federal
“Federal Employee
Unionization and
and Presidential
Presidential Control
Control
Chen,
Jowei and
Johnson, 2015.
Employee Unionization
Change in
Agencies.”
of the Bureaucracy: Estimating and Explaining Ideological Change
in Executive
Executive Agencies."
of Theoretical Politics, Volume 27, No. 1: 151-174.
Journal of
Bonica, Adam,
Adam, Jowei
Chen, and
and Tim
2015. "Senate
“Senate Gate-Keeping,
Gate-Keeping, Presidential
Bonica,
Jowei Chen,
Tim Johnson,
Johnson, 2015.
Staffing of
Staffing
of ‘Inferior
Offices’ and
and the
the Ideological
Ideological Composition
Composition of
of Appointments
Appointments to
to the
the Public
Public
'Inferior Offices'
Bureaucracy.”
Bureaucracy."
Quarterly Journal of
of Political Science. Volume 10, No. 1: 5-40.
and Jonathan
Rodden, 2015.
2015. "Cutting
“Cutting Through the Thicket: Redistricting
Chen, Jowei and
Jonathan Rodden,
Simulations and the Detection of Partisan Gerrymanders."
Gerrymanders.”
Election Law Journal. Volume 14, Number 4: 331-345.
Chen, Jowei
and David
David Cottrell,
Cottrell, 2016.
2016. "Evaluating
“Evaluating Partisan
Partisan Gains
Gains from
from Congressional
Congressional
Chen,
Jowei and
Gerrymandering: Using Computer Simulations to Estimate the Effect of Gerrymandering in the
U.S. House."
House.”
U.S.
Electoral Studies. Volume 44 (December 2016): 329-340.
Chen, Jowei,
2017. "Analysis
“Analysis of
of Computer-Simulated
Computer-Simulated Districting Maps for the Wisconsin State
Chen,
Jowei, 2017.
Assembly."
Assembly.”
Election Law Journal. Volume 16, Number 4 (December 2017): 417-442.

Non-Peer-Reviewed Publication:
Chen, Jowei
and Tim
Tim Johnson.
2017. "Political
“Political Ideology
Ideology in
in the
the Bureaucracy."
Bureaucracy.”
Chen,
Jowei and
Johnson. 2017.
Global Encyclopedia of
of Public Administration, Public Policy, and Governance.
Chen, Jowei. October 4, 2017. Time Magazine Op-Ed.
http://time.com/4965673/wisconsin-supreme-court-gerrymandering-research/
Chen, Jowei and Jonathan Rodden. January 2014. New York Times Op-Ed.
https://www.nytimes.com/2014/01/26/opinion/sunday/its-the-geography-stupid.html
Research Grants:

–
Principal Investigator. National Science Foundation Grant SES-1459459, September 2015 —
($165,008). "The
“The Political
Political Control
Control of
of U.S.
U.S. Federal
Federal Agencies
Agencies and
and Bureaucratic
Bureaucratic
August 2018 ($165,008).
Political Behavior."
Behavior.”
Political
“Economic Disparity
Disparity and
and Federal
Federal Investments
Detroit,” (with
(with Brian
Brian Min)
Min) 2011.
2011. Graham
Graham
"Economic
Investments in
in Detroit,"
Institute, University of Michigan ($30,000).

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 169 of 662

 "The
“The Partisan
Partisan Effect
of OSHA
OSHA Enforcement
Enforcement on
on Workplace
Workplace Injuries,"
Injuries,” (with
(with Connor
Connor Raso)
Raso) 2009.
2009.
Effect of
John M. Olin Law and Economics Research Grant ($4,410).
Invited Talks:

September, 2011. University of Virginia, American Politics Workshop.
October 2011. Massachusetts Institute of Technology, American Politics Conference.
January 2012. University of Chicago, Political Economy/American Politics Seminar.
February 2012. Harvard University, Positive Political Economy Seminar.
September 2012. Emory University, Political Institutions and Methodology Colloquium.
November 2012. University of Wisconsin, Madison, American Politics Workshop.
September 2013. Stanford University, Graduate School of Business, Political Economy
Workshop.
February 2014. Princeton University, Center for the Study of Democratic Politics Workshop.
November 2014. Yale University, American Politics and Public Policy Workshop.
December 2014. American Constitution Society for Law & Policy Conference: Building the
Evidence to Win Voting Rights Cases.
February 2015. University of Rochester, American Politics Working Group.
March 2015. Harvard University, Voting Rights Act Workshop.
May 2015. Harvard University, Conference on Political Geography.
Octoer 2015. George Washington University School of Law, Conference on Redistricting
Reform.
September 2016. Harvard University Center for Governmental and International Studies, Voting
Rights Institute Conference.
March 2017. Duke University, Sanford School of Public Policy, Redistricting Reform
Conference.
October 2017. Willamette University, Center for Governance and Public Policy Research
October 2017, University of Wisconsin, Madison. Geometry of Redistricting Conference.
February 2018: University of Georgia Law School
September 2018. Willamette University.
November 2018. Yale University, Redistricting Workshop.
November 2018. University of Washington, Severyns Ravenholt Seminar in Comparative
Politics.
January 2019. Duke University, Reason, Reform & Redistricting Conference.
February 2019. Ohio State University, Department of Political Science. Departmental speaker
series.
Conference Service:
Section Chair, 2017 APSA (Chicago, IL), Political Methodology Section
Discussant, 2014 Political Methodology Conference (University of Georgia)
Section Chair, 2012 MPSA (Chicago, IL), Political Geography Section.
Discussant, 2011
2011 MPSA
MPSA (Chicago,
(Chicago, IL)
IL) "Presidential-Congressional
“Presidential-Congressional Interaction.”
Discussant,
Interaction."
Discussant, 2008
2008 APSA
APSA (Boston,
(Boston, MA)
MA) "Congressional
“Congressional Appropriations."
Appropriations.”
Discussant,
(Chicago, IL)
Chair and
and Discussant,
Discussant, 2008
2008 MPSA
MPSA (Chicago,
IL) "Distributive
“Distributive Politics:
Politics: Parties
Parties and
and Pork."
Pork.”
Chair

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 170 of 662

 Conference Presentations and Working Papers:
“Ideological Representation
Representation of
of Geographic
Geographic Constituencies
Constituencies in
in the
the U.S.
U.S. Bureaucracy,"
Bureaucracy,” (with
(with Tim
"Ideological
Tim
Johnson). 2017 APSA.
“Incentives for
Political versus
versus Technical
the Public
Public Bureaucracy,"
Bureaucracy,” (with
(with Tim
Tim
"Incentives
for Political
Technical Expertise
Expertise in
in the
Johnson). 2016 APSA.
“Black Electoral
Geography and
and Congressional
Congressional Districting:
Districting: The
of Racial
Racial Redistricting
Redistricting on
on
"Black
Electoral Geography
The Effect
Effect of
Partisan Gerrymandering".
Gerrymandering”. 2016
2016 Annual
Annual Meeting
Meeting of
of the
the Society
for Political
Political Methodology
Methodology (Rice
(Rice
Partisan
Society for
University)
“Racial Gerrymandering
Gerrymandering and
and Electoral
Geography.” Working
Working Paper,
Paper, 2016.
2016.
"Racial
Electoral Geography."
“Does Deserved
Deserved Spending
Win More
More Votes?
Votes? Evidence
Evidence from
from Individual-Level
"Does
Spending Win
Individual-Level Disaster
Assistance,"
Assistance,” (with
(with Andrew
Andrew Healy).
Healy). 2014
2014 APSA.
APSA.
“The Geographic
Geographic Link
Between Votes
Votes and
and Seats:
How the
the Geographic
Geographic Distribution
Distribution of
of Partisans
Partisans
"The
Link Between
Seats: How
the Electoral
Responsiveness and
and Bias
Bias of
of Legislative
(with David
David
Determines the
Electoral Responsiveness
Legislative Elections,”
Elections," (with
Cottrell). 2014 APSA.
“Gerrymandering for
for Money:
Money: Drawing
Drawing districts
districts with
with respect
to donors
donors rather
rather than
than voters."
voters.” 2014
2014
"Gerrymandering
respect to
MPSA.
“Constituent Age
Age and
and Legislator
Legislator Responsiveness:
Responsiveness: The
"Constituent
The Effect of Constituent Opinion on the Vote
for
for Federal
Federal Health
Health Reform."
Reform.” (with
(with Katharine
Katharine Bradley)
Bradley) 2012
2012 MPSA.
MPSA.
“Voter Partisanship
Partisanship and
and the
the Mobilizing
Mobilizing Effect
of Presidential
Presidential Advertising."
Advertising.” (with
(with Kyle
Kyle Dropp)
Dropp)
"Voter
Effect of
2012 MPSA.
“Recency Bias
Bias in
in Retrospective
Retrospective Voting:
Voting: The
"Recency
The Effect of Distributive Benefits on Voting
Behavior."
Behavior.” (with
(with Andrew
Andrew Feher)
Feher) 2012
2012 MPSA.
MPSA.
“Estimating the
the Political
Political Ideologies
of Appointed
Appointed Public
Public Bureaucrats,"
Bureaucrats,” (with
(with Adam
Adam Bonica
Bonica and
and
"Estimating
Ideologies of
Tim Johnson) 2012 Annual Meeting of the Society for Political Methodology (University of
North Carolina)
“Tobler’s Law,
Urbanization, and
and Electoral
Bias in
in Florida."
Florida.” (with
(with Jonathan
Rodden) 2010
2010
"Tobler's
Law, Urbanization,
Electoral Bias
Jonathan Rodden)
Annual Meeting of the Society for Political Methodology (University of Iowa)
“Unionization and
and Presidential
Presidential Control
Control of
of the
the Bureaucracy"
Bureaucracy” (with
(with Tim Johnson) 2011 MPSA.
"Unionization
“Estimating Bureaucratic
Bureaucratic Ideal
Ideal Points
Points with
with Federal
Federal Campaign
Campaign Contributions"
Contributions” 2010
2010 APSA.
APSA.
"Estimating
(Washington, DC).

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 171 of 662

 "The
Effect of
Electoral Geography
“The Effect
of Electoral
Geography on
on Pork
Pork Spending
Bicameral Legislatures,”
Vanderbilt
Spending in
in Bicameral
Legislatures," Vanderbilt
University Conference on Bicameralism, 2009.

“When Do
Do Government
Benefits Influence
Influence Voters'
Voters’ Behavior?
Behavior? The
The Effect
of FEMA
FEMA Disaster
Disaster
Effect of
"When
Government Benefits
Awards on
on US
US Presidential
Presidential Votes,"
Votes,” 2009
2009 APSA
APSA (Toronto,
(Toronto, Canada).
Canada).
Awards
“Are Poor
Poor Voters
Voters Easier
to Buy
Buy Off?"
Off?” 2009
2009 APSA
APSA (Toronto,
(Toronto, Canada).
Canada).
"Are
Easier to
Effect on
“Credit Sharing
Among Legislators:
Geography’s Effect
on Pork
Pork Barreling
Barreling in
in
"Credit
Sharing Among
Legislators: Electoral
Electoral Geography's
Legislatures,”
2008 APSA
APSA (Boston,
(Boston, MA).
MA).
Legislatures," 2008

“Buying Votes
Votes with
with Public
Public Funds
Funds in
in the
the US
US Presidential
Presidential Election,”
Poster Presentation
Presentation at
at the
the
"Buying
Election," Poster
2008 Annual Meeting of the Society for Political Methodology (University of Michigan).
"The
Effect of
“The Effect
of Electoral
Geography on
on Pork
Pork Spending
in Bicameral
Bicameral Legislatures,”
2008 MPSA.
MPSA.
Electoral Geography
Spending in
Legislatures," 2008
IL).
“Legislative Free-Riding
Free-Riding and
and Spending
on Pure
Pure Public
Public Goods,"
Goods,” 2007
2007 MPSA
MPSA (Chicago,
(Chicago, IL).
"Legislative
Spending on
"Free
Legislatures," (with
“Free Riding
Riding in
in Multi-Member
Multi-Member Legislatures,”
(with Neil Malhotra) 2007 MPSA (Chicago, IL).
"The
“The Effect
of Legislature
Bicameralism, and
and Geography
Geography on
on Government
Effect of
Legislature Size,
Size, Bicameralism,
Government Spending:
Spending:
Evidence
from the
the American
American States,”
(with Neil
Neil Malhotra)
Malhotra) 2006
2006 APSA
APSA (Philadelphia,
(Philadelphia, PA).
PA).
Evidence from
States," (with

Reviewer Service:
American Journal of Political Science
American Political Science Review
Journal of Politics
Quarterly Journal of Political Science
American Politics Research
Legislative Studies Quarterly
State Politics and Policy Quarterly
Journal of Public Policy
Journal of Empirical Legal Studies
Political Behavior
Political Research Quarterly
Political Analysis
Public Choice
Applied Geography

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 172 of 662

 STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
No. 19-cv-012667

REBECCA HARPER, et al.,
Plaintiffs,
DECLARATION OF
BLAKEMAN B. ESSELSTYN

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

I, Blakeman B. Esselstyn, upon my oath, declare and say as follows:
1.

I am over the age of eighteen (18) and competent to testify as to the matters set

forth herein.
2.

I am a Principal at FrontWater, LLC and EQV Maps.

3.

I have been retained by Plaintiffs in the above captioned matter. My Curriculum

Vitae is attached to this Declaration. I am being compensated $200 per hour for my work in this
case.
4.

At Plaintiffs' request, I have created the enclosed maps of North Carolina's

current congressional districts.
5.

The first thirteen enclosed maps show each of North Carolina's thirteen

congressional districts. In each of these maps, the red and blue shading represents the relative
vote margin in the 2016 North Carolina Attorney General election in a single VTD, with darker
blue shading representing larger Democratic vote margins and darker red shading indicating
larger Republican vote margins (both normalized by acreage). Using actual vote differentials

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 173 of 662

 rather than percentage differentials allows one to more easily see the effects of small shifts in
district lines on the ultimate outcomes.
6.

I obtained all map data for these thirteen maps from the North Carolina General

Assembly. I obtained the 2016 elections data via a public records request to the North Carolina
General Assembly.
7.

The final two enclosed maps show the division of the campus of North Carolina

A&T State University across Congressional Districts 6 and 13, and the division of the campus of
UNC Asheville across Congressional Districts 10 and 11. I created these maps using the QGIS
software program.

I declare under penalty of perjury under the laws of the United States that the foregoing is true
and correct to the best of my knowledge.

pvsael2)41--

y

l

M

This 30th day of September, 2019

Blakeman B. Ess styn

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 174 of 662

 Congressional District 1

 

 

 

 

3

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 175 of 662

CD:

Congressional District 2

 

 

 

 

 

at? 
F7 .
CD 
?itCase Document 5-1 Filed 10/14/19 Page 176 Congressional District 3

 

5

Case Document 5-1 Filed 10/14/19 Page 177 of 662

Case Document 5?1 Filed 10/14/19 Page 178 of 662

 

 

Congressional District 4

Congressional District 5

 

7

Case Document 5-1 Filed 10/14/19 Page 179 of 662

Congressional District 6

 

8

Case 5:19-cv-00452-BO Document 5?1 Filed 10/14/19 Page 180 of 662

Congressional District 7

Bladen

 

9

Case Document 5-1 Filed 10/14/19 Page 181 of 662

Congressional District 8

 

 

10

Case 5:19-cv-00452-BO Document 5?1 Filed 10/14/19 Page 182 of 662

Congressional District 9

 

11

Case Document 5-1 Filed 10/14/19 Page 183 of 662

Congressional District 10

 

12

Case Document 5-1 Filed 10/14/19 Page 184 of 662

Congressional District 11
11

13

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 185 of 662

 Congressional District 12

BE) la'
I I



 

14

Case Document 5-1 Filed 10/14/19 Page 186 of 662

Congressional District 13

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CD 10

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15

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 187 of 662

 Splitting of North Carolina A&T State University
E Wen doyer Ag e .
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Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 188 of 662

Ap.azhe

 Splitting of UNC Asheville

17

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 189 of 662

 June 2019
June
2019
Blakeman
Blakeman B.
B. (“Blake”)
("Blake") Esselstyn
Esselstyn
34
Wall Street
Street ·• Suite
Asheville, NC
NC 28801-1141
28801-1141
34 Wall
Suite 701
701 ·• Asheville,
blake@frontwater.com
828·338·8528
blake@frontwater.com ·• 828.338.8528
EDUCATION
EDUCATION
·

University
and Applied
Applied Science,
University of
of Pennsylvania,
Pennsylvania, School
School of
of Engineering
Engineering and
Science, Master
Master of
of Computer
Computer
and Information
and
Information Technology,
Technology, 2003;
2003; GPA
GPA 4.0
4.0

·

Yale University,
and International
Studies, Bachelor
Arts, 1996
1996
Yale
University, Geology
Geology &
& Geophysics
Geophysics and
International Studies,
Bachelor of
of Arts,

PROFESSIONAL
PROFESSIONAL CERTIFICATIONS
CERTIFICATIONS
·

Geographic
Systems Professional
Geographic Information
Information Systems
Professional (GISP),
(GISP), #6946,
#6946, 2009
2009

·

American Institute
2013
American
Institute of
of Certified
Certified Planners
Planners (AICP),
(AICP), #026364,
#026364, 2013

EMPLOYMENT
separately)
EMPLOYMENT (Teaching
(Teaching positions
positions listed
listed separately)
·

Redistricting
as Blake
Asheville, NC,
Redistricting Consultant,
Consultant, EQV
EQV Maps
Maps (and
(and as
Blake Esselstyn),
Esselstyn), Asheville,
NC, 2016-present
2016-present

·

Principal
Asheville, NC,
Principal Consultant,
Consultant, FrontWater,
FrontWater, LLC,
LLC, Asheville,
NC, 2015-present
2015-present

·

Urban
Asheville Department
and Urban
Urban Planner
Planner III
III –
- GIS
GIS Specialist,
Specialist, City
City of
of Asheville
Department of
of Planning
Planning and
Urban
Design,
Asheville, NC,
Design, Asheville,
NC, 2008-2015
2008-2015

·

Urban
Asheville Planning
Asheville, NC,
Urban Planner
Planner II,
II, City
City of
of Asheville
Planning Department,
Department, Asheville,
NC, 2004-2008
2004-2008

·

Independent
Asheville, NC,
Independent GIS
GIS Consultant,
Consultant, Freelance,
Freelance, Asheville,
NC, 2003-2004
2003-2004

·

GIS
Azavea, Inc.,
Philadelphia, PA,
PA, 2002
2002
GIS Programmer,
Programmer, Azavea,
Inc., Philadelphia,

·

Web Support
Support Fellow,
Pennsylvania, Philadelphia,
Philadelphia, PA,
PA, 2002
2002
Web
Fellow, University
University of
of Pennsylvania,

·

GIS
Analyst, Applied
Applied Geographics,
GIS Analyst,
Geographics, Inc.,
Inc., Boston,
Boston, MA,
MA, 2001
2001

·

GIS
and Environmental
Analysis Center,
Seattle, WA,
WA, 2000
GIS Intern,
Intern, Community
Community and
Environmental Spatial
Spatial Analysis
Center, Seattle,
2000

·

GIS
Analyst, Applied
Applied Geographics,
GIS Analyst,
Geographics, Inc.,
Inc., Boston,
Boston, MA,
MA, 2000
2000

·

Mapping
Schlosser Geographic
Systems, Seattle,
Seattle, WA,
WA, 1997
1997
Mapping Technician,
Technician, Schlosser
Geographic Systems,

·

Digital
Statistical Laboratory
at Yale
Yale
Digital Mapping
Mapping Resources
Resources Consultant,
Consultant, Social
Social Science
Science Statistical
Laboratory at
University,
1997
University, New
New Haven,
Haven, CT,
CT, 1997

·

Special
Assistant to
to the
the CityRoom
Special Assistant
CityRoom Coordinator,
Coordinator, Neighborhood
Neighborhood Partnerships
Partnerships Network,
Network, New
New
Haven,
1996-1997
Haven, CT,
CT, 1996-1997

·

Lab
at Yale
Yale University,
1995
Lab Monitor,
Monitor, Center
Center for
for Earth
Earth Observation
Observation at
University, New
New Haven,
Haven, CT,
CT, 1995

1
1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 190 of 662

 TEACHING
TEACHING EMPLOYMENT
EMPLOYMENT
·

Adjunct Faculty,
Asheville, NC,
Adjunct
Faculty, Lenoir-Rhyne
Lenoir-Rhyne University,
University, Asheville,
NC, 2019
2019
Taught
graduate-level Geographic
Systems (GIS)
Taught full-semester
full-semester graduate-level
Geographic Information
Information Systems
(GIS) course
course

·

Adjunct Faculty,
Western Carolina
Asheville, NC,
Adjunct
Faculty, Western
Carolina University,
University, Asheville,
NC, 2017
2017
Taught
graduate-level GIS
Taught full-semester
full-semester graduate-level
GIS course
course

·

GIS
Assistant, University
Philadelphia, PA,
PA, 2002-2003
2002-2003
GIS Course
Course Assistant,
University of
of Pennsylvania,
Pennsylvania, Philadelphia,
Served
as
teaching
assistant
for
two
undergraduate
GIS
semester
courses
Served as teaching assistant for two undergraduate GIS semester courses

·

Teacher,
American School,
1998-1999
Teacher, Equity
Equity American
School, Guatemala
Guatemala City,
City, Guatemala,
Guatemala, 1998-1999
Led
mathematics
department
for
grades
7-12;
taught
one
technology
Led mathematics department for grades 7-12; taught one technology course
course

·

Teacher,
1997-1998
Teacher, International
International School
School of
of Panama,
Panama, Panama
Panama City,
City, Republic
Republic of
of Panama,
Panama, 1997-1998
Taught
and mathematics
to secondary
secondary school
school students
students
Taught computer
computer programming
programming and
mathematics to

SPEAKER
SPEAKER OR
OR PANELIST
PANELIST
·

“Methods and
and Techniques
in Redistricting,”
"Methods
Techniques in
Redistricting," Harvard
Harvard Geography
Geography of
of Redistricting
Redistricting Conference,
Conference,
Cambridge,
MA, 2019
2019
Cambridge, MA,

·

“Redistricting Software:
Software: A
A new
generation of
geospatial tools,"
tools,” North
"Redistricting
new generation
of geospatial
North Carolina
Carolina GIS
GIS
Conference,
Winston-Salem, NC,
Conference, Winston-Salem,
NC, 2019
2019

·

“The Latest
"The
Latest Mapping
Mapping Technology,”
Technology," Reason,
Reason, Reform
Reform &
& Redistricting
Redistricting Conference,
Conference, Duke
Duke
University,
University, Durham,
Durham, NC,
NC, 2019
2019

·

“What are
are all
all These
We Get
and Redistricting
"What
These Districts?
Districts? How
How did
did We
Get Here,
Here, and
Redistricting Reform,”
Reform," Grassroots
Grassroots
Democracy:
A Nonpartisan
Voter Education
Series, Leicester,
Democracy: A
Nonpartisan Voter
Education Series,
Leicester, NC,
NC, 2019
2019

·

“Re-GIS-tricting? A
A new
generation of
geo-tools,” Mountain
"Re-GIS-tricting?
new generation
of redistricting
redistricting geo-tools,"
Mountain Regional
Regional GIS
GIS
Alliance, Asheville,
Asheville, NC,
Alliance,
NC, 2019
2019

·

“Representing (mis)representation,”
Storytelling Conference,
"Representing
(mis)representation," Tapestry
Tapestry Data
Data Storytelling
Conference, University
University of
of
Miami,
Miami, Miami,
Miami, FL,
FL, 2018
2018

·

“A Redistricting
in our
Asheville, NC,
"A
Redistricting Tour,”
Tour," Democracy
Democracy in
our Hands
Hands Conference,
Conference, Asheville,
NC, 2018
2018

·

“Dis-tricks: GIS
and Public
ArcGIS Users
"Dis-tricks:
GIS and
Public Understanding
Understanding of
of Redistricting,”
Redistricting," NC
NC ArcGIS
Users Group,
Group,
Asheville, NC,
Asheville,
NC, 2018
2018

·

“Visual Explanations
"Visual
Gerrymandering," Highlands
Highlands Indivisible,
Indivisible, Highlands,
Explanations of
of Gerrymandering,”
Highlands, NC,
NC, 2018
2018

·

“Dave’s Redistricting
App,” Metric
Workshop, University
University of
of
"Dave's
Redistricting App,"
Metric Geometry
Geometry of
of Gerrymandering
Gerrymandering Workshop,
Texas,
Austin, TX,
TX, 2018
2018
Texas, Austin,

·

“Districting Voter
Voter Education
Asheville, NC,
"Districting
Education Forum,”
Forum," Democracy
Democracy North
North Carolina,
Carolina, Asheville,
NC, 2017
2017

·

“When GIS
astray,” American
American Planning
Association National
"When
GIS leads
leads planners
planners astray,"
Planning Association
National Conference,
Conference, New
New
York, NY,
York,
NY, 2017
2017
22

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 191 of 662

 ·

“Conveying Uncertainty
with GIS,”
Azavea, Philadelphia,
Philadelphia, PA,
PA, 2017
2017
"Conveying
Uncertainty with
GIS," Azavea,

·

“GISkepticism,” Appalachian
Appalachian State
State University,
"GlSkepticism,"
University, Boone,
Boone, NC,
NC, 2017
2017

·

“When GIS
astray,” North
American Planning
Carolina Planning
Planning Conference,
Conference, American
Planning
"When
GIS leads
leads planners
planners astray,"
North Carolina
Association North
Asheville, NC,
Association
North Carolina
Carolina Chapter,
Chapter, Asheville,
NC, 2016
2016

·

“What if
the '5'
‘S’ in
in GIS
stood for
Alliance, Asheville,
Asheville, NC,
"What
if the
GIS stood
for Skepticism?”
Skepticism?" Mountain
Mountain Regional
Regional GIS
GIS Alliance,
NC,
2015
2015

·

“Open Data?
the Money!”
"Open
Data? Show
Show Me
Me the
Money!" North
North Carolina
Carolina GIS
GIS Conference,
Conference, Raleigh,
Raleigh, NC,
NC, 2015
2015

TEACHING
AS SINGLE-CLASS
and/or GIS)
TEACHING AS
SINGLE-CLASS GUEST
GUEST SPEAKER
SPEAKER (On
(On redistricting
redistricting and/or
GIS)
·

Lenoir-Rhyne
Lenoir-Rhyne University,
University, Public
Public Policy
Policy Processes
Processes Course
Course (speaking
(speaking on
on redistricting),
redistricting), 2019
2019

·

Western Carolina
Systems Course
Western
Carolina University,
University, Geographic
Geographic Information
Information Systems
Course (speaking
(speaking on
on GIS),
GIS),
2019
2019

·

Duke
Seminar (speaking
software tools),
tools), 2018
Duke University,
University, Democracy
Democracy Lab
Lab Seminar
(speaking on
on redistricting
redistricting software
2018

·

University
Asheville, Political
University of
of North
North Carolina
Carolina Asheville,
Political Science:
Science: US
US Elections
Elections Course
Course (speaking
(speaking on
on
redistricting),
2018
redistricting), 2018

·

University
Asheville, Mathematics:
Voting Theory
University of
of North
North Carolina
Carolina Asheville,
Mathematics: Voting
Theory Course
Course (speaking
(speaking on
on
redistricting),
2018
redistricting), 2018

·

Lenoir-Rhyne
Sustainability Management
Lenoir-Rhyne University,
University, Sustainability
Management &
& Decision
Decision Making
Making Course
Course (speaking
(speaking
on
intelligence), 2018
2018
on GIS/location
GIS/location intelligence),

·

Yale University,
and Management:
Yale
University, School
School of
of Organization
Organization and
Management: Business
Business Information
Information Course
Course
(speaking
1997
(speaking on
on Maptitude—one
Maptitude—one class
class +
+ multiple
multiple labs),
labs), 1997

LITIGATION
LITIGATION EXPERIENCE
EXPERIENCE (As
(As GIS
GIS expert)
expert)
·

Expert
witness analysis,
analysis, deposition,
and testimony
testimony for
Asheville, in
in Jensen
Jensen v.
of
v. City
City of
Expert witness
deposition, and
for City
City of
of Asheville,
Asheville, Buncombe
Superior Court,
Asheville,
Buncombe County
County Superior
Court, 2009-2010
2009-2010

·

Expert
witness analysis
analysis and
and testimony
testimony for
Asheville, in
in Hall
Hall v.
of Asheville,
v. City
City ofAsheville,
Expert witness
for City
City of
of Asheville,
Buncombe
Superior Court,
Buncombe County
County Superior
Court, 2007
2007

·

Expert
witness analysis
analysis and
and testimony
testimony for
Asheville, in
in Arnold
Arnold v.
of Asheville,
v. City
City ofAsheville,
Expert witness
for City
City of
of Asheville,
Buncombe
Superior Court,
Buncombe County
County Superior
Court, 2005
2005

PUBLIC
PUBLIC REDISTRICTING
REDISTRICTING PROJECT
PROJECT EXPERIENCE
EXPERIENCE
·

Software operator
and presenter,
State Legislatures
Software
operator and
presenter, National
National Conference
Conference of
of State
Legislatures Redistricting
Redistricting
Seminar:
Redistricting
Simulation,
Providence,
RI,
2019
Seminar: Redistricting Simulation, Providence, RI, 2019

3
3

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 192 of 662

 ·

Hands-on
software workshop
workshop session
session leader,
Gerrymandering
Hands-on GIS
GIS software
leader, Metric
Metric Geometry
Geometry of
of Gerrymandering
Group
at the
the University
Austin, TX,
Texas, Austin,
TX, 2018
2018
Group (MGGG)
(MGGG) Conference
Conference at
University of
of Texas,

·

Co-leader
Co-leader of
of redistricting
redistricting hackathon,
hackathon, Metric
Metric Geometry
Geometry of
of Gerrymandering
Gerrymandering Group
Group (MGGG)
(MGGG)
Conference
at Duke
Durham, NC,
NC, 2017
2017
Conference at
Duke University,
University, Durham,

·

Preparation
simulated redistricting
Preparation of
of simulated
redistricting plans
plans for
for Democracy
Democracy North
North Carolina’s
Carolina's Districting
Districting
Voter Education
Asheville, NC,
2017
Voter
Education Forum,
Forum, Asheville,
NC, 2017

·

Hands-on
software workshop
workshop session
session assistant,
assistant, Metric
Hands-on GIS
GIS software
Metric Geometry
Geometry of
of Gerrymandering
Gerrymandering
Group
(MGGG)
Conference
at
Tufts
University,
Medford,
MA,
2017
Group (MGGG) Conference at Tufts University, Medford, MA, 2017

·

Preparation
in Vesilind
State Board
Board of
of Elections
Elections
Preparation of
of redistricting
redistricting map
map exhibits
exhibits used
used in
Vesilind v.
v. Virginia
Virginia State
trial, Richmond,
VA,
2017
trial,
Richmond, VA, 2017

·

Redistricting
software operator
instructions into
into maps),
Redistricting software
operator (converting
(converting retired
retired jurists’
jurists' instructions
maps), Duke
Duke
University
and
Common
Cause
NC
independent
redistricting
commission
simulation,
commission
simulation,
University and Common Cause NC independent redistricting
Raleigh,
and Winston-Salem,
Winston-Salem, NC,
Raleigh, NC
NC and
NC, 2016
2016

MEDIA
APPEARANCES, OP-EDS,
AND CITATIONS
MEDIA APPEARANCES,
OP-EDS, AND
CITATIONS
·

“With No
Supreme Court
to Gerrymandering,
Will States
States Make
It More
More Extreme?”
Extreme?"
"With
No Supreme
Court End
End to
Gerrymandering, Will
Make It
(citation/link
article), New
New York
June 28,
(citation/link of
of blog
York Times,
blog article),
Times, June
28, 2019
2019

·

“The Supreme
Supreme Court
takes on
gerrymandering. A
A cottage
industry wants
wants to
to prove
it's gone
gone
"The
Court takes
on gerrymandering.
cottage industry
prove it's
too far,”
2019
too
far," USA
USA Today,
Today, March
March 26,
26, 2019

·

“Gerrymandering: 'Packing'
and 'Cracking,'
the meat
and potatoes
"Gerrymandering:
'Packing' and
'Cracking,' the
meat and
potatoes of
of partisan
partisan redistricting,”
redistricting,"
USA
2019
USA Today,
Today, March
March 25,
25, 2019

·

“NC gerrymandering:
gerrymandering: Turner,
Asheville CitizenTurner, McGrady
McGrady lead
lead reform
reform effort
effort on
on redistricting”
redistricting" Asheville
Citizen"NC
Times,
14, 2019
Times, February
February 14,
2019

·

“Looking for
Way Forward
Duke Today,
January 28,
"Looking
for aa Way
Forward on
on Redistricting
Redistricting Reform,”
Reform," Duke
Today, January
28, 2019
2019

·

“Will Asheville
Asheville try
try to
to stop
stop the
the state
state from
splitting it
it into
into districts?”
Asheville
citation), Asheville
"Will
from splitting
districts?" (map
(map citation),
Citizen-Times,
January 23,
Citizen-Times, January
23, 2019
2019

·

“Some takeaways
takeaways from
WRAL.com, Nov
"Some
from NC's
NC's elections,”
elections," WRAL.com,
Nov 7,
7, 2018
2018

·

“New Asheville
Asheville districts
are racial
gerrymandering, black
say” Asheville
Asheville
members say"
"New
districts are
racial gerrymandering,
black council
council members
Citizen-Times,
July 2,
Citizen-Times, July
2, 2018
2018

·

“Legislature sets
sets up
Asheville council,
primaries" (map
(map citation),
citation),
"Legislature
up districts
districts for
for Asheville
council, eliminates
eliminates primaries”
Asheville Citizen-Times,
June 27,
Asheville
Citizen-Times, June
27, 2018
2018

·

“Van Duyn
to back
Asheville council
if Senate
Senate shifts
shifts election
"Van
Duyn to
back Asheville
council districts
districts bill
bill if
election dates”
dates" (map
(map
citation),
Asheville
Citizen-Times,
June
21,
2018
Asheville
Citizen-Times,
June
21,
2018
citation),

·

“I Ran
the Worst
Worst 5K
to You,"
You,” POLITICO
POLITICO
"I
Ran the
5K of
of My
My Life
Life So
So II Could
Could Explain
Explain Gerrymandering
Gerrymandering to
Magazine,
November
15,
2017
Magazine, November 15, 2017

44

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 193 of 662

 ·

“Event to
to cover
vote on
Asheville Citizen-Times,
17, 2017
2017
"Event
cover Nov.
Nov. vote
on City
City Council
Council districts,”
districts," Asheville
Citizen-Times, October
October 17,

·

“Who makes
the grade?
grade? This
week’s editorial
Asheville Citizen-Times,
June 2,
Citizen-Times, June
2,
"Who
makes the
This week's
editorial report
report card,”
card," Asheville
2017
2017

·

“Asheville grows;
grows; Charlotte,
and their
their suburbs
suburbs grow
grow faster,”
Asheville Citizen-Times,
"Asheville
Charlotte, Raleigh
Raleigh and
faster," Asheville
Citizen-Times,
May
May 29,
29, 2017
2017

·

“Boundary issues:
issues: Where
Where does
Asheville end?”
Mountain Xpress,
Xpress, April
April 29,
29, 2016
2016
"Boundary
does Asheville
end?" (op-ed),
(op-ed), Mountain

·

“For better
worse, Asheville
Asheville growth
growth inevitable,"
inevitable,” Asheville
Asheville Citizen-Times,
November 21,
21,
"For
better or
or worse,
Citizen-Times, November
2015
2015

·

“St. Lawrence
test for
voters” (op-ed),
Mountain Xpress,
Xpress, October
"St.
Lawrence Green
Green no
no litmus
litmus test
for voters"
(op-ed), Mountain
October 29,
29, 2015
2015

REDISTRICTING
AND GIS
REDISTRICTING AND
GIS SOFTWARE
SOFTWARE EXPERIENCE
EXPERIENCE
·

MapInfo
1996)
MapInfo (first
(first used
used 1996)

·

Maptitude
1997)
Maptitude (first
(first used
used 1997)

·

Esri
ArcGIS/ArcInfo/ArcView (first
Esri ArcGIS/Arclnfo/ArcView
(first used
used 2000)
2000)

·

QGIS
QGIS (first
(first used
used 2015)
2015)

·

Maptitude
Maptitude for
for Redistricting
Redistricting (first
(first used
used 2016)
2016)

·

Dave’s
App (first
Dave's Redistricting
Redistricting App
(first used
used 2016)
2016)

·

DistrictBuilder
DistrictBuilder (first
(first used
used 2017)
2017)

·

Esri
Esri Redistricting
Redistricting (first
(first used
used 2018)
2018)

·

Districtr
Districtr (first
(first used
used 2019)
2019)

SELECTED
AWARDS (As
team member)
SELECTED AWARDS
(As team
member)
·

G.
Stout Award
Award for
Visionary use
G. Herbert
Herbert Stout
for Visionary
use of
of GIS
GIS by
by Local
Local Government,
Government, 2009
2009

·

International
in New
International Economic
Economic Development
Development Council,
Council, Excellence
Excellence in
New Media
Media Initiatives,
Initiatives, 2008
2008

·

Marvin
Award for
in Planning
Marvin Collins
Collins Outstanding
Outstanding Planning
Planning Award
for Innovations
Innovations in
Planning Services,
Services, Education,
Education,
and Public
and
Public Involvement,
Involvement, 2007
2007

ADDITIONAL TRAINING
ADDITIONAL
TRAINING
·

Public
Access, Privacy,
and Security:
and Policy,
and Regional
Public Data,
Data, Public
Public Access,
Privacy, and
Security: U.S.
U.S. Law
Law and
Policy, Urban
Urban and
Regional
Information
Systems Association
Association Certified
Workshop, Raleigh,
Information Systems
Certified Workshop,
Raleigh, NC,
NC, 2015
2015

·

An Overview
Software, Urban
and Regional
Systems
An
Overview of
of Open
Open Source
Source GIS
GIS Software,
Urban and
Regional Information
Information Systems
Association Certified
Workshop, Portland,
Portland, OR,
OR, 2012
2012
Association
Certified Workshop,
55

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 194 of 662

 ·

An Introduction
to Public
to Support
Support Community
An
Introduction to
Public Participation
Participation GIS:
GIS: Using
Using GIS
GIS to
Community Decision
Decision
Making,
and Regional
Systems Association
Association Certified
Workshop, Orlando,
Making, Urban
Urban and
Regional Information
Information Systems
Certified Workshop,
Orlando,
FL,
FL, 2010
2010

·

3-D
and Project
and Regional
Regional
3-D Geospatial
Geospatial Best
Best Practices
Practices and
Project Implementation
Implementation Methods,
Methods, Urban
Urban and
Information
Systems Association
Association Certified
Workshop, Vancouver,
Vancouver, BC
Information Systems
Certified Workshop,
BC (Canada),
(Canada), 2006
2006

BOARDS
AND COMMISSIONS
BOARDS AND
COMMISSIONS
·

Asheville City
Appointee to
to Comprehensive
Advisory Committee,
Asheville
City Council
Council Appointee
Comprehensive Plan
Plan Advisory
Committee, 2016-2018
2016-2018

MEMBERSHIPS
MEMBERSHIPS
·

Urban
and Regional
Systems Association
Association (URISA)
Urban and
Regional Information
Information Systems
(URISA)

·

Mountain
Alliance (MRGAC)
Mountain Regional
Regional GIS
GIS Alliance
(MRGAC)

·

American Planning
Association (APA)
American
Planning Association
(APA)

66

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 195 of 662

 STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
No. 19-cv-012667

REBECCA HARPER, et al.,
Plaintiffs,

v.

DECLARATION OF
ELISABETH S. THEODORE

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

I, Elisabeth S. Theodore, declare and say as follows:
1.

I am over the age of eighteen (18) and competent to testify as to the matters set

forth herein.
2.

I am a partner with the law firm Arnold & Porter Kaye Scholer LLP and one of

the attorneys representing Plaintiffs in this case.
3.

for aa Preliminary
I submit this declaration in
in support
support of
of Plaintiffs'
Plaintiffs’ Motion
Motion for
Preliminary

Injunction.
4.

Attached as Exhibit A is a true and correct copy of the transcript of the Deposition

of Thomas B. Hofeller, taken in Common Cause v. Rucho, No. 16-cv-1026 (M.D.N.C. Jan. 24,
2017).

5.

Attached as Exhibit B is a true and correct copy of the transcript of the Deposition

of Representative David Lewis, taken in Common Cause v. Rucho, No. 16-cv-1026 (M.D.N.C.

Jan. 26, 2017).

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 196 of 662

 6.

Attached as Exhibit C is a true and correct copy of the Redistricting Criteria for

the 2016 Congressional Plan adopted by the North Carolina General Assembly Joint Committee
on Redistricting on February 16, 2016.
7.

Attached as Exhibit D is a true and correct copy of the transcript of proceedings

before the North Carolina General Assembly Joint Committee on Redistricting on February 16,
2016.

8.

Attached as Exhibit E is a true and correct copy of the transcript of proceedings

before the North Carolina General Assembly Joint Committee on Redistricting on February 17,
2016.

9.

Attached as Exhibit F is a true and correct copy of the transcript of floor

proceedings before the North Carolina House of Representatives on February 19, 2016.
10.

Attached as Exhibit G is a true and correct copy of Exhibit 42 to the Second

Deposition of Thomas B. Hofeller, taken in Common Cause v. Rucho, No. 16-cv-1026
(M.D.N.C. Feb. 10, 2017).
11.

Attached as Exhibit H is a true and correct copy of the transcript of the Second

Deposition of Thomas B. Hofeller, Volume II, prepared in Common Cause v. Rucho, No. 16-cv1026 (M.D.N.C. Feb. 10, 2017).
12.

Attached as Exhibit I is a true and correct copy of the Second Declaration of

Thomas B. Hofeller, prepared in Common Cause v. Rucho, No. 16-cv-1026 (M.D.N.C. Oct. 26,
2017).
13.

Attached as Exhibit J is a true and correct copy of the transcript of the Deposition

of Robert A. Rucho, taken in Common Cause v. Rucho, No. 16-cv-1026 (M.D.N.C. Jan. 25,
2017).

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 197 of 662

 14.

Defendants’
Attached as Exhibit K is a true and correct copy of excerpts to Defendants'

Responses to
to Plaintiffs'
Plaintiffs’ First
First Requests
Requests for
for Admission,
Admission, filed
filed in
in Common Cause v. Rucho, No. 16Responses
cv-1026 (M.D.N.C. Apr. 24, 2017).
15.

Attached as Exhibit L is a true and correct copy of excerpts of the transcript of the

Trial Testimony of Thomas Hofeller, given in Harris v. McCrory, No. 13-cv-949 (M.D.N.C. Oct.
14, 2015).
16.

Attached as Exhibit M is a true and correct copy of the Engagement Letter

Contract dated February 16, 2016 between Legislative Defendants and Dr. Thomas Hofeller,
introduced as an exhibit in Common Cause v. Rucho, No. 16-cv-1026.

Respectfully submitted this the 30th day of September, 2019.

/s/ Elisabeth S. Theodore
Elisabeth S. Theodore

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 198 of 662

 Exhibit A

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 199 of 662

THOMAS
THOMAS B.
B. HOFELLER
HOFELLER

January
24, 2017
2017
January 24,

IN THE UNITED STATES DISTRICT COURT

11

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

2

al.,
COMMON CAUSE, et al.,

NC DEPARTMENT OF JUSTICE
BY: ALEC PETERS, ESQ.
JAMES BERNIER, JR., ESQ.
PO Box 629
Raleigh, NC 27602
(919) 716-6400
APeters@ncdoj.gov
JBernier@ncdog.gov
JBemier@ncdog.gov

)

3
3

)
Plaintiffs,

vs.
VS.

)
) Civil Action
Action No.
No.
)

4
4

) 1:16-CV-2016-WO-JEP
)
ROBERT A. RUCHO, in his official

)
)

capacity as Chairman of the North

)
)

Carolina Senate
Senate Redistricting
Carolina

)
)

5

Committee for the 2016 Extra

)
)

6

Session and
and Co-Chairman
Co-Chairman of
of the
Session

)
)

7

Joint Select Committee on

)
)

Congressional Redistricting,
et al.,

)
)

Defendants.

)
)

8

)
)

9

)
)
)
)

LEAGUE OF WOMEN VOTERS OF NORTH

)
)

et al.,
al.,
CAROLINA, et

)
)

10
10
11
11

)
)
Plaintiffs,

vs.
VS
•

)
)
) Civil Action No. 1:16-CV-1164
)

12
12

)
)
ROBERT A. RUCHO, in his official

)
)

capacity as
as Chairman
Chairman of the North
capacity

)

Carolina Senate Redistricting

)

13
13

Committee for
for the
the 2016
2016 Extra
Committee

)
)

Session and Co-Chairman of the

)
)

2016 Joint Select
Select Committee
Committee on
on
2016

)
)

Congressional Redistricting,

)
)

et al,
et

)
)

16
16

)
)

17
17

Defendants.
Defendants.

14
14

Also Present: Robert A. Rucho
David Lewis
Dalton Oldham, Esq.
The Reporter: Discovery Court Reporters
and Legal Videographers, LLC
BY: DENISE MYERS BYRD, CSR 8340
BRENT TROUBLEFIELD,
VIDEOGRAPHER
4208 Six Forks Road, Suite 1000
Raleigh, NC 27609
(919) 424-8242
(919) 649-9998 Direct
Denise@DiscoveryDepo.com

15
15

--o0o---000--

)
)
)
)

INDEX OF EXAMINATION
Page

18
18

)
)

19
19

VIDEOTAPED DEPOSITION OF

20

THOMAS B. HOFELLER

_______________________________________________________________

21

10:05 A.M.
TUESDAY, JANUARY 24, 2017

22

_______________________________________________________________

By Mr. Bondurant
Bondurant...........................
8
By Ms. Earls
223
Earls...............................

23

--o0o---000--

24

POYNER SPRUILL

25

1900
301 FAYETTEVILLE STREET, SUITE 1900
RALEIGH, NORTH CAROLINA

1
1
1

1

APPEARANCES
APPEARANCES

2

2

For the Plaintiffs: Common Cause, et al.

3

3
4

5
5
6
7

3
3

4

BONDURANT MIXSON & ELMORE
BY: EMMET J. BONDURANT, ESQ.
BENJAMIN W. THORPE, ESQ.
1201 W. Peachtree Street, NW
Suite 3900
Atlanta, GA 30309
(404) 881-4100
Bondurant@bmelaw.com
BThorpe@bmelaw.com

10
10
11

12

3
6

14

16
16
17

18
18

8
8
9

POYNER SPRUILL
BY: EDWIN M. SPEAS, JR., ESQ.
CAROLINA P. MACKIE, ESQ.
301 Fayetteville Street
Suite 1900
Raleigh, NC 27601
(919) 783-1140
ESpeas@poynerspruill.com
CMackie@poynerspruill.com

21

22

23
23
24

25
25

Redistricting 2010, Preparing for
Success, RSLC June 7, 2009
PowerPoint slides
36

4

RSLC Announces Redistricting Majority
Project (REDMAP) - Press release
42
5 Redistricting Majority Project
PowerPoint slides
49

10

6
11
12

REDMAP Political Report: July 2010
2 pages
66
6A REDMAP Political Report: July 2010
6 pages
68

13

7

What I've Learned about Redistricting
The Hard Way! January 24, 2011
PowerPoint slides
69

8

E-mail to Tom Hofeller from Lindsay
Fisher, RSLC, May 23, 2008, with attached
"Dear Legislative Leaders" letter
83

9

"Dear Legislative Leaders"

10

2012 Cycle Redistricting Budget

14

15

For the Plaintiffs: League of Women Voters, et al.
SOUTHERN COALITION FOR
SOCIAL JUSTICE
BY: ANITA S.
S. EARLS,
EARLS, ESQ.
ESQ.
BY:
1415 Highway 54
Suite 101
Durham, NC 27707
(919) 323-3380 x 115
AnitaEarls@southerncoalition.org
AnitaEarls@southemcoalition.org

16
17

88

18

90

19
19

11

19
19
20

29

7

13
13
15
15

Page
10

5

8
9

INDEX OF EXHIBITS
EXHIBIT NO. DESCRIPTION
1 Thomas Hofeller, Ph.D. resume
2 The Looming Redistricting Storm
How will the Republican Party Fare?

20

For the Defendants:
OGLETREE DEAKINS NASH SMOAK
BY: THOMAS A. FARR, ESQ.
PHILLIP J. STRACH, ESQ.
4208 Six Fork Road
Suite 1100
Raleigh, NC 27609
(919) 787-9700
Thomas.Farr@ogletreedeakins.com
Thomas.Farr@ogletreedealcins.com
Phil.Strach@Ogletreedeakins.com

21

E-mail re: TBH Travel to Raleigh
91
May 21, 2012
12 Geographic Strategies invoices to
92
Ogletree Deakins

22

13
23

24

E-mail to Matt Walter from Chris
Jankowski, February 24, 2012,
Subject: RNC and redistricting with
attached Request for Payment and
invoices for Geographic Strategies

97

25

2
2

4
4

1
1 (Pages
(Pages 1
1 to
to 4)
4)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
200
of
662
DISCOVERY COURT
COURT REPORTERS
REPORTERS
www.discoverydepo.com
1-919-424-8242
DISCOVERY
1-919-424-8242
www.discoverydepo.com

 THOMAS B. HOFELLER

January 24,
24, 2017

1
1
2

14

Maptitude Software, Data and Services
for Redistricting
98

3

1
1

THE V1DEOGRAPHER:
VIDEOGRAPHER: On record at

2

10:05 a.m. Today's date is January 24, 2017.

3

15

Legislator's Guide to North Carolina
Legislative and Congressional
Redistricting, 2011 General Assembly 107

Thomas B. Hofeller taken in the matter of League

5

Voters of North Carolina, et a.,
al.,
of Women Votets

"Partisan Politics was the Primary or
Predominant Factor in the Drafting of
the 2011 Congressional Redistricting
Plan" - Excerpts from Hotelier's
Hofeller's First
and Second Expert reports in Harris 113

6

versus Robert A. Rucho, et a.,
al., in the Civil

16A Expert Report of Thomas B. Hofeller,
Ph.D., Harris v McCrory
115
16B Second Expert Report of Thomas B.
Hofeller, Ph.D., Harris v McCrory
122

10
o

5

16
6
7
8
9
10

7

Action Number 116-CV-1164 taken in the

8

United States District Court for the Middle

9

District of North Carolina; and also in Common

17

NCGA Rucho-Lewis Congress 3

156

12

18
13

14
16
17
18
19
20

19
20
21
22
23
24

"The Best Predictor of Future Election
Results is Past Voting Behavior" Hofeller's First Expert
Excerpts from Hotelier's
131
Report in Harris
Proposed 10-3 Map
165
Final REDMAP Report
166
REDMAP 2012 Summary Report
166
REDMAP Political Report: Final Report 167
2012: RSLC Year in Review
168
2016 Contingent Congressional Plan
Committee Adopted Criteria
176

Rucho, et al., defendants in the United States

12

District Court for the Middle District of

13

North Carolina, Civil Action Number

14
14

116-CV-1026-WO-JEP.

15

23

themselves and whom they represent and then the

17

court reporter will swear in the witness.

19
20
21
21
22

25
22

Map: 2016 Contingent Congressional
Plan - Corrected
209
26 NCGA 2016 Contingent Congressional
Plan - Corrected*
209

23
24
24

24

Would counsel please now introduce

16

18

21
21

al., plaintiffs, versus Robert A.
Cause, et a.,

11
11

11
11

15

This is the videotaped deposition of

4

4

25

25

I'm Emmet Bondurant. I
MR. BONDURANT: Fm
represent Common Cause.

I'm Edwin Speas. I also
MR. SPEAS: Fm
represent Common Cause.
MR. THORPE: Ben Thorpe. I represent
Common Cause.
MS. EARLS: Anita Earls representing

the League of Women Votets,
Voters, plaintiff.

5
1
1

1

2

7

27

2016 Contingent Congressional Plan Adopted, Population and Political data 210

2
3

MR. FARR: Tom Fan•
Farr from the Ogletree

4

office in Raleigh representing the defendants in

5

both cases.

3

28

2016 Redistricting Database Field Key 211

4

29
5
6

7
8
8
9

NCSBOE 11/8/16 Official General Election
220
Results - Statewide
30 Plaintiffs' Notice of Deposition of
Thomas Hofeller - League of Women
223
Voters of North Carolina v Rucho
31 Hofeller production of maps
Congress 2016 Contingent
231
Bates Nos. DEF000042 - 64

10

--o0o-11
11
12

MS. MACKIE: Caroline Mackie
representing Common Cause.

6
7
8
8
9
10
11
11

12

MR. STRACH: Phil Strach with Ogletree
representing the defendants in both case.
MR. BERNIER: James Bernier, Assistant

Attorney General representing defendants in both
cases.
THOMAS B. HOFELLER,
having been first duly sworn or affirmed by the

13

Certified Shorthand Reporter and Notary Public

14

to tell the truth, the whole truth and nothing

15

13

but the truth, testified as follows:

16

14
14
15

16
17
17

BY MR. BONDURANT:

18

Q. Would you state your full name and address for

19

18

20

19

20

21
21

21
21

22

22

23

23
24
25

6

EXAMINATION

17

the record.
A. Thomas Brooks Hofeller, 6701 Point Vista Circle,
Raleigh, North Carolina, 27615.
Q. How long have you lived in Raleigh,
Dr. Hofeller?

24

A. Since October 14th of 2014.

25

Q. Are you currently employed?

8

2 (Pages
(Pages 5 to 8)
8)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
201
of
662
www.discoverydepo.com
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 THOMAS B. HOFELLER
11
2
3
4

January 24,
24, 2017

A. Well, I'm
Pm semiretired, but I don't have a
regular job. I do consulting work.

1

Q. What sort of consulting work are you now doing?
A. I have -- well, at least I had -- I don't know

3

2

Could you elaborate on that and tell us what you
mean by that.
A. Well, in 1965, I was hired by the majority

4

leader I believe in the state senate in

5

if I still have it now, but I had a consulting

5

6

contract with the Republican National Committee,

6

California, that's a long time ago, to help
develop a database for use in redistricting in

7

a monthly contract, and I do work in
redistricting and court testimony, legal

7

California.

8
8

California had just been ordered by the
court to switch to one-person, one-vote, and
they needed to do a mid decade redistricting,
and it was a project involving the mashing of
census tracks to precincts in California so they
could build a political and demographic
database.
In 1970, I was part of a firm which was
retained by the California assembly to build a
computerized redistricting system for use in the
1971 redistricting. This involved creation of
software and databases for use in that
redistricting.
I did essentially the same thing but
for a -- through the Rose Institute of State and
Local Government in the '80s, built another
computerized redistricting system, and I've been
drawing plans and looking at -- building

8
8
9
10
11
12
13

9

support.
Q. For the Republican National Committee and

10

11
11

related organizations?
A. Mostly not, no. I really do it for other

12

13

organizations.

14

Q. Other organizations being whom?

14

15

A. Well, in this case it's the defendant
intervenors through the lawyer's office. And I

15

16
17
18
19

16
17

am currently also active in a case in Virginia
Besilind, and I've been retained by the lawyer

18

for the defendant intervenors.

19

20

Q. Is your contract with the Republican National

20

21
21

Committee in writing?
A. It was in writing a long time ago. It's sort of

21
21

22
23
24
25

22

just gone on a month-to-month basis, and, of
course, we've just had the change in

23

administration so I don't know actually what my

25

24

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status is there at the time.
Q. Do you have a copy of that contract?
A. Probably somewhere, yes, but I'd have to look

11
11

databases and looking at databases.

2

I also testified in a trial in
Mississippi in the late '70s, Conner V Finch, I

3
4

for it.

5

Q. Let me ask the court reporter to mark as

6

Hofeller Exhibit 1 a copy of your resume.
(WHEREUPON, Plaintiffs' Exhibit 1 was

7
8
8

marked for identification.)
BY MR. BONDURANT:

9
10

Q. Do you recognize that as the resume you
presented in the Covington case?

11
11

A. Of course I'd have one more addition to it,
which is my participation in the Besilind case

13

12

14

in Virginia.
Q. The addition being cases in which you are either

15

16

currently involved or have testified as an
expert?

17

A. Well, I haven't testified. I've given an expert
report in Besilind.
Q. Is it your intention to provide an expert report

18
19

20
21
21

in this case?
A. I haven't been asked to do it yet so I don't
know.

22

24

Q. In your resume you indicate that you've had

24

25

50 years experience in the redistricting field.

25

23

23

10

think it was, and built another redistricting
system.

So Pve
I've been active in the
redistricting field for -- for now going on
51 years, I guess.
Q. In 1989, you became the redistricting director
for the Republican National Committee?
A. Actually, that's not true. I was the
redistricting director at the RNC first in 1982.
I believe January of '82 I became redistricting
director and also the director of their computer
services division, so I was wearing two hats
there for a while.
Q. What was your -- what were your duties as

redistricting director for the RNC beginning in
1982?
A. Well, we were just finishing up the 1980
redistricting cycle, and I was responsible for
aiding and assisting Republican organizations
across the country in fulfilling their
redistricting needs. It was really kind of the
tail end of that process then.

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DISCOVERY COURT REPORTERS
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January 24,
24, 2017
1

As computer services director, I ran

2

the IT shop for the Republican National
Committee in Washington, DC.

3

Q. And what did the IT shop consist of as far as
redistricting was concerned?

4

A. Most of it was data work, building databases and

6

5

7

lending technical assistance to the players in

8
8

the redistricting process as needed.
Q. How did those databases relate to the

9
10

redistricting process?
A. Well, in redistricting, you essentially have two

11
11
12

sets of data that have to operate in tandem:
One is political data, which are the results of

13
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14

elections, and also of registration, and that
has to be matched and merged with data which

15

comes from the United States Census Bureau which
gives the demographics of the areas. And

16
17
17
18

there's quite a bit of work involved in melding
the two types of data together.

19

Q. When you say political data, could you tell us
precisely what you mean.

20

A. Results of elections and registration numbers.
Q. Any other political data? Is there a definition

22

of the term?
A. The only thing I can think of right offhand

24

21
21

23

25

best predictor of how a particular geographic
area is likely to vote --A. Yes.
Q. -- in a future election?
Is that an industry standard among
people who are engaged in map drawing for
political parties on either side?
A. Yes. Well, I don't know -- I can't tell you
about the other side. I haven't drawn districts
for partisan Democrats except in very limited

circumstances, but in most cases I think experts
across the country would agree that past
elections are the best, if not imperfect,
indicator of what future results maybe.
may be.
Q. Is there any more reliable indicator of future
election results than how a particular
geographic area voted in past elections in your
opinion?
A. Not really, no.
Q. Is your opinion based not only on your own
experience but social science research,
political scientists and others who sample that
sort of thing?
A. Certainly any that I've talked to or read have
said that, but, yes. The people who actually

13
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2
3
4
5
6
7
8
8
9
10

11
11
12
13

would be residences of incumbents, but that's
really part of the voter file.
Q. When you say results of elections, you're
referring to how a particular geographic area
voted in primary or general elections?
A. Yes.
Q. Do you -- for your purposes in your database

15
1
1

draw the districts want that information more

2

than anything else. And I think people who are

3

voting on the districts, the people who may be

4

authorizing these plans or passing the

5

redistricting statutes would all want to know

6

what the past election results are in the area

7
8

work, do you use primary election results or
general election results or both?

9
10

A. Generally we use general election results,
usually a presidential, U.S. Senate, House of

11
11

Representatives, statewide votes such as
governor, lieutenant governor, attorney general.

12
13

that they're going to get a new plan.
Q. So in your opinion, the most important
information in trying to give one party or the

other a partisan advantage in the redistricting
process would be past election results?
A. If that was what you were trying to do, yes.
Q. And when you are engaged by the Republican Party
or by Republican legislators in the state, that

14

Some states have more elected officials. Other

14
14

15

states have less. And also, of course,

15

16

legislative results. We're also interested, of

16

that will give that party the maximum advantage

17

course, in registration numbers too.

17

in state legislative or congressional elections?

18
19

20
21
21

Q. For what purpose do you use election results?
A. To determine how areas that are being drawn into

18

A. Not always.

19

Q. What other instances are you asked to draw

20

new districts or taken out of new districts vote
and to try and make an estimate of what

is your objective, isn't it, to draw districts

21
21

districts?
A. There are other criteria at play in drawing

22

electoral success may be in newly formed

22

districts. First you have one-person, one-vote,

23

districts, although it doesn't always end up

23

which is a federal requirement. You have the

24

being exactly as you predicted.
Q. Are past election results in your opinion the

25

14
14

24
24

requirements of the Voting Rights Act, which are

25

also federal. There are traditional
16

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DISCOVERY COURT REPORTERS
1-919-424-8242
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 THOMAS B. HOFELLER

January 24,
24, 2017

11

redistricting criteria such as respect for

1

2

communities of interest, counties in particular,

2

Q. Line 16.

3

cities. You have compactness. You have

3

A. I'm sorry.

4

contiguity. So there are other factors that

4

Q. "Would you describe yourself as the principal

5

play off against the political data.

5

6

6

Q. But as far as attempting to achieve a partisan

A. I'm sorry. Does this start at Line 10?

architect?"
A. I guess I said I would.

7

advantage for the party whom you were hired to

7

Q. Yes.

8
8

represent, is political data the principal data

8
8

A. It depends on what you mean by architect too.

9

on which you would rely to achieve that

9

Q. Well, what you meant by architect when you

10

11
11

objective?
I'm not sure I agree with the premise of your
A. Pm

10

answered the question was that you were the

11
11

principal person who was responsible for

12

question. I really never have been hired by a

12

drafting the plan that was ultimately adopted by

13

political party to actually draw lines, so I

13

the North Carolina General Assembly in 2011.

14

can't
cant quite -- maybe you could ask that a

14
14

15

different way.

15

16
17

Q. When you're employed by a law firm representing

legislators, such as Senator Rucho or

architect draws or designs a building -- excuse

16

me -- according to the specifications by the

17
17

person who wants the building built.

18

Representative Lewis, were you employed to give

18

19

political considerations, principal

19

20

consideration in drawing congressional districts

20

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21

in North Carolina?

21
21

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A. Okay. Well, what I've always said is that an

A. Well, again, when I've -- usually when I've been

22

23

hired by a law firm, it hasn't been to actually

23

24

draw districts. It's been to provide litigation

24

25

support and analysis.

25

So if you say that that's -- if you
define it as such, I was the architect, but I
wasn't building what I thought was needed to be
-built. I was building what the -Q. You were working at the direction of some
other --MR. FARR: Can he finish his answer,
please.

17
11
2

19
1
1

Q. But you did draw the districts in 2011. You
were the principal architect.

THE WITNESS: Excuse me. As the

2

architect, I was designing the plan in

3

A. In 2011?

3

accordance with the specifications that the

4

Q. Yes, with the congressional districts.

4

legislature wanted, mainly represented by the

5

A. I did draft districts, yes.

5

6

Q. And you were the principal architect?

6

BY MR. BONDURANT:

7

A. Well, people have stylized me that way, but...

7

Q. You operated under the instructions given to you

8
8

Q. Haven't you testified to that effect previously?
Q.

8

by Senator Rucho and Representative Lewis who

9

A. I believe my memory is that I've testified to

9

were the co-chairmen of the joint committee of

chairman of the two committees.

10

the fact that it was my job in the -- in the

10

11
11

redistricting to be kind of the principal

11
11

A. Yes.

12

gatekeeper/scorekeeper of what was being drawn.

12

Q. And by specifications, you mean the instructions

13

13

So I would typically maintain the

the senate and house in 2011?

which they gave you?

14

current copy of the map, and to some degree I

14

15

was the architect, but, of course, I didn't make

15

Q. And all of those instructions were oral?

16

the decisions as to where the districts would

16

A. Yes.

17

actually go. That decision rested with the

17

Q. There were no instructions given to you in

18

chairman in North Carolina, Chairman Lewis and

18

19

Chairman Rucho as directors of the two

19

A. No.

20

committees as to what would actually be done in

20

Q. There were no -- there's no paper trail against

21
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the end.

21
21

which we can evaluate your description of the

22

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Q. Let me show you Page 20, starting at Line 12
Q.

A. That's true.

writing?

instructions?

23

through Line 16, of your deposition in Harris v

23

24

McCrory taken on May 6, 2014. If you would read

24

Q. And that was a deliberate choice on your part?

25

the question and your answer.

25

A. If I received instructions on what I was to do,

18

A. I don't believe so, no.

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DISCOVERY COURT REPORTERS
1-919-424-8242
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 THOMAS B. HOFELLER
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2
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January 24,
24, 2017

the instructions came from the people who wanted
it done. It would have been their choice as to

11

how they wanted to give me the instructions, not
mine.

3

2

4

Q. But you advised them not to give you
instructions in writing, to do so orally?

5

7

A. I don't recollect that.

7

8
8

Q. And when you received instructions, you made no

8

9

written record or notes of the instructions?
A. No.

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10

Q. Let me go forward with your history. According
-to your resume --

11

A. Are we done with this exhibit?
Q. Yes. You may need it again, but...

13

12

14

You've told us you became a
redistricting director in 1982. According to

15

your resume, you were again made redistricting
director for the Republican National Committee

17

16

18

from March 1989 to November 1993.
A. I believe that's not right.

19

Q. If you'll turn to Page 7 of your resume. You
list Republican -- National Republican

21
21

Congressional Committee, redistricting director.
its not the Republican
A. That's correct, but it's

23

20

22

24
25

National Committee.

The National Committee has a much wider
interest in redistricting involving state

legislatures and Congress.
Q. Was your focus in that capacity on achieving as
much of a partisan advantage for the Republican
members of Congress as possible in the states?
A. I think you have to understand that as a
redistricting --Q. Is that a "yes" or a "no"?
A. It's a "no" the way you asked it.
Q. Do you want to explain?
A. Yes. The National Republican Congressional
Committee does not draw districts and go into a
state and say we've drawn your districts, here

they are, all you need to do is enact this plan.
You wouldn't be there very long if you did that.
So our job, as was a lot of the jobs of
the National Republican Committee, was to
prepare Republican stakeholders for the
redistricting process ahead of time and to
support them in their needs to go through the
process. So it was more an advisory role than

it was anything else.
The districts -- congressional
districts in the United States are drawn by the

21
11
2

3
4
4

5

23
1
1

Q. Thank you for the correction.
What is the difference between the

2

Republican National Committee and the Republican
Congressional Committee?

3
4
5

A. The Republican National Committee is the

6

official committee of the Republican Party. It

6

7

puts on the conventions. Its primary function,
actually, is putting on the nominating

7

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9
10
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12
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14
15
16

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18
19

20
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25

8
9

conventions. I believe legally -- Pm
I'm not an
attorney so I don't know exactly that, but it is

10

the Party.
The National Republican Congressional

11
11

Committee is the political committee of the
Republican members of Congress, the caucus, and

13

its duty is mainly to support electing and
supporting Republicans in elections.

15

12

14

16
17

Q. What were your duties as redistricting director
for the Republican Congressional Committee in

18

the March '89 through November '93 period?
A. I would describe them as functionally the same,

19

20

but the client was different. The National
Republican Congressional Committee is

21
21

overwhelmingly involved with the reelection and
election of members to Congress from the

23

Republican Party.

25

22

22

24

states, not by the national parties or national

organizations.
or
In ni7ations.
Q. Did you assist any states in drafting
congressional plans during the -- that election
cycle?
A. I don't rightly remember one way or the other.

That's been quite a few years.
Q. Then according to your resume, you were again
the redistricting director beginning in
July 1999 through March 2003.
What were your duties during that
period?
A. Well, just for the record, I was redistricting

director for the Republican National Committee
at that time, not the National Congressional
Committee.
Q. So in the '89 period, you were redistricting

director for the congressional committee; in the
'99 through 2003 period, you were the
redistricting director for the Republican
National Committee?
A. That's correct.
Q. What were your duties as redistricting director

for the Republican National Committee?
A. Again, I came on board in '99, I believe it was

24

6 (Pages
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21 to 24)
Case
5:19-cv-00452-BO
Document
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Page
205
of
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DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 THOMAS B. HOFELLER

January 24,
24, 2017

like April, but I'm not sure. I'd have to look

11

involved. There are lots of interests involved.

2

at my resume. Again, as I described to you

2

And so we took what they wanted to have as their

3

already, the first task that I was involved in

3

goals and would say -- advise them on what would

4
4

was getting the states ready, the stakeholders

4

be wise and what would be unwise and how they

5

ready for the redistricting process.

5

could get it done.

1
1

6

A lot of people have actually forgotten

6

BY MR. BONDURANT:
Q. Did you assist state legislators in drafting

7

about redistricting. Some have never been

7

8
8

through it before. Some actually were glad to

8
8

9

have forgotten about it, but there's a lot of

9

10

education that needs to be done in terms of

11
11

10

'99 to 2003 period that you
plans during the 99
were redistricting director for the Republican
National Committee?

database building, in terms of acquisition of

11

12

computer equipment and software and in terms of

12

remember the specifics of where I went and what

13

the status of the law. Redistricting law

13

I did.

14

changes a lot between decades and to some degree

14

15

the politics of redistricting. So we would go

15

16

to states and help people when they wanted help.

16

17

I believe in that decade we also put on

17

it's been a long time and I don't
A. Again, its

Q. Did you assist the North Carolina Republicans in

drafting plans for the -- in the 2009 -- excuse
me -- in the 1999/2003 election cycle?
A. That would be the 2001 redistricting cycle?

18

a redistricting conference. We also monitored

18

Q. Yes.

19

the census. Before I got that job, I was

19

A. If my memory serves me correctly, the plans in

20

2001 were drafted by the Democrats and the

actually the staff director of the U.S. House

20

21
21

Subcommittee on the Census, and we monitored the

21
21

22

activities of the Census Bureau, educated people

22

23

about that data, where to get it, what they

23

24

needed to do, in some cases emphasized to them

24

of the legislature in drafting plans for that

25

that they needed to get as good a count as they

25

cycle?

majority in the legislature.
Q. That was not my question.
Did you assist the Republican members

25

27

11

could of all their citizens, not all their

1
1

A. Those would have been sample plans, yes.

2

citizens, actually all of their inhabitants, and

2

Q. Again in 2009 to 2011 you became a redistricting

3

get people actually thinking actively about

3

consultant for the Republican National

4
4

redistricting.

4
4

Committee. What was the difference between your

5
6

It's many times hard to draw -- get

-their attention to it because --

5

duties as a redistricting consultant versus

6

redistricting director in the prior election

7

Q. Did you draft plans --

7

8
8

A. Excuse me. I'm not finished
fmished yet. Do you want

8

9

9

me to --

10
10

Q. If you want to take the time, go ahead.

10

11
11

A. Okay. Alright. I just said as the

11
11

cycle?
A. I wouldn't describe it as being much different.

I think it was more the terms of my employment
than it was the duties, a difference in duties.
It was to their advantage and to my

12

redistricting process unfolds, people come up

12

advantage to come in as a consultant in that

13

with problems and with issues, and it was our

13

election -- or in that redistricting cycle

14

job to assist them and make them as successful

14

rather than as an employee.

15

in accomplishing their redistricting goals as

15

16

they could be.

16

17
18
19

Q. Did you have a written contract with the RNC as
a redistricting consultant?

17

A. Yes.

Republicans were concerned was to gain maximum

18

Q. Do you have a copy of that contract?

partisan advantage?

19

A. I don't know.
Q. Do you recall what that contract prescribed your

Q. And the redistricting goals as far as the

20

MR. FARR
FARR: Objection to the form.

20

21
21

THE WITNESS: I wouldn't say that

21
21

22

premise. There are
that's actually a correct premise

22

23

many things going on in redistricting and not

23

24

always is partisan advantage the top goal.

24

25

There are other criteria that are

25

26

duties to be?
A. I have no recollection of the actual specifics
of the contract.
Q. In April 2011 you entered into a separate
contract with the State Government Leadership

28

7 (Pages
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Page
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 THOMAS B. HOFELLER
11

January 24,
24, 2017
11

Foundation, correct?

Again, one of the problems that I think

2

A. Okay. Yes.

2

3

Q. Do you have a copy of that contract?

3

it's
its a process that only happens once a decade,

4

A. I might, but I don't have it certainly readily

4

very seasonal, and usually politicians and

5

political operatives are focused on the problem

6

at hand, usually the next election and a lot of

7

other issues. Members of the legislature have a

5

at hand.

6
7

(WHEREUPON, Plaintiffs' Exhibit 2 was
marked for identification.)

both parties have in terms of redistricting is

8
8

BY MR. BONDURANT:

8

constant stream of legislation that's going

9

Q. Dr. Hofeller, I've asked the court reporter to

9

through their chambers, and it's very difficult

10
11
12
13
14
15
16
17
18
19

mark Hofeller Exhibit 2. Can you identify it?

10

for them to -- excuse me -- to focus on a

A. That's a paper that I wrote while I was at the

11

process that isn't right on top of them.

12

RNC.
Q. Do you know approximately what the date of this
paper is? It appears to be undated.

A. It would have been, I believe, either 2009 or

And one of the problems with

13

redistricting is that it requires a lot of

14

preparation. It's not something you can turn to

15

after the election, directly preceding the line

2010. 1I don't actually recall the date. I

16

drawing and say, oh, we're going to have

think it was published in a publication of the

17

redistricting, we have to get ready now.

National Committee.

18

Q. At the conclusion of the paper, the paper

If you wait until that happens, you

19

won't be ready and you'll have a lot of

20

describes you as one of the GOP's preeminent

20

difficulty.

21
21

redistricting experts. Would you agree with

21
21

22

that description?

22

So it was, I guess, probably best
described as a wake-up piece, pay attention,

23

A. Are you talking about the part in italics?

23

24

Q. Yes.

24

25

A. Let me read through it.

25

this is coming up, you need to focus.
Q. And in the second full paragraph, you say in the

last sentence:

29

31

11

Q. Certainly.

1
1

2

A. Now that I've read it again, can you repeat your

2

3
4
5

question. I'm sorry.
Q. Would you agree with the statement that you are
the GOP's -- one of the GOP's preeminent

"Why are these state-level contests
so important to the GOP? It is because

3

it is in the states where the results of

4

the 2010 census will be used to redraw

5

the boundaries of congressional

6

redistricting experts?

6

districts which will be used in the 2012,

7

A. I guess I would, yes.

7

2014, 2016, 2018 and 2020 elections. The

8

Q. Is there anyone with the GOP, including all of

8

outcome of this battle will determine the

its iterations and committees, that you regard

9

electoral playing field for the next

9
10

as more expert in partisan redistricting than

10

11

you?

11
11

Then in the next two sentences you say:

decade."

12

MR. FARR: Objection to the form.

12

"If the GOP wins big at the state

13

THE WITNESS: I don't think I describe

13

and legislative level, it can be more
assured of retaking and keeping control

14

myself as a preeminent expert in partisan

14

15

redistricting.

15

of the U.S. House. These election

16

contests in 2010 are 'the hidden national

17

elections of 2010 and beyond' and will

There are some people across the

18

determine GOP success in the 2012

19

country who are pretty knowledgeable in the

19

elections following redistricting."

20

field. I've just been, I think, at it longer
than most of them.

20

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18

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I describe myself as it is describes --as it reads. It speaks for itself.

Do you see that?

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A. I do.

Q.
Q.

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BY MR. BONDURANT:

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Q. Why did you write this paper?

23

24

A. You know, that's been many years ago so I have

24

focus on the 2010 state elections as a method of

25

achieving control of the House of

25

to speculate on the exact motivations.

30

And you were trying to convince the Republican

National Committee and the Republican Party to

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January 24,
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Representatives in Congress for the next decade.
Isn't that fair?
A. I don't know that I'd state it exactly as you
stated it, but I would just say that anybody who
knows anything about redistricting knows that
the congressional districts are drawn in the
states and that the states will draw the lines
and in many ways that will control the shapes of
the districts and who will be in control in
Congress over the next decade.

So
SO I think that most of the readers of
this already were aware of this, but, once
again, it was trying to get them focused on it a
little earlier than they might want to focus on

it.
Q. On Page 2, in the incomplete paragraph at the
top of the page, you say:
"Due to McCain-Feingold, it is now
illegal for the RNC to raise and spend
-non-federal dollars to fund technical -critical technical and legal operations,
and other national GOP organizations
have been unwilling, or unsuccessful, in
filling this funding void."
Do you see that?

1

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the consultant in 2009, correct?
A. I was consultant to that office, yes.

Q. On the third page, in the last full paragraph
above the map, you say: "This year's

elections" -- you're referring to the 2010
election cycle -- "could result in the GOP's
full line-drawing control of as many as 151
seats or as few as 16," correct?
A. Well, that's what I said then. It turned out a
lot differently.
Q. Well, we'll see how it turned out.
On the last page you again emphasize
that "A switch of as few as 77 seats out of
4,889 could have a huge impact on both parties'
redistricting fortunes."
MR
MR. FARR: What page is that, Emmet?
MR. BONDURANT: Page 6.
THE WITNESS: I'm sorry, I just don't
see it. Oh, here it is, the incomplete
paragraph at the top.
Yes, that's really a -- well, I guess
that's true.
BY MR. BONDURANT:
Q. The point you were making is that if the
Republicans, through whatever organizations,

33

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A. I do.

Q. And the point you were making there is that the
subset of GOP organizations weren't willing to

fund the sort of technical support that you felt
was necessary to prepare for the 2010 election
cycle and take advantage of it?
MR
MR. FARR: Objection.
You can answer.
THE WITNESS: I don't think it was a
matter of will. It was a matter of resources.
McCain-Feingold changed the way that
politics was funded in the country radically,
and I think we were trying to explain to the
states that they couldn't depend on the RNC to
be able to give them the level of monetary
support that they may have received in the
previous redistricting cycle because of the
limitations of fundraising.
BY MR. BONDURANT:
Q. In the next sentence you said:
"The RNC had the foresight to
reactivate its redistricting office in
early 2009, but it has had to use federal
dollars to do so."
That is the office of which you were

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could switch as few as 77 state legislative
seats out of almost 5,000, that could have a
huge impact on the makeup of the congressional

delegation in the House of Representatives?
A. Well, that's just a fact.

Q. And that's the point you were trying to make to
the Republican leadership?
A. I didn't say that. I said the point I was
trying to make is that you better pay attention
to elections out in the states or state
legislatures, in other statewide offices because

it's going to have a national impact.
Sometimes it's hard to get people to
think about that because they may be saying,
well, we're interested in congressional

elections this next year and how those elections
turn out. I'm saying there's another dimension
to this year's elections.
Q. And it's a long-term dimension that would apply
to the entire decade: 2012, 2014, 2016, 2018,
2020?
A. Yes, that's true.
(WHEREUPON, Plaintiffs' Exhibit 3 was
marked for identification.)
BY MR. BONDURANT:

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Q. Could you identify Deposition Exhibit 3, a

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2

PowerPoint presentation at which you were

2

3

present on June 7, 2009.

3

redistricting, so it's
-its -Q. That wasn't my question.
MR. FARR: Can he finish.
finish

4

A. Yes.

4

BY MR. BONDURANT:

5

Q. Were you a presenter in that PowerPoint

5

Q. Can you draw the lines for the best interest of

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presentation?
A. I was. I don't -- actually, I don't know how

6

the Party, a partisan advantage over the other

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party if you're in control?

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much Congressman Westmoreland said and I said.

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I was present, and I'm sure I spoke to it.

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Q. You were the principal author of this

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PowerPoint, weren't you?

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A. Yes.

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Q. And does that date of June 7 help you date your

13

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article that we identified as Hofeller

14

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Exhibit 2? Was Hofeller Exhibit 2 written

15

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before or after?

16

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A. I just have no recollection. I don't know.

17

18

Q. It doesn't help you date it one way or the

18

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20
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MR. FARR: Excuse me, Emmet. I would

like to ask you to let him finish his answer.
MR. BONDURANT: I would like him to be
responsive and not make a speech.
MR. FARR: I think he was answering
your question.
MR. BONDURANT: Can you read the

question back.
(Record Read.)
THE WITNESS: I think the answer would
be you could if that was your goal.

19

BY MR. BONDURANT:

A. No, really not.

20

Q. On the page numbered 47, you break down which

Q. On the page that ends with the Bates number

21
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other?

party has control of how many legislative seats

22

RSLC1535, you're emphasizing the importance of

22

23

Republicans being at the table to get either

23

A. 1547?

24

full control or split control of the

24

Q. Yes.

redistricting process.

25

A. No, that's not correct. We're not talking about

25

currently.

37

39

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A. I'm sorry, I'm still trying to find the page.

1
1

2

-Q. Look at 1535. It's --

2

Q. You're talking about congressional seats?

3

A. Oh, I'm sorry. I didn't see the numbers at the

3

A. That's true.

4

bottom.
This PowerPoint frame speaks for
itself. There are three statuses that you can
fmd itself in
find yourself -- either party can find
in a redistricting process in an individual
state. You either have full control, which
means you can draw the lines that you think are
best for the state; you have split control,
which could result in a deadlock situation where
either the two parties' operatives have to come
to a compromise or it can end up in the courts.
Q. When you say best for the state, if you're in
full control, you really mean best for the party
that is in full control?
A. No. I said best for the state.
Q. You don't think that it also in your terminology
meant that if you were in full control, speaking
to a Republican audience, you could draw the
lines in a way that would be best for the Party?
A. I think I already answered that question earlier
in this deposition where I said there are many
other factors that come in to play in

4

Q. So the PowerPoint presentation headed 2010

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legislative seats here.

5

Reapportionment, Partisan Control of Process, as

6

of 2010, based on the 2001 apportionment, the

7

GOP controlled the apportionment of 107 seats,

8

the Democrats controlled 124 seats.

9

A. Again, that's not a precisely correct question.

10

Q. Can you give me a precisely correct answer?

11
11

A. No, then.

12

Q. What is the information you're attempting to

13
14
15

portray under "Partisan Control of Process" when
you list GOP? What is the 107?
A. I believe -- and I haven't seen this PowerPoint

16

for a long time, but I believe what I'm saying

17

here is that in the states in which the -- this

18

is a result of the 2008 elections, not the 2010

19

elections, so all the elections up to the point

20

where I did the PowerPoint, GOP would have full

21
21

control of the redistricting process in states

22

which contained 107 congressional seats.

23

Q. And likewise, the Democrats would have control

24

of both houses in states that had 124 seats?

25

A. No. They would have control of the process.

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Each state -- states have different processes
for redistricting. So, again, that's not

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2

Q. Can you identify Exhibit 4.

precisely true. The Democrats would be -- would
have control in states that contained 124 seats.

3

A. That is a press release which was released by
the Republican State Leadership Committee on

4

Q. And there would be 161 seats in which the
parties divided control -- controlling one house

5

or the other in the state legislature?
A. No, that's not precisely true because not in all

7

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states does the legislature do the
redistricting.

10

So I would say that this was our read
as to which party would be in control of the

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line-drawing process, and in this case it would

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be split, but it doesn't say how it was split or

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how it was done.
Q. The states in which the legislature does not

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control redistricting are the so-called
commission states?

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A. Yes.

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Q. And you list them as controlling 36 seats?

20

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A. Yes.

21
21

22

Q. And then there's seven states that have only one

22

23

representative so they are elected at large and
there is no redistricting?

23

24
25

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A. That's true.

BY MR. BONDURANT:

2010.
February 19,
19,2010.
Q. Did you have any role in drafting that press
release?
A. I don't really remember.

Q.
Q.

Is that press release consistent with the
article which you had written previously urging
Republican leaders to pay attention to the 2010
redistricting, the article that we identified as

Hofeller Exhibit 2?
Hotelier
MR. FARR: Have you had a chance to
read this exhibit?
THE WITNESS: No. I really have to
read -- I'd have to study -- I don't know which
one predated the other one. This was not
written by me. It was written by the people who
controlled communications in that organization.
So if you want to give me time, I can
read through it and refresh myself with it.
BY MR. BONDURANT:
Q. I can ask you some questions about it and
perhaps save us some time.

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Q. If you'll turn to the page numbered 1560, you

43
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You're familiar with the -- what became
known as the REDMAP Project?

say in your PowerPoint "Key Factors in Election
Targeting, Within +to -5 of Control."

2

3

A. Yes.

What is the message you're conveying to
your audience there?

4
4

Q. You as a consultant worked to further the REDMAP

5

Project?

A. Actually, that frame conveys a whole series of
messages. Do you want me to go through them

6

all?
Q. Let me try this: You're suggesting here that

8
8

Q. Assist in carrying it out.

9

A. Okay. It was a portion of the REDMAP Project

7
7

A. I don't know -- you have to tell me what you
mean by further it.

the Republicans target states in which they have
an opportunity to shift legislative control from

10

too. I think the main interest of the RSLC had

11

was looking at places where they would pinpoint

the Democrats of one house or both to the
Republican Party?

12

their resources in the upcoming election.

13

A. That's the first bullet, and the answer to that
would be you could look at that as a starting

My job was more one, once again,

14
14

preparing stakeholders for the process that was

15

coming up.
Q. The purpose of the REDMAP Project was to win

point to where you thought committing, again,
national money to the states would have a good

16

chance of switching control of a legislative
chamber. Of course, there are other states that

18

17

state legislative seats that would have a
critical impact on redistricting in 2011.

19

A. That's what they say, yes.

have lots of representatives where the number
may be plus or minus a lot higher number.

20

Q. And the redistricting primarily was

21
21

That's just one message in this PowerPoint frame
there. There are other messages too.

22

congressional redistricting?
A. No. The RSLC is interested in legislative

(WHEREUPON, Plaintiffs' Exhibit 4 was
marked for identification.)

42

23

redistricting and legislative elections. That's

24

its role. That's as defined from the

25

Republican -- the National Republican

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Congressional Committee.
Q. If you would go down to the third full
paragraph, after reciting the people who were
going to be leading it:

1

BY MR. BONDURANT:

2

Q. I wasn't asking you about the document. I was

3
4

"The four were active in the
formulation of the American Majority

5

Project (AMP) which was started to help
state legislative races around the

7

6

8
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9

country that would affect congressional
redistricting and decided the joining
their efforts with the RSLC would have
the most impact."

Q. Can you answer the -- the question has a
yes-or-no answer.

15
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MR. FARR: It's a two-page document.
It's quite a few paragraphs.

19

THE WITNESS: I would like to read
every document that I'm testifying about.

21
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MR. FARR: And you can read it, Tom.
MR. SPEAS: I don't think the record
reflects that Senator Rucho and Representative

THE WITNESS: Again, REDMAP was --

11
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14

Q. Well, if you need to read a one-page document,
go right ahead.

MR. FARR: And I object to the form.
You can answer.
BY MR. BONDURANT:

13

active" means. I have to read the piece to
know.

Would you read the question back.
(Record Read.)

10
10

12

A. I have to read the piece to understand the
premise. I don't know what "the four were

asking about your knowledge of the REDMAP
strategy.

23

MR. FARR: Let him answer the question.
BY MR. BONDURANT:

Q. You can answer yes or no and then you can
explain.
A. Ask the question again. I'm sorry.
(Record Read.)
THE WITNESS: That's correct in part.
BY MR. BONDURANT:
Q. What part about it is incorrect?
A. The other goal, of course, was just to win

24

control of state legislatures, which is their
primary mission. Aside from that, they were

25

looking at legislative chambers that would

45

47

11

Lewis are here and have been here since the

1

2

beginning. I think it should. And also
Mr. Oldham is here and has been here since the

2
3

state legislatures that would have the greatest

4

beginning, and Mr. Peters is here now.

4

impact on congressional redistricting was the

5

You agree with that, Tom?

5

strategy which you were proposing in your

3

6
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8
9
10

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change the control of the redistricting process.
Q. And the REDMAP strategy of gaining control of

MR. FARR: Yes. Thank you for that
clarification.

6

article "The Looming Redistricting Storm, How

7

THE WITNESS: All right. So in the
paragraph above, we're talking about the senior

8

will the Republican Party
Patty Fare" that we marked
as Exhibit 2.

advisors to the REDMAP Project, I believe, four
individuals, not including myself, and they were
active in the formation of the AMP, which I
don't really remember until I saw this document
because they were interested in the -- in the
fact that legislative races would have an impact

9

A. Again, I don't know which document predated

10

which other document. So it was talking

11
11

essentially about the same subject, yes.

12
13
14
15

Does that satisfy you?
Q. My real question: Was REDMAP your idea or was
it somebody else's?

A. No, it wasn't my idea.
Q. Who is the principal author?

on congressional redistricting.
BY MR. BONDURANT:

16
17

A. The leadership of the RSLC.

Q. In fact, the REDMAP strategy was a strategy of

18

Q. And who would you identify personally to have

19

the Republican State Legislative Committee to

19

20

win Republican control of state legislatures

20

21
21

that would have the largest impact on

21
21

A. The leadership of the RSLC.

22

congressional redistricting, correct?
MR. FARR: Objection.

22

Q. And what individuals would you name as being

23

principally the authors of the REDMAP strategy?
A. Well, that would have been Chairman Gillespie

16
17
18

23
24
25

24

THE WITNESS: Again, I think the

25

document speaks for itself.

46

been the brains behind the REDMAP strategy if it
were not you?

I'm sure advised
and Vice-Chairman Tom Reynolds, Pm

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by their political team. They had their own
political team.

2

Q. Were there any other individuals who in your
opinion would be more knowledgeable about the

3
4

origins of the REDMAP strategy than those two

5

individuals?

6
7

A. I think they had an executive director at the

8

time. I just don't remember who it was.

9

Q. Was that Chris Jankowski?
A. I believe so, yes.

10

Q. And you were an integral part as a consultant of
the efforts to redistrict in 2011 on behalf of
the Republican State Legislative Committee and
its foundation?
MR. FARR: Objection to the form.
THE WITNESS: I would have to say that
I've already described to you what my role was.
So if you're talking about their

fundraising strategy, which this particular
exhibit is related to, I was not involved in the

Q. What was his role in developing the REDMAP
strategy, if you know?

11
11
12

BY MR. BONDURANT:

13

A. I don't know.

13

14

Q. Was his role more influential than yours?

14

Q. You were involved in the map drawing?
A. Again, in terms of the RSLC, I was not hired to

15

A. I was working for them, so I would have to say,

15

11
12

16

yes, his role was more influential.

17

MR. FARR: Emmet, we'd like to take
breaks about every hour. When you have a

18
19

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23
24
25

16
17
18

chance, we'd like to take a break.
MR. BONDURANT: Let's go through this

19

document and then we'll...
(WHEREUPON, Plaintiffs' Exhibit 5 was

21
21

20

22

marked for identification.)
BY MR. BONDURANT:

23

Q. Dr. Hofeller, could you identify Exhibit 5.

25

24

fundraising.

be a map drawer. In fact, my contract with the
RSLC ran out, I believe, before map drawing
really started to any degree or extent in the
country.
Q. Let's go through this and be sure we are
understanding the REDMAP Project.
The second full page begins:
"Congressional Redistricting:
Drawing Maps for the Next Five Elections.
Question: How do we create 20 to 25 new
Republican Congressional districts over

49

51

11

A. It's a PowerPoint made by the RSLC. I don't

1
1

the next five cycles and solidify a

2

really remember it. I don't even remember if I
ever actually saw this before.

2

majority?"
Republican Congressional majority?'
Was that the objective of the REDMAP

Q. So you don't know whether you saw it before or
not?

4

6

A. I don't, no.

6

7

Q. Let's see if we can refresh your recollection.

7

8

A. Okay. Thank you.
Q. If you'll turn to the second page, the first

8
8

3
4
5

9
10
11

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13
14
15
16
17
18

3

5

9
10

heading is "Congressional Redistricting:
Drawing Maps for the Next Five Elections."

11
11

MR. FARR: Before we have any questions
on that, could he just have time to go through
the document.
MR. BONDURANT: Sure. Absolutely.

12
13
14
15
16

MR. FARR: Thank you.
THE WITNESS: Okay.

17

BY MR. BONDURANT:

18

19

Q. You've had an opportunity to review Exhibit 5?

19

20

A. Yes. Thank you.
Q. Is it an accurate description of the REDMAP

20

strategy as you knew it?
A. I guess so. I guess I would have to say yes.

22

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21

22
23
24
25

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24

Again, it wasn't my document. So I think it's
primarily a fundraising piece.

25

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strategy, principal objective?
A. I guess so. I don't really know for sure
because, again, I was just hired to do certain
parts of it.

Q. And on the next page, it gives an answer to the
Q.
question of how that could be accomplished.
"Control of the redistricting process."
That is precisely what you advocated in
your article marked as Exhibit 2, if you can
control the redistricting -- control the

legislature, you could control the redistricting
process.
MR. FARR: Objection.
MR
THE WITNESS: Not precisely true, no.
That's -- the premise of your question is not
correct.
You may -- that may be a component.
There are other components to controlling the
redistricting process.
I think that the -- once again, this
PowerPoint frame speaks for itself. Yes, if
you -- if you have control of more chambers in

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January 24,
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the right places, you will do better in
redistricting. I think that goes without

11

Democratic seat. In that case you would be at a

2

better advantage. I mean, that's just
elementary politics.

saying.
BY MR
MR. BONDURANT:

3

Q. Now, if you'll turn to the page ending in
Q.
numbers 446, it is headed "What will it take in
2010?" and then it compares the cost of 20 to 25
new Republican congressional districts for the
next five cycles through redistricting, with the
cost of competing in 20 to 25 competitive swing
or Democratic leaning congressional districts
for the next five cycles.
Do you see that?
A. Yes.
Q. Had you seen that rationale before for the
REDMAP Project?
A. I have not been reticent to state the premise
that it's much more expensive to elect
Republicans in seats that are more balanced
politically or Democrat controlled than it is to
win elections in seats that lean Republican or
are Republican seats.
And that -- again, this is a
fundraising piece so what they're -- they
believed they were trying to do here is to say

5

4

MR. BONDURANT: Do you want to take
this break now?

6

FARR: Sure. Thank you, Emmet.
MR. FARR
THE VIDEOGRAPHER: Off record at

7
8

11:17 a.m.

9
10

11
11

(Brief Recess.)
THE VIDEOGRAPHER: On record at
11:31 a.m.

12
13

(WHEREUPON, Plaintiffs' Exhibit 6 was
marked for identification.)

14

BY MR. BONDURANT:

15

Q. Dr. Hofeller, can you identify Exhibit 6?

16

A. Let me just review it quickly.
Q. Certainly.

17

18
19

20
21
21

A. In answer to your question, it's a -- I guess a
political report from REDMAP on the progress of
their project.
Q. It's dated July 2010?

22

A. Yes.

23

Q. Do you recall whether you saw this report at or

24

about the time it was published?
A. No. I mean, no, I don't recall.

25

53

55

11

that an investment by donors of this amount of

11

2

money could save a lot more money in the future.
And again, they just pulled up 31.5 million

2

versus 255 million I guess mostly based on what
they perceive would be the amount of money that

4

would be spent on congressional races which, of
course, continues to rise as do all election

6

3
4
5
6
7
8
9
10
11

12
13
14

costs.
Q. As you were working as a consultant for the
Republican State Legislative Committee during
this period of time, did you have that rationale

explained to you in these terms?
A. Well, I already knew it. I didn't need to have

3

5

7

(REDMAP) is a program of the Republican

10

11
11
12
13

Q. So you agreed with this analysis?

16

A. I agree with the premise of the slide which is
it is more efficient money-wise to put yourself

16

19

20
21
21

22
23
24
25

in the position to draw better seats for
yourself than to campaign in seats where you are

17
18
19

20

at a disadvantage.
Q. Or competitive seats?

21
21

MR. FARR: Objection to the form.
THE WITNESS: Again, in some cases it

22

might not be a competitive versus a Republican
seat. It might be a competitive seat versus the

24

54

Q. I want to ask you about the couple paragraphs
here. In the introduction, it says:
"The REDistricting MAjority Project

15

17

reports routinely?
A. Not necessarily, no.

9

15

18

employed by the Republican State Legislative
Committee, would you expect to have seen these

8
8

14

it explained to me.

Q. In the ordinary course as the consultant

23

25

State Leadership Committee (RSLC)
dedicated to winning Republican control
of state legislatures that will have the
most impact on Congressional
redistricting 2011."
Do you see that?
A. I do.
Q. You were familiar with that as being the
objective of the REDMAP Project in 2010?
A. It was an objective, yes.
Q. And in the last full paragraph, it says:
"Impact on Congressional
Redistricting: If and when Republicans
are successful in the races addressed in
this report, the Republican Party will
have an impact on the redrawing of

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numerous Congressional districts across

1
1

2

the country, an effect that will be felt

2

3

for the next decade."
Let me stop there. You were familiar

3

5

with that would be the effect of the REDMAP

5

6

1
1

4

4
4

you did.
FARR: But we didn't get copies of
MR. FARR
the exhibits.
MR. THORPE: They are responsive
production to the subpoena.

Project if it were successful?

6

7

A. Yes. If it were successful, yes.

7

documents were produced to you, you didn't

8

Q. Would you agree that that seems very similar to

8
8

provide copies of those documents to us prior to

9

that which you were advocating in your article

9

this deposition?

10

11
11

10

marked as Exhibit 2?
A. Yes, I'd say so. Again, I don't know -- I don't

produced. In fact, I thought the RSLC gave them
to you simultaneous with us.

know if this predates or postdates my article so

12

13

I can't tell you. I just don't remember.

13

14

Q. And based on your experience, you knew that if

14

15

the Republicans could control the redistricting
of congressional districts, the effect would be

15

felt for the entire decade, not merely for one
or two elections?

17

17

18
19

20

16

18
19

A. The effect of the redistricting process in

MR. BONDURANT: I thought they had been

11
11

12

16

MR. FARR
FARR: So we didn't -- when the

MR. THORPE: Yes, that's right.

FARR: I don't remember, but it
MR. FARR
We'll check.
could be true. Well
MR. BONDURANT: If you don't have them,
I will guarantee you'll get copies.

FARR: Okay.
MR. FARR
MR. BONDURANT: And intended -- I had

20

assumed that the RSLC had produced them to

course, unless there are lawsuits.
Q. Intervening court rulings?

21
21

everybody simultaneously.

23

A. Which are numerous.

23

24

Q. But absent intervening court rulings, the effect

24

MR. BONDURANT: Yeah.

25

MR. FARR: If it didn't happen, then

21
21
22

25

general is felt for five following elections, of

22

of a partisan redistricting in 2012 would be

FARR: And, Emmet, that's possible,
MR. FARR
we'll just check.
but I don't remember it so well

57
1

59
1
1

felt for the entire decade?

I'm sure it was inadvertent.

2

A. Again, the -- any redistricting's effects are

2

3

felt through the entire period until the next

3

Q. Do you need the question read back?

4

line-drawing process, so that would be 2021 in

4

A. Probably. Yes. I'm sorry.

5

this case.

5

Q. That's all right.

6

6

Q. Did you agree with the last sentence that

BY MR. BONDURANT:

(Record Read.)

7

Republicans have an opportunity to create 20 to

7

8

25 new Republican congressional districts

8
8

premise that you understand that this is not my

9

through the redistricting process over the next

9

document. I didn't write it. I haven't had a

10
11
11

12
13
14
15
16

five election cycles, solidifying a Republican

10

chance to look at the conclusions that they've

House majority?

11
11

made.

paragraph, if you don't mind.
Q. Sure, go right ahead. I'll get to the rest of

it too, but...
MR. FARR
FARR: Emmet, one other question
about this line of questioning. Is it a good

18

time for me to ask you a question?

20

12

A. I'm just going on to read the rest of the

17

19

THE WITNESS: I would agree on the

The prediction of what seats are

13

possible to win and what the results will be is

14

rather subjective analysis, particularly before

15

the elections.

16

So the author of this piece thought

17

there were 20 to 25 congressional districts that

18

would be made more favorable to the Republicans,

MR. BONDURANT: Sure.

19

so I agree the article says that. I haven't had

MR. FARR
FARR: Pm
I'm wondering, was this --

20

a chance to look at their state-by-state
analysis and say if it agreed with my analysis.

21
21

these exhibits from RSL, were these obtained by

21
21

22

you through a subpoena?

22

They might have been more optimistic than I
might have been. They might have been more

23

MR. BONDURANT: Yes.

23

24

MR. FARR: Did we get copies of those?

24

25

MR. BONDURANT: It's my understanding

25

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pessimistic. I just don't know.
BY MR. BONDURANT:

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January 24,
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Q. But you understood at the time, that is, in the

have on congressional elections if Republicans

summer of 2010, that this was the optimistic

2

could gain control of more state legislatures in

projection of the Republican State Legislative

3

the 2010 election?

4

Committee that it can win 20 to 25 new

4

5

congressional seats by targeting state

5

legislative races?

6

6

A. To that I can say, yes, I did have an estimate

if they gained control. That's a more generic
question than what you asked before.

7

I'm sorry, I just stated just before that that
A. Pm

7

Q. What was your estimate of the number --

8
8

was their prediction, and I don't know --

8
8

A. It was wrong, I can tell you that.

9

Q. What was your estimate -Q.
A. I don't remember exactly. I had a piece of

9
10

Q. My question is: Were you aware that was their

10

understanding and prediction at the time?

11
11

A. That it was their understanding and prediction?

11
11

12

Q. Yeah.

12

remember exactly what it says. I don't have

13

A. I don't know that I really was, no. I may have

13

that piece of paper any more.

paper that I had written notes down on. I don't

14

made my own estimate as to what was possible,

14

Q. Do you remember generally what your estimate --

15

but I don't -- I have -- I don't remember this

15

A. I think this was generally in the ballpark, yes.

16

piece. I didn't write it. So all I can say is

16

Q. When you say this was generally in the ballpark,

17

this was their prediction which they put out. I

17

20 to 25 gain of Republican seats was in the

18

was busy doing what I was hired to do and this

18

ballpark?

was not it.

19

20
21
21
22
23
24
25

19

A. It was certainly a possibility, yes.

Q. But you were hired to work for this committee.

20

Q. Was it consistent with your estimate?

A. Obviously if I was hired I worked for the

21
21

A. Again, I don't have my estimates in front of me

22

so I don't know. I think it was generally -- it

23

was generally consistent with my estimate that

the redistricting that would follow the 2010

24

if we had a high degree of success in the 2010

election.

25

elections for the state legislatures and other

committee, yeah.
Q. And you were hired to work for this committee on

61
11

63
1
1

statewide offices, which were also important,

for the redistricting process and be ready to do

2

that we would do better in redistricting.

3

the work they wanted to do, whatever they wanted

3

And I don't think that this kind of a

4
4

to do.

4

gain is -- was, again, generally consistent with

2

A. No. I was hired to help stakeholders to prepare

5

Q. And by stakeholders, you mean Republican

5

what I thought. Again, this is a very

6

legislators in states that were going to be

6

subjective process. They have a chart on the

7

responsible for the redistricting after the 2010

7

second page which goes through certain states

8
8

census?

8

9
10
11
12

A. Well, there are actually numerous stakeholders,

9

among which are Republican caucuses in various

10

state legislatures.

11
11

12

Q. You were not assisting Democratic state

and makes that analysis.

Q. And did you go through that chart in the summer
of 2010 or a similar one?
A. I don't recall ever having seen this particular
piece.

13

legislators in preparing for the 2010 census?

13

14

A. No, I don't believe so. No. I don't know, they

14

15

might have seen this fundraising piece or these

15

16

pieces and taken action.

16

BY MR. BONDURANT:

17

Q. With specific reference to North Carolina, the

17
18

Q. You mentioned your own estimates. Do you recall

FARR: Tom, let him finish his
MR. FARR
question.
I'm sorry.
THE WITNESS: Pm

what your estimates were of the likely effect of

18

19

the REDMAP Project if it were successful on the

19

the REDMAP Project was to neutralize the

20

congressional redistricting?

20

Democratic advantage in both the North Carolina

21
21

House and Senate.

21
21

A. I don't know how much of it you could have

chart on Page 2 indicates that the objective of

22

actually attributed to the REDMAP Project. That

22

23

was just one of the factors that went into this

23

A. Yeah, I see it.

24

process of doing better in the 2010 elections.

24

Q. Did you understand that to be an objective of

25

the REDMAP Project in the summer of 2010?

25

Q. Did you have an estimate of what effect it would

62

Do you see that?

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January 24,
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A. Again, I didn't write this piece. This is a

11

their mission, which was to enhance the number

2

I'm sure that the
specific objection, but Tm

2

of Republican legislators, and that they were

3

Democrat -- or the REDMAP would want to try and

3

focused in on chamber control more than anything

4
4

enhance the Republican numbers in both houses of

4

else and the byproduct for that chamber control

5

the state legislature.

5

is an effect on the redistricting process.

6

Q. With specific reference to North Carolina, you

6

Q. From your recollection, you would not disagree
with the statement that the goal of the project

7

knew that the objective was neutralize the

7

8
8

Democratic advantage in North Carolina, take

8
8

was to win control in traditionally swing states

9

over control?

9

so that at least half of them would be redrawn

10

10

A. Well, you can neutralize the Democratic

by the Republican Party?

11

advantage by winning one chamber, not both

11
11

12

chambers. So it would -- it would be the goal

12

13

of the RSLC to elect more Republican members to

13

14

either of the chambers in the North Carolina

14

BY MR. BONDURANT:

15

legislature, and if they had control of one

15

Q. Do you agree -- do you agree or disagree with

16

chamber, then the Democrats would not be able to

16

17

draw the maps they wanted. They might have to

17

18

compromise.

18

19

Q. Did you understand in your work as a consultant

19

20

MR. FARR: Objection.
THE WITNESS: Well, in order to redraw

-half the seats --

the statement?
A. I guess, no. The way you asked the question, my
answer would be no.
Q. Are you saying you think the statement is

for the Republican State Legislative Committee

20

21
21

that the goal of the REDMAP Project was to win

21
21

goal, nearly half of the traditionally swing

22

traditionally swing states so they could be

22

states will be redrawn by Republicans before the

23

redrawn by the Republicans?

23

24

A. Again, you have to define what you mean by a

24

25

swing state. There are many definitions of a

25

incorrect when it says if REDMAP achieves its

2012 election cycle?
A. Again, it depends on the fact that I don't know
its
what they meant by swing states, and if it's

65
11
2
3
4

swing state.
Q. Well, let me read you a sentence.

67
1
1

half of the swing states, that's I think

2

different than what you asked me the first time.
So --

3

"If REDMAP achieves its goals,
nearly half of the traditionally swing

4

Q. The question is: Do you agree or disagree with

5

states [sic] will be drawn by Republicans

5

the statement that that was the goal as stated

6

before the 2012 election cycle."

6

in this document of the REDMAP Project?

7

A. I do not disagree that that was the goal of this

7
8
8
9

What is your definition of a swing

8

state?

9

A. The generic definition is a state which will

statement, yeah, in there.
Q. And as you understood the project at the time,

10

vote either Republican or Democratic depending

10

11

on the issues and the candidates and the amount

11
11

12

of money spent in the election.

12

specifics of that particular statement which is

13

not authored by me or said by me.

13

If you look at it in redistricting

you understood that to be part of the goal?
A. Again, I don't -- I can't speak as to the

14
14

context, it would be -- I don't think you'd have

14

15

what they call a swing state in the context of

15

states legislators -- legislatures and that

16

redistricting.

16

would have a very significant effect on

17

redistricting.

17

Q. But you understood when you were working for the
Republican State Legislative Committee as a

18

19

consultant that one of its goals was to win

19

20

control of the redistricting process in at least

20

21
21

half of the traditional swing states?

21
21

18

22
23
24
24
25

22

A. I really don't remember whether that was the

23

percentage involved.

24

All I remember is that they were ---

25

they would be doing their full -- fulfilling

66

The project was to win control of more

MR. BONDURANT: Mark that as 6A,
please.
(WHEREUPON, Plaintiffs' Exhibit 6A was
marked for identification.)
THE WITNESS: Is that not the same
piece. No. Okay.
MR. FARR: Not to interrupt you, do you
have an extra one of these for the Attorney

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General's Office so they can start looking at

11

Q. Does the PowerPoint ---

these too?

2

A. I would just like to expand a little, that

Thank you very much. I should have
asked earlier.

3

whatever PowerPoint I might give might be more

4
4

tailored to the audience to whom it has been

5

BY MR. BONDURANT:

5

6

Q. Dr. Hofeller, can you identify Deposition

6

7

Exhibit 6A as simply another version of

7

audience and you advise your clients to make

8
8

Exhibit 6?

8
8

sure that the computer you use for redistricting

9
10
11
11
12
13

9

A. It appears to be, yes. Maybe more detailed.
Q. I'm not even sure there's any differences, just
on different paper.
A. Maybe they were trying to make it more
understandable to some people.

given.

Q. Specifically in the PowerPoint, you advise your

is kept in a private location?

10

A. Yes.

11

Q. Now, in North Carolina, the state legislative

12

office had its own redistricting computer; is

13

that correct?

14

Q. But in any event, you would identify that as

14

A. Yes.

15

being a political report dated July 10th of the

15

Q. And it used Maptitude?

REDMAP Project for which you were a consultant?

16

A. It believe it was a hybrid of Maptitude hooked

16
17
18
19

20
21
21

22
23
24
25

A. That's what the header says. Yes, I agree
that's what it is.
Q. And if it were produced at that time, you expect

17

up to an ESRI program too. So it was a hybrid

18

system. It had a lot more capacity to produce

19

20

routinely that you would have seen it?

21
21

A. No. In fact, I don't remember seeing it at all.

22

(WHEREUPON, Plaintiffs' Exhibit 7 was
marked for identification.)
THE WITNESS: Actually, he would be

familiar with this because that was drawn in

reports and maps than did the Maptitude system.
Q. All right. How did the state legislative
Maptitude system compare to the Maptitude system
that you had on your own computer?

23

A. I only used it really once or twice, I think,

24

but it was abysmally slow. The display

25

capabilities of the system were not very good.

69
1

71
1
1

your state by a Democrat.

And for my part, I could really get enough work

2

BY MR. BONDURANT:

2

done on it in the amount of time that I usually

3

Q. Can you identify Exhibit 7 as a PowerPoint which

3

had to do it.

you authored dated January 24, 2011?

4

5

A. Yes, I could identify it as you stated.

5

redistricting data loaded on it that was not

6

Q. And at the time you authored this, you were

6

available on the General Assembly's computer?

4

Q. Did your computer have North Carolina

7

redistricting coordinator for the Republican

7

A. No.

8
8

National Committee?

8

Q. Did you get the North Carolina specific data,

9
10

9

A. Yes.

10

Q. Were you redistricting coordinator for the

election results, geographic boundaries, that
sort of data, from the North Carolina

11
11

Republican National Committee at the same time

11
11

12

that you were a redistricting consultant of the

12

A. Some yes. Some no.

13

Republican State Legislative Committee?

13

Q. What other sources do you get data pertaining to

14

A. Let me think. I believe so, yes. I think the

14

15
16
17
18
19

20
21
21

15

contract with the RSLC ran out in April of that
year.
year.
Q. So in February or January you were still on the
payroll of the RNC, not the RSLC?
A. To the best of my knowledge, I was, yes,
receiving funding from both.
Q. When you are retained by state legislatures or

16

legislature's computer?

North Carolina?
A. The United States Bureau of the Census puts out
a geographic mapping file called TIGER,

17

T-I-G-E-R. It's an acronym. And it puts out,

18

of course, the redistricting data file, which is

19

all the demographic data. So essentially your

20

map and your demographic data comes directly

21
21

from the Census Bureau.

22

law firms to assist them in redistricting, does

22

So we would have gotten that data

23

this PowerPoint contain the advice which you

23

through the developers of Maptitude, Caliper

24

give them in that relationship?

24

Corporation in Newton, Massachusetts. So they

25

would take the TIGER file and the redistricting

25

A. Generally, yes, I think.

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January 24,
24, 2017

data file and format it to run specifically on

11

2

Maptitude, which was their redistricting GIS

2

Q. Yes.

3

system.

3

A. Yes.

4

Q. And you knew that under North Carolina law, once

11

4
5
6

The political data, i.e., the election

data and the registration data, were compiled by

5

the redistricting was passed, any e-mails that
were communicated to legislators would be public

records so there would be transparency?

Legislative Services, the IT people, and were

6

7

publicly available to everybody, and that was

7

8

the database that I also had for my computer.

8
8

9
10

11
11
12
13
14
15
16

A. In the North Carolina context?

9

Q. The Legislative Service Office also got the

FARR: Objection.
MR. FARR

THE WITNESS: I don't actually know

10

that to be true. I'm not an expert on

A. Yes. There is no other source of the data.

11

North Carolina law. I think that is a legal

Q. So in that respect, their data and your data

12

TIGER data from the Census just as yours was?

13

were identical?
A. To the best of my knowledge, they were. I never

found any differences.
Q. And the political data on the Legislative

question that should go to the attorneys.
BY MR. BONDURANT:

14
14

We'll come to that.
Q. Well

15

A. Okay.

16

Q. But you did not want any instructions that you

17

Service Office computer was the data that you

17

received to become public as far as

18

downloaded and used for your purposes in

18

redistricting in North Carolina is concerned?

19

redistricting North Carolina?

19

MR. FARR
FARR: Objection.

20

THE WITNESS: Once again, I think one

20
21
21

A. Actually, somebody else downloaded it for me,

21
21

-put it on my computer, but it was --

-has to realize that redistricting --

22

Q. But the data was the same?

22

23

A. It was the same data. I think it was actually a

23

Q. Was that a "yes" or a "no"?

24
24

A. The way you asked it it's a no.

25

Q. No, you did not want your e-mails to become

24
25

subset of all the data that they had.
Q. One of the things you counsel in this PowerPoint

BY MR. BONDURANT:

73

75

11

presentation under the heading "Computer

1
1

2

Perils," you warn to remember recent e-mail

2

3

disasters and you have three ---

3

4

A. Can you give me the page.

4

5

Q. -- three exclamation points.

5

6

A. How many pages in? I found it. Headed

6

7

Q. Yes.

9

A. After the page it says "Check out your

10

7

"Computer Perils"?

8

8
8
9
10

Computer"?

11
11

Q. Correct.

12

A. Okay.

12

13

Q. What e-mail disasters were you referring to?

13

14

A. I think all of us have -- have observed in this

11
11

14

15

nation the disasters which come from having your

15

16

e-mails open to the public. I think we had an

16

17
18

17

example in the last election, so...

18
18

Q. Were there any specific references to

19

redistricting e-mails that you had in mind?

19

20

A. My general philosophy on e-mails is that you

20

21
21

should be very careful what you say in any

21
21

22

e-mail because, for the most part, e-mails are

22

23

forever and they're not really private.

23

24
25

Q. And you knew you were doing redistricting for a

24
25

public body, correct?

74

public?
MR. FARR: That's not the question.

THE WITNESS: That's not the question.
Do you want to ask the question and
I'll answer it yes or no.
Pll
BY MR. BONDURANT:
Q. You did not want any e-mails relating to your
work in the redistricting in North Carolina to
become public?
A. No. Any e-mails that I sent and some which I
had sent actually did become public.
Could I expand my answer, please.
Q. My question is did you want them to become
public, not whether over your objections they
became public.
A. I did not think that this, like any other piece
of legislation, should be developed by e-mail.
It should be developed by consultation.
So I would have to answer your question
by saying if I wrote e-mails, I wouldn't mind
their being public. I don't think it's wise to
write e-mails when it isn't necessary because
you have no control over it and you have no
control over the answers that might come back
from the e-mail.

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DISCOVERY COURT REPORTERS
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 THOMAS B. HOFELLER

1

January 24,
24, 2017
11

So if you'll allow me to expand a

BY MR. BONDURANT:

little, I would say that my experience with

2

Q. No.

legislation in general -- and maybe you can ask

3

A. Okay. I would say I did not make a policy

4

this question of the chairmen when you get

4

5

them -- is that all legislation is the result of

5

6

compromise and of discussions that people have

6

and they don't generally do them through e-mail.

7

A. I don't think so, no.

8
8

Q. Did you receive any e-mails in connection with

2
3

7
8
8
9
10

11
11
12

Q. Turn to the page entitled "Legal Perils" where
Q
you say "A journey to legal HELL starts with but

10

a single misstatement or a stupid e-mail."

11

A. Yes. I think recent events of this election
year have made that quite obvious to anybody.

13

Q. You wrote this in 2011.

14

A. Well, it was -- it is true in 2011 as it was in

9

decision as to e-mails in -- in 2016.
Q. Did you send any e-mails in connection with 2016
redistricting?

the 2016 redistricting?
A. I don't think anything that would be of any
interest in the matter of this case, no. I

12

might have -- there might have been an e-mail or

13

something that said we should go to lunch, okay.

14
14

II

15

2005 as it was in 2000. It's always true.

15

on my e-mails that would indicate that.

16

People think that e-mail is an intimate

16

17

conversation between two people and it isn't.

17

18

Q. And two pages later you say "E-Mails are the

18

19

tool of the devil. Use personal contact or a

19

20

safe phone."

21
21
22
23
24
25

20

just don't remember. I didn't find anything

Q. Did you send any letters, memoranda or documents
in connection with the 2016 redistricting or
receive any?
A. I think you have to understand that there wasn't
a lot of ---

I'm sorry. That's two pages back, yes.
A. Pm

21
21

Q. Is that a "yes" or a "no"?

its
I made that statement. I think it's

22

A. Ask it again.

23

true.
Q. And that's the advice you gave Senator Rucho and
Representative Lewis in working in

(Record Read.)

24
24

THE WITNESS: Not to my recollection,

25

unless you consider the plan itself a document.

77
1
2
3
4
5
6
7
8
8
9
10

11
11
12
13
14
14
15
16

17
17
18
19

20
21
21
22
23
24
25

79
1
1

BY MR. BONDURANT:

A. No, I don't know that I gave them this advice

2

Q. So would it be fair to say there's no paper

directly. Somebody else may have given them
this advice.
Q. But it is the method under which you operated,
that you avoided putting anything in writing or
receiving anything in writing to the extent
possible as far as your redistricting work is
concerned?
A. The decision as to whether or not I would
receive anything in writing or not was their
decision. The decision on whether or not I
would send anything in writing would also be
their decision. If they asked for a report, I
would give a report. I'd be glad to write a
report. A report is different than an e-mail.
Q. In connection with the North Carolina
redistricting both in 2011 and 2016, you as a
policy matter made a decision not to send any
e-mails and not to receive any e-mails as far as
that redistricting was concerned?
MR. FARR: Objection.
MR
You can answer.
THE WITNESS: Do you want to ask that
differently? I'm sorry.

3

trail of any communication between you and

4

Senator Rucho or Representative Lewis or any

North Carolina?

78

5

representative in the legislature in connection

6

with the 2016 redistricting?

7
8
9

A. Are you asking between them and specifically
with me?
Q. Yes.

10

A. The answer is, no, there was not any.

11
11

Q. If you'll turn over two more pages, I would like

12

to ask you about another "Legal Perils" that you

13

listed in your PowerPoint. Quote, "Don't
'Don't get

14
14

caught in 'criteria hell."'
hell.'"

15
16

What message were you conveying there?
A. Now, the message is is don't state criteria for

17

your plan and draw your plan by -- to draw your

18

plan by the criteria that you cannot adhere to.

19

Q. So did you have any written criteria when you

20

21
21

drew the 2011 congressional redistricting plan?
A. To me specifically are you asking?

22

Q. Yes.

23

A. No, not to me specifically.

24
24

Q. And did Senator Rucho or Representative Lewis or

25

any other representative of the legislature or

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Page
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DISCOVERY COURT REPORTERS
1-919-424-8242
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 THOMAS B. HOFELLER

1

January 24,
24, 2017

their counsel convey to you any written criteria

1

for the 2011 plan?

2

to, but I don't really remember. So I knew

A. To me specifically again?

3

there were certain standards that we had to meet

4
4

Q. Yes.

4

for sure, but I didn't receive personally any

5

A. No.

5

written criteria.

6

Q. So as far as you were concerned in drafting the

6

2

3

7

plan as the principal architect in 2011, there

7

8
8

were no written criteria, everything was

8
8

9

communicated to you orally in terms of

9

10
11

10

instructions?

11
11

A. Well, there -- were you saying something?

was actually finalized that had to be adhered

(WHEREUPON, Plaintiffs' Exhibit 8 was
marked for identification.)
BY MR. BONDURANT:
Q. Dr. Hofeller, can you identify Exhibit 8?
A. That appears to be an e-mail from me to Joel
Raupe, May 24, 2011, actually relaying a message

12

MR. FARR: No.

12

from Lindsay Fisher, director of policy for the

13

BY MR. BONDURANT:

13

RSLC.

14

Q. Do you need that read back?

14

15

A. No.

15

Q. It's got a yes-or-no answer.

16

redistricting. Is that a list which you

17

prepared?

16
17
18

MR. BONDURANT: Would you read it back,
please.

Q. Attached to it are a list of dates that you were

in Raleigh working on the North Carolina

18

A. Pm
I'm sorry, I don't see the list of dates.

19

(Record Read.)

19

Q. I may have handed you the wrong exhibit.

20

THE WITNESS: Okay. Well, we've

20

A. Okay. We'll come back to this maybe.

21
21

22
23

already had a discussion about principal

21
21

Q. No. Keep it.

architect, so I'm going to say that there was no

22

A. Okay.

written criteria specifically directed at me.

23

Q. Now, at the time Exhibit 8 was written, you were

24

BY MR. BONDURANT:

24

at this point a consultant for the Republican

25

Q. Criteria in any form other than oral, none were

25

State Legislative Committee?

81
11
2

83
1
1

communicated to you in 2011?
A. My recollection is there was criteria drawn up

A. Which e-mail?

2

Q. Your e-mail to Joel Raupe dated May 24th.

3

during the process, and I was certainly aware of

3

A. I was consultant to whom?

4

what was in that criteria. I also knew, for

4

Q. The Republican State Legislative Committee.

instance ---

5

A. I don't know for sure. I don't know -- I think
maybe not. Again, I don't remember when our

5
6

Q. During the 2011 process?

6

7

A. Yes.

7

8

Q. What -- what are you referring to? Did you see

8

9
10

9

a document?
A. There are rules in the North Carolina

contract with the RSLC expired.
Q. I think it began in March -- according to your
resume, it began in May 2009 and ran through

10

April 2011, and then in April2011
April 2011 you say in
April2011,

11

Constitution, as interpreted by the Supreme

11
11

your resume that you were employed by the State

12

Court, as to how legislative plans should be

12

13

drawn, including the county grouping rule.

13

Government Leadership Foundation as a
consultant. Is that --

14
15
16
17
18

Q. I'm speaking of congressional districts.

14

A. I don't know that there are any specific rules,

15

but then again that's a -- in the Constitution,

-that's a -Q. I simply want to clarify. You saw, in 2011,

Q. It's Page 4 of your resume.

17

A. I'm getting there.

18

Q. Excuse me. It's Page 3.
A. It says that my -- my period of employment as a

nothing in writing that set forth any

19

20

instructions, criteria, standards that you were
to meet in drafting the 2011 Congressional Plan?

20

April 2011.
Q. And began in April2011.
A. Right. I'm sorry. I was a year off. My

MR. FARR: Objection.

22

23

THE WITNESS: Again, I don't really

23

25

consultant ended in 2012.

21
21

22

24

resume.

16

19

21
21

A. I don't know. I have to go back and look at my

apologies.

remember, but my recollection is that there were

24

Q. No apology necessary.

some statements along the way before the plan

25

A. So the answer to your question is, yes, I was

82

84

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Case
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Document
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Page
220
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DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 THOMAS B. HOFELLER

1
1
2

January 24,
24, 2017

employed by the RSLC at the time that was

1
1

Q. And that was the plan, and that legislative --

written.

2

that team of seasoned redistricting experts

3

Q. And the contracting officer was Chris Jankowski?

3

4

A. Yes.

4

A. Yes.

5

Q. And you were aware that this Republican State

consisted of you and your company?

Q. And he was also the executive director of the

5

6

Republican State Legislative Committee at the

6

Legislative Committee was offering you to -- in

7

same time?

7

your assistance in drawing proposed maps for
both congressional and legislative

8
8

A. That's my recollection, yes.

8
8

9

Q. So he had two hats, one with the foundation, one

9

10

11
11
12

10

with the committee?
A. It wasn't an exceptionally large staff so many
people wore multiple hats.

redistricting?
A. Yes.

11
11

Q. And that you were the leader of the team?

12

A. Yes.

Q. And you were aware that the plan was to have the
Q.

13

Q. The answer was "yes"?

13

14

A. Yes.

14

entirety of the redistricting effort by your

15

Q. Now, let's go back to Exhibit 8. Do you recall

15

team, quote, "paid for using non-federal dollars

16

reviewing the draft of the letter to legislative

16

through our 501(c)(4) organization, the State

17

leaders that is attached as Exhibit 8?

17

Government Leadership Foundation"?

18

A. I have to review it, please.

18

19

Q. Certainly.

19

was true. How they paid for it was really not

20

A. I don't remember specifically whether I saw it

20

concern to me. I was just interested in getting

21
21
22
23
24
25

21
21

or not.

A. From the standpoint of the RSLC, I guess that

paid.

22

Q. Do you remember how you got paid?

23

A. By check.

A. Yes.

24

Q. And was the check from the Foundation or the

Q. So you would not deny having seen the letter?

25

Q. But this is your e-mail which you can identify
to which it was attached?

RSLC?

85
11

87
11

A. Probably I saw it. I just don't really

2

remember. I did attach it to the letter so I

2

3

probably reviewed it before I attached it.

3

4

Q. Were you aware that the Republican State

4

5

Legislative Committee was going to offer your

5

6

assistance to state legislatures in

6

7

redistricting following the census?

7

8
8
9
10

ii
11
12
13

A. I think it was from the Foundation, but I don't
recall. That was several years back.
Q. And do you recall under your contract how much
you were to be paid per month?
A. No.
(WHEREUPON, Plaintiffs' Exhibit 9 was
marked for identification.)

A. Yes.

8

BY MR. BONDURANT:

Q. And let me see if I can refresh your

9

Q. Can you identify Exhibit 9 as the final version

recollection more about the letter that is

10

of the draft letter that was attached to your

attached.

11
11

e-mail identified as Exhibit 8?

Now, by May you knew the results of the
2010 elections, correct?

12

MR. FARR
FARR: Objection to the form.

13

THE WITNESS: I don't know whether it

A. Yes.

14

was the final copy or not. I didn't write it so

Q. And you were aware in May of 2011 that the

15

I don't know. It looks to me like it's the same

16

Republican Party now controlled 56 legislative

16

17

chambers?

17

BY MR. BONDURANT:

18

Q. I believe it to be the same.

19

A. Okay. I don't know if it was final form or

14
15

18
19

20

A. I don't -- I have no reason to challenge that
figure. Probably, yes.

20

Q. And you were aware at the time that the

21
21

Republican State Legislative Committee had

21
21

22

retained a team of seasoned redistricting

22

23

experts that we will make available to you at no

23

cost to your caucus for assistance.

24

24
25

25

A. Yes.

86

letter.

maybe it was a draft or whatever it was. I just

don't remember.
Q. Did you have any understanding as to how

Jankowski's letter that you reviewed the draft
of was to be sent?
A. It says "Dear Legislative Leaders" at the top,

88

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Case
5:19-cv-00452-BO
Document
5-1
Filed
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Page
221
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 THOMAS B. HOFELLER

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2
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20
21
21

22
23
24
25

January 24,
24, 2017
11

so I imagine they were sending it out to the

leaders in the various chambers of our state's
legislatures.
Q. You would not expect the letter to be going to
all legislative leaders in all 50 states but
only to the Republican leaders in the states
controlled by the Republicans?
A. No, I don't think that's true.
Q. You think it went to the Democratic leader in
Massachusetts?
A. I don't think that's the question you asked me.
I believe it went to the entire
leadership across the country of all the
legislatures whether they were in the majority
or the minority.
Q. When you say leadership, you're speaking of
Republican leadership?
A. Yes.
Q. You didn't expect the letter to go to the
Democrats?
A. No doubt they saw it.
Q. Why are you so confident the Democrats saw it
other than by subpoena?
A. I think public documents are hard to keep
secret.

2

3

Q. Was the contract with you individually or with
your LLC global strategies?
A. Geographic Strategies.

4
4

Q. Geographic Strategies, thank you.

5

A. I believe it was between the RSLC and the LLC.

6

Q. Geographic Strategies?

7

A. Yes.

8
8

Q. And Geographic Strategies had two principals?

9

A. Actually, there were three people in the LLC,

10

the three people that are named here.

11
11

Q. You, Mr. Oldham and Wild?

12

A. Michael Wild.

13

Q. Michael Wild.

14

A. Who just died this summer.

15

Q. Gee, I'm sorry.

16

A. Believe me, I am too.

17

18

(WHEREUPON, Plaintiffs' Exhibit 11 was
marked for identification.)

19

BY MR. BONDURANT:

20

Q. Dr. Hofeller, I'm showing you what's been marked

21
21

as Exhibit 11. Attached to it is a list of

22

-dates in 19 -- excuse me, in 2011 reflecting --

23

purporting to reflect your travels to Raleigh in

24

connection with the North Carolina

25

redistricting.

89
11
2

(WHEREUPON, Plaintiffs' Exhibit 10 was
marked for identification.)

91
1
1

A. Yes, that's what's in there.

2

Q. Is that list of dates information you supplied

3

BY MR. BONDURANT:

3

Farr so he could provide it to Mr. Speas
to Mr. Fan•

4

Q. Dr. Hofeller, I've shown you Exhibit 10, a

4

and Ms. Earls?
A. I believe so, yes.
Q. And in fact, the e-mail at the bottom is from

5

budget that was produced by the Republican State

5

6

Legislative Committee in response to a subpoena

6

7

for the period April '11, 2011, through

7

8

November 2012.

8
8

A. It is.

9

Q. And that information is accurate so far as you

9

Does that refresh your recollection as

10

to the amounts you and Mr. Oldham were being

10

11
11

paid by the Republican State Legislative

11
11

12

Committee?

12

Fan• enclosing that information?
you to Tom Farr

know?
A. So far as I know.
(WHEREUPON, Plaintiffs' Exhibit 12 was

13

A. Yes.

14

Q. And is that accurate as far as you know?

14

BY MR. BONDURANT:

A. Well, I don't specifically know whether this

15

Q. Can you identify Exhibit 12 as invoices rendered

15

13

marked for identification.)

16

particular budget was actually accepted or not.

16

17

I just don't remember.

17

Ogletree Deakins Nash Smoak & Stewart covering
the period August 9th through the last date

18

Q. But you remember seeing the budget at the time?

18

19

A. I probably made the budget up. Again, I have to

19

20

look at my records to know if it was accepted.

20

Fan• and his law firm
by your firm to Mr. Farr

being January 27, 2011?
A. Actually, I think it was from the period of

21
21

Q. You have records that would show that?

21
21

22

A. Yes.

22

Q. That's correct. Thank you.

23

Q. And this was -- them
these payments were made

23

A. You're welcome.

24

Q. Help me understand this. You were being paid

25

simultaneously by the Foundation for work on

24
25

pursuant to a contract with you?
A. Yes.

90

April 1, 2011, through January 31st of 2012.

92

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Page
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of
662
DISCOVERY COURT REPORTERS
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 THOMAS B. HOFELLER

January 24,
24, 2017

redistricting and you were being paid separately

11

2

by Mr. Farr's law firm for your work in

2

organization, the State Government Leadership

3

North Carolina?

3

Foundation." That statement as applied to

1
1

4

MR. FARR: Objection to the form.

4

5

Go ahead.

5

6

THE WITNESS: Yes. It was a different

6

non-federal dollars through our 0501(c)(4)

North Carolina is simply not true?
A. I disagree with the premise of your question
there.

7

body of work I was being paid for by the two

7

8

sources.

8
8

of your effort in redistricting offered to the

9

state legislative leaders in the State of

9

BY MR. BONDURANT:

Q. Is the statement true or not? Was the entirety

Q. I had understood from Mr. Jankowski's letter to

10
o

11
11

state legislative leaders at which we looked as

11
11

12

Exhibit 10 that the entire effort at the state

12

13

level was going to be paid for by the Republican
Foundation with 501(c)(3) money.

13

BY MR. BONDURANT:

14

Q. Okay. My point exactly.

Can you explain why you were being paid
separately by Mr. Farr's law firm?

15

10

14
15
16
17

MR. FARR: Objection to the form.
THE WITNESS: No.

Did you have a separate engagement

16
17

A. The amount of --

North Carolina paid for by the Foundation?

letter with Mr. Fan•
Farr and his law firm?
A. I don't believe we ever had an engagement

18

MR. FARR: Objection to the form.

18

19

Go ahead.

19

Q. So it was all oral?

20

letter, no.

THE WITNESS: The amount of contract

20

A. To the best of my recollection.

21
21

with the RSLC was for work that was generally

21
21

Q. And whom were you engaged by Mr. Farr
Fan and his

22

across the country. It was not a specifically

22

23

long, involved process of drawing maps in
individual states. When I look at a map which

23

A. I don't represent anybody. I was engaged to

24

help in the line-drawing process and what we

the state was drawing and make comments on the

25

expected to be the upcoming legal contests

24
25

law firm to represent or assist?

93

95

1
1

map or offer suggestions on the map, but, as you

1

2

know, required by contract was assisting states

2

3

with all the problems that they had with

3

4

their -- their line-drawing process.

4

5

BY MR. BONDURANT:

5

6

Q. So when Mr. Jankowski states in Exhibit 9 in the

6

7

letter to the legislative leaders that, quote,

7

8

"The entirety of this effort will be paid for

8

9

using non-federal dollars through 501(c)(4)

9

10

which, of course, did actually happen.
Q. Whom did you understand Mr. Farr's clients to
be?
A. My understanding, although he can better answer
that himself,
himself; is he was retained by the
legislature.
Q. The legislature generally or by Senator Rucho
and Representative Lewis?
A. I don't know the specifics of their law firm's

organization, the State Government Leadership

10

11
11

council" [sic], that would not be accurate?

11
11

Q. Did you --

12

That was only paying you for national efforts,

12

A. If there was one.

13

and specific efforts at a state level, like

13

Q. Did you have any understanding at the time

North Carolina, were going to be paid for

14
14

whether Mr. Farr was representing those two

separately?

15

legislators as individuals or was representing

14
15

letter of engagement.

16

MR. FARR
FARR: Objection.

16

the Republican majority in the legislature or

17

THE WITNESS: I don't understand what

17

was representing the entire General Assembly of

18

the legislature?

18

your question to me is on that.

19

BY MR. BONDURANT:

19

20

Q. Well, the specific question is -- if you want to

20

21
21

look back at Exhibit 9, in that letter "Dear

22

Legislative Leaders," Mr. Jankowski offers the

22

23

help of the redistricting team led by Tom

23

24

Hofeller and then says, I quote, "The entirety

24
24

of this effort will be paid for using

25

25

21
21

94

A. Again, you'd have to ask Mr. Farr his
understanding.
Q. No. My question was what was your understanding
at the time.
A. My understanding was he was representing the
legislature.
///

96

24 (Pages
(Pages 93 to 96)
96)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
223
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 THOMAS B. HOFELLER
11
2

January 24,
24, 2017

(WHEREUPON, Plaintiffs' Exhibit 13 was
marked for identification.)

11

A. At that time it would have had to have been

2

either 2010 or 2011, but, remember, I told you

3

BY MR. BONDURANT:

3

before that they were using a hybrid system that

4
4

Q. Dr. Hofeller, can you identify Exhibit 13 as a

4

ESRI's GIS software. I used
was coupled up with ESM's

5

collection of invoices rendered by Geographic

5

a stand-alone on a microprocessor -- not a

6

Strategies?

6

microprocessor -- laptop.

7

A. That's what it appears to be. Yes, I think so.

7

Q. What GIS software did you use?

8
8

Q. And a W-9 which you signed in January 28, 2012?

8
8

A. Well, Maptitude is a form of GIS software.

9

A. Yes.

9

Caliper Corporation's main line of business is

10

GIS software. Maptitude for redistricting lies

10

Q. These were invoices to requisition the payment

11

as shown on the budget that we examined

11

12

previously?

12

13
14
15
16
17
18

13

A. Yes.

A. I think in part but not wholly.

its
stopping time, let's take a break when it's

15

Q. Not wholly?

convenient for you.

16

A. It appeared to me when I got on it that it had

17

MR. BONDURANT: Sure. This is a

18

perfect time. Sure.
MS. MACKIE: Let me state for the

19

20

record, an e-mail went out with a courtesy copy

20

of those documents 30 minutes ago.

21
21

22

software?

14

FARR: Emmet, when you have a good
MR. FARR

19

21
21

on top of their GIS.
Q. And was North Carolina using the Maptitude GIS

22

FARR: And Ill
I'll also state for the
MR. FARR

more of ESRI's
ESM's mapping capabilities in it than

did the standalone Maptitude system.
Q. In your Maptitude software program, you could

identify voter tabulation districts based on how
they voted in past elections?
A. Actually, that's -- they're not called voter

23

record that my office is unable to find any

23

tabulation districts. They're voter districts.

24

evidence that this has been provided to us, your

24

VTD stands for voter district.

25

e-mail you just referenced.

25

Yes, it was part of the hierarchical

97
11
2
3
4
5

MS. MACKIE: Understood. All the

e-mail went out today with all of those
documents.

99
1
1

geography that was contained in the TIGER file

2

which we got from the U.S. Census Bureau.

3
4

THE VIDEOGRAPHER: Off record at

5

12:40 p.m.

6

(Lunch Recess.)

6

7

THE VIDEOGRAPHER: On record at

7

8
9
10

8

1:46 p.m.
(WHEREUPON, Plaintiffs' Exhibit 14 was
marked for identification.)

9

Q. But the election result data you got from the

Legislative Service Office?
A. The Legislative Service data came from -- was
tabulated to the VTD level.
Q. To the VTD level. Are you calling that voter

districts or voter tabulation districts?
A. VTD are voter districts.

10

Q. Okay.

11

BY MR. BONDURANT:

11
11

A. That's the formal census name for it.

12

Q. Dr. Hofeller, can you identify Exhibit 14 as the

12

Q. Is that the smallest unit for which you had

13

description of the Maptitude software program

13

14

that you used and the Legislative Service Office

14

A. Yes.

15

in the North Carolina General Assembly used?

15

Q. Were census blocks larger or smaller than voter

16
17
18

its the current description of
A. No. It's the -- it's
what they have.

political data available?

16

districts?

17

A. Smaller.
Q. Smaller. Could you get voting history data at

Q. Current description.

18

19

A. Gone through many versions since then.

19

20

Q. What version do you use?

20

21
21

A. I'm still using the 2011 version.

21
21

22

Q. 2011 version?

22

the block level.

23

A. Uh-huh.

23

Q. Did you do that?

24

Q. Was that the same version that was loaded in the

24

A. Yes. I didn't do it. Somebody else did it.

25

Q. On your computer.

25

North Carolina Legislative Service Office?

98

the census block level?
A. In order to run on Maptitude, you had to, what
we call, disaggregate the election data down to

100

25 (Pages
100)
(Pages 97 to 100)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
224
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 THOMAS B. HOFELLER

January 24,
24, 2017

1

A. I received the data onto my computer already at

11

2

the block level. All the data was based on the

2

census blocks or voter districts based on their

3

block level and then it was reaggregated back up

3

voting performance?

4
4

to VTDs and also to other units of census

4

A. Depended on what I was doing.

5

geography, like block groups, tracks, counties,

5

Q. In North Carolina, in congressional

6

places, all sorts of different aggregations.

6

7
8
8
9
10
11
11
12
13
14
15

Q. Who disaggregated the voter history data to the

7
8

block level that you used?
A. The disaggregation on my block level data was

9

actually done by Mike Wild, who was my partner,

10

associate, different times different things.

11

At this level, the disaggregation of
the data on the North Carolina computer was done
by Legislative Services IT branch.
Q. But one of the capabilities of the Maptitude

Q. What was your practice in terms of coloring

redistricting, how did you color code those

districts?
A. Again, it depends on what I was looking for at
that particular point in constructing the

district.
Q. Well, did you identify the districts that were

12

strongly Republican and strongly Democratic?

13

A. Pm
I'm sorry. What do you mean again by districts?

14

Q. Voter districts or census block.

15

A. Well, census blocks have very little meaning

16

program was to give you the ability to aggregate

16

17

and disaggregate voter tabulation data down to

17

18

the block level?

18

registration data usually at the VTD level, or

with the disaggregate data.

So you would display election data or

19

sometimes we call them precincts, but they're

those various levels, so the program wasn't --

20

not exactly one-on-one comparison.

21
21

wasn't reaggregateing it back up. If you were

21
21

22

working in terms of voter districts, you had the

22

23

data in your system already for the voter

23

districts.

24

at all, if I was displaying them, I would

25

usually display them by voting history data.

19

20

24
25

A. Well, the data already existed in the system at

Q. When you were working on the congressional map

Q. And displaying them at the voting district

level, how did you color code the districts?
A. When I was using -- when I was displaying them

101

103

11

in North Carolina, you used voter data down to

1
1

2

the census block level in designing the plans?

2

3

MR. FARR: Can we clarify which plan

3

4
5
6

Q. And what colors did you use and what did those
colors indicate?
A. Well, I usually use the rainbow spectrum because

4

everybody's familiar with that. It goes violet,

MR. BONDURANT: 2011.

5

indigo blue, green, yellow, orange and red and

THE WITNESS: When necessary, yes.

6

variations of those colors.

you're talking about.

7

BY MR. BONDURANT:

7

Q. What did violet indicate?

8
8

Q. Did you have a method of grading either the

8

A. I didn't use violet that much. I used -- red

9

voter tabulation districts or voter districts,

9

10
11

12

was -- it really depends on what you're

as you call them, or the census block districts

10

displaying and how you want it to stand out.

based on their relative Republican or Democratic

11
11

Q. When you were trying
hying to measure the relative

voting strength?

12

strength of the Republican vote in a voter

13

A. I don't know what you mean by the term "graded."

13

district, what colors did you use and what did

14

Q. Did you color code the districts that were, say,

14

those colors indicate?

50/50 districts differently from those that were

15

16

very strongly Republican or very strongly

16

too. You can also use chromatic coloring, which

17

Democratic?

17

is varying the shading of one color from one to

18

the other.

15

18

A. You have multiple ways which you can display

A. Well, sometimes I use different color themes

data in any unit of geography. You have a label

19

20

which can be one or more items from the database

20

history data that -- red would be the most

21
21

and you can also do what they call thematics,

21
21

Democratic and dark blue would be the most

19

But usually, if I was displaying voter

22

and I think that's what you mean by grading.

22

23

And you can color the units of geography by some

23

24

percentage or by some number as you wish.

24

that indicate in terms of percentages or

That's something that the user specifies.

25

likelihood of voting Democrat in the future?

25

102
102

Republican.
Q. And when you say the most Democratic, what would

104
104

26 (Pages
101 to 104)
104)
(Pages 101
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
225
of
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DISCOVERY COURT REPORTERS
1-919-424-8242
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 THOMAS B. HOFELLER

1
1

2

January 24,
24, 2017

A. Well, it wasn't always a set percentage break,
but usually it centered around 50 percent.

11

A. Sometimes.

2

Q. Did you do so in 2011 in apportioning the

3

Q. 50 percent. So if a district were likely in the

3

4

future to vote 50 percent Democratic and
50 percent Republican, what color would you
assign to it?
MR. FARR: Objection to form.
MR
You can answer.
THE WITNESS: Yeah, I think that's the
wrong premise to your question. Ask that again.
MR. BONDURANT:
BY MR
Q. If you had a district that voted Democratic 75
or 80 percent of the time, what color would you
assign to it?
A. In the past?
Q. Yes.
A. It would probably be red.
Q. And in 2011 -A. I'm sorry. 75 percent Democratic?
Q. Yes.
A. Red.
Q. And was that true in 2011 in North Carolina?
A. Yes. I think 75 percent is fair to say would be
in the -- but not very many of those.
Q. And if it voted 60 percent Democratic in the

4

5
6
7
8
9
10
11
11
12
13

14
14
15
16
17
17
18
19

20
21
21

22
23
24
25

congressional districts?
A. Sometimes.

5
6

(WHEREUPON, Plaintiffs' Exhibit 15 was
marked for identification.)

7

BY MR. BONDURANT:

8

Q. Let me ask you to look at Exhibit 15. You were

9

working in North Carolina in 2011. Did you see

10

a copy of the Legislator's Guide to

11

North Carolina Legislative and Congressional

12

Redistricting at that time?

13

A. I wasn't really working in North Carolina at

14

that time doing districts, but I did see a copy

15

of this.

16

Q. Let me see if I understand your answer. I

17

thought you identified the dates that you were

18

in North Carolina in Raleigh working on the 2011

19

congressional district map in the exhibit which

20

you sent to Mr. Farr. Do you need to look back

21
21
22

at it?
A. No. I recollect from that exhibit that that was

23

asking when did I make a trip to North Carolina.

24

Q. Were you working on congressional districts on

25

those trips?

105

107

1
1

election you were using in North Carolina, which

1
1

2

was the 2008 presidential election between Obama

2

Q. On none of those trips?

3

and McCain, what color would you assign to it?

3

A. Well, yes, some of the trips. The congressional

4

MR. FARR: Objection to the form.

4

THE WITNESS: If I were using Obama and

5

5
6

McCain to begin with -- let me see. 60 percent,

6

7

you said?

7

A. No.

districts were really the last to be drawn.
Q. They were drawn in June and July of 2011, were
they not?
A. I don't recall the date that I actually started

8
8

BY MR. BONDURANT:

8
8

on them. The districting of the legislative

9

Q. (Nodding head up and down.)

9

districts is much more complex.

10

A. It might or might not be red at 60.

10

11
11

Q. And if it ---

11
11

12

A. You can change -- you can change the percentage

12

13

breaks. That's one of the things you can do

13

14

with it.

14

15
16
17
18
19

20
21
21

15

Q. What percentage breaks did you use in the
apportionment of districts in congressional

districts in North Carolina in 2011?
A. I don't rightly remember. I'm
Pm sure I used

different breaks at different times.
Q. Do you have a record of what your percentage

districts. I was asking -A. Okay. Well, I don't know exactly -MR. FARR: I think that was responsive

to your question. He was explaining why he had
not started on the congressional districts.

16

BY MR. BONDURANT:

17

Q. When you looked at the legislative guide, you

18

saw that the Legislative Service Office on

19

Page 14 had an extensive description of its

20
21
21

breaks were?

Q. I was not asking about the legislative

redistricting technology.
A. Pm
I'm sorry. Which page?

22

A. No.

22

Q. Page 14.

23

Q. But you did use percentage breaks in deciding

23

A. Yes.

Q. Was there any data on your computer that was not
Q.

24

whether to assign a voter district to one

24

25

congressional district or another?

25

106

available to you on the Legislative Service

108

27 (Pages 105 to 108)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19 Page 2261-919-424-8242
of 662
DISCOVERY COURT REPORTERS
www.discoverydepo.com

 THOMAS B. HOFELLER

1
2

January 24,
24, 2017

Office computer?
A. I didn't use the Legislative Service computer.

11

it would have gotten the same data from Caliper

2

Corporation that you got?

3

It would have been available if I had been using

3

A. Yes.

4

it,

it, yes.

4

Q. So I repeat my question to you: Do you know of

5

5

Q. That was not my question.

6

6

My question is: Was there any data

any data --A. Let me add to that answer. I don't know whether

7

available to you on your computer for

7

they processed that data through Maptitude or

8
8

redistricting North Carolina that was not

8

whether they processed it another way. So it

9

present on the Legislative Service Office

10

11
11

computer?
A. I don't recall when the election and

9

would have been the same data on both systems

10

for the census. What the chain of evidence was,

11
11

how the data was transferred might have been

12

registration data actually became available from

12

13

the IT division in Legislative Services. So

13

14

depending on where this came up in March, I

14

that was -- that pertained to the congressional

15

don't believe that the census data came out

15

redistricting in North Carolina that was

until March of that year.

16

available to you on your computer that was not

17

equally available to you on the Legislative

16
17

Q. That may well be true, but you were

18

redistricting in July of 2011 in North Carolina,

18

19

correct?

19

20
21
21

different.
Q.
Q.

So sitting here today, do you know of any data

Service Office computer?
A. Again, I want to answer this honestly to you.

A. Yes.

20

There may have been data that we received from

Q. And by July of 2011, the census data had been

21
21

North Carolina that was never loaded onto my

22

published in March and was available both to the

22

computer because it may not have been one of the

23

North Carolina Legislative Office and available

23

races that I thought was necessary to do my

24

to you directly from the census?

24

work. So I can't say to you truthfully that I

25

know that every piece of data that was on the

25

A. The census data was available publicly. Anybody
109

11
2

could get it that wanted it.
Q. Correct. And so I repeat my question: In July

111
1
1

legislative system that I had available to me on

2

my computer, as you asked.

3

of 2011, when you were working on the maps for

3

4

the 2011 congressional district, was there any
data on the Maptitude laptop that you were using

4
5

congressional redistricting that was not also

6

that was not also available to you on the

6

available to you on the Legislative Service

7

North Carolina Legislative Service Office

7

Office's computer that used the Maptitude

8

Maptitude computer program?

8
8

program?

5

9

A. I think to answer that honestly, I don't know

9

10

exactly what they had on their computer in the

10

11

way of election data, but I certainly had what I

11
11

12

thought was sufficient for redistricting on

12

13

there.

13

14
15

Q. Well, you got all of your voting history data

14

Q. My question was: Was there any data on your

computer pertaining to the North Carolina

A. Pm
I'm sorry, I thought you asked that question

differently, the other way around.
The answer is: There was no data on my

computer that North Carolina would not have. I
misunderstood your question.

Q. Did you read the previous page of the

15

Legislator's Guide to North Carolina Legislative

A. That's true.

16

and Congressional Redistricting dealing with

17

Q. You got census data directly from the Census?

17

18

A. No. Actually we got that from Caliper

18

16

from the Legislative Service Office computer?

legislative confidentiality?
A. This is Page 13 you're talking about?

19

Corporation.

19

Q. Yes.

20

Q. From Caliper?

20

A. Do you have anything specifically you want me to

21
21

A. Uh-huh.

21
21

22

Q. Which got it from the Census?

22

23

address?
Q. The first question is: Did you read that page

A. Yes.

23

in 2011 when you were deciding whether to use

24

Q. And if the North Carolina Legislative Service

24

the Legislative Service Office computer as

25

Office was a subscriber to and used Maptitude,

25

opposed to using your own private laptop?

110

112
112

28 (Pages
112)
(Pages 109 to 112)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
227
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
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 THOMAS B. HOFELLER
11

MR. FARR: Objection to the form.

1
1

THE WITNESS: I have no recollection of

2

2
3

January 24,
24, 2017

BY MR. BONDURANT:

4

5

Q. Were you aware at the time you were doing the

5

6

redistricting in North Carolina that if you used

6

7

the Legislative Service Office computer after

7

8

the redistricting was passed all of that

8
8

10

MR. FARR: I would like for it to be

3

reading this page specifically, no.

4

9

it.

information would become publicly available?
A. At what period did you say?

9
10

marked.
MR. BONDURANT: That suits me. Let's
make it 16A.
(WHEREUPON, Plaintiffs' Exhibit 16A was
marked for identification.)
BY MR. BONDURANT:
Q. Turn to Paragraph 23. Read Paragraph 23 aloud.
A.

"Political control of the

11

Q. In 2011.

11
11

12

A. Any time in 2011?

12

overarching factor. This is especially

13

Q. Any time in 2011.

13

true when control shifts between the two

14

A. Again, I was not aware of the policy any time in

14

political parties.

15
16
17

15

2011.
(WHEREUPON, Plaintiffs' Exhibit 16 was
marked for identification.)

16

redistricting process can also become an

"This was the case in North Carolina
when, in 2010, the Republicans took

17

control of both chambers of the General

18

BY MR. BONDURANT:

18

Assembly (since the Governor has no role

19

Q. Dr. Hofeller, can you identify Defendant's

19

in North Carolina redistricting).

20

Exhibit 16 as excerpts from your first expert

20

21
21

report in Harris and the second page is excerpts

21
21

22

from your second expert report in Harris and a

22

The same was true of the Old Plan except

23

portion of your testimony at the trial?

23

that the Democrats political policy

24

choices were different. Professor

25

Ansolabehere did not take any of these

24
25

MR. FARR: I'm going to object to this

exhibit because -- I'm going to object to the
113

extent that he hasn't been able to look at his

1

2

entire reports.

2

MR. BONDURANT: I have it here. He's

3

4

welcome to examine it. Let's see if he can

4

5

answer the question.

5

6

MR. FARR: No. I want to state my

6

7

objection and then you can proceed as you want

7

8

to.

8
8

9

9

I think he should be allowed to see his

10

actual report. And this document also has got

10

11
11

headings on it which I do not think were

11
11

12

included in Dr. Hofeller's report. That has

12

13

been prepared by you or someone on your legal

13

14

team.

14
14

15

THE WITNESS: I am not going to attest

15

16

to the validity of a document that I didn't make

16

17

up unless I can see the document from which it

17
17

18

came.

18

19

BY MR. BONDURANT:

19

20

Q. Dr. Hofeller, I have handed you a copy of your

20

21
21

first expert report in Harris. Pm
I'm sorry I

21
21

22

didn't bring extra copies.

22

23

If you'll turn to Paragraph 23.

23

24

MR. FARR
FARR: Can we have that marked?

24

25

I'm not going to mark
MR. BONDURANT: Pm

25

114
114

determinant in drafting of the New Plan.

115

1
1

3

"Politics was the primary policy

factors into account in his report."
MR. FARR: Can I see that, please,
before we have questions on it.
MR. BONDURANT:
BY MR
Q. I want to focus on a specific sentence. Is it
true, as you stated in your first expert report,
in 2011, politics was the primary policy
determinant in drafting the New Plan, referring
to the 2011 Congressional Redistricting Plan?
A. I said it. It's true. I said it. Yes.
Q. And your instructions in that regard came from
Senator Rucho and Representative Lewis?
A. Well, I think this was actually my -- my
statement rather than their statement, but
politics was certainly a major factor,
absolutely. It is in every redistricting.
Q. And would you turn to Paragraph 40.
A. Thank you.
Q. In Paragraph 40, you said, in part:
"The General Assembly's goal was to
increase Republican voting strength in
New Districts 2, 3, 6, 7 and 13. This
could only be accomplished by placing
all the strong Democratic VTDs in either
New Districts 1 or 4."
116

29 (Pages
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 THOMAS B. HOFELLER
11

January 24,
24, 2017

Do you see that language?

11

2

A. Yes. That's part of that paragraph, yes.

2

3

Q. And did you carry out that goal in drafting the

3

4

2011 plan to increase Republican voting strength

4

5

in New Districts 2, 3, 6 and 7?

5

6
7

A. I'm just thinking of where they were. Okay,

8

Would you read the question.

8
8

9

(Record Read.)

9

10

it a direction you were given?
A. Okay. Can I read the rest of the paragraph into
the record?
Q. Just answer my question.

6
7

I've read the paragraph.

Is that a goal you established or was

MR. FARR: He can read the rest of the
paragraph into the record if he wants.
MR. BONDURANT: Only if it's necessary
to answer the question.

BY MR. BONDURANT:

10

11
11

Q. 6, 7 and 13.

11
11

12

A. Yes.

12

13

Q. And you did that by taking Democratic voters

13

sentence there's an "and"
and which continues which

MR. FARR: Well, I assume he does since
he asked to do that.
THE WITNESS: In the middle of that

14

from those districts and placing them either in

14

is part of the premise of the paragraph. So

15

New Districts 1 or 4?
MR. FARR: Objection to the form.

15

that was one of the overarching goals, and then

16

there's an and it's -- "and to unravel what the

16
17

18
19

20
21
21
22
23

THE WITNESS: That's not exactly a
valid description of the process.

Republicans believed to have been succession of

18

Democrat gerrymanders in previous decades."

BY MR. BONDURANT:

19

BY MR. BONDURANT:

Q. Quote, "This could only be accomplished by

20

Q. Was that instruction given to you by

placing all the strong VTDs in either

21
21

Senator Rucho and Representative Lewis or was

Districts 1 and 4," correct?

22

that your goal?

A. Yes, but that wasn't your original question.

24
25

17

My words speak for myself and I stand

23

A. No. That was their goal too.

24

Q. And when you say General Assembly here, you're

25

by them.

really speaking of Senator Rucho and

117
1
2
3

Q. And were some of the strong Democratic VTDs

119
1
1

2

previously in Districts 2, 3, 6, 7 and 13?

Representative Lewis?

I'm speaking of the General Assembly. They
A. No. Pm

3

are officers of the General Assembly. It's the

out of Maptitude that is called a plan

4

General Assembly which passes a plan and

5

components or communities of interest, I don't

5

6

remember the right name, but if you ran that

6

7

report you would actually get a summary of which

7

goal to create as many safe Republican districts

8

population from which old district is contained

8
8

as possible?

9

in which new districts.

4

A. I would have to -- there's a report that you get

10
io

9

So without that report, I can't say

for the plan. I don't know. I didn't pay any
attention.

that actually that happened in the case of each

11
11

12

one of these districts.

12

14
15
16
17
18
19

20
21
21

A. I doubt it, but some of them might have voted

10

11

13

approves it.
Q. Did you think that the Democrats voted for a

Q. At the time you were drafting the plan, had the

13

General Assembly voted to establish a goal of

1 and 4 and then draw the districts around them.

14

creating as many Republican districts in 2011 as

Q. Do you have the capability of generating such a

15

What I would actually draw is to draw

report today based on the 2011 data on your

computer?

possible?

16

A. Not formally, no.

17

Q. All of your instructions came from

A. Yes.

18

Q. In Paragraph 68, if you'll turn to that, you

19

A. Yes.

20

Q. There was no official action in the General

21
21

Assembly prior to you're receiving those

instructions?

state, and I quote:
"The General Assembly's overarching

Representative Lewis and Senator Rucho?

22

goal in 2011 was to create as many safe

22

23

and competitive districts for Republican

23

24

incumbents or potential candidates as

24

THE WITNESS: I don't know. I just

25

possible."

25

told you that I received my instruction from

118

MR. FARR: Objection to the form.

120

30 (Pages
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 THOMAS B. HOFELLER
11

January 24,
24, 2017
1
1

Representative Lewis and Senator Rucho.

2

BY MR. BONDURANT:

2

3

Q. In 2011 did you attempt and experiment to see

3

4

Q.
Q.

Pm
I'm going to ask you about this sentence:
"The Republicans' primarily goal was
to create as many districts as possible

4

in which GOP candidates would be able to

5

A. Not specifically, no.

5

successfully compete for office."

6

Q. How about generally?

6

7

A. I had an idea what was possible, and I think

7

A. Yes.

8

what was possible is pretty much in line with

8

Q. And this time instead of saying General

9

what was drawn.

9

10
11
11

how many Republican districts you could create?

Q. And what was drawn was a 10-3 Republican
partisan advantage plan?

Did I read that correctly?

Assembly, you said the Republicans. You're

10

referring to Senators Rucho -- Senator Rucho and

11
11

Representative Lewis?

12

FARR: Objection to the form.
MR. FARR

12

13

THE WITNESS: Again ---

13

FARR: Objection.
MR. FARR
THE WITNESS: In their -- in their ---

14

BY MR. BONDURANT:

14

I'm trying to draw out the right word. In their
Pm

15

Q. Was that a "yes" or a "no"?

15

capacity as chairmen of the two redistricting

A. That has to be a "no" the way you asked that

16

16
17

question.

committees.

17

BY MR. BONDURANT:
Q. So it was a Republican goal to create as many

18

Q. What plan -- what did you think was possible?

18

19

A. I think it was possible to draw ten districts in

19

districts as possible in which GOP candidates

which the Republicans would either be most

20

would be able to successfully compete for office

21
21

likely to win or would have an opportunity to

21
21

22

win.

22

20

23
24
25

Q. And how many districts would the Democrats be

23
24

likely to win or have an opportunity to win?

25

A. I would have to go back and look at the

in 2011?
A. Yes. You've added to the sentence, but I assume

it was 2011, yes.
Q. Well, this report was given in the Harris case

in connection with the 2011 redistricting.

121
1

statistics, but I'm
Pm sure it was more than three.

123
1
1

A. Absolutely.

2

Q. How many more than three?

2

Q. And that's what you were talking about.

3

I'd have to go back and look at the statistics.
A. Pd

3

A. Yes.

4

Q. Let's turn to your second expert report, which

4

Q. Would it be fair to say that in 2016 the

5

I'll ask the court reporter to make as Hofeller
Pll

5

6

Exhibit 16B.

6

Senator Rucho and Representative Lewis, their

7

primary goal was to create as many districts as

8

possible in which GOP candidates would be able

7
8

(WHEREUPON, Plaintiffs' Exhibit 16B was
marked for identification.)

9

BY MR. BONDURANT:

9

10

Q. Turn to Paragraph 9.

10

13

to successfully compete for office?
A. No.

11
11

MR. FARR: Objection.

we take a break and get a copy of that. I

12

You can answer it.
THE WITNESS: Sorry.
Sony.

11
11

12

Republican goal as conveyed to you by

FARR: Pm
I'm sony
sorry to do this. Can
MR. FARR
really don't want my witness to be

13

14

cross-examined on an exhibit that I don't have.

14

15

MR. BONDURANT: Sure, I don't mind.

15

Q. That was not their primary goal in 2016?

16

THE VIDEOGRAPHER: Off record at

16

A. No.

17

19

20
21
21

17

Q. What was their goal in terms -- their partisan

(Brief Recess.)

18

THE VIDEOGRAPHER: On record at 2:32

19

goal?
A. Well, you didn't say partisan goal. You said

2:20 p.m.

18

BY MR. BONDURANT:

20

p.m.
(Record Read.)

Q. With that amendment, was their partisan goal to

create as many -A. Could you read back the first question that he

22

BY MR. BONDURANT:

22

23

Q. If you'll turn to Paragraph 9 of your second

23

24

report.

24

25

A. Okay.

25

122
122

goal, primarily goal.

21
21

asked me, please.
(Record Read.)

124
124

31
121 to 124)
124)
(Pages 121
31 (Pages
Case
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Document
5-1
Filed
10/14/19
Page
230
of
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DISCOVERY COURT REPORTERS
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 THOMAS B. HOFELLER
11

January 24,
24, 2017

THE WITNESS: My answer was no. Okay.

11

2

BY MR. BONDURANT:

2

3

Q. What was their primary goal?

3

4

A. The primary goal was to draw a map that the

4
4

concentrating Democratic voting strength
in Districts 1, 4 and 12," and you again
site Map 3 attached to your report.
Did I read it correctly?

5

clerk would approve of so they would follow the

5

A. Yes.

6

clerk's directive.

6

Q. Was that the strategy which you as the principal

7
8
9
10

11
11

Q. And the primary partisan goal was to achieve a

7

architect of the map followed in achieving the

10-3 Republican advantage in 2016, was it not?

8
8

Republicans' primary goal?

9

A. That was a goal, yes.
Q. And that was their primary partisan goal?

10

A. What you describe by definition as a partisan

11
11

A. In that plan?
Q. Yes.
MR. FARR
FARR: Objection.

12

goal, but it wasn't their primary goal as far as

12

13

the drafting of the plan.

13

BY MR. BONDURANT:

14

Q. You go on to say in Paragraph 9 after stating

15

the primary goal:

THE WITNESS: Yes.

14

Q. And so you had said previously that you wanted

15

to create districts in which Republicans would
have an opportunity to elect Republican

16

"As a result of the 2010 General
"Asa

16

17

Elections, Democrats were elected in 7

17

18

districts (1, 4, 7, 8, 11, 12 and 13)

18

A. Correct.

19

while Republicans were elected in 6

19

Q. And conversely, you want to minimize the number

20

districts (2, 3, 5, 5, 9 and 10).

20

21
21

21
21

"Following the 2014 General

candidates, correct?

of districts in which Democrats would have an
opportunity to elect a Democratic candidate?

22

Election, Democrats were elected in only

22

A. Correct.

23

3 districts (1, 4 and 12). Republicans

23

Q. And you did that by concentrating as many

24

were elected in the 10 remaining

24

Democratic voters as possible into three

districts."

25

specific districts, 1, 4 and 12?

25

125
11

That was your statement under oath in

2

Harris in Paragraph 9?

127
1
1

A. Correct.

2

Q. And removing as many Democratic voters as you

3

A. Yes.

3

could from the districts that you wanted to

4

Q. Was it true?
A. Were the facts as I stated them true?

4

create as districts in which Republicans would

Q. Yes.
A. Following the 2014 general election, yes, it was

6

A. As many as was reasonably possible, yes.

7

Q. And the Democrats who remained in the districts

5
6
7
8
9
10

11
11

5

Q.

true.
Q. And in Paragraph 10, you explain the strategy

be elected?

8
8

that you had decided would be Republican

9

opportunity-to-elect districts, those Democrats'

that you used to accomplish the goal in

10

opportunities to elect a Democratic candidate of

Paragraph 9; is that correct?

11
11

their choice would be diminished, would they
not?

12

A. Yes.

12

13

Q. You state:

13

MR. FARR: Objection.

14

THE WITNESS: It would depend on what

14

"The Republican strategy was to

15

weaken Democratic strength in Districts 7,

15

16

8 and 11; and to completely revamp

16

BY MR. BONDURANT:

17

District 13, converting it into a

17

Q. Their opportunity to elect a Democratic

18

competitive GOP district.

18

candidate in the districts in which you
increased Republican voting strength would be

their choice was.

19

"At the same time, 2 GOP-held

19

20

districts (Districts 2 and 9) needed

20

21
21

marginal improvement in GOP voting

21
21

A. Yes.

strength" and then you cite a map which is

22

Q. Did you use the same strategy of assigning

22
23

attached.

23

voters to the districts that you wanted to be
Republican opportunity-to-elect districts based

on their voting history in the 2016

24

Continuing quoting:

24

25

"This policy goal was attained by

25

126

diminished, would it not?

128

32 (Pages
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(Pages 125 to 128)
Case
5:19-cv-00452-BO
Document
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of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
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 THOMAS B. HOFELLER
11
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4
5
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14
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16
17
18
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20
21
21
22
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25

January 24,
24, 2017

reapportionment as you did in 2011?
A. It was a strategy, but it was not the principal

11

strategy.
Q. What was the principal strategy?

3

A. The principal strategy was to follow criteria
which would draw a plan which would be

5
6

marked for identification.)

acceptable to the Court.
Q. The criteria that you followed in 2016 were

7

I'm going to register the
MR. FARR: Pm
same objection. I prefer to be examining him on

2

4

written criteria, were they not?
A. The committee in 2016 -- we're talking about

8
8
9
10

Q. No oral communications? No written
communications?

A. No.
Q. No nothing.
(WHEREUPON, Plaintiffs' Exhibit 18 was

the actual report.
BY MR. BONDURANT:

2016?
Q. Yes.

11
12

Exhibit 18. It is, in part, excerpts from your

A. -- adopted a criteria statement.
Q. And did you follow those criteria?
Q.

13

first expert report and your deposition in
Harris. You have your first expert report

A. Yes.

15

Q. Did you have a hand in drafting those criteria?
A. Not in the formal sense, no. I may have
discussed it with -- probably did discuss it

16

with the chairman.
Q. Did you ---

19

Q. The paragraphs are numbered.

20

A. I know that.

A. I couldn't have proceeded on the plan without
their instructions on what criteria I was

21
21

Q. In Paragraph 33 you say, in part:

supposed to follow.
Q. Did you start working on the plan before the

23

evaluating plans has continued to

24

reinforce my expert opinion that the best

criteria were approved by the committee?

25

predictor of future election success is

14

17
18

22

Q. Dr. Hofeller, I've handed you a document marked

before you. It is Exhibit 16A.
A. I do, yes. Thank you.

Q. If you'll turn to Paragraph 33.
A. Do you have a page number?

"My
"My

experience in drafting and

129

131

11

A. Yes.

1
1

2

Q. How far in advance of the approval of the
criteria on February 16, 2016, did you start

2

3
4
5
6

3

working on a plan for the reapportionment in
2016 of congressional districts?
A. I think it was either probably the day after the

4
5
6

7

decision came out. It might have been the same

7

8

day, but that was late in the day. So it would
have had to have been the next day.

8

9
10

11
11
12
13
14
15
16
17
18
19

20
21
21

22
23
24
25

Q. The decision came out, do you recall, on
February 5, 2016, that is, the decision in the
Harris case?
A. I knew about the decision, and I knew I was

going to be asked to draft a new plan, yes.
Q. Did you do anything to start drafting plans 2016

9
10
11
11

made that statement, yes.
Q. And you go on to elaborate that:
"This is clearly the case as more
and more voters are tending to register
non-partisan or independent."
A. Question?
Q. That was your testimony under oath then?
A. Yes.
Q. And it is your opinion now?

13

A. Yes.

14

Q. And it was past voting behavior that you used in
assigning VTDs to various congressional

15

17
18

A. No.
Q. Did you have any communications with

And I'll just stop there.
A. Well, I'll go on to say not registration. I

12

16

prior to the decision in February, on
February 5th?

past voting behavior."

19

districts in drafting the 2016 plan?
MR. FARR: Objection.
THE WITNESS: In part. It was not the
principal reason that a majority of the VTDs

Senator Rucho or Representative Lewis about the
possibility that you might be asked to draft a

20

new plan in the Harris case between the close of
the trial at the end of October and the decision

22

Q. In 2011 you used voting history to assign

23

districts -- voting tabulation districts to

24

various congressional districts to achieve a
partisan advantage, did you not?

on February 5th?
A. Not that I can recall. I don't think so.

21
21

25

130

were assigned to various districts in 2016 plan.
BY MR. BONDURANT:

132
132

33 (Pages
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(Pages 129 to
to 132)
Case
5:19-cv-00452-BO
Document
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Page
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of
662
DISCOVERY COURT REPORTERS
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 THOMAS B. HOFELLER
11

January 24,
24, 2017
1

A. I think with the exception of the first

2

district, for the most part, although some ---

2

3

some of the areas in the state were assigned as
whole counties, and in whole counties you're

3

certainly not looking at data on the precinct
level.

5

Q. Let me go back and see if I sort of understand
your methodology.

7

4
5
6
7
8
9
10
11
12
13
14
15
16
17

18
19

20
21
21
22
23
24
25

4

6

When you approached the drafting of the
2011 plan, did you start by drafting districts

8
8
9
10

for the whole state, or did you start by
drafting individual districts to construct them

11

to create a Republican or Democratic advantage?
A. The first district that was drawn in the 2011

13

12

14

map was the 1st district, which was a Section 2
VRA district. So in that district it was

15

important to make sure that the minority voting
strength was correct.

17

16

18

So from then on I was using political
voting history as the thematic for splitting

19

counties among VTDs when I was actually
splitting a county.

21
21

20

22
23

Q. So let me see if I understand you.
So you start out with the first

24
25

district with -- because you regarded it as a

district block by block, we'd still be building
the districts.
Q. How did you build the individual districts?
A. The first level that you look at for
redistricting is actually the county level. So
a lot of counties in the state go into districts

in whole pieces and then you look at how you're
going to divide the counties, which is done VTD
by VTD.
Q. So if you looked at a particular county and it
was a heavy Republican district, you would put
it in a district that you wanted to make a
Republican congressional district, and if you
saw a county that was a heavy Democratic
district, you would assign it to either 1 or 4
or 12, one of the districts that you were trying
to make a predominant Democratic district?
A. Okay. Well, one of your statements in that
premise was incorrect.
Q. Just tell me what you did.
A. Well, okay, some of the districts have to be the
way they are. For instance, the 11th district,
which I believe is in the far western corner of
the state, is going to be shaped the way it is
for the most part because it is in the corner of

133

135

11

Voting Rights Act district with a minimum

1
1

the state and there's not really much you can

2

African American population of 50.1 percent?

2

do.

3
4
5
6
7
8
9
10
11

12
13
14
15
16
17
18
19

20
21
21

22
23
24
25

A. I don't think there was a specific target. We

knew that 50.1 percent was an important mark
there, yes, and we wanted to have it over

3
4
5

50 percent.
Q. Once you drew the first district to make sure it

6

would be a majority black voting age district,
you then proceeded with other districts using

8

political data?
A. Yes. In the -- after that, yes, although there

-were some other reasons why the 1st became -was placed in its actual enacted format too.
Q. That has already been litigated in the Harris
case. I don't want to relitigate it one way or

-the other. I'm simply -A. That's obvious.

7

9
10
11
11

Q. All right. In 2011 you in fact paired four

incumbents, did you not?

13

Q. All four were Democrats.

14

A. I don't remember.

15

Q. In drafting the2011plan,
the 2011 plan, you weighed partisan

16

advantage for the Republican Party more heavily
than compliance with the Voting Rights Act, did

18
19

20

Democratic advantage until you came up with a
statewide plan for all 13 districts.

22

134
134

there not because of what their actual voting
strength is but because of their locations.

A. I don't remember.

proceeded block by block to build individual
districts that would create a Republican or a

A. No, that's not -- again, the premise of your
question gives me a problem. If you built the

incumbents don't get paired, to the extent that
it's possible. So a lot of whole counties go in

12

17

Q. -- trying to understand the methodology that you
started with the first district and then you

Another factor you're looking at when

you're drawing districts are preservation of
communities of interest and making sure that

21
21

23
24
24
25
25

you not?
A. You have to comply with -Q. Please answer yes or no.
MR. FARR: If it can be answered yes or
no.
THE WITNESS: I think I have to say no
to that question.
BY MR. BONDURANT:
136

34 (Pages
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Document
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Filed
10/14/19
Page
233
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 THOMAS B. HOFELLER

January 24,
24, 2017

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Q. Well, let me show you your deposition.

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A. Okay.
MR. FARR: I'd like to see it first
before you give it to him.
BY MR. BONDURANT:
Q. Look at Page 24 in your deposition taken in the
Q.
Harris case May 6, 2014, beginning at Line 15
and continuing through Line 19.
MR. FARR
FARR: May I see that, please. And
where are we looking at, Emmet?
MR. BONDURANT: Line 15.
FARR: Okay. Line 15 through 24?
MR. FARR
BY MR. BONDURANT:
Q. Beginning Line 15 --A. I mean, I have to get it in front of me. I
can't see that far.
Are you looking at 15, 16 and 17?
Here, let me just undo it so we don't have to
pass the whole book back and forth.
Q. Beginning Line 16 -- Line 15 you were asked the
following questions:
"As you were drawing the districts,
did you weigh partisan advantage more
heavily in compliance with the Voting
Rights Act?"

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Your answer was: "For the plan as a
whole?"
The question was "Then yes."
Your answer beginning at Line 20:
"For the plan as a whole, I would
have to say yes."
MR. FARR: And then what else did he
say?
BY MR
MR. BONDURANT:
Q. Go ahead and read the rest of it.
A. Okay. You're taking this statement heavily out
of context here.
Q. Just read it.
A. Okay. Let's start back on the previous page,
then. At Line 10 on the previous page:
"And what were those instructions?"
instructions?'
"My instructions were to draw the
plan to make it -- have an increased
number of competitive districts for GOP
candidates."
Question: "Did you make any
evaluation of the likely results --partisan results of the plan enacted by
the General Assembly?"
Answer: "Yes."
138

"What was that estimate?"
"That -- that three of the
districts were most certainly going to
be strong Democratic districts and that
the remaining districts would be more
competitive or remain competitive for
Republican candidates."
Question: "And those three strong
Democratic districts were?"
Answer: "1, 4 and 12."
"Okay." Question: "Okay. What was
the result of the 2012 election with
regard to partisan advantage?"
Answer: "Four Democrats won
-election in the House of Representatives -to the House of Representatives, U.S.
House of Representatives, and the
remainder were Republicans."
Question: "Now, when you -- as you
were drawing the plan, did Senator Rucho
and Representative Lewis give you any
instructions as to whether partisan
advantage or competitiveness was to take
precedence over compliance with the
Voting Rights Act as you drew the
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districts?"
Answer: "No."
"Again, as you were drawing the
districts, did you weigh partisan
advantage more heavily than compliance
with the Voting Rights Act?"
Answer: "For the plan as a whole?"
"Yes."
Or that was -- Pm
I'm sorry. I said "For
the plan as a whole" and then the question was
"yes."
"For
For the plan as a whole, I would
have to say yes, but the plan was
compliant with the Voting Rights Act.
There were many, many -- 12 of the 13
districts which were drawn as political
districts."
Q. That was your testimony then?
A. It's my testimony now.
Q. Now, turn to Page 25. Would you agree that
compliance with the Voting Rights Act was not
the predominant factor in your drawing of the
congressional districts in 2011?
A. Is there something you want to point to here?
Q. Well, I've
Pve asked you the question first.
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35 (Pages
140)
(Pages 137 to 140)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
234
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 THOMAS B. HOFELLER

January 24,
24, 2017

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Was it true that compliance with the

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Voting Rights Act was not a predominant factor

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in your drawing of the congressional districts

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in 2011?

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A. Can you tell me which line you're reading from.

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Q. You have to share it with me. Right at the top

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Can you answer it without reading your

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deposition?
BY MR. BONDURANT:

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Q. If you don't remember, Pll
I'll show you your

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partisan advantage take precedence over

compliance with the Voting Rights Act"?

of the page, beginning with Line 1.

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MR. FARR
FARR: Objection.

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Q. Do you see the question beginning with "Did

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deposition.

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A. Again, you're asking the question out of

MR. FARR: Can I see that, please.
THE WITNESS: Absolutely. You might

look at the preceding page at the bottom.
BY MR. BONDURANT:
Q. Top of Page 27 you ask:
Q.

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context, sir.
I'm asking you the question that was asked.
Q. No. Pm
FARR: Well, then he can explain
MR. FARR

"Did partisan advantage take

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precedence over compliance with the

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Voting Rights Act?"

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the context.

What was your answer?

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THE WITNESS: Okay. If you're

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asking ---

MR. FARR: I object to the question
because I think this is related to District 12

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BY MR. BONDURANT:

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Q. Let me get the question repeated.

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A. Okay.

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Q. Can you answer the question?

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Q. Is it true in 2011 that compliance with the

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A. What is the question? I don't understand the

because I just looked at the deposition.
BY MR. BONDURANT:

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Voting Rights Act was not the predominant factor

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question. You read a statement.

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in the drawing of the congressional districts?

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Q. Starting at Line 24 on Page 11:

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Yes or no?

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"Let me talk about District 12 for

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just a minute. When you were drawing

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MR. FARR: I object to the form of the
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question.
THE WITNESS: Okay, I'm a little bit

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District 12, did partisan advantage take

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precedence over the Voting Rights Act?"

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confused by your negatives there.

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Your answer was: "Yes."

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It was not the predominant factor in
the drawing of the entire plan.

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Is that true?

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Does that answer your question?

A. Yes in the case of District 12, but you made the
original question out of context.

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BY MR. BONDURANT:

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Q. Was it also true with Districts 2 through 13?

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Q. That answered it fine.

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A. You're asking me a new question now?

A. Good. Now I'll embellish by saying it was a

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Q. Yes.

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A. Yes.

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Q. And that the only district in which compliance

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factor in District 1.
Q. It was a factor in District 1 but not in the

entire plan in 2011?

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A. With the exception of District 1, it was not a

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factor, no.
Q. Would it also be true that partisan advantage

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took precedence over compliance with the Voting

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Rights Act in your drafting of the 2011 plan?

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with the Voting Rights Act took precedence over

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partisan advantage with the Republican Party was

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District 1 in the 2011 redistricting?

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FARR: Objection.
MR. FARR
BY MR. BONDURANT:

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Q. Do you need it read back?

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MR. FARR: Objection.

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A. I can't -- yes, please, I need the whole context

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THE WITNESS: Again, the way you ask

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the question I have to say no.

I'm not trying to evade your
of this question. Pm

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question. I just want to make sure I give you a
truthful answer.

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BY MR. BONDURANT:

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Q. Well, turn to Page 27 of your deposition.

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A. Do you want me to explain why I say no?

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Q. Page 27 will be fine.

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MR. FARR
FARR: Just read the question back.

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A. Okay. I'll get it.

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(Record Read.)

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Are we talking with regard to this

document?

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36 (Pages
141 to 144)
144)
(Pages 141
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
235
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 THOMAS B. HOFELLER

January 24,
24, 2017

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MR. FARR: I objected.

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You may answer if you can.

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THE WITNESS: Read it again. I'm
Pm

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-sorry. I'm just not --

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(Record Read.)

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THE WITNESS: The answer to your

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question is yes.

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BY MR. BONDURANT:

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Q. Now, in 2016 you were instructed not to consider

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any racial data in drafting the 2016 plan,

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correct?

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A. Yes.

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Q. Without racial data, did you consider, in

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drafting the plan, compliance with the Voting

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Rights Act in drafting any of the districts?

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A. I did not use political data in drafting the

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plan.

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Q. You didn't use any political data --

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I'm sorry. Any demographic data, racial, ethnic
A. Pm

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data.
Q. And therefore you did not consider compliance

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with the Voting Rights Act in drafting the 2016

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plan because you had no access to racial data?

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MR. FARR: Pm
I'm going to object to the

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form of the question.

The second page?
MR
MR. BONDURANT: Yeah.
THE WITNESS: Okay, I've read it.
BY MR
MR. BONDURANT:
Q. Do you remember giving that testimony?
A. Yes.
Q. Was that testimony true?
A. Yes.
Q. Is it true today?
A. Yes.
Q. So let me see if I can understand it.
From your experience, based on looking
at what you call political data, which is the
voting results in past elections, the political
nature of a precinct or voter district does not
change over time unless there is a change in the
makeup of the population of the district?
A. Okay, that's not exactly what I remember this
statement meaning in the context of the trial,
but, again, since you confused me by your
context, I have to have it read to me again.
MR. BONDURANT: Would you read the
questions back.
(Record Read.)
THE WITNESS: I have to answer that yes

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THE WITNESS: I did not use political

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but with a qualification.

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data in drafting the plan -- or registration ---

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TM
I'm sorry, I'm getting this wrong.

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Q. What is that qualification?

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A. I think the underlying nature of the precinct,

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I did not use racial or ethnic data in

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BY MR. BONDURANT:

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with respect to precincts surrounding it in

BY MR. BONDURANT:

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particular, will not change, but its voting

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Q. You used only political data?

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behavior could change. If you take a strong

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A. That's correct.

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precinct that might have been strong Republican

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Q. And political data -- by political data you

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precinct before redistricting and you put it in

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drafting the plan.

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a heavily Democratic district, it might modify

2008 to 2014 excluding the presidential races in

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its behavior.

2008 and 2012?

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A. That's true.

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meant the results of statewide elections from

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Are we through with this?
Q.
Q.

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Maybe.
I would like you to turn to the second
page of Exhibit 18.

So I think generally your statement is
true but specifically not necessarily true.

Q. In your trial testimony, you were questioned on
why you used only the results of the 2008

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Obama-McCain as your election data in drafting

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the 2011 plan. Do you recall that?

MR. THORPE: It's under the binder.

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A. Yes.

THE WITNESS: Pm
I'm sorry. It's

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Q. And you said that you thought that was

underneath.

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representative but that it was also correlated
with the results in other statewide elections at

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BY MR. BONDURANT:

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Q. On that page I have excerpted testimony from the

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which you had looked.

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trial. You're perfectly welcome to look at that

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A. Yes.

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testimony at Page 525 of the Harris trial.

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Q. Therefore it didn't make a lot of difference

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MR. FARR: What are we looking at now?
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whether you used the Obama-McCain results or the
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37 (Pages
148)
(Pages 145 to 148)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
236
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 THOMAS B. HOFELLER

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January 24,
24, 2017

results in other statewide elections as far as

determining whether the districts were going to
in the future vote Democratic or Republican.
A. Generally true, yes.
Q. And you said specifically "I know from
experience that the underlying political nature
of the precincts in the state does not change no
matter what race you use to analyze it."
Do you see that language?
A. I do.
Q. Was that true?
A. It's true in the context of the word
"underlying," yes, and by that, really I'm
talking about the ranking of the precincts one
to another. They might all vote a little bit
more one way or another, but they'll be
generally in the same spot on a continuum of all
the precincts.
Q. Whether it was deep red, sort of red, light blue
or dark blue in your ranking of districts?
A. I think I could generally agree with that, yes.
There might be some context in which it would
not be true. I don't think you want to go into
that now.
Q. Was that still the case at the time you did the

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MR. FARR: It's certainly customary
here in North Carolina.
MR. SPEAS: I don't believe that's

customary.
MR. FARR: Well, I believe it is,
Eddie.
MR. SPEAS: Well, I've never heard any

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such rule.

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MR. FARR: Well, you know what, we can
call the magistrate up today and see if we are

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entitled to have copies of exhibits. Or what we
can do --MR. SPEAS: Of a deposition in advance?
MR. FARR: Or what we can do is stop

the deposition and make copies of all these
things before the witness is examined. We can

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do it that way, if you'd like, like we did the

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report. I'm entitled to see the exhibit while

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he's being cross-examined.

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MR. SPEAS: You have copies of every
one of these.
MR. FARR: I didn't know what you were

going to use today.
MR. SPEAS: Why didn't you bring the
documents that have to do with the case,

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drafting of the 2016 plan?

Mr. Farr.

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A. Yes.

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MR. FARR
FARR: Are you serious, Eddie?

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Q. And then in the next sentence, on Page 525, you

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I'm serious.
MR. SPEAS: Damn right Pm

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MR. FARR
FARR: You're serious I should have

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said:
"The only way the underlying

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known you were going to cross-examine him on
trial testimony?

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political demographics change in a

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precinct is if the precinct is changed in

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the nature of the people that are living

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witness was going to be asked about his prior

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in the precinct. So once a precinct has

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testimony.

MR. SPEAS: You should have know your

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found to be a strong Democratic precinct,

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it's probably going to act as a strong

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going to be cross-examined on exhibits that

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Democratic precinct in every subsequent

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weren't produced for us before the deposition?

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election. The same would be true of

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Republican precincts."

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the record for this deposition instead of

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resolving other problems?

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MR. FARR: Can he look at the
transcript, please.

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MR. BONDURANT: Yes.

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MR. FARR
FARR: And also, Pm
I'm going to make

MR. FARR
FARR: I should have known he was

MR. BONDURANT: Should we go back on

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MR. FARR
FARR: Well, I would like to have

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copies of exhibits that are going to be used to

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cross-examine my witness tomorrow.

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Pm going to want to get
a request tomorrow I'm

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copies of any exhibits that you're going to use

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to cross-examine Senator Rucho or Representative

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BY MR. BONDURANT:

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Lewis which is pretty customary here in

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Q. Do you have Page 525 before you from which I

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North Carolina.

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MR. BONDURANT: It's certainly not

covered by the federal rules.
150

MR. BONDURANT: Your question is under
advisement.

just quoted, Dr. Hofeller?

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A. Okay. You're specifically talking about the

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second section that's underlined or shaded

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38 (Pages
152)
(Pages 149 to 152)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
237
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 THOMAS B. HOFELLER

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January 24,
24, 2017
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yellow, right?
Q. The sentence beginning "The only way the
underlying political demographics change" and

ending with "The same would be true of
Republican precincts."
A. Yes.
Q. That was your testimony under oath then and it
would be your opinion now when you -- in
connection with your drafting of the 2016 plan?
A. Yes.
Q. Do you recall that the results of the 2011 plan
were that in 2012 the Democrats carried a
majority of the statewide vote both for
president and the majority of the statewide vote
for congressional elections?
A. I don't know. I have to see that data put
before me.
Q. But the result of the 2012 election was that
instead of 10-3 Republicans that you projected
it, the Republicans took 9 seats with 49 percent
of the vote and the Democrats took only 4 seats
with 51 percent of the vote.
A. I don't agree with --MR
MR. FARR: Objection to the form.
THE WITNESS: -- with the first premise

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THE VIDEOGRAPHER: Off the record at
3:18 p.m.
(Brief Recess.)
THE VIDEOGRAPHER: On record at
3:32 p.m.
MR. FARR: With the indulgence of

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plaintiff's counsel, I did want to make a
plaintiffs

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statement: That under Local Rule 30.1(d), the

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Middle District says that deposing counsel shall

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provide to the witness's counsel a copy of all

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documents shown to the witness during the

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deposition. The copy shall be provided either

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before the deposition beginnings or

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contemporaneously of the showing of each

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document with the witness.

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MR. BONDURANT: Which is precisely the
procedure we're following of giving you copies

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of each document as it is being shown to the

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witness during the deposition.

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MR. FARR: Several of the documents

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that have been used today we have not been given

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copies. Most of them you have.

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I'm not aware of any
MR. BONDURANT: Pm

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that we haven't given you copies of, but if

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there are any, we'll be delighted to have copies

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made. We did make copies of both reports which

BY MR. FARR:

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were the only two that we did not previously

Q. Well, let's lay aside the prediction.

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mark as exhibits. We produced multiple copies.

of your question about my prediction.

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The results in 2012 were that the

MR. FARR
FARR: Well, we don't have a copy

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Democrats took 51 percent of the statewide vote

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in congressional elections but elected only 4

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Democrats, and the Republicans took 49 percent

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appreciate the fact that we have received copies

and elected 9 Republicans.

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of almost all the exhibits that have been used

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today, but tomorrow Pm
I'm asking if there are
going to be exhibits used to cross-examine

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A. Again, I don't have those percentages in front

of the transcript you were examining him from.

So I was just -- Pm
I'm clarifying and I

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of me. I know that the results of the election

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were the election of 4 Democrats and 9

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Senator Rucho that we be given a copy of that

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Republicans.

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document.

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Q. And you knew that the Democrats took more votes

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MR. BONDURANT: Shall we proceed?

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in congressional elections than the Republicans?

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MR. FARR
FARR: Thank you.

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before, like two other times?
THE WITNESS: I don't know that.

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BY MR. BONDURANT:

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Q. You have been previously been given Deposition

BY MR. BONDURANT:

Exhibit 17 which is the -- from the

Q. You don't know that?

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North Carolina General Assembly website.

A. No.

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MR. FARR
FARR: We'd like to take a break

it's convenient.
when its

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(WHEREUPON, Plaintiffs' Exhibit 17 was
marked for identification.)

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MR. FARR
FARR: Hasn't he answered that

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A. I don't know.

MR. BONDURANT: This would be a perfect

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A. It was the plan enacted by the General Assembly.

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Q. And you were the principal architect and

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time.

154
154

Can you identify that as the final
result of your 2011 redistricting?

draftsman of the plan?
156

39 (Pages
156)
(Pages 153 to 156)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
238
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
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 THOMAS B. HOFELLER
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A. As we've defined it, yes.

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data on which you drew the plan of the 2008

Q. And the election return data you used in

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presidential election results and no other

drafting the districts was the 2008 election
returns of the presidential election marked here

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in this exhibit?

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election results?
A. rm
I'm sorry, rm
I'm trying to -- there are only two
pages of this?

A. I did from time to time use other election

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Q. Yes.

results in drawing districts, but not for the

7

A. I don't think there's any -- any election data

congressional plan.

8
8
9

Q. Not for the congressional plan?

listed on that result, on those two pages.
Q. If you look under Statewide by District and VTD,

A. Right.

10

the third from the bottom line, 2008 Election

Q. You used only the 2008 Obama-McCain general

11
11

Results, Part 1, 2008 Election Returns, Part 2,

election results?
A. I don't recall for sure. I might have used some

12

and then back onto the next block, Individual

13

District by VTD, you see the same legend, 2008

14

other results, but by the time the trial rolled

14

Election Returns, Part 1, 2008 Election Returns,

15

around we had the 2012 also.
Q. Do you recall using any results other than the

15

Part 2.

16
17
18
19

Obama-McCain results?
A. As we were drawing districts during that

16

Is it your recollection that that was

17

only the Obama election returns and no others?

18

A. I don't think that's what the document is about,

redistricting cycle, we oft-time looked at other

19

20

races too of a plan once it was at sort of a

20

21
21

bench-like level to look at other politics of

21
21

22

the plan, but they were not in thematic display

22

A. rm
I'm sorry. Again, my recollection of what?

23

that was on the map for the VTDs.

23

Q. Of what elections you used in actually assigning

24

VTDs and counties among districts to create a

25

Republican advantage in as many districts as

24
25

Does that clarify it for you?
Q. Let me see if I understand you. You used only

if you want me to explain.
Q. rm
I'm simply asking you what your recollection
was.

157

159

11

the -- you actually used only the results of the

1
1

2

Obama-McCain 2008 election. You looked at

2

3

results in other statewide elections and saw

3

4

that those results were correlated to them, but

4
4

question than you asked me before, but I will

5

you did not use those other results.

5

say again, to clarify once more, that while I

6

was drawing the districts, particularly in a

6

Would that be fair?

possible.
MR. FARR
FARR: Objection to the form.
THE WITNESS: Okay. That's a different

7

A. Partially.

7

county where the county was being split between

8
8

Q. What part is unfair?

8

two or more districts, the display on my screen

9

A. You can only -- you have to choose the thematic

9

as to the coloring of the precincts was a

that you want to put up on the actual system,

10

political percentage which was almost always the

the map that's on the screen of the GIS system,

11
11

McCain-Obama race for president in 2008. We did

12

Maptitude, while you're drafting, but that

12

13

doesn't preclude you from when the plan reaches

13

BY MR. BONDURANT:

14
14

Q. I don't want to belabor this, but let me show

10

11

a certain point of bringing in other election

14

15

results and looking at them to see if the plan

15

16

is reacting specifically to the way you wanted

16

17

it to be drawn, but that is not on the display

17

18

on the computer at the time.

18

19
20

21
21
22
23
24
24
25

19

Does that clarify that for you?
Q. What was displayed on your computer was only the

2008 Obama election results?

you a page from your deposition.
A. I'll need to see the surrounding pages too,

so...
Q. You're perfectly welcome to read as much as you
would like to read.

20

A. Thank you.

21
21

Q. Look at Page 56, beginning at Line 2 and ending

22

A. For the most part, but I can't vouch that at

not have, obviously, 2012 then.

in Line 4 ---

some point I may not have put up another

23

display.

24

video deposition, and I regret that I have to,

25

but I'm going to go around behind him.

Q. And what is listed in Exhibit 17 is the source
158

FARR: I've never done this in a
MR. FARR

160

40 (Pages
160)
(Pages 157 to 160)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
239
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 THOMAS B. HOFELLER
1
2
3
4
5
6
7
8
9
10

January 24,
24, 2017

MR. BONDURANT: Go right ahead.
THE WITNESS: What line are we starting

11
2

on?
BY MR. BONDURANT:

3

Q. Line 2 through Line 4. Would you read the
question out loud and answer.

5

A. I'll read the question out.

7

4

Now, I want to go back and read the

12

17

18
19

20
21
21
22
23
24
25

drawn, but it was not on the screen. So you
might draw a plan, a version of the plan and

10

11
11

16

We used other election data in
evaluating the districts as they were being

9

than the 2008 Obama election in putting
districts or outside?"
"I did not."

15

recollection would be that probably not. That's
probably not true.

8
8

"Did you use any election data other

12

14

Q. 1 or 4?
A. Okay. I don't actually remember, but my

6

11
11

13

election?
A. All the districts except District 1.

context. May I add something?
Q. If you think it's
its necessary to make your answer

13

complete.
A. Yes. I go back to the question on the bottom of

15

Page 55, Line 23. Actually, I go back to the
question before that, 19, Line 19 of Page 55.

14

look at the other election data also and then
adjust the plan, but -- go ahead.
Q. It was all election data, past voting history
used as a predictor of future performance of
either the county or the VTD or the census
block?

16
17
18

"Okay. Based on your past
experience and your knowledge, you count

19

a vote for Obama as a vote for a black or
a Democrat?"

21
21

20

22

A. No. It would be -- it would be a predictor of
possible behavior of the VTD.
Q. Of the VTD?
A. We don't have political data that is that
granular for blocks.
Q. You mentioned earlier that you were -- you

23

Answer: "A Democrat."
"Did you use any other election
results in putting VTDs inside or outside

24

couldn't remember whether you had paired
refresh your
districts. Let me see if I can refie,h

25

recollection.

161
11
2
3
4
5

163
11

of Congressional District 12?"

Question: "Did you use any election

4
5

7

mean VTDs there -- "in or outside and

7

8
8

also implied is of CD 12?"

8
8

9
10

11
11
12
13
14
15
16

6

9

And the answer is: "I did not."
Q. CD 12 is not mentioned in the last sentence.

10

A. CD 12 is mentioned in the context of the

11
11

MR. FARR: Are you done, Tom?
THE WITNESS: No, I'm
Pm not done.

20

21
21

In the context of building CD 12, it is

21
21

25

the incumbent residences on it to answer that
question accurately.

18

20

24

THE WITNESS: Once again, I don't
I'd have to see a map of the plan with
recall. Pd

17

19

23

MR. BONDURANT: Can you read the
question back.
(Record Read.)

15

19

22

refresh my memory.

16

Are you done?
Q. Did you use any data ---

-Q. No. Could you -A. Ask your question again. You're trying to

14

MR. FARR: Can he finish
fmish his answer?

18

be a strongly Republican district?
A. Could I see the document you're reading from.

13

sorry, it's
-its -Q. Did you use ---

BY MR. BONDURANT:

incumbent in the 8th district, and drew them
into the new 8th district which was designed to

12

question that led up to that question. I'm
Pm

17

paired Representative Larry Kissell, who was a
Democrat, and Mike McIntyre, the Democratic

3

political?"
other than the 2008 Obama election
putting districts" -- and I think they

6

Isn't it true that your 2011 plan

2

"I'm sorry. Did you say
Answer: "Pm

MR. FARR: We'll stipulate to whatever
the facts are.
MR. BONDURANT: Okay.
THE WITNESS: So will I.

22

BY MR. BONDURANT:

BY MR. BONDURANT:

23

Q. I just didn't know whether you remembered or

Q. How about CD's 11, 10, 9, 8, 7, 5, 6, 3 and 2,

24

did you use any data other than the Obama

25

true that that is the race I used.

162
162

not.

///

164
164

41 (Pages
164)
(Pages 161 to
to 164)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
240
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 THOMAS B. HOFELLER
11
2

January 24,
24, 2017

(WHEREUPON, Plaintiffs' Exhibit 19 was
marked for identification.)

1
1

A. Yes.

2

Q. Have you seen it before?
Q.
A. Not that I remember.

3

BY MR. BONDURANT:

3

4

Q. Dr. Hofeller, can you identify the Exhibit 19

4

5

5

which is entitled Proposed 10-3 Map?

6

A. I can identify that's the title of the map, yes.

6

7

Q. Have you ever seen it before?

7

8

A. It certainly looks like a map that might have

8

9

come off my system, yes.
Q. Is it your recollection that's a map you

9

10

11

10

designed?

Q.
Q.

You didn't have any role in either preparing it
or reading it at the time to your recollection?

A. No. It's kind of hard to read in black and
white.
(WHEREUPON, Plaintiffs' Exhibit 22 was
marked for identification.)
BY MR. BONDURANT:

11

Q. Exhibit 22, can you identify that, sir?

12

A. Once again, I don't remember. Okay. I'm sorry.

12

A. REDMAP Political Report, Final Report, it says.

13

Q. Do you recall deliberately drafting a map that

13

Q. As consultant for the Republican State

14

would create a 10-3 Republican partisan

14

Legislative Committee and the Foundation, would

15

advantage during the 2011 redistricting and
submitting it to Representative Lewis and

15

you in the ordinary course have received the

16
17

18

16

Senator Rucho?
A. Well, that's a two-part question. First of all,

17
18

19

I don't remember this map; and secondly of all,

19

20

final report from the REDMAP strategy?
A. No, actually I wouldn't. I probably would have

compiled all these items myself.
Q. So it's your belief that you would have compiled

I don't remember who saw it. So if I drew it,

20

the data that is in 20 and 21 and 22?

21
21

it may have been something that I drew and it

21
21

A. Well, again, I'd
Pd have to read them over

22

wasn't going to work. I drew a lot of

22

completely, but as to the changes in the

23

alternative maps along the way and we took a lot

23

composition of the legislative bodies, I would

24

of different paths in developing these plans to

24

have known that data, yes.

25

see what would work.

25

Q. And it's your recollection you actually compiled

165
1
2

3
4
4

5
6
7

Q. So you just don't remember that map one way or

11
2

the other?

3

compiled for the RNC rather than for the RSLC.

4

So they may have been given copies of these

plan that was finalized.

5

(WHEREUPON, Plaintiffs' Exhibit 20 was

9

Q. Dr. Hofeller, can you identify Exhibit 50?

6
7

marked for identification.)
BY MR. BONDURANT:

9

Q. -- that they were published?
A. No.

FARR: I wish it was 50.
MR. FARR

11
11

12

MR. BONDURANT: No, you don't.

12

THE WITNESS: Well, the title reads

13

14

Final REDMAP Report dated 21 December 2010.

-time -A. No.

10

Excuse me. Exhibit 20. 1I misspoke.

reports. I just don't remember.
Q. And do you remember seeing these reports at the

8

11
11

13

the data for the authors of the reports?
A. No. I compiled the data -- I think I actually

sorry. I can see it's vastly different from the

I'm
A. I don't remember it specifically, no. Pm

8
8

io
10

167

(WHEREUPON, Plaintiffs' Exhibit 23 was
marked for identification.)
BY MR. BONDURANT:

14

Q. Can you identify Exhibit 23?
A. States the 2012 RSLC year-end report.

15

BY MR. BONDURANT:

15

16

Q. Did you see a copy of that report?

16

Q. Had you ever seen that report?

17

A. I don't remember.

17

A. Not that I can remember.

18

Q. At or about the time it was issued?

18

Q. Are you familiar with the information in it?

A. I don't remember. I have no recollection of

19

I'd have to read it.
A. I don't know. Pd

20

Q. Let me specifically call your attention to the

19

20
21
21
22
23
24
25

this report.
(WHEREUPON, Plaintiffs' Exhibit 21 was
marked for identification.)

21
21

second full paragraph in the last sentence, or

22

next to last sentence.

BY MR. BONDURANT:

23

Q. Can you identify 21 as a REDMAP 2012 summary

24

control of 20 legislative bodies and

25

moved one from Democratic control to

report?
166

"After 2010, Republicans took

168

42 (Pages
168)
(Pages 165 to 168)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
241
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 THOMAS B. HOFELLER
11
2
3

January 24,
24, 2017
1

being evenly divided."

2

Is that your recollection as being

3

Again, I'd have to go back and
reevaluate what that specific number was.

4

A. The last sentence of that paragraph?

4

Q. Well, you wouldn't question the accuracy of
RSLC's REDMAP reports that we've identified?

5

Q. That's the next to the last sentence in the

5

A. I don't think I'd really be interested in that

7

second full paragraph.
A. Says "Further, there were 25 states"?

6

8
8

-Q. Let's start again. See the --

8
8

I was using.
Q. What were your figures, the results ---

9

A. Oh, the third sentence from the back.

9

A. Again, I don't remember because I don't have

6

10

11
12
13

accurate?

7

Q. The full sentence, the first -- excuse me. The
second full paragraph begins:
"Much of the Republican successes in
the 2012 state legislative races and at

10

those reports in front of me. That's been a

11

number of years now and that's not my focus. I
know it was a good election.

12
13

14

the congressional level was attributed to

14
14

15

the RSLC's Redistricting Majority Project

15

16

(REDMAP) - a forward-thinking effort

16

17

undertaken after the 2008 election to

17
17

18

focus resources in the 2009-2010 cycle on

18

19

states projected to gain seats after the

19

national census.
"After 2010, Republicans took

20

control of 20 legislative bodies and

22

23

moved one from Democratic control to

23

24

being evenly divided."

24

20
21
21
22

25

21
21

25

Is that information consistent with

figure. I had my own figures and that was what

Q. From a Republican point of view?
A. I guess you would have to say that, yeah.

Q. I would expect you would.
I want to turn now to 2016. You
testified in the Harris trial in October of
2015, correct?
A. I don't remember specifically when the trial
was, but I testified in it.
Q. And you previously had testified that the Court
on February 5, 2016, declared the 1st and the

12th districts to have been invalidly racially
gerrymandered and invalidated the plan.
Do you recall that?

169
11
2
3
4
5
6
7
8
9

171

your recollection?
A. Yes.

1
1

Q. And it's accurate?
A. I can't verify that. I'd have to see the

3

2

4
5

BY MR. BONDURANT:

6

Q. You recall the Court ruling occurred on

of the legislatures continued to shift during
the period after the election.

7

February 5th?
A. I think it was Friday, late Friday afternoon

8
9

Q. Then the next sentence continuing:
Q.

"Further, there were 25 states where

10

11
11

Republicans held majorities in both
legislative chambers, up from 14. This

11
11

13

the attorneys to interpret the Court opinion. I
know the Court didn't like the districts.

reports that I did.
1I know some of the composition of some

10

12

FARR: Objection to the form.
MR. FARR
THE WITNESS: I really think it's up to

12

February 5th, yes.
Q. And that between the end of the trial until the

Court ruling, you had no contact with
Representative Lewis or Senator Rucho or anyone

shift in legislative power allowed

13

in North Carolina pertaining to the districts,

14

Republicans to control the redistricting

14

the congressional districts that were at issue

15

process and create 20 to 25 new
Republican congressional districts,

15

16
17
18
19

20
21
21

22
23
24
25

16
17

solidifying a Republican House majority
and Republican majorities in state houses

18
19

across the country."
Was that statement accurate to your

20

knowledge?
A. You know, I can't really say that for sure. It

21
21

22

in Harris?
A. I don't know if I didn't have any contact, but

we certainly weren't considering redraws at that
point.
Q. All right. And when did you first begin working
on redrawing a plan?
A. After the ruling came out.
Q. Was that before or after you had any

would depend on what they mean by 20 to 25 new
Republican congressional districts. That wasn't

23
24

Representative Lewis as to how that plan was to

my statement, so I don't know.

25

be structured?

170

communication from Senator Rucho or

172
172

43 (Pages
172)
(Pages 169 to 172)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
242
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
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 THOMAS B. HOFELLER
11
2
3

January 24,
24, 2017

A. I made -- I guess probably over that weekend I

11

Another criteria was to look at

made some preliminary looks on what might have

2

districts that would be as favorable within

been possible to draw.

3

those criteria of -- of drawing a plan that was

4

Q. That is, you drew some maps on your computer?

4
4

5

A. Yes. You have copies of those maps.

5

6

Q. When did you first have any communication with

6

7

Representative Lewis or Senator Rucho as

7

8
8

co-chairs of the Joint Select Committee on

8
8

99

Congressional Redistricting regarding the

9

10

criteria which they wanted you to follow in

10

11

drafting the 2016 plan?

11

advantageous to Republican candidates.
Q. Were there any written communications that set

forth any of those criteria?
A. No. You have to remember, we had -- by that
time we had maybe six days left to go, and those
are criteria that I can well keep in my head.
Q. Did you make any notes of any of the
conversations with Representative Lewis or

12

A. I don't remember a specific time, but I imagine

12

Senator Rucho in that period between

13

it was that weekend. It was for sure by Monday

13

February 5th and February 16th?

14
14

because we only had eight days to draw that map

14

15

so I had to know which way I was to proceed.

15

form to be presented to the legislature long

16

before the 16th. So again, we only had eight
days. And the answer to your question directly

16

Q. What were the communications? Can you describe

17

them? What did they tell you they wanted the

17

18

new map?

18

19

A. Well, the number one goal was to draw a map that

19

20

A. I remember the plan was actually brought into a

is, no, I have no notes.
Q. Is it correct that you were instructed by the

the Court would accept. So we wanted to make

20

21

sure that the Court's objections were addressed,

21

22

and the primary way to do that was to put the

22

23

neutral criteria on top and other criteria

23

certain degree, within the limits of the other

24
24

underneath it and to not be in a position where

24

criteria that had to be put on top in order to

25

anybody could say that race had even come close

25

meet what we thought would be the demands of the

map drawers to create a map that was likely to
elect 10 Republicans and 3 Democrats?
A. Initially no, but during the process, yes, to a

173
11
2
3
4
5
6

to predominating.
Q. When you say neutral criteria, what criteria are
you referring to?
A. Well, let's go through the criteria from one end

175
11

federal court in the drafting of this plan

2

because the whole goal and the overarching goal

3

of the plan was to make sure that whatever was

4

drawn was a plan according to neutral criteria

5

to the other.

6

Q. No. I want to know which ones you and

and that would be acceptable to that Court.
Q. Is there any written document that you have seen

7

Senator Rucho and Representative Lewis discussed

7

that refers to a desire to comply with the

8
8

where the criteria that you call neutral that

8

Voting Rights Act as being a factor in the

99

you were to consider in drafting the plan.

9

drawing of the 2016 plan? That's a yes-or-no

10

10

A. Well, okay. First of all is one-person,

answer.

11

one-vote. Second is the Voting Rights Act,

11

A. No, but I want to elaborate.

12

which are the two federal criteria so they

12

Q. A "no" answer requires an elaboration?

13

always stand on the top of any redistricting.

13

14

14

The third criteria was adherence to

MR. FARR: If he wants to give one.
THE WITNESS: I just want to say that

15

particularly county lines. And the next

15

16

criteria was to avoid the breaking of precincts.

16

17

We're we were also going to look at contiguity

17

BY MR. BONDURANT:

18

Q. When did you first see a draft of what became

compliance of the Voting Rights Act is not an
option; you have to comply.

which from time to time has been a problem in

18

19

North Carolina. Looking at compactness.

19

20

Looking at district cores or communities of

20

21

interest, and part of that, a sub feature of

21

22

that is to try and make sure that as few

22

23

incumbents as possible are not -- are double

23

24

bunked. That's our slang term for saying

24

BY MR. BONDURANT:

25

drawing in the same district.

25

Q. Can you identify Exhibit 24 as the 2016

174
174

the written adopted criteria?
A. I don't recall I did. I may have seen it after

it was done. I just don't know.
(WHEREUPON, Plaintiffs' Exhibit 24 was

marked for identification.)

176

44 (Pages
176)
(Pages 173 to 176)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
243
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
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 THOMAS B. HOFELLER
11
2

January 24,
24, 2017

Contingent Congressional Plan Committee Adopted

11

MR. FARR: Objection to the form.

Criteria?

2

You can answer.

3

A. Yes.

3

4
4

Q. Did you see a draft of this document before it

4

THE WITNESS: I don't think it's
its a
background criteria. It's a mandatory criteria.

5

was adopted by the meeting of the joint

5

BY MR. BONDURANT:

6

committee on February 16th?

6

Q. It's a mandatory constitutional requirement

7

A. I don't really recall. I was more interested in

7

8
8

getting the plan into shape to be presented.

8
8

9
10
11
12
13
14
15

Q. So you were drafting a plan to comply with these

9

coming from a decision called Wesberry v Sanders
in 1963, correct?
I'm aware of that case, yes.
A. Pm

criteria even before the criteria was drafted --

10

Q. And every congressional reapportionment plan

was adopted?

11

which has been drafted since then is expected to

A. Well, I had to have been because the plan was
for the most part finished by the time the
criteria were formally adopted by the committee.

12

comply with the one-person, one-vote

13

requirement?

14
15

Q. Were there any changes in the plan that you

A. Yes, except it's
its not always clear exactly what

that compliance is.

16

drafted made after the criteria were adopted on

16

17

February 16th?

17

committee instructed you was contiguity, that

Q. And the second criteria which the joint

18

A. Yes.

18

is, congressional districts shall be composed of

19

Q. So the plan was in nearly final form before

19

contiguous territory and contiguity by water is

20

sufficient, correct?

20

criteria was adopted and was changed afterwards?

21
21

A. Yes.

21
21

22

Q. When you received the written criteria, did you

22

23

regard them as your instructions that you were

23

the State Supreme Court has laid down because

24

to follow in conforming the plan which you had

24

when the plans were adopted in earlier decades,

25

drafted to the criteria adopted by the

25

some of the plans were what we would say

A. Contiguous territory, yes. And if memory serves
me right, I believe that's a requirement which

177
1
2
3
4
5
6
7
8
8
9
10

11
11
12
13
14
14
15
16

17
17
18
19

20
21
21
22
23
24
25

committee?
A. I'm sorry. Did you -- could you repeat that
again.
(Record Read.)
THE WITNESS: I think the answer to
that question is no, but I can explain if you
want me to.
MR. BONDURANT:
BY MR
Q. So you did not regard yourself bound by the
written criteria?
A. I would have been bound by the written criteria
at the time that it came out, but that's not the
question you asked me.
Q. When you received the criteria after they were
adopted on 2016, did you regard yourself bound
by them?
A. Of course.
Q. Did you modify the plan to conform to the
criteria?
A. It already conformed to the criteria.
Q. The first criteria was equal population which is
a constitutional requirement.
A. Yes.
Q. And that's a background requirement of every
reapportionment plan, correct?
178

179
1
1

contiguous by touch. In fact, some districts

2

crossed over other districts, so you'd have

3

to -- if you were walking from one district to

4

the other, you would have to enter a black hole

5
6

to get to the other districts.
Q. So in both 2011 and 2016, you applied a

7

contiguity standard in drafting the plans?

8
8

A. In accordance with the dictates of the State

9
10

Supreme Court, yes.
Q. In the third heading called political data, you

11
11

were instructed that the only data other than

12

population data to be used to construct the

13

congressional district shall be election results

14

in statewide contests since January 1, 2008, not

15

including the last two presidential contests.

16

A. Yes.

17

Q. And the -- were you told why you were not to use

18
19

20

the results of either the last two presidential

contests in constructing the plan?
A. If my memory serves me correctly, in the Harris

21
21

trial, the plaintiffs objected to the use of

22

those elections. Even though there was, of

23

course, a decision that there was no racial

24
25

block voting in the state, they -- they -Q. My question was were you told.
180

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11

January 24,
24, 2017
11

BY MR. BONDURANT:

decision that came out in the Harris case that

2

Q. Your understanding of the Harris decision was

3

-had mentioned -- in my belief I was told this --

3

the Court ruled that you could not use race as a

4

that the use of that data was a factor in their

4

predominant factor in drawing District 1 or

5

decision on District 12.

5

District 12?

2

6
7

A. Yes, I was told why. It was because of the

-Q. So you believe --

6

A. That's a different question, isn't it.

A. I would have used it under the normal course of

7

Q. Can you answer the question I asked, not the one

8
8

events, but, again, the number one criteria --

8

9

the number one overarching criteria in drawing

9

10

this plan was to draw a plan that was going to

10

11

be acceptable to the three-judge panel.

11
11

12

Q. Let me ask you to look at Exhibit 24. Can you

12

13

point to any sentence in Exhibit 24 of the

13

14

adopted criteria that states that the purpose of

14

15

the plan was to comply with the Harris decision?

15

16

A. I don't know. I don't think so.

16

17

Q. Can you point to any written communication that

17

you like.
MR. FARR
FARR: Objection. Let's not do
that.
THE WITNESS: Read the question back

for me, please.
MR. BONDURANT: Just get your witness
to be responsive.
MR. FARR
FARR: He's been responsive all

day.
(Record Read.)

18

said that a criteria in drafting the 2016 plan

18

19

was to comply with the Harris decision?

19

the plan. The answer is, yes, that was my

20

understanding.

20
21
21
22

A. No, but I have a qualification.

THE WITNESS: Or in any other part of

MR. FARR: You can explain it.

21
21

BY MR. BONDURANT:

THE WITNESS: Okay. The Court decision

22

Q. In the next sentence in the adopted criteria,

23

in the Harris case ordered the state to draw a

23

you were instructed the data identifying race of

24

new map, draft a new map, in fact, to draft a

24

individuals or voters shall not be used in

map within a two-week period. It would have

25

construction or consideration of districts in

25

181
11

183

been unacceptable to draw -- to go ahead to

1

2

proceed to draw a plan that you didn't think

2

3

would comply with the Court's decision.

3

A. Yes.

BY MR. BONDURANT:

4
4

Q. So you did not consider race or the racial

Q. The Court decision did not tell you how to draw

5

composition of any of the districts in drawing
the 2016 plan?

4
5
6

a map, did it? It did not tell you what

6

7

criteria to use.

7

8
9
10
11
11

12
13

8

A. It told us that we could not use race as the

9

predominant criteria.
Q. Other than not using the racial quota for

districts.
A. Yes, but we were all aware -- excuse me. We

the 2016 plan.
Did you follow that instruction?

A. I did not use race as a data factor in drawing
the plan.

Q. And without having racial data, you could not

10

determine whether or not any of the districts

11
11

were retrogressive for purposes of Section 2 of

12

the Voting Rights Act, could you?

were all aware of what took place during the

13

14

trial and why especially the 12th district and

14

15

even the 1st district, to some extent, were

15

16

ruled to be unconstitutional.

16

and presented before the committee, the

FARR: Objection to that question
MR. FARR
for a variety of reasons.
THE WITNESS: When the plans were drawn

17

Q. And you were not told how to draw the districts?

17

Democrats asked for the racial and ethnic data.

18

You were only told that you could not use race

18

The racial and ethnic data had shown that the

19

as the predominant factor in drawing a district,

19

plan was retrogressive. It would have come up

20

correct?

20

with that data and the plan would have had to

21
21

have been modified.

21
21

A. No.

22

MR. FARR
FARR: Objection to the form.

22

23

I'm sorry.
THE WITNESS: Pm

23

24

MR. FARR
FARR: Because that's a legal

24

25

25

issue, but you can answer it.

182
182

MR. BONDURANT: That was not my
question.
Would you read my question back and
would you give me an answer to my question.

184
184

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1

(Record Read.)
THE WITNESS: I would know that --

2
3
4
5
6
7
8
9
10

11
11
12
13
14

2

3

area.

5

4
4

BY MR. BONDURANT:

6

Q. Did you look at whether any of the other
districts were compliant with the Voting Rights

7

Act?
A. None of the other areas --

9

8
8

10
io
11
11

Q. Was that a "yes" or a "no"?
A. I'm sorry. Just ask it again.

12

MR. BONDURANT: Would you read the
question back.

(Record Read.)
THE WITNESS: No because there were no

16

18

11

generally that District 1 would not have been
retrogressive because it was drawn in the same

15

17

January 24,
24, 2017

13
14
15
16
17

other Voting Rights districts in the state
before in the previous benchmark plan.

18

THE WITNESS: No, I don't agree with
that at all.
BY MR. BONDURANT:
Q. Did you generate any maps that split fewer VTDs
but did not achieve your 10-3 partisan
objective?
A. If I understand your question, you said was

there any other plan drawn that -Q. Do you need the question read back?
A. Okay.
(Record Read.)
THE WITNESS: Not necessarily down to
exact levels of one-person, one-vote.
The reason precincts were split was to
adhere to the one-person, one-vote rule.
There's no way you could draw a map without
splitting 12 precincts. It's theoretically and
actually impossible unless you split one
precinct more than one time.

19

BY MR. BONDURANT:

19

20

Q. The next sentence of your instructions were

20

BY MR. BONDURANT:

21
21

Q. So you did not draw any maps with fewer precinct

21
21
22
23
24
25

that:

22

"Voting districts ('VTDs') should be
split only when necessary to comply with
zero deviation population requirements

23

set forth in order to ensure integrity of

25

24

splits but which did not accomplish your 10-3
Republican advantage?
-A. I think the answer to that --

MR. FARR
FARR: Objection.

185
11
2
3
4

187
11

political data."
Do you see that?
A. That's what it says, yes.
Q. What does it mean when it says that you could

no, I didn't draw any maps that had fewer than

3

13 precinct splits, period.

4

BY MR. BONDURANT:
Q. Let's go to next paragraph. It's headed

5

divide VTDs in order to ensure the integrity of

5

6

political data?

6

7
8
9
10
10
11

A. That addresses the fact that whenever you split
voting districts, the data are allotted on the

7

9

Republicans and 3 Democrats."

basis of adult population and essentially the
voting results are distributed homogeneously to

10

every block based on their populations, their

11
11

adult populations. So you don't really have a

12

way of knowing what the political factors are
most exactly on either side of that split.

13

The political value of the precinct in
the machine will be pretty much the same on both

15

16
17
18
19

20
21
21

22

sides of that split, except for rounding errors.
In fact, political data was not distributed down

14

16
17
18

to the block level for all blocks. They had to
have a certain number of people in them before

19

it was disaggregated down to the block level.

21
21

Q. So am I correct that you could split a VTD where

"The partisan makeup of congressional
delegation under the enacted plan is 10

13

15

Partisan Advantage.

8
8

12

14

THE WITNESS: -- is I did not -- well,

2

20

That was the 2011 plan which you
drafted, correct?
A. First of all, I don't really understand what

"enacted plan" means in that statement. Does
that mean -- I think that means the 2011 map,
the way it's worded.
Q. That's what I thought it meant too.
A. I just wanted to make sure we were speaking

about the same thing.
Q. The status quo was 10-3?
A. Yes, it was.
Q. And that was under the 2011 plan which you

22

drafted?

23

it was necessary to achieve the partisan

23

A. That's true.

24

political objective of a 10-3 Republican map?

24

Q. And your instructions were to preserve that

25

25

FARR: Objection to the form.
MR. FARR

186

partisan advantage.
188

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11
2

January 24,
24, 2017
11

A. My instructions were to make an effort to
preserve that partisan advantage, yes.

district which the Republicans had inherited

2

from the 2001 or maybe even the earlier
redistricting that was -- that stayed strangely

3

Q. And you succeeded in that objective?

3

4

A. I don't believe that's the case, no.

4

5

Q. In the 2016 election, how many Republicans were

5

A. Yes. What was the question?

6

Q. Did that make it easier for you to draft the

6

elected?

7

A. Ten.

7

8
8

Q. How many Democrats were elected?

8
8

9

A. Three.

9

10

Q. Was that your objective?

10

11

A. No. My objective was as the criteria stated.

11
11

configured.

2016 plan?
A. No. Just made it necessary to draft it

differently.
Q. When you -- how did you begin drafting the 2016
plan? Did you start with the 1st district again

12

That was a -- that was an election where all the

12

13

incumbents -- I don't know if it was all the

13

14

incumbents, but most the incumbents won. There

14

we were going to do with the middle of the state

15

was actually one race where two incumbent

15

where the big changes were going to be, so if

16

Republicans ended up being pitted against one

16

the -- if the 12th district was going to have to

17

another, but that doesn't have anything to do

17

be dissolved and particularly if the 4th

18

with what I actually think the potential

18

district was to take a different shape. The

19

partisan makeup of the plan was.

19

center part of the state was much more difficult

20

to draw than the two east and west sides of the

20
21
21

Q. You were instructed to make reasonable efforts

21
21

to draw a 10-3 Republican advantage plan?

as you did in the 2011 plan and build around it?
A. No, not really. I was more interested in what

state.

22

A. Yes, I'll agree with that statement.

22

Q. So what district did you draw first?

23

Q. And you achieved that objective?

23

A. I don't remember. I'd have to review my maps,

24

A. No, I don't think I did, actually. I don't

24

but I was -- I was really looking at both. I

25

may have looked at the 1st first and then turned

25

think it was achievable under the criteria, the
189

191

11

other criteria which limited the drafting of the

1
1

to the rest of the state, but the biggest

2

plan.

2

problem that I knew I had to solve was how to

3
4
5

3

reconfigure around a new configuration in the

achievable under the written criteria you were

4

center of the state with the 4th and the 12th

given by the joint committee?

5

not being the same as they were in the other
map.

Q. So you don't think a 10-3 partisan advantage was

6

A. I thought it was certainly possible, yes.

6

7

Q. So it was achievable?

7

8

A. It was achievable, but it could also not be

8

9
10

9

achievable. Every election is different. The

Q. So the 4th and the 12th were predominantly
Democratic districts?

A. Oh, yes.

number of candidates, the type of candidates

10

11
11

that win, the general political climate,

11
11

12

everything goes into who's going to win these

12

A. Yes. Yes.

13

elections and ---

13

Q. The new 4th, the new 12th and the new or

14
15

Q. And you wanted to configure the new districts to
be predominantly Democratic districts?

Q. I thought you told us previously that it is your

14

existing 1st were all intended to be

expert opinion that how a precinct or a voter

15

predominantly Democratic districts?

16

tabulation district votes, whether Democratic or

16

A. Yes, but much less Democratic.

17

Republican, was highly predictive of how it

17

Q. And in making them less Democratic, you took

18

would vote in the future and that would be true

18

Democrats out of those previous districts and

19

over a series of elections unless there were

19

put them in districts that were going to be

20

major population shifts in the composition of

20

21
21

the district.

21
21

22

22

Wasn't that your prior testimony?

predominantly Republican districts?
A. No, I don't think I would characterize that was
the way the plan was drafted at all.

23

A. I think for the most part, yes. Yes.

23

24

Q. Now, one of the instructions was to essentially

24

Democratic unless you put people who were

25

formerly Democrats in that district into other

25

do away with the 12th district which was a
190

Q. Well, how did you make the 1st district less

192
192

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2
3

January 24,
24, 2017
11

districts?
A. Well, first of all, the predominance of the

2

plan that would maintain the 10-3 Republican
advantage.

criteria using as many -- of dividing as few
counties as possible and using whole VTDs was

3
4
4

question because I was listening to the second

going to have that effect. There was no way
that it was going to happen otherwise.

5

part of the question.

6

Would you read that back.

7

Q. It was going to have that effect of moving -- of

7

(Record Read.)

8

moving Democrats out of the 1st district and

8
8

9

putting them into districts in which they would

9

4
5
6

10
11

10
o

be outvoted by Republicans, correct?

11
11

A. Again --

A. Pm
I'm sorry, I forgot the first part of that

THE WITNESS: My answer is I don't
know. I didn't make such an attempt, but I
don't know that the premise of your question is
correct.

12
12

MR. FARR: Objection.

12

BY MR. BONDURANT:

13

THE WITNESS: I wouldn't characterize

13

Q. Did you measure with your Maptitude program the

14

it that way at all. If you go to a plan where

14

15

whole counties predominate, the voters are going
to fall where they fall.

15

A. I don't remember whether I ran a compactness

16

report or not. I honestly don't. You don't get
compactness results as you're drawing the plan.

16
17

BY MR. BONDURANT:

17

18

Q. Let's talk about maintaining whole counties.

18

compactness of the 2016 plan?

That's not the way the system works.

19

Would it have been possible to draft a

19

20

plan that kept more counties whole than the plan

20

that you drafted?

21
21

A. That's true.
Q. And Maptitude, in fact, gives you the ability to

21
21

Q. Once you have drawn a plan, you can run a

compactness report on Maptitude, can you not?

22

A. Perhaps, yes.

22

23

Q. And if that had been done, would you have been

23

measure the compactness of the plan by eight

24

able to achieve your 10-3 partisan advantage?

24

standards?

25

A. Well, again, I didn't see the plan as the 10-3

25

A. Eight tests, yes.

193

195

11

plan to begin with, but I don't think it would

1
1

2

have significantly impacted the politics of the

2

3

plan.

3

A. Before or after the plan was voted?

4

Q. After the plan was adopted and before you

4
5

Q. Did you try to draw a plan that would draft ---

5

that would divide fewer counties?

Q. Did you run any of those tests to measure the

compactness of the 2016 plan?

presented it to Senator Rucho and Representative

6

A. Not that I recall, no.

6

Lewis as your proposed work product following

7

Q. And how many counties did your 2016 plan divide?

7

their instructions.

8
8

A. If I remember, it was 13.

8

9

Q. So would it be fair to say that you made no

9

A. Actually the plan was adopted after -- by the

General Assembly after it was given to them.

10

effort to draw a plan that would divide fewer

10

Q. I understand.

11

than 13 counties?

11
11

A. Okay. So I have to say the premise of your

12

A. That would be true, yes.

12

question again is not accurate enough for me to

13

Q. Could you -— was it necessary to divide 13

13

make an answer.

14
14

counties in order to achieve your 10-3 partisan

14

15

advantage that you were to make reasonable

15

16

efforts to construct?

16

Q. Well, let's go step-by-step.
Q.
Senator Rucho didn't draft a plan.
A. He didn't draw the lines, that's true.

17

A. As opposed to what?

17

Q. Representative Lewis didn't draft the plan.

18

Q. Well, you told me that you wanted to avoid

18

A. That's correct.

19

dividing counties. You made no effort to draft

19

Q. You got the written criteria from them.

20

Fm asking
a plan to divide fewer counties. And I'm

20

A. Yes.

21
21

you whether or not the reason that you didn't

21
21

22

try to draft a plan that would divide, for

22

BY MR. BONDURANT:

23

MR. FARR: Objection.

example, 12 counties was that that was not

23

Q. Correct?

24
24

possible and at the same time accomplish your

24

A. I got criteria from them before I did any

25

other partisan objective which was to create a

25

194
194

serious work on the plan. I didn't formulate
196

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2
3
4

January 24,
24, 2017

even the beginnings of what were the final plan
until I received criteria from them.
Q. And were those criteria the written criteria
that are set forth in Exhibit 24?

11

A. I modified the plan because an incumbent address

2

was incorrectly located in the incumbency file

3

which I received and had resulted in the

4
4

incumbent being outside of the district that was
intended for him.

5

A. Yes.

5

6

Q. Were there any other criteria not set forth in

6

Q. And who is the incumbent?

7

A. It was the member in the 6th. 1I don't remember.

7
8
9

those two pages?
A. As I said before, I think the other criteria
was -- the primary motivation for drawing the

8
8

Q. Was that Mr. Holding?

9

A. No. That was the 6th district. Holding was -—

plan the way it was was to make sure that a plan

10
io

actually, he was drawn in the 4th, I believe,

11
11

was drawn that would be acceptable to the

11
11

and was in the final plan. He lived in Guilford

12

three-judge panel. It had to be reviewed by the

12

County.

13

three-judge panel, and if we didn't feel it was

13

14

going to be acceptable to the three-judge panel,

14

15

it wouldn't have been a worthwhile exercise to
draw the plan. And it was accepted.

15

BY MR. BONDURANT:

16

Q. So you drew a Republican incumbent into the new

10

16
17

Q. And you received the written criteria and then

17

MR. SPEAS: Walker.
THE WITNESS: Walker. Yes, Walker.

4th district pairing him with the Democratic

18

you prepared a final plan which you then turned

18

19

over to Senator Rucho and Representative Lewis

19

A. That's the way the plan ended up, yes.

20

so they would have something to introduce?

20

Q. So you did not avoid pairing incumbents in

21
21

A. No, I don't think that timeline is correct.

21
21

22

Q. All right. When did you complete your final

22

23
24
25

plan?
A. I think, for the most part, a couple days before
the plan went to the committee. There were some

incumbent in that district, correct?

drafting the 2016 plan?
A. The decision was made because ---

23

Q. Is the answer yes or no?

24

I'm sorry, I don't know what the yes-or-no
A. Pm

25

answer is.

197

199

11

last-minute changes, but they weren't of very

1
1

2

great substance.

2

3

Q. And the criteria, the written criteria,

(Record Read.)
THE WITNESS: That's true.

3

BY MR. BONDURANT:
Q. And Representative Holding in fact decided to

Exhibit 21 -- excuse me, Exhibit 24, were in

4

5

your hands before you made that final plan which

5

run in Representative Elder's district --

6

you turned over to Representative Lewis and

6

Elmer's district and ultimately defeated her in

7

Senator Rucho?

7

4

8
8
9

8

A. Well, first of all, the first plan I turned over

to Senator Rucho and Representative Lewis was

the Republican primary?
A. Well --

9

MR. FARR
FARR: Yes.

10
io

not the final plan; it was the near-final plan.

10

11
11

And the written criteria, I didn't know the

11
11

12

written criteria until after the committee met

12

13

and adopted it.

13

BY MR. BONDURANT:
Q. Okay. So did you make any other modifications

THE WITNESS: Yes, but it was actually
more of that district was his district than her

district.

Q. So you prepared a plan before February 16th, the

14

15

date on which the committee hearing was held and

15

in the plan that you had drafted before

16

which the criteria were formally adopted?

16

February 16th after you received the written

14

17

A. For the most part it was final, yes.

17

18

Q. The written criteria was then adopted and given

18

A. No.

19

Q. And you don't know whether you could have

19

20
21
21

to you?
A. Yes. I don't really recall how they were given
to me, but I was aware they had been adopted.

20

instructions?

drafted a plan that would have divided fewer

21
21

counties and at the same time achieve the
partisan objective of a 10-3 plan?

22

Q. Did you modify the plan after receiving the

22

23

written criteria as adopted on February 16th?

23

A. I did not draw such a plan.
Q. And you don't know whether such a plan can be

24

A. Yes.

24

25

Q. What modifications did you make?

25

198

drawn?

200

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January 24,
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A. I would say, with my experience in
redistricting, it would be difficult, but it

11

may -- it would have been difficult.
Q. Do you know whether a plan could have been

3

drawn -- could divide fewer VTDs than the 13
which you divided in the 2016 plan and still
achieve the partisan objective?
A. I don't think dividing one less precinct would
have made one bit of difference one way or the
other.
Q. So the question is: Do you know or do you not
know?
A. I know it would not have made a difference.
Q. So you could have achieved the 10-3 partisan
advantage and divided fewer VTDs than you
divided in the plan; is that correct?
A. I don't believe that. As you asked it, the
theoretical minimum number of VTDs one could
divide in a 13-district plan is 12 unless you
divide a VTD more than one time, which is
essentially another division. I said that
before today.
Q. And so under the criteria on compactness, the
instructions were that counties could be divided
under certain circumstances, correct?

5

2

4

6
7
8
9
10

11
11
12
13
14
15
16
17
18
19

Q. And you divided counties for political impact?
A. The primary reason for dividing counties was to

conform to one-person, one-vote, but, yes, the
politics was considered when county divisions
were made.
Q. So if there were a collision between politics
and keeping counties whole, politics won?
MR. FARR: Objection.
THE WITNESS: No, that's not correct.
BY MR. BONDURANT:
Q. You told us that you divided counties for
political impact, correct?
A. No, I didn't tell you that. Within counties
that were split, politics were considered.

That's not -- what you said is not what I said.
Q. Well, the instructions were that you could
divide counties for political impact.
Did you follow those instructions?
MR. FARR: I think he's answered the

20

question, but you can go ahead and answer it

21
21

again.

22

THE WITNESS: I wouldn't characterize

23

what I did that way.
When a county was divided and when the

24
25

plan was presented to the chairman as presented,

201
11
2

3
4
4

5
6
7
8
8
9
10
o
11
11

A. The instructions were to adhere to the
one-person, one-vote rule. And once again, it

203
1
1

it was explained to them and it was explained --

2

those splits were explained to them and they
were okay with the plan as drawn.

3

would be impossible to draw a plan that's
compliant with one-person, one-vote without

4

dividing counties.
Q. You could also under the instructions divide

5

counties by considering incumbency to avoid
pairing incumbents.

7

6

8
9

If you turn to the second page of the

exhibit, the last sentence under Compactness:

10

"Division of counties shall only be

11
11

"Division

12

made for reasons of equalizing population,

12

13

consideration of incumbency and political
impact."

13

14
15
16

17
18

14
15

So there were three exceptions that you

16

could divide counties, correct?

17

A. That's what the -- that's what the criteria
state, yes.

18

Q. But because you paired two incumbents, you did
not divide counties for incumbency?

19

21
21

A. The pairing of the incumbent formerly in the

21
21

22

13th was not a result of not dividing a county.

22

23

Wake County was divided no matter which way that
line went. That line went the way it went more

23

for compactness purposes than anything else.

25

19

20

24
25

202

20

24

No way would I have ever brought a plan
presentation without their knowing what had
happened.
BY MR. BONDURANT:
Q. Is there anything in the written criteria that
says that maintaining county whole would
predominate over political objectives?
A. I don't know. You'd have to read them.
Q. Can you point to anything in there, the
documents you have before you and have seen it.
A. I could read it all. I don't know whether it
was in there or not, but those were part of my

instructions because that's part of placing
community of interest together. And part of
fulfilling the predominate motivation for the
plan which was to draw a plan that was
acceptable to the Court. And maintaining
counties whole is a preeminent neutral criteria
across the United States, and it's a criteria
which courts have mentioned time after time.
Q. Is there anything in this document or in any
written communication to you that tells you that

204

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201 to 204)
204)
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Page
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DISCOVERY COURT REPORTERS
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 THOMAS B. HOFELLER

January 24,
24, 2017

11

keeping counties whole would predominate over

11

BY MR. BONDURANT:

2

the political objective?

2

Q. You were not told to pay any attention to

3
4

MR. BERNIER: Objection; asked and
answered. Object to form.

3

municipal boundaries?

4

A. Again --

THE WITNESS: Okay. Under the

5
5

Q. Is that yes or no?

6

compactness rule, it says "Division of counties

6

A. Yes, I actually believe that I was told that

7

shall only be made for reasons of equalizing

7

orally, but that implicitly goes without not

8

population, consideration of incumbency and

8

dividing counties.

9

political impact."

9

The problem you have in North Carolina
is that county corporate limit lines are very

5

10

11
11

10

There was no other reason given for

dividing counties, but it was implicit in the
situation that we were dealing with the Court

11

irregular, and it actually clashes with the rule

12

to keep VTDs whole. So you can't go both ways.

13

that we keep counties and VTDs whole whenever

13

You either go one way or the other, and you

14

possible. Again, I believe that was one of the

14

would divide hundreds of VTDs -- hundreds of

15

complaints that the Court registered in their
decision about the other plan.

15

12

16
17
18
19

16

cities if you follow just corporate limits.
Q. Turn back momentarily to Exhibit 14, which is

BY MR. BONDURANT:

17

Q. Is that the only language to which you can

18

A. The 1916 version?
Q. Look at the fifth page, top right-hand corner.

the Maptitude software description.

point? It says division of counties shall only

19

20

be made for reasons of equalizing population,

20

21
21

consideration of incumbency and political
impact?

21
21

There's a bullet point:

22

"Identify communities of interest,

Is there anything in the adopted

23

22
23
24

criteria that even uses the words "communities

24

25

of interest"?

25

You have it?

geographically cohesive areas such as
cities, neighborhoods, or racial or
ethnic enclaves that tend to have similar

205

207

11

A. I don't think that word is in there, no.

1
1

2

Q. Is there anything in the written criteria that

2

interests and vote as a bloc."
MR. FARR: What page are you on, Emmet?

3

says that municipalities or trade areas should

3

BY MR. BONDURANT:

4

not be divided?

4

Q. That's one of the capabilities of Maptitude,

5

I've never heard of a trade area.
A. Pve

5

6

Q. You never heard of a trade area?

6

MR. FARR: Where are you?

7

I've never heard of it mentioned as any
A. I mean, Pve

7

MR. BONDURANT: Page 5.

8
9
10
to
11

12
13
14

8
8

sort of a measurable criteria.

9

Do we have maps to trade areas?
Q. Is there anything that mentioned communities of

interest in the criteria?
A. I don't believe so except -- except indirectly.
A county is a community of interest.
Q. Your Maptitude program enabled you to identify

isn't it?

THE WITNESS: Well, we could get into a

half-hour discussion here about what Maptitude

10

means by communities of interest, but there

11
11

are -- there is nothing in Maptitude's

12

demographic database that I know of,

13

particularly in the version of Maptitude that

14

I've been using, that identifies anything else
than corporate limits and what they call census

15

communities of interest as one of the specific

15

16

programmable impacts in the plan, isn't it?

16

designated places, except for other things like

17

Indian reservations and such, but community of

17

FARR: Objection.
MR. FARR

18

THE WITNESS: No, that's not accurate.

18

interest has a multitudinous meaning depending

The problem with that has always been

19

on who wants to apply what community of

19

20
21
21

20

whose community and whose interest.
City -- corporate boundaries are in the

interest.

21
21

BY MR. BONDURANT:
Q. In short, you were not instructed to consider

22

system. Counties are in the system. Some other

22

23

governmental entities are in the system, but I

23

communities of interest in the adopted criteria

24

don't believe that Maptitude identifies anything

24

and you did not do so?

25

other than those in its levels of geography.

25

206

MR. FARR: Objection. He's been asked

208

52 (Pages
(Pages 205 to 208)
208)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
251
of
662
DISCOVERY COURT REPORTERS
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 THOMAS B. HOFELLER

1
1

January 24,
24, 2017
11

five times.

2

THE WITNESS: I define a county as a

BY MR. BONDURANT:

2

Q. Can you identify Exhibit 27, please.
A. It -- it's a special report that was made up of

3

community of interest, it's a recognized

3

4

community of interest, and as such I was

4

the plan. I believe this was the report that

5

certainly directed to adhere to that.

5

was presented to the committee at the beginning

6

BY MR. BONDURANT:

6

7

Q. Dr. Hofeller, in constructing your plan, did

7

Q. And it reflects what data?
A. Total population data and political data. Let

8

you -- let me withdraw that. If I can find --

8

9

excuse me.

9

10

10

A. Can I have a break, please.

11
11

MR. BONDURANT: Certainly.

11

12

THE VIDEOGRAPHER: Off record at

12

13

4:54 p.m.

had difficulty in identifying what the headers

14

15

THE VIDEOGRAPHER: On record at

15

18

16

5:09 p.m.
(WHEREUPON, Plaintiffs' Exhibit 25 was
marked for identification.)

18

Q. Population data and the results of statewide

19

20

Q. Can you identify Exhibit 25 as the 2016

20

21
21

Congressional Contingent Plan Corrected that you

21
21

22

drafted?

22

24
25

23

(WHEREUPON, Plaintiffs' Exhibit 26 was

elections from 2008 through 2014, excluding the
presidential elections in 2008 and 2012,
correct?
A. Yes, but I don't think there's any 2014 data in
this report because I didn't see it at first.

24
25

marked for identification.)

drafting the 2016 plan?
A. In part, yes.

BY MR. BONDURANT:

A. Yes.

Q. Exhibit 27 is the data on which you relied in

17

19

23

So it has a number of political races.
I remember listening at the hearing and people
were all about.

(Brief Recess.)

17

me see if it has registration on it. I don't
believe it does.

13

14

16

of their hearing.

(WHEREUPON, Plaintiffs' Exhibit 28 was
marked for identification.)

209

211

11

BY MR. BONDURANT:

1
1

2

Q. Can you identify Exhibit 26 as the General

2

Q. Can you identify Exhibit 28.
A. Those are statewide totals for various

3

Assembly's website showing the data on which you

3

4

relied in drafting the 2016 plan?

4

5
6
7

MR. FARR: Objection.

Q. And are those --

I'm sorry, there's no
THE WITNESS: Pm

6

A. And it also would give you a key to

data on this sheet.
BY MR. BONDURANT:

9

Q. You get the data by going to the computer and

7

understanding what the column headers were on

8
8

Exhibit 27.

9

10

asking for the PDF of the 2004 election runs,

10

11

2008 election returns and so on, correct?

11
11

13

elections.

5

8
8

12

BY MR. BONDURANT:

A. Actually, the state has more data than is listed

12

Q. You read Exhibits 27 and 28 together, correct?
A. Yes, unless you knew what the -- knew what they
stood for.
Q. And Exhibit 28 are the results of the 2008

13

through 2014 elections on which you relied in

Q. Well, I understand.

14

drafting the 2016 plan?

15

A. Okay. So it's part of the data that the state

15

A. They include the elections that I used.

16

has, and it's -- implicit by that it's part of

16

Q. Help me understand how you used these election

17

the data that I would have had available to me

17

results. Did you weight the results in some

18

if I had wanted to draw it down.

18

elections more heavily in others?

14

on here.

19

But most of the data is actually census

19

20

data. We had the '04 returns, the '08 returns

20

Q. Did you take an average?

21
21

-and the '10 returns, but we also had some --

21
21

A. Yes.

22

when this plan was drawn, we had '12 returns and

22

Q. So you averaged all of these together and just

23

'14 returns.

23

used a single numerical average in identifying

24

which VTDs were likely to vote Democratic and

25

which VTDs were likely to vote Republican?

24
25

(WHEREUPON, Plaintiffs' Exhibit 27 was
marked for identification.)

210

A. No.

212

53 (Pages
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Document
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Filed
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Page
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of
662
DISCOVERY COURT REPORTERS
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 THOMAS B. HOFELLER

January 24,
24, 2017

11

MR. FARR: Objection.

11

2

THE WITNESS: As you stated the

2

3

Democratic or Republican county.
Q. When you say thematics, you're speaking of the

3

question, the answer is no.

color codings?

4

BY MR. BONDURANT:

4

A. Yes.

5

Q. How did you use these results?

5

Q. And the color codings told you whether or not a

A. I used only part of these results. There would

6

county was more likely to vote Democratic than
Republican?

6
7

be no need to use all of these contests in order

7

8
8

to get a pretty good cross section of what the

8

9

past vote had been.

9

FARR: Objection.
MR. FARR
THE WITNESS: Again, I didn't have the

10

Q. Which contest did you use?

10

11

A. I can't tell you off the top of my head. I

11
11

legislative districts in these areas and I
remember what the legislative districts look

12

would be glad to provide that if you want it.

12

13

Q. I would like for you to do so. How long will it

13

14
15
16
17
18

take you to do that?

A. Well, I don't have it with me, so I'd at least

totals, but, also, I've drawn a lot of

like too.

14

BY MR. BONDURANT:

15

Q.
Q.

And in each instance you were relying primarily

have to get back and give it to my attorneys and

16

on the voting history of people in that county

they can give it to you.

17

as you were in the VTDs in deciding whether you

Q. So if I understand your answer correctly, you

18

would include that county in trying to create a

19

did not average all 20 races. You selected some

19

predominantly Democratic district or

20

predominantly Republican district?

of the 20 and averaged them and used that number

20

21
21

in -- as the political data which you used in

21
21

22

assigning VTDs and counties to various

22

split as few counties as possible, but if you're

23

congressional districts.

23

building a plan, as you're building a plan,

24

there's a running total -- a running tally

25

that's on the machine.

24
25

A. Where the county was split, that would be

correct.

A. Well, remember, the initial criteria was try to

213
11

Q. And where you were assigning a whole county, you

215
1
1

2

looked at the voting history in that particular

2

3

county?

3

4
5
6
7
8
8
9

A. Not really, no.

4

Q. What data -- political data did you look at for

5

a county that was not being split?
A. I didn't really look at any data for the
counties, except the populations, of course.
Q. How did you know whether the county would be

there. You have a choice. You can pick certain

fields to be summary fields.
Q. And voting history was one of those fields?

7

A. Well, it would be multiple fields, yes.

8

Q. Did you run any of the compactness measures of

9

likely to be -- if included in a district would

10

11

result in a Republican district versus a

11
11

12

Democratic district?

12

13

A. I guess -- I guess I'd have to correct my answer

13

14
14

in saying that for the whole counties I did see

14

15

the shading so I had a general idea, but I

15

16

didn't actually use the thematic display to

16

17

divide the counties.

17

I may not divide the counties. Where

of the voting history?
A. Whatever you select to display you can put up

6

10

18

Q. A running tally not only of the population but

the 2016 plan on Map Quest -- excuse me -Maptitude?

FARR: And you're talking about
MR. FARR
before the plan was enacted?
MR. BONDURANT: Before or after.
MR. FARR
FARR: Afterwards, I instruct you
not to answer that question.
MR. BONDURANT: On what ground?

FARR: Work product.
MR. FARR

18

BY MR. BONDURANT:
Q. Before the plan was enacted, did you run any of

19

the counties were divided, I used the VTD

19

20

schematic. Where the counties weren't divided,

20

21
21

a lot of it was because the counties -- there

21
21

the tests of compactness?
A. No.

22

were the same counties that were in the previous

22

Q. And was that also true of the 2011 plan?

23

-districts and because a general look at the --

23

A. I don't remember.

24
24

at the thematics of the county would give me a

24

25

rough idea of whether or not it was a strong

25

214

MR. FARR
FARR: Emmet, I also think it's
Rule 26 -- it's a rule on experts.

216

54 (Pages
(Pages 213 to 216)
216)
Case
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Document
5-1
Filed
10/14/19
Page
253
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
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 THOMAS B. HOFELLER

January 24,
24, 2017

11

BY MR. BONDURANT:

11

2

Q. Do you expect to testify as an expert in this

2

3

case?

4
5
6
7
8
9
10

MR. FARR: He doesn't know yet.

to which it is conclusive as to the fairness of
an election.

3

BY MR. BONDURANT:

4

Q. I was not suggesting whether it's conclusive or

BY MR. BONDURANT:

5

not. It's a measure based on the idea if the

Q. Do you know what subjects you are expected to

6

vote share of the major parties in a state were

7

reversed that their shares of the congressional

testify concerning?
A. I don't know. Depends on what they want me to
testify on.

8

delegation should also come close to matching

9

the vote share. Is that your --

110o

Q. So once you -- that decision is made and I

A. Okay. I think, as I understand your question,

11

presume you'll issue an expert report and tell

11

12

us?

12

conclusion, but there are a lot more factors

13

that go into who's going to win or not win an

13
14
15
16

A. If so directed, yes. That's the usual
procedure.

Q. Have you ever made a calculation of what
percentage of the statewide vote in

the answer is it's a general academic

14

election other than the statewide percentages,

15

particularly if you look at the percentages

16

within individual congressional districts.

17

North Carolina the Democrats would have to win

17

18

in order to win a majority of the congressional

18

of partisan fairness or unfairness one that is

19

well accepted in the academic community?

19

20
21
22
23
24
25

delegation under the 2011 or the 2016 plans?
A. I don't think that one necessarily follows the
other. Every election is different.
Q. My question is: Have you ever attempted to

Q. Is the concept of partisan symmetry as a measure

20

MR. FARR
FARR: Objection.

21

You can answer if you can.

22

THE WITNESS: I haven't read all the

calculate or predict what percentage of the
statewide vote Democrats would have to win in

23

articles on that so I'm not sure of what the

24

level of acceptance is.

order to win a majority of North Carolina's 13

25

1I know that it's a concept that's been

217

219

11

congressional seats under the 2016 plan which

11

around for decades, actually. I was familiar

2

you drafted?

2

with it in the '70s. And certainly in terms of

3

A. Under the 2016 plan, no.

3

an academic goal, it would be nice if we could

4

Q. If Democrats had won the same share of the
Q.

4

say that if you won a majority of the votes cast

5

statewide vote in the 2016 election as the

5

for the offices in that state, it would be nice

6

Republicans won, which was 53 percent of the

6

if you won a majority of the seats, but then

7

vote, how many additional seats would the

7

you'd have proportional representation, and this

Democrats have won in North Carolina?

8

country isn't run on proportional
representation. It's won by geography

8
8
99

o
10

9

A. It depends where they won the votes.
Q. Have you attempted to make any calculation?

10

11
u

I'm sorry. What? Calculation of?
A. Fm

11

12

Q. Of how many seats the Democrats would have won

12

facts that go into that analysis. So it isn't

13

true just standing by itself.

districts.
So there again, there are a lot of

13

if they received the same share of the statewide

14
14

vote in North Carolina as the Republicans

14

BY MR. BONDURANT:

received in congressional elections.

15

Q. Have you made any attempt to evaluate the

15
16

A. No.

16

17

word partisan
Q. Are you familiar with the wont

17

18

18

symmetry?

19

A. Yes.

19

20

teen partisan symmetry to
Q. Do you understand the term

20

21

mean that it's a measure of the fairness of an

21

22

apportionment?

23
24
24
25

partisan symmetry of the 2016 Congressional
Redistricting Plan in North Carolina?
A. No. It would be almost impossible to do with
one election.
(WHEREUPON, Plaintiffs' Exhibit 29 was
marked for identification.)

22

BY MR. BONDURANT:

FARR: Objection.
MR. FARR

23

Q. Dr. Hofeller, can you identify Exhibit 29 as the

THE WITNESS: I understand what

24

official election results in the 2016 general

25

election in North Carolina, including not only

partisan symmetry is. I don't know the extent

218

220

55 (Pages
220)
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Case
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Document
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 THOMAS B. HOFELLER

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January 24,
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the presidential vote but the vote for the

Senate and the U.S. House of Representatives?
MR. FARR: What did you describe this
MR
as, Emmet?
MR. BONDURANT: The official general
MR
election results in 2016.
MR. FARR: Okay.
MR
THE WITNESS: Actually, it includes the
U.S. Senate vote too, yes.
BY MR. BONDURANT:
Q. So it's President, Senate, House of
Representatives?
A. The federal offices.
Q. Yes. And it reflects, does it not, that you
achieved your 10-3 partisan objective of 10
Republicans being elected and 3 Democrats?
MR. FARR: Objection to the form.
MR
THE WITNESS: Again, I don't agree with
the premise of your question. If you want to
ask it a different way, I might give you an
answer you want.
BY MR. BONDURANT:
Q. Democrats were elected in the 1st, 4th and 12th
districts, were they not?
A. Yes.

MR. BONDURANT: Four in 2012.

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FARR: It was 10-3 in 2014 and 9-4
MR. FARR

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in 2012.

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MR. BONDURANT: Yeah.

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I think I have no other questions.

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THE WITNESS: Amazing.

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(Discussion held off the record.)

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EXAMINATION
BY MS. EARLS:

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Q. Good afternoon, Dr. Hofeller. I'm Anita Earls.

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A. Yes. We've met a few times.

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Q.
Q.

Yes. Thank you. I appreciate your sticking in

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with us, and I do have to ask you a few

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questions, but I'll try to be fairly brief.

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First, I want to make sure that you
received our subpoena. I think we're at 30.

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THE REPORTER: We're at 30.

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(WHEREUPON, Plaintiffs' Exhibit 30 was

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marked for identification.)

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BY MS. EARLS:

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Q. If you would take a look at what's been marked

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as Exhibit 30, do you recognize that?
A. Yes, I believe. I don't know if I saw it all,
but I saw what I needed to see.
Q. Did you see the list of documents to be produced

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Q. By large majorities?

MR. FARR: Objection to the form.
MR
THE WITNESS: Well, the sheet actually
shows the 68 percent in the 1st and a 68 percent
in the 4th and a 64 percent vote in the --MR. FARR: You're looking at the wrong
MR
thing.
THE WITNESS: I'm sorry. A 67 percent
vote in the 12th.
BY MR. BONDURANT:
Q. And those were larger percentages than any
Republican was elected in any of the ten other
districts?
A. I don't know. I'd have to look at all of them.
Actually, it's not true as you stated
it. Walter Jones got 67.2 percent of the vote
in his district and Alma Adams got 67.02.
Q. Thank you for that correction.
So the result was 10 Republicans were
elected and 3 Democrats were elected in 2016?
A. Yes.
Q. And that was the same partisan breakdown that
had occurred in 2014?
A. I think you elected 4 Democrats in 2014.
MR
MR. FARR: We'll stipulate to that.

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on the last page of this exhibit?

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A. Yes.

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Q. And feel free
fire to take a moment to review that.

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My question is whether sitting here now there

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are any documents that you're aware of that fall

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into any of these categories that haven't --

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that we have not already received.

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A. In all this, I think -- I think I've been

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responsive as I can. I don't know what some of

these statistical systems are in 6.
Q. So you're talking about the references to the
statistical analysis software, the Stata and R,
SPSS?

A. I know SPSS and I know SASS. I don't know Stata
and R. Maybe it's my vintage.
Q. I assume, then, you don't have documents that

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were -- that are code created in that software.

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A. There wasn't any new -- no, there was no code

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and no reports.
Q. And in particular, I'm
Fm interested in the

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testimony you gave earlier about the average

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that you compiled of election returns in

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analyzing the 2016 districts.

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Was that -- I don't recall us seeing
any data file that contained that average. Is

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 THOMAS B. HOFELLER

January 24,
24, 2017

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that something that you've produced already or

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you can produce?

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Q. And you submitted an expert report in that case?

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A. I did.

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A. It's not really in any data file. It's -- you

districts.

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type a formula in to Maptitude at the time you

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Q. Could you provide us a copy of that report?

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are shading the precincts and you put in the

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A. Sure.

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formula and it produces it, but it doesn't

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Q.
Q.

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actually go into any database. I think it's

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A. Absolutely.

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more done on the fly. Maybe Maptitude puts it

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Q. Now, you also testified that you haven't been

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in an intermediate file, but I know not. It's
like a black box to me.

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Thank you.

asked to do a report in this case, and I
understand the exchange that happened earlier.

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Q. Did you print out any hard reports once

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Maptitude was running that formula?

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understands if you are identified as an expert,

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then we would have another chance to depose him

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as an expert witness.

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A. The only hard copy I would have would be to
print a map which displayed the thematics, which

I just want to be clear that counsel

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I really didn't do, or of the map itself.
Q. But you can provide us the formulas so that we

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BY MS. EARLS:

can determine which -- which data you were --A. Sure.

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Q. So all of your testimony today, then, has been

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MR. FARR: Sure. Absolutely.

based on your experience in drawing

Q. -- averaging?

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congressional redistricting maps for

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A. And I'd be happy to do that.

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North Carolina, not any analysis you've done

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Q. Okay. Other than that, is there anything else

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that you have that relates to any of these

categories?
A. There's nothing in here that -- if you all have
a Maptitude system, you know what files are in

subsequent to the enactment of the 2016 map?
A. I just amend that to say it's also my experience

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in drawing congressional districts and

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legislative districts across the nation.

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Q. Okay. Let me -- I just have a couple of

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there because it would be in the same computer.

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questions about the criteria, and it might help

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They would be the same in your computer as they

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to try to do this chronologically.

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are in our computer or they would be readily

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available from the state.

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Q. Okay. You testified this morning that you are

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currently retained -- the one thing that you're

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engaged in that's not on your c.v. is a case in

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Virginia where you are retained.

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A. Yes.
Q. And can you tell me the name of that case again.

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Besilind?

I understand that you received notice
of the Court opinion in 2016 on February 5th,
the Friday night it was issued; is that right?
A. I don't know whether I actually got the decision
sent to me that night or the next day. I just

don't remember.
Q. And then who did you first have contact with
about drawing a map in response to the Court's

order?

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A. B-E-S-I-L-I-N-D versus State Board of Elections.

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A. Attorneys. Attorneys.

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Q. And what type of case is that?

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Q. And then -- and do you recall when -- when you

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A. It's -- I believe -- again, the lawyers could

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spoke with attorneys?

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speak for it better than I could, but it's

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about -- basically about compactness and the

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next day. I just don't remember. I was more

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plaintiff's witness had drawn some alternative
plaintiffs

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concerned about how we were going to meet the

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maps for his report, and I commented on that.

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deadline.

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There was also a slight reference to contiguity

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which I commented on, but it was mainly on

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compactness.

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They were suing, I believe, again, on

I'm sure it was probably the
A. Not exactly, but Pm

Q. So then who first gave you instructions
regarding the criteria you should follow in --

in constructing a remedial plan?

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A. The chairman.
Q. And who -- was that both of them together? Was

the fact that a number of districts were not in

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conformance with the Virginia State

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this a conference call? How did that happen?

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Constitution's requirement for compactness

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A. I don't actually remember. I remember that I

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January 24,
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spoke to them I think it was -- we either had a
meeting or I spoke to them on the phone, but

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there was no way I could proceed with a plan in
any reasonable fashion without knowing what

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their wishes were regarding how the map should
be drawn. Back to the architect analysis: You

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have to know what kind of a house they want.
Q. And Pm
I'm trying to be clear on who was telling
you what the criteria should be and when you
first learned that.

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So you think that it could have been a

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phone call, it could have been in person, but it

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was early -- was it the Monday after the Court
decision?

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A. It had to have been Monday. I mean, we had
eight days to draw this plan, the full map, and

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usually this is a process which spreads out over
months rather than days. Everybody thinks we
had like two weeks, but we didn't really have
two weeks to draw the plan because it had to go
through the legislative process.
Q. Was anyone else working on these congressional

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districts with you?

A. There were a number of people who came to look

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at the plans, yes.

pass it through the legislature, that you have
to start and also you have to draw a plan which

is going to be acceptable to the Court, that you
think the Court will not find
fmd fault with because
that's what the Court ordered you to do is to
draw the map, a new map. So I had to be
thinking about that.
Q. Let me just show you -- I'm going to mark this

collection of maps as a single exhibit.
(WHEREUPON, Plaintiffs' Exhibit 31 was
marked for identification.)
BY MS. EARLS:
Q. So Exhibit 31 is a collection of 22 maps, and
they all have a Bate stamp at the bottom so we

can identify the page numbers.
Are these the maps you identified as
the ones you provided to us?
A. I provided you block assignment files for all of
these maps, which is the normal way that you
transmit plans.
Q. So let me just ask you, page DEF 000042, the
first page of Deposition Exhibit 31, are you
saying you didn't actually print out this map,
you just provided a block assignment file for

it?

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Q. Who else came to look at the plans?
A. Jim Blaine came to look. Brent Woodcox came to
look. Both of the chairmen came to look. The
speaker's attorney, Woodson, and the speaker

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A. Well, of course I printed it out or you wouldn't

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have these maps. These maps came -- I printed
out for you to have, being responsive to your

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actually came to look at the plan at one point.
Q. So before they came to look at it, you had to do

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some drawing?
A. Well, yes. They're not going to come to look at

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nothing.
Q. So who did you talk to -- do you recall whether
you talked to Senator Rucho or Representative
Lewis or both of them together before you
started drawing the plans?
A. There was a stage, again, which you can see on

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the maps that I presented to you where I just
had to look and see what was possible. I

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consider that more a -- an advisory role to say
this is generally what you can do or what I

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subpoena.
Q. Thank you. That's what I was trying to
understand.
A. I think you have them probably in reverse

chronological order, but that's okay.
Q. I put them in the order they were numbered so I
apologize. So what you're saying is that the
000064 came before the 000042?
A. I'm just going to look through it briefly here
for you. It's a lot of maps.
I think they're in reverse
chronological order. I'm not absolutely -somebody may have mixed it up.
Q.
Q. Let me just start at the back, then, and ask you
about the page 64 in Deposition Exhibit 31. And
at the bottom there's a little label "Congress

think you should be doing, but you have to
instruct me on what you think is preeminent.

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And, of course, it goes without saying
that when the Court gives you an order that you

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A. Yes. That doesn't imply it was the 16th map.

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have to draw a new map and present it in -- what
was it, two weeks? Was it 14 days or was it

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Q. Does it have any significance, the 16-A?
A. You know, it had significance in my mind. I

16 days? I don't remember -- and you have to

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16-A."

think I used 16 because it was 2016. I wouldn't
take anything from most of these names.

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 THOMAS B. HOFELLER
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January 24,
24, 2017

Q. Do you know if this was a map you had drawn

11

before you talked to the redistricting chairman?
A. I'm not sure. It might have been, yes.

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Q. And is that same true of "Congress 16-W?
16-B"?

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A. I think, yes, probably.

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Q. And then what about Page 62, which is "Congress
Southern Transit," is that another example you

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were looking at before you talked to the

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chairman?

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A. Yes.

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Q. And what about Page 61, "Congress 16-C," did you

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look -- is that a map you prepared before you

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spoke with the chairman?

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A. At this point I don't rightly remember. I'm

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sorry.

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Q. I don't know -- I don't know that there's a lot

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of difference between them, but what about

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"Congress 16-D"?

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A. They're all either variations or a little more

Q. And then what about the next page, 59, "Congress
one's -- there's some pretty major
17-A," that ones
changes at this point.

A. Yeah, something that I was pretty sure wasn't
going to work at all.
Q. Why is that?
A. Well, first of all, it doesn't comply with the

criteria to try and keep incumbents to the
extent as possible in their districts. And,
its just an experiment to see what the
again, it's
possibilities could be.
Q. So before you had spoken with the chairman, what
did you -- how -- how did you know that keeping
incumbents in their districts would be a
criteria that they would want you to follow?
A. There's a big basic difference between
experimental maps that I produce and what I have
spoken to the chairman about as the general
criteria that they were interested in doing.

refinement of an area that I wanted to take off
in to try to point myself with what could be

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1I think probably at this point I had

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spoken to them, but that doesn't -- that means

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done. So as I think in line with doing my duty

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as a consultant to the chairman, I had to know

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that I have to start knowing what to do and then
modulate the maps or backtrack and get them to a

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what was possible to do -Q. Right.

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form that is within the bounds of the criteria.
Q. So when you spoke with them at some point before

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you tried the experiment that was "Congress

here's an example. I don't know that they saw
all these maps, and I probably decided that they

2

17-A," what did they tell you the criteria were
that they wanted you to follow?

weren't actually germane to the decisions they
needed to make.

4

A. -- and then say, okay, here are some examples ---

Q. And what made you conclude that?
A. Well, first of all, they weren't complete plans.

They weren't -- and as you can see, they contain
a lot of the old districts, which particularly
you can see the shape of the 4th, which I was
pretty much convinced that was going to have to

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go in its present form.
So I was just playing with different

13

areas of the state to try to figure out what was
possible so I can say, all right, this is what
we -- a direction we may need to go in. Again,
this was in my mind saying number one
overarching requirement was that we had to draw
a map that the Court would approve.
Q. So it's your testimony that you don't recall
whether the maps beginning on Page 64 up to
Page 60 were shown to the redistricting chairman
or not?
A. No, I don't think these were. These were all
drawn very close together in time.

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A. They told me what the criteria was to follow
pretty much after the Court ruling came out, but
I certainly wasn't going to waste their time
looking at maps that I didn't think were ever

going to be acceptable either to them or to
their criteria.
Q. Well, you testified before that when you talked
with them, you didn't have anything in writing
but you could -- you didn't take any notes but
you could remember the criteria they were giving
you that they wanted you to follow.
A. Well, I don't think you have to take notes to
remember the criteria. They were pretty simple.
Q. So my question to you is can you -- because as I
heard you outline the eight things that your
criteria were, it's not exactly the same as what
these written criteria are. So what were the
criteria that they told you?
A. Well, first of all, I've stated many times

23

during this deposition that the overarching

24

requirement of this map was that it be
acceptable to the Court and the Court not strike

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January 24,
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it down, and even though that's not in the
criteria statement, it's absolutely mandatory

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because there's no use wasting your time drawing
a map that you don't think the Court will do.

3

So you might call it a criteria, but
I'd likely say that it was a mandate that you

5

had to draw a map acceptable to the Court.
They'd be upset if you didn't do that.

7

And I knew that we had to have

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but make sure Anita gets to finish her question.
I'm sorry. Just hit me.
THE WITNESS: Pm
BY MS. EARLS:

Q. And that's the combination that you'll give us
the formula for?
A. Yes.
Q. Okay. So then let me understand, are the rest
of the maps from Pages 58 -- so "Congress ST-B"
-- and this is pages back up to 42 of

--

one-person, one-vote, and I knew we had to have

10
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contiguity and I knew we had to have a better
degree of compactness than the other map. We

11

looked at after you had spoken to the chairman

12

had to adhere to whole counties because -- and
whole precincts because, again, that had been

13

and you had a mutual understanding about the
criteria?

mentioned. It had been mentioned both at trial
and at -- and in the opinion, at least in my

15

right off the bat just to see what is possible.

16

1I think you have to get up to what you've

recollection of the parts of it that I read.
We obviously would avoid any contiguity

17

labeled as 53 before you start seeing something

18

near the format that the final map took, and I
say near the format.

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Exhibit 31, those are all alternatives that you

A. I think two or three of them I may have done

errors and we would avoid, to the extent
possible, of pairing incumbents, although it

19

ended up with one pair and that was actually a
Republican with a Democrat. And that was

21

certainly enough to be started on the map.
Q. So those were -- so what you just outlined are

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A. Page 53.

24

Q. And so is that a map that you then showed to the
Q.

the things that you heard verbally from the

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22

Q. So that would be the --A. 19-C.
Q. 19-C.

chairman?

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chairman?

A. It's what I remember that I heard verbally. I'm
Pm
sorry, again, it's been nine months now, and it
was a pretty fast process, I know, takes a lot
of energy just to draw the maps.
Q. And you also testified that you had some input

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6

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on the criteria, on the written criteria. Did

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you have discussions with them about each of

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these factors that were ultimately adopted as
being appropriate for criteria for these plans?

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13

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10

A. I don't remember whether I had a discussion with
each and every one, but I may have had

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A. I believe probably so. I don't know whether I
showed it to both of them, but certainly they or
their representative saw that, that map.
Q. And can you explain sort of what the thinking
was that got you from that map to the later
versions of the map? In other words, what
feedback did you get on this map that caused you
to make the changes reflected in the later maps?
A. Pll
I'll just move around the map if you want me to.
Q. Yes, please.

A. Okay. As you can see from looking at the two
maps -- do you have copies of them over there?

discussions with them -- I did have discussions

13

14

with them that would lead them to draw up that

14

looking at the map which is Page 53, which is

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criteria. Those factors were, for the most

15

16

part, discussed right off the bat.

16

the final version.
You can see that District 1 is pretty

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Q. So the other thing that I think has not come out
clearly when you were drawing these districts in

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I'm looking at the map which is Page 42 and I'm
Pm
Pm

near the format of the final map. District 3
changed the boundary line between 7 and 3 to put

2016, what was the data that you had on your
-screen in the thematic to pull up as you were --

19

A. The thematics were the combination of different
races, political races.

21
22

is pretty much as it turned out in the end

Q. Right. Election contests?
A. Election contests.

23

except that the division line in Cumberland

24

County is somewhat different.

FARR: Hey, Tom, I know it's late,
MR. FARR

238

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25

Onslow County in the 7th and to take Duplin and
Wayne out of 7 and put them into the 13th.
The configuration of the 9th district

The 12th is pretty much the format that

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 THOMAS B. HOFELLER

1
1

January 24,
24, 2017

turned out in the end. The 10th is the same.

11

mean by that?

2

The 5th is different in -- because the

2

3

13th was an attempt to split fewer counties. So
the split in Caldwell is different and it

3

5

puts -- it gets rid of the split into Iredell

5

Q. A percent difference in what?

6

County.

6

A. In the political makeup of the plan. Again, I'd

4

7
8
9

The boundary between the 13th and --

4
4

7

A. I mean they probably could have made much more
than about a percent difference or something
like that.

have to -- have to look at the two maps in

what's then the 13th in the final map was -- I'm

8
8

greater detail, but it's pretty much

sorry.

9

substantially the same format. So most of the

SC/Ty.

The 2nd was in the beginning map,

10
o

11
11

changed the number to the 13th. There was a

11
11

I'm
The only major shift was in ---- Pm

12

number split at the last minute, a number shift.

12

-trying to look at the map and -- in the --

13

So it's a different line in Guilford and some
shifts there of counties.

13

what's labeled in the final map contingency, the

14

6th -- the division actually of Guilford County.

8 is pretty much the same.
What shows up as the 2nd on the final

15

And, of course, one of the criteria that I was

16

directed was to avoid splitting counties. And

10

14
15
16

changes were cosmetic, really.

17

map was the 13th on this map that we're talking

17

in Congress 19-C, which is Page 53, you can see

18

about. So the numbers were shifted, but it's

18

that there's a triple split of Guilford and that

19

somewhat different. You can see on -- see where

19

20

the number 4 is on the map, on 19-C, the number

20

21
21

for District 4 --

21
21

wasn't acceptable.

Q. But not all the changes resulted in fewer split
counties.

22

Q. Yes.

22

23

A. -- in Wake County. There's a little appendage

23

and 4 was actually more a compactness change

24

that goes down from the middle of 13 into that

24

than anything else.

25

yellow area. That was changed.

25

A. No, but, for instance, the change we see in 13

Q. So help me understand, in this criteria,

241
11

243
1
1

I'm looking at
compactness is defined -- and now Pm

differences. 1I think the Buncombe County line

2

what was marked as Exhibit 24, I think.

3

Pm not
was maybe a little bit different, but I'm

3

4

sure there's enough detail there.

4

A. I think it's 24. Do you want a copy?

5

Q. No. I have it here.

2

5

1I think that's pretty much the

Q. What 1I was trying to understand is what -- what
Q.

Do you have that in front of you?

6

were the reasons for those changes. You gave a

6

7

couple of reasons, but are there any -- you

7

criteria is defined as -- or it says that you

8
8

mentioned for a couple of the changes it was

8

keep more counties and VTDs whole as compared to

9

done to avoid dividing a county, but are

9

the current enacted plan and then it talks about

10
o

there -- some of these changes don't avoid

10

11
11

dividing a county.

11
11

12
13
14

What were the reasons for those

changes?
A. 1I can't tell you for sure whether 19-C was what

In Exhibit 24, Compactness under the

when you can divide counties.
Is there any other -- and you testified

12

that you didn't run the compactness measures

13

prior to the plan being enacted. So other than

14
14

looking at keeping counties whole and VTDs

whole, was there anything else that you

15

we call zeroed out, had zero population

15

16

deviations.

16

evaluated in determining the compactness of the

17

districts?

17
18
19

Q. But these changes are more substantial than what
you would need to zero out the plan.
A. Yes, I agree with you. Some of them were ---

18

A. Well, 50 years of drawing districts and knowing

19

a lot about compactness, I knew there was not

20

some of them were political in nature, although

20

going to be any problem with the fact that these

21
21

1I don't know they made much difference

21
21

new districts were going to be significantly

22

politically, actually. Some degree of political

22

more compact than the plan was that was tossed

23

change.

23

out by the Court.

24
25

Q. And when you say you don't think that they made

24
24

Q. Right. But when you just told me, for example,

much difference politically, what -- what do you

25

that a change that was made between the map

242

244

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11

January 24,
24, 2017

"Congress 19-C" on Page 53 and the ultimate
enacted map "Congress 2016 Contingent-C" on

11

3

Page 42, you said, well, we made that change to

3

4

make it more compact, and I was trying to

4

5

understand what else you were using to make that
judgment other than it didn't split a county or

5

2

6
7
8
9
10
11

2

6
7

it didn't split VTDs.
A. Well, they have a test that is actually

8
8
9

recognized, to some extent, called the
interocular test and the invention of Bernie

10

Q. But you knew that without actually looking at
the racial demographics?
A. Pretty much. Oh, yes. Past experience.
And that was the only district which

was a Voting Rights district in the state or has
been since -- since the initial map that was
thrown out in the Shaw decision.
Q. I want to look at District 19 -- or Map 19-H
which -- which is -- it's number 48, Page 48 on
Exhibit 31?

Grofman --Q. That's right.

11
11

A. H?

12

Q. Yes. Congress 19-H. Did you -- did you do a

13

A. -- which is the eyeball test, and one could see

13

14

that the compactness score for 14 was going to

14

political impact analysis using the formula with
the average of election returns for this map?

15

be significantly affected by that intrusion into
the middle of the district. So it was

15

determined
detemined it would be better to do -- to not do
that unnecessarily.

17

12

16
17
18
19

22
23
24
25

18

I'm trying to find it.
A. Okay, Pm
Q. Pm
I'm sorry. It's Page 48 of Exhibit 31.
A. I got them mixed. Okay.
I want to make you understand one

MR. FARR: For what district?
THE WITNESS: This was the 4th district

19

in the plan. It was an intrusion on the
"Congress 19-C" which was an earlier map into

21
21

"W" is in
the yellow district right where the "W'
Wake County. And even though the district is

23
24

that was in the thematic display. So we might
look at several different indicator races, such

small, the compactness tests are not -- some

25

as 2014 Senate or a governor race.

20
21
21

16

20

22

thing. There was a difference between the
political statistics that we may have looked at
for the plan as a whole after -- when we were
kind of benchmarking the plan and the formula

245

247

11

compactness tests are not significantly affected

1
1

Q. So --

2

by the actual size of the district but by the
shape of the district.

2

A. So if you're looking -- we would know what the
politics of that plan were by looking at some of

3
4

3

BY MS. EARLS:

4

5

Q. So you were looking at it and determining based

5

6

on that that it was more compact by looking at

6

7

it?

7

inside Maptitude that would average out all

8
8

these scores. I suppose somebody could do it
who knew the system better than I did, but all I

8
8
9
10
11
11

12
13
14
15
16
17
18

A. Yes, and it would be.
Q. You also testified earlier about the Voting

9

Rights Act compliance. And how did you go about
ensuring Voting Rights Act compliance in drawing

10
11
11

12

the 2016 congressional plan?
A. Well, first of all, the only district we had to

13
14

worry about was District 1, and since it was
drawn in the general area that District 1 has

15

been in for decades, actually, and since I was
familiar with the old House of Representative

16
17

districts which are -- actually have been

18

19

contested now, but which were drawn in 2011,1
2011, I

19

20

knew that this new configuration was going to be
acceptable under the Voting Rights Act. And

20

indeed, if it hadn't been, the minute that
somebody wanted to look at those racial scores,

22

they would probably be objecting to it, and
those were known before the map was passed.

24

21
21

22
23
24
25

246

21
21

23

25

the races individually.
I didn't have -- I didn't have the data
point in my database that could be produced

had was me and eight days.
Q. Right. But while you might have been looking at
different combinations of election returns, I
also want to make sure we have the full universe
of election returns that you potentially were
looking at.

And is it correct that the list of
elections in Exhibit 28, the 2016 Redistricting

Database Field Key -A. 28.
Q. Exhibit 28.
A. Let me find it.
Yes, I believe that the races that I
used for the thematic -- is that what you want?
Q. Well, for both the thematic and then I'll ask
you separately for when you were evaluating

248

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January 24,
24, 2017

-the -A. Yes. These were what were -- well, these are

1
1
2

3

the races that -- the races that I used came
from races from this list.

MR. BONDURANT: And the mathematical
average or whatever.
MR. FARR
FARR: Right. Well
We'll know when we

4
4

can do that before we break up this week, I

Q. Okay. So there weren't any additional election
returns or other types of political data that

5

hope.

you were evaluating at any point in time?
A. No.

7

THE WITNESS: Ill
I'll give you --

8

FARR: Maybe we can do it before
MR. FARR

Q. So then going back to Congress 19-H, is it
possible that this was a map that had -- where

6

9
10

MR. BONDURANT: That would be nice.

you leave.

I'll give you the
THE WITNESS: Ill

11
11

formula, the actual formula that was entered in

12

I'll give you the races that
Maptitude, and Ill

A. Well, first of all, I don't agree with the
premise that the map that we have now is a 10-3

13

entered.

14

MR. BONDURANT: Good. Thank you.

plan, and I stated that before.
Q. Why not?
A. Because I think there are districts in there
that in a good election year with good
candidates the Democrats could carry.
Q. How many?
A. Three maybe.
Q. So you think that it could be a 7-6 plan, three
additional, are you saying?
A. That would be 6-7, yes.
Q. And are there some -- are there any particular

15

THE WITNESS: You're welcome.

the political data showed that it would be a 9-4
set of districts instead of a 10-3?

16
17
18
19

THE VIDEOGRAPHER: This concludes the
deposition. The time is 6:15 p.m.
[SIGNATURE RESERVED]
[DEPOSITION CONCLUDED AT 6:15 P.M.]

20
21
21

22
23
24
25

249
11

251
1

election returns that you were relying on to

ACKNOWLEDGEMENT
A C K N O W L E D G E M E N T OF
O F DEPONENT
DEPONENT

make that calculus?
A. Yes. And I've agreed to give you ---

2

4

Q. So again, that was based on your formula?

4

penalties of perjury under the State of North Carolina that

5

A. Yes.

5

I have read the foregoing pages, which contain a correct

2
3

6
7
8
8
9
10

3

Q. Okay. So then do you recall what Congress 19-H,
what your formula generated in terms of the

political impact of this set of districts?
A. Again, I'm not sure that I actually calculated

12

A. For the whole plan, yes.

A. First of all, it split an unnecessary number of
Q. Those are all my questions. Thank you.
Q

17

A. Okay.

23
24
25

Signed this the

day of

, 2017.

13

counties too.

16

22

reflected on the correction sheet attached hereto, if any.

THOMAS B. HOFELLER, Ph.D.

Q. Okay.

21
21

8

12

14

20

therein recorded, with the exception(s) and/or addition(s)

11
11

13

19

transcription of answers made by me to the questions

7

9

on a districtwide basis, so -Q. You mean on a plan-wide basis?

18

6

10

11

15

I, THOMAS B. HOFELLER, Ph.D., declare under the

14
14
15
16
17
17

MR. FARR: Thank you.

18

MR. BONDURANT: Tom, will you let us

19

know when he can give us the information
regarding these specific elections that he used

20

to prepare the 2016 plan.
MR. FARR: Sure. Well
We'll try to tell you

22

when he can get those back to you before you
leave.

24
24

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250

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252

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 THOMAS
THOMAS B.
B. HOFELLER
HOFELLER

E R R A T A SHEET
SHEET
ERRATA

1
2

January 24,
24, 2017
2017

Case Name: Common Cause v Rucho / LWV NC v Rucho

3

3

Witness Name: THOMAS B. HOFELLER, Ph.D.

4

Deposition Date: Tuesday, January 24, 2017

4

5
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Page/Line

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/

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____/____ _______________________ ___________________________

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____/____ _______________________ ___________________________

Reads

Should Read

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Signature

Date

253
1

STATE OF NORTH CAROLINA

)

ERTIFICATE
) C
CERTIFICATE
2
2

COUNTY OF WAKE

)

3
4
4

5

I, DENISE MYERS BYRD, Court Reporter and Notary

6

Public, the officer before whom the foregoing proceeding

7
7

was conducted, do hereby certify that the witness(es) whose

8

testimony appears in the foregoing proceeding were duly

9

sworn by me; that the testimony of said witness(es) were

10

taken by me to the best of my ability and thereafter

11
11

transcribed under my supervision; and that the foregoing

12

pages, inclusive, constitute a true and accurate

13

transcription of the testimony of the witness(es).

14

I do further certify that I am neither counsel for,

15

related to, nor employed by any of the parties to this

16

action, and further, that I am not a relative or employee

17

of any attorney or counsel employed by the parties thereof
thereof,

18

nor financially or otherwise interested in the outcome of

19

said action.

20

This the 6th day of February 2017.

21
21
22
23

Denise Myers Byrd
24

CSR 8340, RPR, CLR 102409-02

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254

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 Exhibit 

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 264 of 662

REPRESENTATIVE DAVID LEWIS

January 26,
26, 2017

IN THE UNITED STATES DISTRICT COURT

1
1

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

al.,
COMMON CAUSE, et al.,

2

NC DEPARTMENT OF JUSTICE
BY: ALEC PETERS, ESQ.
JAMES BERNIER, JR., ESQ.
PO Box 629
Raleigh, NC 27602
(919) 716-6400
APeters@ncdoj.gov
JBernier@ncdog.gov
JBemier@ncdog.gov

)

3

)
Plaintiffs,

)

vs.
VS.

) Civil Action
Action No.
No.
)

4
4

) 1:16-CV-2016-WO-JEP
)
ROBERT A. RUCHO, in his official

)
)

capacity as Chairman of the North

)
)

Carolina Senate
Senate Redistricting
Carolina

)
)

5

Committee for the 2016 Extra

)
)

Session and
and Co-Chairman
Co-Chairman of
of the
Session

)
)

Joint Select Committee on

)
)

7

Congressional Redistricting,

)
)

8

et al.,

)
)

6

)
)
Defendants.

9

)
)
)
)

LEAGUE OF WOMEN VOTERS OF NORTH

)
)

et al.,
al.,
CAROLINA, et

)
)

10
10

)
)
Plaintiffs,

11
11

)
)

vs.
VS
•

) Civil Action No. 1:16-CV-1164
)
12

)
)
ROBERT A. RUCHO, in his official

capacity as
as Chairman
Chairman of the North
capacity

)
)
)

Carolina Senate Redistricting

)

Committee for
for the
the 2016
2016 Extra
Committee

)
)

Session and Co-Chairman of the

)
)

2016 Joint Select
Select Committee
Committee on
on
2016

)
)

Congressional Redistricting,

)
)

et al,
et

)
)

13

Alesha Brown, SCSJ

The Reporter: Discovery Court Reporters
and Legal Videographers, LLC
BY: DENISE MYERS BYRD, CSR 8340
BRENT TROUBLEFIELD,
VIDEOGRAPHER
4208 Six Forks Road, Suite 1000
Raleigh, NC 27609
(919) 424-8242
(919) 649-9998 Direct
Denise@DiscoveryDepo.com

14

--o0o---000-15
15
16
16
17
17

)
)
Defendants.
Defendants.

Also Present:

INDEX OF EXAMINATION
Page

)
)
)
)

18
18

)
)

19
19

VIDEOTAPED DEPOSITION OF

By Mr. Thorpe..............................
Thorpe

6

20

REPRESENTATIVE DAVID LEWIS

_______________________________________________________________

21

9:28 A.M.

22

THURSDAY, JANUARY 26, 2017
_______________________________________________________________

--o0o---000--

23
24

POYNER SPRUILL

25

301 FAYETTEVILLE STREET, SUITE 1900
RALEIGH, NORTH CAROLINA

1
11

APPEARANCES
APPEARANCES

3
1
1

INDEX OF EXHIBITS

2

2

For the Plaintiffs: Common Cause, et al.
3
3
4
5
5
6
7

BONDURANT MIXSON & ELMORE
BY: EMMET J. BONDURANT, ESQ.
BENJAMIN W. THORPE, ESQ.
1201 W. Peachtree Street, NW
Suite 3900
Atlanta, GA 30309
(404) 881-4100
Bondurant@bmelaw.com
BThorpe@bmelaw.com
BThorpe@tbmelaw.com

10
11
12

Page

3

39

Outlook calendar of Rep. David Lewis

4

40

House Floor Transcripts

5

41

41

147

Article: "Legislators Meet; Coalition
Calls for Redistricting"

175

6
7

8
9

EXHIBIT NO. DESCRIPTION

POYNER SPRUILL
BY: CAROLINE P. MACKIE, ESQ.
301 Fayetteville Street
Suite 1900
Raleigh, NC 27601
(919) 783-1140
ESpeas@poynerspntill.com
ESpeas@poynerspruill.com
CMackie@poynerspntill.com
CMackie@poynerspruill.com

--o0o---oOo--

8
9
10
10
11
11
12

13

For the Plaintiffs: League of Women Voters, et al.

13
13

14
15
15
16
17
18

14

SOUTHERN COALITION FOR
SOCIAL JUSTICE
BY: AoyrrAs.EARLS,ISQ.
ANITA S. EARLS, ESQ.
1415 Highway 54
101
Suite 101
Durham, NC 27707
27707
Durham,
(919) 323-3380 x 115
AnitaEarls@southemcoalition.org
AnitaEarls@southerncoalition.org

15
15
16
16
17
17
18
18

19

19
19

For the Defendants:
20
21
22

23
23
24

20

OGLETREE DEAKINS NASH SMOAK
BY: THOMAS A. FARR, ESQ.
PHILLIP J. STRACH, ESQ.
4208 Six Fork Road
Suite 1100
Raleigh, NC 27609
(919) 787-9700
Thomas.Farr@ogletreedeakins.com
Phil.Strach@Ogletreedeakins.com

21
22
23
24
25

25

2
2

4
4

1
1 (Pages
(Pages 1
1 to
to 4)
4)
Case
5:19-cv-00452-BO
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 REPRESENTATIVE DAVID LEWIS

1
1
2

January 26,
26, 2017
11

THE VIDEOGRAPHER: On record at

2

9:28 a.m.
am. Today's date is January 26, 2017.

3

3

This is the videotaped deposition of

Q. And it is our understanding that you have waived
your legislative privilege to be here today.
MR. FARR
FARR: He's waived his legislative

4
4

David Lewis taken in the matter of Common Cause,

4
4

5

et al., versus Robert A. Rucho, et al., in the

5

6

United States District Court for the Middle

6

BY MR. THORPE:

7

District of North Carolina, Civil Action Number

7

Q. The plaintiffs in these cases have served

8

116-CV-1026-WO-JEP.

8
8

discovery requests on defendants, and I want to

9

know what search of your own documents you have

9
10

Also in the matter of League of Women

privilege in reference to the 2016 Congressional
Plan and the 2011 Congressional Plan.

Voters of North Carolina, et al., versus Robert

10

been requested to do in order to comply with

11
11

A. Rucho, et al., in the United States District

11

those discovery requests.

12

Court for the Middle District of North Carolina,

12

13

Civil Action Number 116-CV-1164.

13

14
15

Would counsel please introduce
themselves.

16
17

MR. THORPE: Ben Thorpe representing
the plaintiffs in the Common Cause case.

18

MR. BONDURANT: Emmet Bondurant

Have you been asked to search your
personal e-mail or your state e-mail for the

14

purpose of this case?

15

A. I believe I was, yes, sir.

16

Q. And how did you form that search?

17

A. The legislature has a procedure in place. Dan

18

Frye is the head of the Information Service

19

representing the plaintiffs in the Common Cause

19

Division. He and Bart Goodson, who at the time

20

case.

20

was the counsel to Speaker Moore, performed the

21
21

22
23
24
25

21
21

MS. EARLS: Anita Earls representing

22

the League of Women Voters plaintiffs.

23

MS. MACKIE: Caroline Mackie, Common
Cause plaintiffs.
MR. PETERS: Alec Peters, the Attorney

searches as were required.
Q. And they actually performed the searches on both
your state and personal accounts?

24

A. Yes, sir.

25

Q. Did they search anything beyond e-mail? Did

5

7

11

General's Office on behalf of defendants in both

1
1

2

cases.

2

3
4
4

MR. BERNIER: James Bernier, Jr., on
behalf of the defendants in both cases.

they search any paper documents?
A. They asked me if I had any notebook or anything

3

like that, and I didn't have anything that I

4

thought was responsive.

5

MR. STRACH: Phil Strach, Ogletree

5

6

Deakins on behalf of the defendants in both

6

7

cases.

7

A. Yes, sir.

8

Q. But you found no responsive paper documents?

9

A. No, sir.

8
8
9
10
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12

MR. FARR
FARR: Tom Farr, Raleigh office of

Ogletree Deakins here on behalf of the

10

defendants in both cases.

11
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DAVID LEWIS,
having been first duly sworn or affirmed by the

13

to tell the truth, the whole truth and nothing

14

EXAMINATION

those paper documents?
Q. Did you also search your home for those

Certified Shorthand Reporter and Notary Public

16

Q. And you searched your legislative office for
A. Yes, sir.

14

but the truth, testified as follows:

correct?
coifed?

12

13

15

Q. So they requested responsive paper documents,

documents?

15

A. Yes, sir.

16

Q. We'll return to some of the scheduling issues

17

BY MR. THORPE:

17

because I understand you'll be producing some of

18

Q. Good morning, Representative Lewis. My name is

18

those later in the deposition, but is it your

19

20
21
21
22
23

Ben Thorpe. I represent the plaintiffs in the

19

regular practice to schedule appointments or

I'll be taking your
Common Cause case. Pll

20

meetings with other members of the legislature

deposition today.

21
21

or related to your legislative duties in some

22

Could you state your name and address

23

for the record, please, sir.

electronic format?
A. Yes, sir.

24

A. My name is David Lewis. I reside at 118

24

Q. What format is that?

25

Kingsway Drive in Dunn, North Carolina.

25

A. If I may, I think it may help you understand if

6

8

2 (Pages
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Case
5:19-cv-00452-BO
Document
5-1
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Page
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DISCOVERY COURT REPORTERS
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 REPRESENTATIVE DAVID LEWIS
11

January 26,
26, 2017
11

I give a little bit longer answer.

2

Q. Please.

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A. The state provides a Microsoft Outlook system
that members are allowed to use, but our

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Legislative Ethics Commission issued an opinion
that only official business should be recorded

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on that calendar, so that makes it very
difficult as a part-time legislator for our

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staff to know if we're going to be in town or
out of town or what we were doing.

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going to meet with a perspective client, that
that might be considered using the state

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resources for non-official business.
I've been trying to figure out a way to

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A. Kind of an interesting answer, if you'll give me

18

just a moment. The election of 2002 was a very

streamline that, but as of yet have not been
able to reach a consensus.

19

unusual election. It's one in which the
legislative maps were challenged and actual

For the record, the state -- the
Legislative Ethics Commission is appointed by

21
21

the Speaker. It consists of three Democrats and
three Republicans, and the Senate appoints a

23

like the football game that they keep moving the

24

end time and you never really know what the

like body. So we try to run these issues

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field's going to look like.

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trouble. I say all that to say that forces
members to basically maintain their own

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lo
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calendar.
I use an iPhone. It is linked in with
the Microsoft Exchange Server. And we'll be
presenting the calendar from those dates to you
very shortly.
Q. Thank you.
So in preparing for this deposition,
what documents did you review?
A. I reviewed the complaint that was filed. I
reviewed the transcripts of the Joint
Legislative Redistricting Committee. I reviewed
the transcripts from the House Redistricting
Committee. I reviewed the transcripts from the
Senate Redistricting Committee. I reviewed the
transcripts from the public hearing that was
held, and I also took a look at the 2011
Legislative Guide to Redistricting.
Q. And who did you meet with in preparation for
this deposition?
A. To prepare for this deposition, I met with our
legal team who are seated in this room today.
Q. Did you meet with Dr. Hofeller in preparation
10

Q. So just in terms of your legislative background,
when were you first elected to the
North Carolina legislature?
A. I was elected in 2002.

Q. And when did your involvement in redistricting
begin beyond voting on plans?

elections put on hold and rescheduled I think
three times. In fact, we kind of joked it's

11
11

7

this deposition or separate?
A. Yes, sir. Yes, sir.

13

through them to make sure nobody gets in

6

the attorneys.
Q. And that briefing would be in preparation for

put -- for instance, that maybe I was going to
attend a political fundraiser or maybe I was

12

2

5

for this deposition. I cannot recall if he was
present at a briefing that may have been with

11
11

1

4

Dr. Hofeller in preparation for this deposition?
A. I did not meet with Dr. Hofeller in preparation

The concern that the Legislative Ethics
Commission came up with is if I were going to

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3

for this deposition? Prior to depositions
beginning on Tuesday, did you meet with

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So I became, I guess, acutely
interested in it because I was having to run in
a year in which litigation was radically
changing the normal schedule of elections.
Other than that, my -- I was elected in
2002, and in 2003, one of my duties was to vote
on the redistricting plan that was presented,
but I was in no way involved in the preparation
of that plan.
In 2011, then Speaker Tillis asked me
to serve as senior chairman of the House
Redistricting Committee. The House is a big
body, so it's not unusual to have multiple
chairs. My designation as senior chair meant
that I was the overall chair of the committee.
So in that capacity, I led the House
redistricting effort for both the U.S. Congress
and the North Carolina House and served in that
capacity from early 2011 until that term ended.
I do not believe the House reconstituted a
redistricting committee.
In February of 2016, then current
Speaker Moore and Senator Berger appointed a
Joint Legislative Redistricting Committee
between the House and the Senate to respond to

12
12

3 (Pages
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(Pages 9 to 12)
Case
5:19-cv-00452-BO
Document
5-1
Filed
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Page
267
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 REPRESENTATIVE DAVID LEWIS
11
2
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January 26,
26, 2017

the recent court ruling in the Harris case, and
I was named chair for the House of that

11

committee
Q. In 2011 had you requested or made known your

3

2

4
5

interest in serving as senior chair of the
redistricting committee?

6

7

A. I had not.

7

8

Q. Why do you feel you were chosen to lead that?

8

9

A. Candidly, I think there's a couple of reasons.
One, it's obvious that I'm unelectable to

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9
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congress, and so I think the Speaker felt that I
would not have personal ambition at stake.

11
11

Two, I had worked with my colleagues to
develop a level of trust and fairness. I think

13

being the redistricting chair means, you know, a
lot of people take the decisions that have to

15

come out that are policy decisions very
personally, and I think the Speaker felt that my
personality would be able to win enough votes to
pass a plan without angering too many folks.

12

14

16
17
18
19

20

Q. And when you say people may be angry because
they take decisions personally, how -- in the

21
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context of serving in the legislature, how does
that get communicated to a redistricting chair?

23

A. Well, the best way to communicate is to vote no,

25

22

24

the committee in accordance with the Chamber
rules. The chair is generally afforded the
opportunity to appoint committee staff such as
they are. We're not like congress where we have
necessarily large staffs.
The specific goal that Senator Rucho
and I had legislatively was to try and create a
plan -- we were -- we were acutely aware that
North Carolina, I believe along with Texas
combined have more legislative -- I mean more
redistricting appeals and litigation than any
other state. So we tried to develop a plan that
we thought followed the law. That's largely
documented in the legislative guide of 2011.

Off the top of my head, certainly we
wanted -- we understood in congressional
redistricting that you had the one-person,
one-vote requirement that the districts needed
to be the same size so everybody's vote counts
the same. There was compliance with the Voting
Rights Act. North Carolina had one Voting
Rights Act district. We paid special attention
to that. And then we drew the rest of the
state.
Q. And when you say "we drew the rest of the

13
1

15

but certainly you have conversations, people
say, you know, I wish you would put this line

1
1

state," you did not actually draw the lines for

2

I've always represented
here or you know Pve
County X and now I will no longer represent

3

the maps, correct?
A. I did not actually maneuver the mouse to draw

County X, why are you doing this to me. Those
are the kinds of things that are said both in a

5
6

A. Dr. Tom Hofeller.

7

formal setting such as a redistricting committee

7

Q. And Dr. Tom Hofeller was hired by you and

8

but also in the more intimate setting of the

8
8

9

hallways of the legislature or in the

9

Senator Rucho, correct?
A. During the 2011 cycle, I am unclear of exactly

2
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5
6

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10

legislative cafeteria, et cetera.

Q. Do you know who made the decision to hire Tom

12

state legislative and congressional lines?
A. Yes.

13

Hofeller as the map drawer for the 2011 cycle?
A. To the best of my knowledge, Senator Tillis had

Q. I want to talk about the 2011 plan and your role
in the creation of that plan.

15

14

16
17

You acted as senior chair of the House
Redistricting Committee and worked with

18

And forgive me, for the record, he is
now senator. I should have referred to him as
Speaker Tillis. My apologies.

Senator Rucho who was chairing the Senate

Q. But you had met Dr. Hofeller previously,

committee, correct?
coifed?

20

correct?
A. I had met Dr. Hofeller once before. I believe

21
21

22

Q. And how was your role and Senator Rucho's role

22

25

already started the wheels in motion before I
was named chair.

19

A. Yes, sir.

24

who hired Dr. Hofeller.

Q. And do legislators express those sorts of
concerns that you just talked about as to both

11
11

21
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the lines, no, sir.
Q. Who actually drew the lines for those maps?

23

defined by those chair positions?

24

A. The chair of a legislative committee is

25

responsible for the overall administration of

14
14

it was in 2009. 1I attended a meeting of the
Republican National Committee and Dr. Hofeller

was one of the presenters. He spoke about
redistricting.
16

4 (Pages
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(Pages 13 to 16)
Case
5:19-cv-00452-BO
Document
5-1
Filed
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Page
268
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 REPRESENTATIVE DAVID LEWIS

1

January 26,
26, 2017
11

At the time I held North Carolina seat

2

on the RNC's redistricting committee. I don't

2

3

recall Dr. Hofeller's presentation in great

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detail. I do recall, like everything else the
RNC does, it was you need to get ready for this,
you need to be able to raise money for this, you
need to be able to hire good people to do this,
you need to take this seriously, largely the
same kind of stuff that they always do.
Q. How did they explain the importance of those
preparations?
A. Well, they just reiterated that redistricting is
a once-in-a-decade project that many states
don't gear up for and have to kind of reinvent
the wheel every time, if you will. They talked
about just being prepared.
I do recall, of course, that there was
talk that it was widely believed that the other
side, the Democratic Party, had controlled the
redistricting process for a long time and that
there would possibly be opportunities to weaken
that iron hand that the Democrats held on in
most of the states at that point.
Q. And did you have an understanding at that
time -- at that time of the importance of

Q. And that was the only RNC redistricting
committee meeting that you attended?
A. That I recall, yes, sir.

4
4

Q. Where was that meeting?

5

A. I don't remember. The RNC will pick a city

6

somewhere in the U.S. and we're expected to fly

7

into it and to participate. I was trying to

8

remember because I anticipated you were going to

9
10

ask me that question. I cannot remember where
that meeting was. I do think it was -- they

11
11

only meet -- they only meet four times a year,

12

so I'm pretty sure it was the winter meeting

13

which is held in January, but I'm not certain of

14

that.

15

Q. But you believe it was 2009?

16

A. It was either '09 or '10, yes, sir.

17

Q. And you're certain that Dr. Hofeller presented

18

at that conference?

19

A. Yes, sir.

20

Q. Are you aware of an organization -- at the time

21
21

of the 2011 congressional plan being drafted,

22

were you aware of an organization called the

23

Republican State Leadership Committee?

24

A. No, sir.

25

Q. Were you aware of a national Republican program

17

19

11

controlling a state legislative chamber to

1
1

2

control the redistricting process?

2

A. No, sir.
Q. I'm going to turn to what was previously marked

3

A. Yes.

3

4
4

Q. And the North Carolina House was controlled by

4

5

the Democratic Party prior to the 2010 election,

5

6

correct?

6

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8
8
9

10
10
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7

A. The control had gone back and forth as far as

8

the partisan balance.

9

Q. Immediately prior to the --

called Operation REDMAP?

as Deposition Exhibit 9.
A. Thank you, sir.
MR. THORPE: I have additional copies

if folks need.
MR. FARR
FARR: I've got mine.

BY MR. THORPE:

A. Yes, sir, that's correct.

10

Q. Are you familiar with this document?

Q. And after the 2010 election, beginning in 2011,

11
11

A. I heard it discussed in a prior deposition, but

12

the Republican Party took control of the

12

I had never seen it before the deposition was

13

North Carolina House, correct?

13

taken two days ago.

14

A. Yes, sir.

14

Q. Based on that earlier discussion, can you

15

Q. And they had control of both the North Carolina

15

identify this document as a letter from the

16

17
18

House and the North Carolina Senate?
A. The Republican Party registered members were the

16

chief executive officer of the Republican State

17

Leadership Committee to legislative leaders?

18

majority in both chambers.

A. Based on the prior deposition I can. I will

19

Q. So your involvement in the Republican National

19

20

Committee -- Redistricting Committee, did that

20

this, but I would agree I think that's fair,

21
21

predate your -- based on the date that you just

21
21

yes, sir.

said, did that predate your chairmanship?

22

point out that I don't see any letterhead on

22

Q. Do you recall whether you received this letter?

A. Yes. That would have been -- the one meeting I

23

A. I do not recall receiving this and do not

24

attended in '09 was before I was named chairman

24

25

in 2011.

25

23

18

believe that I did.
Q. But you have no way of being sure that you did

20

5 (Pages
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20)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
269
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 REPRESENTATIVE DAVID LEWIS
11

January 26,
26, 2017
11

not receive this letter?

specifically with Dr. Hofeller at the time the

2

A. That's correct.

2

3

Q. Were you aware at the time that Dr. Hofeller

3

4

began working for North Carolina on the 2011

4

5

redistricting that Dr. Hofeller also worked for

5

2011 maps were being drafted about the expected

the Republican State Leadership Committee?

6

partisan performance of the plan?

6

maps were being drawn.

Q. Did you have discussions with anyone at the time
Q.
of -- anyone other than counsel at the time the

7

A. I was not.

7

8
8

Q. Were you aware that Dr. Hofeller was working on

8
8

legislators who haven't waived their legislative

9

privilege.

9
10

redistricting issues outside of North Carolina?

MR. FARR: Anyone other than other

A. Yes, I was.

10

11
mm

Q. And what did you understand his work to entail?

11
mm

want to answer your question as fully as I can.

12

A. I knew that Dr. Hofeller was involved in other

12

I've been deposed on this a couple of times. I

don't remember who all I may have spoken to.

THE WITNESS: I'm trying to recall. I

13

states. I would have to make an assumption that

13

14

he was drawing maps. The reason I knew he was

14

At some point or other I'm sure that I

15

involved in other states is we would often have

15

did speak with Representative Patrick McHenry.

16

to schedule the times that we could meet with

16

We are college friends. I don't think he asked

17

him when he was going to be in North Carolina

17

18

and not in another state.

18

BY MR. THORPE:

19

Q. In what district does Representative McHenry

19

20
21
21

Q. And for his work in North Carolina,

anything specific. I think he was more curious.

Dr. Hofeller, as a technical matter, was hired

20

by the Ogletree firm, correct?

21
21

A. I believe it's the 10th of North Carolina.

represent?

22

A. I believe that to be correct, yes, sir.

22

Q. Do you recall discussing with Representative

23

Q. And the State hired the Ogletree firm?

23

McHenry the expected changes to the 10th

24

A. Yes, sir, that's correct.

24

district of North Carolina?

Q. But you had direct communications with

25

25

A. I probably did.

21
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3
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9

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1
1

Q. In advance of the maps being enacted.

A. Yes, sir.

2

A. In advance of the maps being enacted, not only

Q. And in those communications, you provided

3

did I talk to Representative McHenry, but

4

Senator Rucho and I made an effort to reach out

5

to most of the members of Congress that we had

Dr. Hofeller regarding the 2011 plan, correct?

instructions to Dr. Hofeller as to the criteria
under which he should draw the 2011 plan,
correct?
A. Yes, sir.

6

any kind of relationship with. He knew more of

7

them than I did, frankly, but, you know, we did

Q. Those instructions were not in written form,

8
8

seek their input and advice, but I would really

9

be hard-pressed to remember the specific

though, correct?

10

A. Correct.

10

11
11

Q. Did you communicate any instructions to

11
11

conversations.
Q. Did you reach out to Democratic members of

12

Dr. Hofeller regarding the criteria for 2011 in

12

13

writing?

13

A. Yes.

Q. Which Democratic members of Congress do you

14

A. I don't believe so.

14

15

Q. What were your instructions to Dr. Hofeller in

15

16

drafting the 2011 plan?
A. I wanted to prove that we could navigate the

16

17

Congress as well?

remember reaching out to?
A. The only Democratic member that I met with was

17

Representative Butterfield. That was -- I met

18

myriad of legal court of opinions and statutory

18

with him in Raleigh in SENATOR Rucho's

19

requirements and pass a plan that complied with

19

conference room. I did not meet with any other

20

the law.

20

Democratic member of Congress.

21
21

Q. Did you discuss with Dr. Hofeller at the time of

21
21

Q. Did you provide any instruction to Dr. Hofeller

22

the 2011 plan being drafted the expected

22

for the 2011 plan that partisan advantage should

23

partisan performance of the districts he was

23

be a criteria under which the plan would be

24
25

24

drawing?
A. I don't recall that that was discussed

25

22

drawn?
A. I don't recall giving that specific criteria.

24

6 (Pages
24)
(Pages 21
21 to 24)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
270
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 REPRESENTATIVE DAVID LEWIS
11

January 26,
26, 2017

Q. Do you recall any discussion with Senator Rucho,

11

performance of those maps?

2

Dr. Hofeller or any legislative staff about the

2

3

-use of partisan advantage as a criteria --

3

election trends and felt pretty confident that

4

criterion for enacting a plan?

4

there were districts that would give Republicans
an opportunity to be competitive.

A. I don't recall any specific discussions. I

5

6

believe that partisan considerations have

6

7

historically been a traditional redistricting

7

8
8

Pm confident that at some
principle, and so I'm

8

9

point those -- we did discuss partisan

9

5

A. I believe in 2011 I did look at the historic

Q.
Q.

Let me ask about that. When you say give
Republicans an opportunity to be competitive,
what metric do you apply to that?

A. So again, you have to go back to the principles

ramifications or possibly partisan likely

10

that we were trying to operate under,

11

outcomes of the districts that were going to be

11
11

one-person, one-vote, but obviously you can draw

12

drawn.

12

lines to accomplish that in multiple ways.

10

13
14
15

13

Q. And on what basis would you assess those

outcomes?
A. I think we would have looked at historical

We did apply a partisan lens on the

14

past election results, and that was a factor in

15

creating some of the districts that we felt
would better give the Republicans an opportunity

16

votes that had been cast and try to use
vote -- yam

16

17

that as a predictor of future elections.

17

to elect candidates, where in the past the map

18

makers had made different decisions and,

19

frankly, grouped different groups of people with

A. Pm
I'm sorry, I don't understand your question.

20

a different expected outcome.

Q. For what reason did you rely on past election

21
21

18
19

20
21
21

Q. And on what basis did you rely on past election
results for that purpose?

Q.
Q.

And I just want to understand the mechanics of

22

results as a predictor of possible future

22

how you came to expect that about a particular

23

election results?

23

district.

24
25

24

A. The nature of redistricting is a political
undertaking. There are numerous laws and court

25

So you were presented with a statewide
map by Dr. Hofeller, correct?

25

27

1
1

decisions that impact the ability of map drawers

1
1

2

to create a legal document. We attempted to

2

the first time I met with Dr. Hofeller if there

3

understand all of those and apply them.

3

were 13 districts drawn.

4
5
6

4

But to be candid, when you apply all

A. It -- it got to that point. I don't remember if

You also have to remember, very early

the rules that are there, there are sometimes

5

on we were hopeful we would get a 14th seat, and

some discretionary decisions that could be made,

6

I think we missed it like by about 15,000 people

7

and I've been open and candid with folks that

7

or something like that. So I'm not certain that

8

when it gets to that point and all the other

8
8

I saw a complete map to start with.

9

thresholds have been met -- we're talking about

9

10

2011 -- that I would often view those decisions

10

11
11

through a partisan lens.

11
11

Q. So in advance of seeing a statewide map, you saw
maps of individual districts?
A. I saw -- certainly I saw the current drawing of

12

Q. And so the partisan considerations that you just

12

the map. I know I had at least one

13

discussed you would put in the category of those

13

conversation -- one conversation, as I said,

14

discretionary decisions, correct?

14

with Representative McHenry. So certainly I saw
that, the current enacted plan as a whole map.

15

A. Yes, sir.

15

16

Q. At the time of the 2011 plan, do you recall the

16

17

advantage" as
use of the specific term "partisan advantage

17

when you and I talk about a whole map,

18

I don't remember -- when you say --

a criterion discussed for drawing the

18

oftentimes you -- or I tend to look at it in

19

Pm sorry -- the congressional
legislative -- I'm

19

areas that I can understand and focus on. So it

20

maps?

20

is entirely possible that the first time

21
21

Dr. Hofeller and I looked at a map he had drawn

21
21

22

A. I don't remember if that exact terminology was

22

all 13 seats, but I don't recall that was the

Q. In 2011, when Dr. Hofeller provided the maps for

23

order that we went in.

24

the first time to you and Senator Rucho, did you

24

25

have any discussion of the expected partisan

25

23

used in 2011.

26

I also don't recall, frankly, getting
to an individual district level until we were

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January 26,
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going to go and talk to the members of Congress.
Q. So part of what I'm interested in is how the

11

reason I worked with the press folks a little

2

bit closer than I had in the past because I was

3

maps that you looked at and the election results

3

4

you've just been testifying about paired up.

4

Q. And had you attended the trial in Harris?

5

A. I believe I got three of the four days.
Q. And I know that you were deposed in the Dixon

5

So for any map that you looked at, did

here anyway.

6

you also have election results that showed how

6

7

past elections would come out under that map?

7

case and the Covington case that you just

8

mentioned.

8
8
9

A. If I could maybe change your question just a

9

bit. We did have the -- how the elections in

10

the past did turn -- did turn out and could

10

11
11

apply them to the geographic area that the

11
11

12

districts were drawn. I think that's what

12

13

you're trying to ask.

13

14
15

14

Q. That's what I was trying to ask. You in fact

15

did that?

Did you offer any other sworn testimony

in the Harris case?
A. To the best of my knowledge, I was not called in
the Harris case.
Q. But you were aware of the Harris litigation as

it was ongoing?
A. Yes, sir.

16

A. Yes, sir.

16

Q. Did the Harris Court's decision surprise you?

17

Q. You applied the results of the past elections to

17

-A. It did. We were -- and still are, frankly --

18

the newly drawn geographic areas before the maps

18

optimistic that we followed the law and are

19

were fully enacted?

19

still optimistic that ultimately the decision

A. That was one of the criteria that we used, yes.

20

will be reversed by the Supreme Court, but, yes,

Q. Okay. I want to, I guess, fast forward a little

21
21

1I was personally surprised that the court ruled

20
21
21
22
23
24
25

22

bit to the 2016 plan.

23

You have testified that you were

as it did.
Q. Between the conclusion of the Harris trial and

asked -- you and Senator Rucho were asked by

24

the release of the Court's opinion on

Senator Berger and Speaker Moore to chair a

25

February 5th, did you have any discussions with

29

31

11

joint redistricting committee. When did that

1
1

Senator Rucho regarding the likely outcome in

2

discussion take place?
A. To the best of my recollection, the decision

2

Harris?

3

A. No.

from the Harris court came out on the 5th --Q. That's correct.

4

Q. In that same time period, did you have any

5

discussions with Dr. Hofeller at all?

A. -- of February. It's kind of -- it's kind of

6

MR. FARR: About the case?
MR. THORPE: About redistricting.

3
4
5
6
7

interesting, but -- of note, Senator Rucho and I

7

8

have kind of been the go-to people when it comes

8
8

to -- when it comes to redistricting. It's kind

9

9
10

THE WITNESS: No.
BY MR. THORPE:

of been our job to work with the Speaker and the

10

Q. After -- so your first conversation about your

11

president pro tem's press people to respond

11
11

obligations with regard to a contingent plan

12

whenever the decisions come out either in our

12

came from a conversation with Speaker Moore on

13

favor or against us.

13

the 5th, correct?

14

On the 5th of February 2016, Speaker

14

15

Moore's communications person was out so I was

15

16

more involved than usual with preparing our

16

the parameters around what we were ordered to do

17

response. I remember talking to Speaker Moore

17

were and, well, to be frank, if we were actually

18

on the 5th and him telling me to head up this

18

going to have to do it because it was my intent

process I think were -- was my charge from him.

19

that we should try to ask the Court not to

19

20
21
21

22

Q. Do you recall exactly when you learned of the

20
21
21

Harris decision?

A. On the 5th is when I began to try and understand
what the Harris court had ordered us to do, what

require this.
Q. And you testified that you were told to take

22

charge of this process. What was that going to

interesting. I was with Mr. Speas and Ms. Earls

23

entail?

24

that day giving another deposition, so I was in

24

A. The -- as we operate in two different courts,

25

Raleigh, and that's -- I think that's another

25

the court of jurisprudence and the court of

23

A. It was on a Friday afternoon. It was pretty

30

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public opinion, the first task that I had was to

1

2

get a response out that was credited to Senator

2

they're still in either the "sent" file or some
file on my computer.

3

Rucho and to me. My process to do that is we

3

Q. So as to those sorts of documents, you would

4

write the message that we want to get out. A
lot of times the press people will massage it

4

e-mail them, for example, to the press office?

5

6

for different messaging reasons, and generally I

6

A. So I think that's a two-part question. The
finished document is always e-mailed out to the

7

speak -- I have one of our attorneys review it

7

8

to make sure we're not saying something we're
not supposed to. We're always very careful to

8
8

5

9

9

10

express our displeasure without trying to offend

10

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the Court.

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13
14
15

Q. When you jointly author documents with Senator

12
13

Rucho, how do you share those documents as
they're being drafted?
A. Sometimes we literally are sitting in front of a

14
14
15

16

laptop that either a person on my staff or, more

16

17

likely, one of the press staff is using. There

17
17

18

are times when we have to call Senator Rucho or
the staff has to call me and read it and I say

19

20
21
21
22

18
19

20

it sounds okay.

21
21

You're probably asking is it ever
e-mailed back and forth; that has probably

22

23

occurred. I don't remember if it occurred on

23

24

the 5th or not because, again, I was in Raleigh.
Q. Do you keep either electronic or printed drafts
Q.

24

25

25

press. The emerging document is sometimes
edited and approved via e-mail. It's sometimes

done because we're both in the room. It's
sometimes done one of us in the room, one of us
on the phone.
So just to be clear, yes, the finished

document is always e-mailed. The developing
document is sometimes.
Q. And just to reiterate the very specific
question, when you are editing a document, do
you save separate versions or drafts of the
document?
A. I don't, no.
Q. We got a little bit derailed from your response
to how you were to take charge
chaige of the process.
I think you sort of have gone through the public
opinion side of it. What's the other side of
it?
A. Yes, sir. And I'm sorry if I went too far into

33
11
2
3
4
5
6
7
8
8
9
10

11
11

of those documents as they're edited?
A. I heard the question asked yesterday, if I may,
about deleting e-mails. I don't delete e-mails,

35
1
1

the other side.

2

If I may, again, on the 5th, we learned
of the decision. It's kind of unfortunate when

3

but I don't make any active attempt to keep
paper copies. In fact, often there aren't paper

4

copies.

6

5

7

its in the case of the press
Usually it's
statement, "Are you okay with this" or "Here, we
wrote what you said, is this okay." And
sometimes I may want to change a word or two.
Sometimes, frankly, Senator Rucho and I

8
9
10
11
11

12

don't agree on how strong or -- of how strong

12

13

the statement should be expressing our joy with

13

14

a decision or our displeasure. So we talk that
through and try to come to a consensus.

15
16
17
18
19

20

14
15

Q. So slightly different question than the one you
answered about e-mail: When you actively edit a
statement that appears in, for example, a Word
document, do you do that on a computer or do you

16
17
18
19

20

do that on a printed version of the document?

21
21

A. Usually on a computer.

21
21

22

Q. And is it your practice to keep the edits that
you would provide to either Senator Rucho or,

22

23
24
25

23
24

for example, the press office?

25

A. Only in the -- only in so much as I'm
Pm sure

34

those decisions come out on Friday because you
have to ask your staff to stay back and work and
you do yourself. So in addition to getting the
press statement out -- and I do not remember if
I made the phone call to our counsel or if the
counsel called me, but I do remember that we
agreed to meet to discuss and understand the
Harris case on Saturday the 6th at 2:00 to be

exact.
Q. So before -- I'm going to table the scheduling
discussion until we've had some chance to review
y'all are producing today.
those documents that gall
I really want to go back to ask about
what the scope of your responsibility was going
to be as chair.
A. Yes, sir. Under Speaker Tillis, he gave me
basically full authority to act on his behalf
and on behalf of the House. It was my
understanding from Speaker Moore that I would
continue to act in his stead on behalf of the
House. So I felt fully empowered at that time
to act on behalf of the House.

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January 26,
26, 2017

Q. And what did you understand your role and
Senator Rucho's role to be relative to the map

11

drawer?
A. Relative to the map drawer, like any bill is

3

2

4

received for the number of split VTDs and split
precincts was acutely on my mind, and I asked

that we do all we can not to split precincts or
split VTDs.

developed in the legislature, someone has an
idea and the idea is fleshed out in some

5
6

traditional redistricting criteria is

component or other and then it's run through the
legislative process.

7

incumbency, that we should take a look at the

8
8

incumbents and at least be knowledgeable of any

So by this point -- and I say by this
point because I've been dealing with

9

changes that we were going to do may or may not

I told him that, again, one of the

10
10

impact them.

redistricting since 2011 -- I felt a bit more
empowered and understood my role a bit better

11
11

I felt and feel that the 2011 map is
ultimately a legal document, and if you are

with the map drawer and understood that the map
drawer worked for me and at my instruction.

13

Q. And when you say at your instruction, what
instructions did you understand you would be
providing to the map drawer once the Harris
decision was released?
A. The first objective was to understand what the
Harris court was going to ask us to do. I

12

14
15
16

going to consider the incumbency of the members,
part of that consideration includes the
partisan -- I apologize, I don't know the
correct word. Part of it considering incumbency

17

is how they are registered to vote politically,

18

if they're a Democrat or a Republican.

19

20

And at this moment, those are the ones
that I recall that we discussed.

actually hoped, when I heard we had lost the
Harris case, that the Harris court might give us

21
21

some direction or some principles to use in
drawing the map.

23

A. I did.

24

Q. And so the instructions that you just recounted

The only thing that I was able to

25

come from -- and well
we'll get to the timeline --

22

Q. So that is when you hired Dr. Hofeller to be the
map drawer for the 2016 map, correct?

37
1
2
3
4
5
6
7
8
8
9
10

11
11
12
13
14
14
15
16

17
17
18
19

20
21
21
22
23
24
25

garner
gamer from the Harris decision is that that
Court said that we had not established a pattern
of racially polarized voting in the state which
means that we should not consider race in
drawing -- drawing districts.
The Court also wrote that they did not
like the serp -- I believe the word was
serpentine nature of the shape of the 12th
congressional district.
So my first job was to try to
understand what the Harris court wanted us to
do. Maybe what I learned instead is what they
didn't want us to do, which was to consider race
and they didn't like the shape of the 12th.
Q. And from that review of the Harris court
decision, what instructions did you determine
you needed to give to the map maker?
A. That race should not be considered in drawing
the map; that the shape of the 12th district
needed to change; that the traditional
redistricting principles of one-person, one-vote
would need to be honored; that traditional
redistricting principles such as compactness
should be followed; that -- to be candid with
you, since 2011, the level of criticism we

38

39
1
1

the first conversation that you had with

2

Dr. Hofeller regarding the criteria you would

3
4
5
6
7
8
9
10
11
11

12
13
14
15
16
17
18
19

20
21
21

22
23
24
25

use for the 2016 map, correct?

A. As best I recall, yes.
Q. Now, you've just discussed incumbency as a
traditional redistricting criteria. Is it your
testimony that the partisan affiliation of an

incumbent is a traditional redistricting
criteria?
A. It's my understanding that incumbency itself is,
and if you're going to consider incumbency, you
have to consider the incumbent and that would
mean that their partisan affiliation would be a
part of that to that end.
Q. On what basis did you determine the other what
you have termed traditional redistricting
criteria?
A. It probably goes without saying that I'm not an
attorney and I've never studied the law as you
have and many of the folks in this room have. I
have learned a lot, and I've tried to read the
various cases, especially those that apply to
North Carolina.
We had developed the legislator's
redistricting guide in 2011, and you simply

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begin to learn certain things are a part of the

11

2

redistricting process, and I can't say there was

2

3

any one moment where lightening came down from

3

Q. Who was in attendance at that meeting?

4
4

the mountain and I was exposed to what

4

A. I was there. Brent Woodcox was there. The

5

redistricting criteria are.

5

6

I would just say that we're all the sum

assume the offices of Ogletree Deakins, correct?
A. Yes, sir.

Ogletree counsel was there. I don't remember if

6

the Attorney General counsel was there or not.
And I believe that to be it.

7

of our parts, and I was attempting to convey

7

8
8

traditional principles as I had understood them.

8

Q. Were any other legislators at that meeting?

9

A. Senator Rucho was on the phone, but he was not

9

Q. And one of the reasons that you felt traditional
redistricting principles were important for the

10

11

2016 criteria was for the purpose of having the

11

12

plan approved by the Harris court, correct?

12

Q. And did Dr. Hofeller attend that meeting?

13

A. I don't remember if he did or not.

14

Q. Had Dr. Hofeller been -- had you decided that

10

13
14
15

A. Yes.
MR. THORPE: Do you want to take a

15

break, Tom?

16

FARR: Sure.
MR. FARR

16

17

THE VIDEOGRAPHER: Off record at

17

18

10:27 a.m.

in the room, although his presence is always
felt.

Dr. Hofeller would be hired for the 2016 plan by
the time this meeting occurred?
A. No. I made that decision at about that same

18

time. The first decision -- I don't know how

19

(Brief Recess.)

19

Pm supposed -- I wanted to fight and
much I'm

20

THE VIDEOGRAPHER: On record at

20

wanted to appeal, so that was the first thing we

21
21

discussed.

21
21

22
23

10:41 a.m.
(WHEREUPON, Plaintiffs' Exhibit 39 was
marked for identification.)

22

FARR: Okay, we're not going to
MR. FARR

23

talk about what was discussed at that meeting
with counsel.

24

BY MR. THORPE:

24

25

Q. I've asked the court reporter to mark what's now

25

THE WITNESS: Yes, sir.

41

43

11

in front of you as Exhibit 39. Can you identify

1
1

BY MR. THORPE:

2

this document, Representative Lewis?

2

Q. When did you make the decision to hire

3
4
5
6

A. Yes, sir. This is my calendar from February 6th

through, I guess, February 19th showing most of
the redistricting stuff that I did that week.

3

A. On Saturday, February 6th.

5

Q. Okay. And Dr. Hofeller was in fact hired on

6

Q. And just to clarify your last answer,

Dr. Hofeller?

4

February 6th?

7

Representative Lewis, if you could look at the

7

A. I sought his counsel. I was acting under what I

8

last page of the document.
MR. STRACH: Somebody copied this --

8
8

believed to be my authority to do so. I think

9

we later clarified in the redistricting

9

10
11
11

the 5th should be the first page and the 19th

10

committee that I did in fact have that

should be the last page.

11
11

authority, but in my mind, yes.

12

MR. THORPE:
BY MR

12

13

Q. It's the 5th through the 19th?

13

counsel, did you have a conversation with

A. Yes, sir. I apologize.

14

Dr. Hofeller on Saturday, February 6th?

Q. It's my understanding that the redactions in

15

14
15

Q. And other than conversations that involved

A. I believe we -- I do believe we spoke by phone

16

this document are nonresponsive in that they are

16

either on the 6th or the 7th to talk about the

17

not in any way related to redistricting; is that

17

Harris response.

18
19

20
21
21

22

correct?
A. That's correct.
Q. And it's my understanding if there is a page
missing, it's because there were no responsive

18

Q. Was Senator Rucho also on that call?

19

A. I don't believe he was on that call.

20

Q. And what was the substance of that telephone

21
21

entries from that day, correct?
A. Yes.

22

24

Q. This list has a 2:00 p.m. entry on Saturday,

24

25

February 6th, a redistricting meeting at I

25

23

23

42

call?
A. We have to draw a map to comply with the Harris

decision. We need to get together and talk
about it.
Q. Did you discuss at that time any of the

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January 26,
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instructions that we were talking about before

11

A. I don't remember if I came to Raleigh on Monday

we took our break?

2

the 8th or not. I certainly returned on Tuesday

A. I don't remember if we talked about any of the

3

4

drawing criteria at that point other than what I

4

5

understood the Harris court said they didn't

5

like.

6

6

the 9th.
Q. And did you meet with Senator Rucho before you
met with Dr. Hofeller?
A. I don't recall that Senator Rucho and I met face

7

Q. At that time you did not provide Dr. Hofeller

7

to face. I know that we spoke on the phone at

8

with instructions regarding other criteria to be

8
8

some point that Monday or Tuesday, but I don't

9

know that we actually met face to face before

9
10

used in drawing these maps?
A. I do not believe I did.

10

11

Q. Was it your understanding that Dr. Hofeller

11

12

would begin working on maps immediately?

12

13

A. I didn't have that understanding. It's my

going to see -- before I went to see
Dr. Hofeller.
Q. And you believe you had one phone call with

13

Senator Rucho in between the meeting at Ogletree

14

belief that what we did was arrange to meet on

14

on Saturday and the meeting with Hofeller on

15

Monday the 9th.

15

Tuesday, correct?

16

A. The best I can recall.

16

Q. So just to clarify, Monday is February 8th. The

17

9th indicates that you have a meeting with

17

Q. What was the substance of that conversation?

18

Hofeller at 4:00 p.m. Did you first meet on

18

A. We talked briefly, as best I can recall, about

Tuesday, February 9th?

19

20
21
21
22
23
24
25

19

our hope that a stay could be issued and that we

A. We did. Pm
I'm sorry. Yep.

20

could appeal the case, and then we talked

Q. On Monday, February 8th, did you have any

21
21

about -- that I was ready to hire Hofeller to

22

prepare maps that we could review. And to the

23

best of my recollection, he didn't have any

Saturday, Sunday or Monday that I called him and

24

disagreement with that.

said we need to get together.

25

communication with Dr. Hofeller?
A. To be clear, I don't remember if it was

Q. So you decided to hire Dr. Hofeller?

45
11

47
1
1

Q. Beyond that phone call in any of those three

A. Yes.

2

days, did you have any additional communication

2

Q. And Senator Rucho agreed?

3

with Dr. Hofeller?

3

A. I want to say yes because I think he did, but I

4
5

A. No.

4

Q. Are you personally aware of whether Senator

5

6

Rucho had any communication with Dr. Hofeller

6

7

during that time?

7

don't know if I can -- he didn't disagree with
it.
Q. And Dr. Hofeller in fact had been hired on that

Saturday the 6th, correct?

8
8

A. I am not.

8

MR. FARR: Objection to form.

9

Q. Did you communicate with Senator Rucho during

9

You can answer.

10

that time?

10

THE WITNESS: I think I spoke to

11

A. Senator Rucho and I spoke -- we probably spoke

11
11

Hofeller on the 6th. I don't know that we

12

by phone on Monday. I know we didn't speak on

12

actually in terms of offer an exception and

13

Sunday because, to be candid, it was the

13

consideration, I don't know that we did that on

14
14

Super Bowl.

14

the 6th, but I'm pretty sure I communicated to

15

him that I wanted him to get involved and we

15
16

FARR: Some things have higher
MR. FARR

priority.

17

BY MR. THORPE:

18

16

arranged to meet and talk about the maps at some

17

point.

Q. Where were you over the weekend, Representative?

18

BY MR. THORPE:

19

A. Well, I was supposed to be home preparing for

19

Q. Was it your understanding that Dr. Hofeller

20

in to;
the Super Bowl party I talked my wife into;

20

21
21

instead, I was at Ogletree to then return home

21
21

22

to rush for our Super Bowl party which was the

22

A. No.

23

next day.

23

Q. And you did not communicate to him prior to

24
24
25

Q. And did you return to Raleigh on Monday or on
Tuesday?

46

would begin work on the 2016 plan prior to your
meeting on Tuesday the 9th?

24

Tuesday the 9th any instructions regarding the

25

plan except as you earlier testified what the

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11
2
3
4
5

January 26,
26, 2017
1

A. Yes.

A. To the test
best of my memory, yes.

2

Q. Did you consider the strength of the revised

Q. And on Tuesday, February 9th, you met at

3

Harris court did not want, correct?

4

Dr. Hofeller's home?
A. Yes.

5

6

Q. Did you arrive with Senator Rucho?

6

7

A. No. We didn't -- we didn't ride together.

7

8
8

Q. And you had no face-to-face contact with Senator

8
8

9
10

11
11

9

Rucho in between the Harris decision and the
beginning of that meeting with Dr. Hofeller,

10

correct?

11
11

12th as a Democratic district?
A. No, we didn't. I don't recall that we looked at
was it as -- was it as Democratic as it was
before. I don't think we did that.
Q. And you're speaking now about in that initial

conversation?
A. Yes, sir.
Q. After you talked about the 12th, what was the
next topic related to the revised maps?

12

A. Not that I recall.

12

13

Q. Okay. So let's talk about the substance of that

13

-the 1st district in the 2011 map we believed --

14
14

which, again, we believed to be constitutional,

15

but that -- if -- if we were not required -- in

14
15

meeting with Dr. Hofeller. How did it begin?
A. Obviously, Dr. Hofeller and I have worked

16

together since 2011, so you exchange the normal

16

17

pleasantries. We then began to talk about the

17
17

18

Harris Court's decision. If I recall correctly,

18

19

we talked about the 12th first because we had

19

20

drawn the 12th in 2011 as a strongly Democratic

20

21
21

district because it had been adjudicated so

21
21

22

long. We talked about, you know, what do you do

22

23

with that.

23

24
25

24

One of the goals that I had, frankly,

25

because the criticism from 2011 was to keep

A. Well, we tried to go back and -- the shape of

fact, we were prohibited by the Harris court of
drawing a Voting Rights district, then the next
priority would be how do you redraw the 1st not
relying on race. Because, of course, as you
change the lines of one district, every district
that touched it would change as well.
Q. And who provided the answer to that question?
A. As best I can recall, I think we simply started
working -- Dr. Hofeller started working, to be
clear, with staying in the same basic geographic

49

51

11

counties whole and doing away with the 12th,

1
1

2

which is what the judge asked us to do, would

2

incumbency. We were able to keep more counties

3

help keep a lot of counties whole. So I

3

whole.

4
4

remember being pretty excited about that.

4

Pm only asking about this first
Q. To be clear, I'm

5

conversation that you're having about the 1st

5
6

Q. And you felt that doing away with the 12th was a

6

requirement of the Harris court?

7

A. That was my understanding.

7

8
8

Q. Did Dr. Hofeller or Senator Rucho express any

8
8

9
10

11

9

additional goals or approaches regarding

10

changing the 12th district?
A. I remember only vaguely the conversation. I

area. We did consider Congressman Butterfield's

district in this first meeting.
A. Right. Those were the -- those were the basic

goals that we talked about.
Q. And at this time neither you nor Senator Rucho
had yet presented Dr. Hofeller with the

11
11

instructions again that we talked about just
before the break?

12

think we realized that we were going to have to

12

13

collapse the district either into Mecklenburg or

13

14

into Guilford. Over half the population was

14

15

already in Mecklenburg, as I recall, and it

15

16

seemed to make a nice looking congressional

16

of the meeting or did you begin by talking about

17

district to collapse it into the 12th. So that

17

the issues that you've just discussed based on

18

may have been one -- that may have been the

18

the Harris court opinion?

first one we drew.

19

A. We talked about the Harris court opinion first,
and when -- then you say, well, how are you

19

A. It was at this meeting that we talked about

those instructions.
Q. And did those instructions come at the beginning

20

Q. Did you discuss the likely partisan outcome of a

20

21
21

district drawn entirely into Mecklenburg county?

21
21

going to try to address it and you have to kind

22

of outline general goals or objectives, which is

23

what we did.

22
23
24
25

A. I believe that was probably one of the things
that we looked at, yes.
Q. So you considered whether the revised 12th would

24
25

remain a Democratic district?

50

Q. And you provided those general goals or

objectives to Dr. Hofeller?

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January 26,
26, 2017

1

A. Yes.

1

2

Q. And did those come from you or did those come

2

3
4
5

3

from Senator Rucho in the course of that
conversation?

4

A. Mostly from me.

5

6

Q. And did Dr. Hofeller at that time provide his

6

7

input on those goals?
A. Dr. Hofeller, in every experience I've had with

7

8
9
10

11
11
12
13
14
15
16
17

18
19

20
21
21
22
23
24
25

him, has tried to be accommodating to what he's
asked to do. So like many good people,

Q. Did you communicate that Dr. Hofeller should
minimize the number of split voter districts or
precincts?
A. Yes.

8
8

Q. Did you communicate that Dr. Hofeller should
protect incumbents?

9

A. I think the words we used were we had to

10

salespeople, if you asked him can this be done,
the answer is, yes, we'll figure out how to do

11
11

it. So that's the nature of the conversation
that I recall.

13

12

14
14

Q. So in that conversation, you provided a list of
objectives and Dr. Hofeller indicated he could

15

meet those objectives?
A. I think we talked about the objectives. I don't

17
17

16

18
19

believe -- I don't think I enumerated a list
per se.

possible?
A. Yes.

20

Q. In that conversation, did you communicate to
Dr. Hofeller that race could not be considered

21
21

in drawing the maps?
A. Yes.

23

Q. In that first conversation, did you communicate

25

22

24

consider the incumbents as, you know, they're
people, they're currently serving members of
Congress. And so I don't remember that I said
at all cost we had to protect the people, but I
did think -- I'm certain that was one of the
criteria that we talked about.
And if I may, one of the reasons I'm
certain about that is Dr. Hofeller was saying
that he was not sure he had the residency
addresses of the incumbents, which is one of the
things I think I provided to him and messed that
up too, which I'm sure you'll get to that.
Q. Did you discuss the partisan affiliation of
incumbents in discussing considering those
incumbents' residences?
A. No.

53
1
2
3
4
5
6
7
8
8
9
10
11
11

12
13
14

55
1
1

that the serpentine nature of the 12th district
needed to be corrected?
A. Yes.

2

Q. In that conversation, did you communicate that
one person, one vote requirements needed to be

4

met?
A. Yes.

6

Q. In that conversation, did you communicate that
compactness would be a requirement?

8

Pm trying to
A. I remember we talked about -- and I'm
answer your question. I don't remember if I

10

3

5

7

used the word "compactness." I remember that we
talked about trying to keep counties whole.

9

11
11

12
13
14

You see, here's where my lack of

Q. Did you otherwise discuss the partisan balance
of North Carolina's congressional delegation?
A. I was certainly aware of the registration of all
the members of Congress that we had at the time,
so to the extent that the incumbents are
affiliated with one party or the other, yes, we
talked about that.
Q. You discussed that the North Carolina
congressional delegation at the time you were

having the conversation had 10 Republican
members and 3 Democratic members?
A. I believe so, yes.
Q. Did you discuss individual districts, members
from individual districts?

15

knowledge of the law gets me in trouble

15

16

sometimes. The compactness indicator that I
believe the Stephenson decision in the

16

18

legislative districts came up with about trying

18

19

to keep counties whole was a way to judge

19

20

compactness, and so I don't know if I used the

20

21
21

word compactness, but I remember saying, you

21
21

22

know, let's keep as many counties whole as we
can.
MIL

22

concerns about the ability to draw districts

23

Q. You communicated that Dr. Hofeller, in drawing
the 2016 map, should as many counties whole as

24

that would keep the incumbents elected in 2014
in their districts?

17

23
24
25

17

54

25

A. I don't remember that we discussed individual
members. At that point it was just kind of -when you talk about the incumbents, it's just
kind of understood that you're talking about
them as a collective being the members of
Congress and as individuals.
Q. Did Dr. Hofeller express to you at that time any

A. I don't know that that was immediately discussed

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January 26,
26, 2017

that day. I know we talked about if we could

11

2

all avoid -- we didn't want to place two

2

Senator Rucho went to Dr. Hofellees
Hofeller's house that

3

incumbent members in the same seat. I know we

3

I was not with him and I think it was that day

4

talked about that.

4

because I knew Hofeller was going to have to

11

5
6
7
8
8
9
10

11
11

5

I don't remember if we talked about ---

briefly -- there was at least one time that

leave pretty early.

and Pm
I'm sorry, I'll try harder. Would you ask

6

Q. And when you say that day, what day do you mean?

me that again.

7

A. As best I recall, it was probably the Wednesday,

Q. Did you discuss -- did Dr. Hofeller express any

concern about any incumbents under revised maps
being able to hold their seat?
A. Oh, I don't remember if he brought it out or I

8
8

February 10th, that Dr. Hofeller had a medical

9

issue to attend to, and I believe his -- if I

10

remember correctly, his appointment was at 11:00

11
11

or something and so I didn't see a need to go

12

brought it out that you don't actually have to

12

over there that morning, but I think Senator

13

live in the district in which you run, so we did

13

Rucho may have gone on his own that morning

14

talk about that, but I don't think we talked

14
14

15

about any concern on that day that he had about

15

16

not being able to not double bunk -- which is

16

occurred that day after Dr. Hofeller's

17

terminology for two members in the same seat. I

17

appointment?

18

don't think we talked -- I don't think he

18

A. Yes.

19

expressed concern on that day.

19

Q. And so that meeting occurred on Wednesday,

20

20

Q. That is the extent of the criteria that you or

without me.
Q. But you only participated in the meeting that

February 10th?

21
21

the instructions that you gave to Dr. Hofeller

21
21

22

regarding the districts on that day?

22

Q. What was the substance of that meeting?

23

A. We reviewed the criteria we talked about before.

23
24
25

A. It may could go without saying, but I probably

A. Yes.

should say it. We did reaffirm that it was the

24
24

By that point I believe there were some

2010 census that we had to use because that was

25

preliminary maps to look at.

57

59

11

the map we were being ordered to redraw, but I

1
1

2

believe that to be the extent of our

2

3

conversation.

3

February 9th, the criteria that you provided you
provided orally, correct?

Q. Just -- I apologize. Just to clarify an earlier
point, the meeting that you had on Tuesday,

4

Q. Did Dr. Hofeller offer any additional criteria

4

5

that may be used in drawing the 2011 -- I'm

5

A. Yes, sir.

6

sorry -- the 2016 maps during that conversation?

6

Q. You provided no document indicating those

7

A. Not that I recall.

7

criteria?

8

Q. And consistent with your earlier testimony, it

8

A. No, sir.

9

is your responsibility to provide the criteria

9

Q. Did you take any notes to that meeting regarding

10

and Dr. Hofeller's responsibility to implement

10

11

the criteria, correct?

11
11

the criteria?
A. No, sir.

12

A. Yes, sir.

12

Q. Did you take any notes to the meeting at all?

13

Q. Now, Senator Rucho testified yesterday that one

13

A. No, sir.
Q. Did Dr. Hofeller take notes regarding the

14

of the meetings with Dr. Hofeller was

14

15

interrupted by an appointment that he had. You

15

16

have on your calendar for Wednesday,

16

A. I don't know.
Q. So, I'm sorry, for the meeting on Wednesday,

criteria during the meeting?

17

February 10th, an additional meeting with

17

18

Dr. Hofeller. Were either of those meetings

18

19

segmented? Meaning did one occur -- did you

19

20

have two meetings in one day at some point?

20

21
21

A. I remember the day that Dr. Hofeller had to

21
21

some -- and I said maps. I looked at some

22

attend to a medical situation. I believe that I

22

images on the screen. Yeah, I do think there

23

waited until after he returned to go to his

23

were some there that day.

home.

24

Q. And to your knowledge, did Dr. Hofeller begin

25

working on those maps before your Tuesday

24
25

I think Senator Rucho may have gone

58

February 10th, you said that Dr. Hofeller had
begun creating maps?
A. Yes. To the best of my knowledge, I looked at

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11
2

January 26,
26, 2017

meeting or after your Tuesday meeting?
A. I believe it would have been after, but -- you

11

can zoom in or zoom out or whatever you want to

2

do, so I do think I looked at a couple of

3

know, one thing I learned doing redistricting

3

different areas where counties could be divided

4

the first time around in 2011, a lot of people

4

or would be divided.

5

just do this as a hobby and for fun. So I don't

5

6

know what Dr. Hofeller may or may not have

6

7

already done.

7

8
8
9
10

Q. And what maps did you look at on Wednesday,
February 10th?

lines, you are looking at voter districts on
either side of those lines, correct?

8
8

A. Yes, that's correct.

9

Q. And what information did you have about those

10

A. I don't remember. I remember -- I don't

Q. And presumably when you're looking at those

voter districts?

11

remember exactly what map. I remember thinking

11
11

12

that I was pleased with how the 12th looked, all

12

I'll clarify that in a minute. Nearly every

13

being contained within Mecklenburg county. I

13

time I looked at the maps, it was the political

14

can't
cant recall exactly how some of the districts

14

data from the Tillis-Hagan race in '14 and, of

15

looked. Many of them still look basically the

15

course, there's like a little running ticker

16

same as they did in the 2011 map. I noticed

16

thing, if you will, that shows how many people

17

that.

17

live in the districts. Those things I believe

18

were what were on the screen most of the time.
Q. And when you say on the screen, do you mean on

18

1I do recall one conversation that day

A. Most of the time -- and I say most of the time,

19

he and I had when we did the 2011 maps. We felt

19

20

it was an important thing to let the major

20

21
21

metropolitan areas in the state have more than

21
21

A. Yes.

22

one member of Congress. We thought that would

22

Q. And to confirm, the Tillis-Hagan 2014 Senate

23

boost their ability to get things done in

23

race was the race for which election results

24

Washington.

24

were displayed?

25

Going more with keeping counties whole,

25

the screen during that meeting with Hofeller?

A. That's the one I understood the most. There

61

63

11

1I kind of walked away from that belief and we

1
1

2

spent a lot of time talking about if there was a

2

Dr. Hofeller was using another combination of

3

way to keep Asheville whole because we had

3

political races. 1I didn't -- in my mind the

4

closest political race with equally matched

was -- there was another instance where

gotten some push back on the way it was drawn.

4

5

So we talked about that. 1I remember that

5

candidates who spent about the same amount of

6

consumed a lot of that conversation.

6

money was the 2014 U.S. Senate race. That's the

7

Q. When you say push back on the way that it was

8

drawn, you mean the way that it was drawn in the

9

2011 map?

7

Q. You chose to look at that race?

9

A. I did.

10

A. Yes, sir.

10

11
11

Q. Ultimately you determined it was not possible to

11
11

12
13

keep Asheville whole?
A. Well, we looked at a couple of different

one 1I chose to look at.

8

Q. You requested the election results from that
race?

12

A. I did.

13

Q. To view the performance of individual voter

14

scenarios, but in every scenario we came up

14

15

with, Buncombe was going to wind of being split.

15

16

Buncombe is where Asheville is. So in the end,

16

Q. In maps you were evaluating?

17

1I made the decision that the squeeze wasn't

17

A. Yes, sir, that's correct.

18

worth the effort to do. We kept it largely the

18

Q. Did you specifically look at Buncombe county?

same as it was in the 2011 plan.

19

A. I looked specifically at Buncombe county several

19

20

Q. And where counties are split, how would you

districts?
A. That's correct.

20

times, and I don't remember if we even made any

21
21

look -- when you looked at Dr. Hofeller's

21
21

changes to it in the contingent map. We

22

computer or the state computer, how would you

22

certainly -- we certainly tried.

23

look at those splits within a county?

23

Again, some of the feedback we received

24

over the four years, people felt like maybe you

25

could keep Buncombe county whole. 1I couldn't

24
25

A. On Maptitude, it's -- it's kind of like a more
advanced version of Google Maps. 1I mean, you

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January 26,
26, 2017
11

don't remember -- and I will say I don't

Q. Which congressional districts are on either side
of the county split in Buncombe county?

2

remember what I had at 5:30 that day, but I

3

don't think I made it. I think it was pretty

4

A. 10 and 11.

4

5

Q. Both of those districts are held by Republicans,

5

1
2
3

6

ever figure out a way to do that.

6

correct?

Coifed?

7

A. Yes, sir.

7

8

Q. Prior to the 2011 redistricting, Asheville had a

8
8

9
10

11
11

9

Democratic representative, correct?

10

A. I don't believe so, but I don't remember.
Charles Taylor was a long-time Republican

11
11

12

congressman from that area. I don't remember if

12

13

he still held the seat or had lost it. I'm

13

14
15
16
17
18
19

20
21
21
22
23
24
25

14

-sorry, I just -Q. That's okay.

15

A. I've been to his events. That's why I remember
his name. I'm sorry.

16

Q. The maps that you looked at in that meeting with
Hofeller, those were maps that had all 13

18

17

19

20

districts?

A. Again, you could zoom out and see 13 or you

21
21
22

could zoom in and see one.

23

Q. Dr. Hofeller testified on Tuesday that in
building these maps he would begin, for example,
with just a map for District 1 to look at how to

24
25

long.

Q. And because I failed to ask earlier, how long
did the meeting on Tuesday, February 9th last?
A. It was probably two hours or so. It wasn't
as -- it wasn't as long.
Q. Did you provide any additional instructions
regarding the criteria for drawing the 2016 maps
to Dr. Hofeller at the Wednesday, February 10th
meeting?
A. Not that I recall.
Q. What instructions did you give to Dr. Hofeller
regarding the work that you should do going
forward?

A. I don't remember how far along he was. I think
we were still trying to keep Buncombe county
whole and Asheville whole at that point, but I
don't remember. So I don't think I gave any
additional instructions other than, you know,
perhaps keep working on -- on getting a map
prepared.
Q. Did you give him any deadlines regarding a map?
A. I did not give him a deadline, I don't believe a

65
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5
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7
8
8
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lc)
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15
16

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17
18
19

20
21
21
22
23
24
25

do District 1 differently.
Did you look at any maps that had a
single district?
A. I remember looking at the 12th all contained
within Mecklenburg, I'm certain of that.
Q. When looking at the 12th district, did you look
at it given the results of the Tillis-Hagan race
that you testified previously?
A. Yes.
Q. What did you observe about the partisan
performance of the revised or potentially
revised 12th district under that race?
A. I remember, to the best of my knowledge, that
Senator Hagan had carried that area, but I don't
remember the numbers.
Q. Other than looking at maps on the screen with
Dr. Hofeller, what else occurred at that second
meeting?
A. I don't -- I don't recall. We looked at maps,
looked at -- or I say maps, looked at scenarios
perhaps is a better way to say it, but I don't
remember that we did any -- I don't think we did
anything else.
Q. How long did that meeting last?
A. If I remember correctly, it was pretty long. I

66

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1
2
3
4
5
6
7
8
9
10
11
11

12
13
14
15
16

hard deadline. He knew that we were under a
deadline of -- set by the court and we would
need at least two or three days in the
legislature. So I think it was we all were
working with the understanding that we have
something ready to go early that next week.
Q. So did you have any other meetings related to
redistricting on Wednesday, February 10th?
A. No.
Q. Did you have a follow-up meeting after the

meeting with Hofeller with Senator Rucho?
A. I didn't meet with Senator Rucho after, no.
Q. Did Senator Rucho, to your knowledge, provide
any additional instructions regarding criteria
for the 2016 plan to Dr. Hofeller on Wednesday,
February 10th?

17

A. To my knowledge he didn't.

18

Q. On Thursday, February 11th at 9:00 a.m., there's

19

20
21
21

22
23
24
25

a redistricting process meeting on your
schedule. What is that meeting?
A. Yes, sir. So one of the duties of being the
chair of the committee is to sort of map out how
things are going to go, and it's -- it was at
that day -- it was in it says in Jackson's
conference room. That's Senator Brent Jackson.

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 REPRESENTATIVE DAVID LEWIS
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January 26,
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He just has a nicer conference room than I had
access to.

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-I remember that we mapped out -- so --

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MR. FARR: Let me stop you for a

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second. Were there attorneys present for that
meeting?

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THE WITNESS: I don't remember, Tom.
MR. FARR: Okay.

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THE WITNESS: So all I remember us
doing at that meeting, though, is talking about
if there's a hard stop that the map has to be
enacted by to submit to the Court, the General
Assembly itself would need a certain amount of
time to go through the House and the Senate
process. We wanted to hold a public hearing. I
think we talked about those kind of logistical
things. I don't remember there --BY MR. THORPE:
Q. Who do you remember being present at that
meeting?
A. I am almost certain that Senator Rucho was
there. I think Senator Rucho's LA was there,
Will Verbiest. My assistant was there because,
again, this was logistical stuff.
Q. What is your assistant's name?

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Q. During this period, were you reporting on the
progress of redistricting to Senator Berger and
Speaker Moore?
A. I don't recall having a conversation with
Speaker Moore. I know I didn't have a
conversation with Senator Berger.

Q. So the only conversation that you had with
Senator Moore up to this point is the
conversation on the 5th when you learned of the
Harris decision?

A. Yes.
Q. And I understand where this is going, but to tee
this up properly, in that conversation with
Speaker Moore, did you receive any instructions
as to criteria that should be followed for the
2016 plan?

MR. FARR: And since he can't
cant waive
Speaker Moores
Moore's legislative privilege, he can't
cant

answer that question.
BY MR. THORPE:
Q. The other meetings that you had on February 11th
are listed as being related to the U.S. Census.
Did those have any bearing on the 2016
redistricting or was the 2016 redistricting plan
at all discussed at either of those meetings?

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A. No, sir.

Brent Woodcox was there. He's the
legal counsel to redistricting, so maybe that

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Q. So those are left on your schedule as responsive
because the census relates to redistricting?

was the lawyer that was there.
And I believe -- now that you've said

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lawyers, I believe Bart Goodson, who's the

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counsel to Speaker Moore, was there as well, but

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A. His name is Mark Coggins.

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I'm not certain.
Pm
Q. Pm
I'm not going to ask any questions about the

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conversation that happened at that meeting, but

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after that meeting, were there deadlines set for

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the various events that would occur over the
course of the next week?

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A. There were -- there were goals set, if you will.
I don't know that we -- let me try that answer
So when you have a lot of moving parts,

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you've got two legislative bodies that aren't
even in session at the time. I was tasked with

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Rucho on Thursday, February 11th?
A. Not that I recall.
Q. Do you recall any phone conversations to Senator
Rucho?
A. I don't recall.
Q. On Friday the only thing on the schedule is a
planning and managing process meeting. You've
testified that it is likely that the hard

14

deadlines for the following week were set at

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that meeting. Do you recall who was at that

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again.

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A. Yes, sir.
Q. Did you have any other meetings with Senator

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meeting?
A. I remember that we definitely included some of
the central staff, which is the General Assembly
term for the permanent staff at the building,

managing the redistricting process for the
House, but I don't have the authority to call

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the House back, for instance. So there were
goals set, and I think we agreed to meet the

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So I believe Erika Churchill was there.

next day, and that would have probably been when
the hard deadlines were set.

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Dan Frye was there. They may have had some of
their staff there, but I don't remember.

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because they handled the logistics of setting up
the public hearing and also of the -- preparing
for the committee to meet the next week.

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Case
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DISCOVERY COURT REPORTERS
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January 26,
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Q. Was the schedule for the following week publicly
announced that day?

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A. Certainly the public -- to the best of my
knowledge, the public hearing was announced. I

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don't remember -- I think we announced the whole

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thing, but I don't remember that exactly.

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Q. Now, between your meeting with Dr. Hofeller on
Wednesday afternoon and the end of Friday,

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February 12th, did you have any further
communication with Dr. Hofeller?
A. Yes.
Q. What was the substance of that communication?

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Pm
A. I did look at the map again. I don't -- I'm
its not on the calendar. I don't
embarrassed it's

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remember exactly when it was that I talked with
him.

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Q. Meaning you went to his house? You had another
in-person meeting with him?

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A. Yes. Yes. Apparently I didn't record it, but,
yeah, I met with Dr. Hofeller again before

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the -- before the public hearing process began
on the 15th.

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Q. But you don't know what day that meeting
occurred?

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A. I know it was not Sunday the 14th. So it would

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A. Well, again, if you're trying to keep counties
whole, we couldn't figure out any way to keep
Buncombe whole. So if you've got to split it,
the existing split that was understood by the
voters seemed to be a good place to do it. So
that would be one of the 13 splits that we have.

Q. Now, you refer -- have referred a couple of
Q.
times to the existing splits or the existing
map. Am I correct in understanding that the
2011 districts served as the base for the maps
that Dr. Hofeller was working on?
A. That may be a technical question beyond my
ability to answer, but I'd like to try.
So
SO I always referred to the 2011 map as

the enacted map or the benchmark map and then
the 2016 map as the contingent map because it
was contingent upon the Harris court approving
it. So if that's not the correct terminology,

I'm just trying to tell you that's how I used
it.
Q. But when you reviewed districts with
Q.
Dr. Hofeller, the starting point for those maps
was what you just referred to as the benchmark
map which was the 2011 districts, correct?
A. One of the considerations that we had was to
I'mjust

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change as few -- you know, have as little change

12th or Saturday the 13th. I can't remember.
Q. Did Senator Rucho also attend that meeting?

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as we could.

A. No, sir.

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have either been the afternoon of Friday the

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Q. That was a meeting just between you and

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Dr. Hofeller?

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A. That's right.

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Q. Is there anyone else who could identify when
that meeting occurred?

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A. Dr. Hofeller may have had the notes on it.

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Q. Were there notes taken at that meeting?

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A. Not in any form other than Dr. Hofeller may
have -- may have a calendar entry. I don't

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I'm sorry.
A. Pm

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Q. When you looked at maps with Dr. Hofeller, the

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comparison points when you looked at a new

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district was the 2011 map which you refer to as

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I'm going to answer yes, but Pd
I'd like to
A. So Pm

qualify it only in that I in my mind knew what
the 2011 map was largely. I don't know that we
ever put them side by side. I just -- so when

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you have lived with something as long as I have,

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the 2011 map, you just know their certain

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again, trying to figure out what the ultimate
map would look like. I don't remember

the benchmark map, correct?

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that meeting?
A. We looked at other -- different scenarios,

initial question which is --

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know.
Q. And what did you review with Dr. Hofeller at

I'm going to push for a yes-or-no answer on the
Q. Pm

features of it.
Q. When you say you don't know whether you put them

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side by side, you earlier testified that you

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were looking, for example, at the existing

specifically -- I think it was about this point
that I gave up on trying to keep Asheville

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county line split for Buncombe county. So you

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were reviewing 2011 maps in making

-whole, but other than that, I don't remember -it was not -- this one was not a particularly

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determinations about the 2016 map, correct?

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Hofeller's
A. Yes. The 2011 map was also on Dr. Hotelier's

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long one.

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computer and he could look at it as he wanted

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to.

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Q. Why did you give up on that goal?

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Case
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662
DISCOVERY COURT REPORTERS
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January 26,
26, 2017
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Q. And as Dr. Hofeller built new districts for the

2016 map, did he begin with the 2011 map to your
knowledge?
A. I don't -- I don't know that he did. Some of

Q. Did you instruct him to supply the legislature

3

with those maps?
A. I did, but I didn't know exactly how to go about

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the earlier versions of the map would lead me to
think he did.

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Q. The maps that you reviewed in that meeting on
either Friday or Saturday are near-final

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versions of the 2016 map?
A. Yes.

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Q. So -A. And I may clarify that, it's
its near the final

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version of what I intended to submit. In other
words, you can never presume the legislature is

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going to pass what you present. So it was near

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my final form. I'm
Pm not implying that it was

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absolutely done.
Q. It is the near-final version of what you

meeting.

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doing that. That's one of the things that we
established early next week that, you know,
they're going to set up a computer up for him
and all that kind of stuff.
I don't think I gave him specific
instructions come on this day and do this. I

don't think we had gotten quite to that point
yet.
Q. But you did not instruct him to make any
additional changes or revisions to the map you

saw at that meeting?
A. No, sir, not that I can recall, I didn't.
Q. So at that meeting your understanding was that
the map that you had just viewed with

intended to submit to the legislature?
A. Yes, sir.

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Q. And the map that you submitted to the
legislature was ultimately adopted with a minor

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A. Yes, sir.

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Q. On Sunday, February 14, 2016, there's a

distinction for an incumbency issue, correct?

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A. Yes, sir.

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Q. At either that meeting or in any conversation

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Dr. Hofeller would be the map that he submitted
to the legislature?

conference call listed at 5:00 p.m. What does
that entry refer to?
A. We scheduled multiple public hearings to take

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that happened since Tuesday, February 9th, did
you at any time provide Dr. Hofeller with any

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place the next day. Some of the legislative

2

additional instructions regarding criteria to be
used in developing the map?

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members that were going to preside and assist -you need to have a member at each one of these

A. I don't immediately recall that I did.
Q. Did you communicate to Dr. Hofeller any metric

5

or approach to balancing the different criteria?
A. Other than the one-person, one-vote which we

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believe is sacrosanct, no.

Q. Did Dr. Hofeller communicate to you how he

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intended to balance the criteria?

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A. I don't believe we discussed it in those terms.

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Q. Did Senator Rucho, to your knowledge,
communicate to Dr. Hofeller any additional

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instructions regarding the criteria to be used

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in developing the map between your meeting on

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Tuesday and the time that you reviewed the

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near-final maps on either Friday or Saturday?

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A. I don't know.

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Q. What instructions did you give to Dr. Hofeller

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regarding any additional changes to the maps
after that meeting?

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A. I don't -- regarding what Dr. Hofeller was

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drawing on his computer, I don't think I gave

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him any additional instructions after that

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sites. They had not taken part in the 2011
process.
So we just talked through the technical
side. So the way it will work is the presiding
chair in Raleigh will say we're going to the
Asheville site now or go to the federal site now
and then you're in charge and you recognize
whoever is signed up to speak. And we talked
about that.
Frankly, we talked about if there -because we have to, we talked about there would
be general -- there would be a sergeant-at-arms
and there would be General Assembly police and
that the most -- most of these sites were at the

community college, they were very helpful, and
the community college had provided us sort of an
emergency backup plan.
Q. So the folks on this call are principally
legislators?
A. Yes.
Q. Did they have an opportunity to ask questions
about the redistricting process that was ongoing

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 REPRESENTATIVE DAVID LEWIS

January 26,
26, 2017

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beyond the technical aspects that you just

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expressed about the public hearing?

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Q. Did you write that document?

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A. The document was written at my direction but

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A. I don't recall that anyone tried to ask one. I
don't recall. It was Valentine's Day.
Q. You don't remember any substantive discussion of

A. Yes, sir.

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largely by Brent Woodcox. The wording in there

5

is a little more his style than mine, but these

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the approach that you and Senator Rucho were

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taking to the redistricting plan or any

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discussion of the criteria in that conference

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call?

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A. No.

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Q. So that public hearing occurs on Monday,

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record from yesterday, but we drafted these as

were the criteria that I asked him to write.
Q. To your knowledge, are there multiple versions
of that document, different drafts of that

document?
A. I don't know. And again, I know this is on the

12

February 15, 2016, as you state it occurs both

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individual criteria. And so the document which

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in Raleigh and around the state via

13

is Exhibit 24 is a compilation of the adopted

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videoconference. You attend that hearing?

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criteria, but this is not actually how the

A. Yes, sir.

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16

Q. Senator Rucho attends that hearing?

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A. Yes, sir.

17

we're going to go through this in more detail a

18

Q. Does Dr. Hofeller attend that hearing?

18

little bit more, but you presented the criteria

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A. No, sir.

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Q. Did you communicate to Dr. Hofeller that he

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individually. In reviewing the criteria before
you presented them, you were viewing each

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should not attend that hearing?

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A. No, sir.

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Q. Who was aware at the time that that hearing

23

24
25

24

occurred that Dr. Hofeller was the map drawer?

25

A. I was -- I was aware that Dr. Hofeller was

document looked until after the committee met.
Q. So just to clarify, you presented the -- and

criteria on a separate page or in a separate
document?
A. I don't remember if it was just a page break or

if it was individual. I don't know.
As far as -- I know when I was

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drawing a map for me and for Senator Rucho. I

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don't know that anybody else knew that Hofeller

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was drawing our map, and I don't know who else

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4

was working on maps on their own.

4

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6

5

Q. You had not communicated that information to

6

members of the committee, for example?

presenting them, it was one criteria on the page
at a time.
Q. I understand. So your -- when did you first see

any document with written criteria?
A. I don't remember exactly when first started
working on this. May have tasked Brent to do

7

A. I don't believe I had, no, sir.

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it, and I say may because I don't remember, at

8
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Q. Had you communicated that information to Speaker

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the meeting that was held the prior week on

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10

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Moore?

A. I am certain at some point that I told him that
I was working with Hofeller, yes.
Q. Had you communicated that information to Senator

Q. 12th possibly?

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A. I don't recall at what point I asked Brent to

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Berger?

either the 11th or --

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help me compose this, but...
Q. You requested that Brent Woodcox draft a

A. I did not speak to Senator Berger.

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document reflecting written criteria for the

Q. At the time of the public hearing, did you have

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2016 plan, correct?

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any copy or physical document that reflected the

16

A. I'm sorry. Would you repeat the question.

17

Hofeller's
map that you had viewed on Dr. Hofellet's

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Q. You requested that Brent Woodcox draft a

18

computer on Saturday -- or on Friday?

18

document reflecting the intended criteria for
the 2016 plan, correct?
A. Yes, with the caveat that it was my intended
criteria, not necessarily the committee's.
Q. Understood.
When did you make that request?
A. I don't remember exactly when I asked Brent to
do it.

19

A. No, sir.

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Q. Did you have the document that ultimately became

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the adopted criteria already prepared?

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A. I certainly had thought about it. I don't

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remember if it was in its final form or not.

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Q. Okay. Let's talk about, for a second, the

25

drafting of that document.

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Case
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Document
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Page
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DISCOVERY COURT REPORTERS
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11
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January 26,
26, 2017

Q. How did you communicate your intended criteria

to Brent Woodcox?

11

significant criticism from the 2011 map on that

2

point and, two, we felt that that would be -- I

3

A. To the best of my knowledge, we were at the

3

knew that the judges were going to review this

4

legislative building in my office and we talked

4

map and they were going to look for -- to make

5

about it. I don't believe we were off site.

5

sure that we made a valid effort to comply at

6

That's to the best of my knowledge. And I don't

6

least what they asked us to do.

7

remember at what point in this we set down in my

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office and talked.

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Q. What instructions did you give Brent Woodcox as

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So one of the things that I thought

would help if the districts were compact, if the
counties weren't split, if it were a

10

to what should be included in your intended

10

good-looking map. So I -- this wording is

11

adopted criteria?

11
11

largely Brent's, but he's communicating what I

12

12

A. I asked Brent to flesh out the criteria that I

13

asked him to.

13

wanted to present to the committee, so the items

14
14

that are listed in 24 are what I asked Brent to

14

15

help me create, help me write.

15

A. That incumbency was a traditional redistricting

16

principle, that we have to acknowledge that it

16

Q. So I need to understand the substance of what

Q. What did you communicate to Brent Woodcox about
incumbency as a criteria?

17

you communicated so that I know how he knew what

17

18

to include in the document.

18

Q. What did you say to him specifically about the

exists.

19

A. Understand.

19

2000 -- protecting incumbents from the 2011

20

Q. What instructions did you provide him about what

20

maps?

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should end up in that document?
I'm
A. So I don't remember the exact conversation. Pm

A. Just that the incumbency would be acknowledged

22

and be considered as one of the criteria. I
think the ultimate language we settled on was

23

sure one of the things I said was have it

23

24
24

reflect one-person, one-vote, which he

24

reasonable effort would be made to acknowledge

25

translated into equal population. Pm
I'm sure that

25

where the incumbents live or something like

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I instructed him to say that the shape of the

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1

Pm sorry, it was a long time ago.
that. I'm

2

Pm sure I instructed him
12th had to change. I'm

2

Q. And you directed him to address that to

3

that -- that the court had told us we could not

3

4

use race.

4

A. Yes, sir.

5

Q. Which you earlier referred to as the benchmark

5

Pm
I'm sure I told him -- one of the -- I

incumbents under the enacted plan, correct?

6

don't remember if I told him this or not, but I

6

7

remember one of the things that one of the

7

A. Yes, sir.

8
8

courts had said was in drawing the 12th

8

Q. So incumbency mattered with respect to the 2011

9

originally as a heavily Democratic district

9

10
11

plan, correct?

plan?

Dr. Hofeller had used the McCain-Obama numbers

10

A. Yes, sir.

and it seems like one of the court rulings had

11
11

Q. What else did you instruct Brent Woodcox

12

said that was not an appropriate thing. So I

12

13

thought we had talked about including that in

13

14

the criteria as well, but the compactness we

14

talked about. Incumbency we talked about.

15

did talk about -- I think one of the things we

16

said was that race couldn't be considered per

17

the Harris court.

15
16
17
18

Q. What did you instruct Brent Woodcox to include
as regards compactness?

18

A. I tried to convey to him that we needed some

regarding the criteria?
A. Well, we were told by the Harris court, to my

understanding, that we couldn't use race. So we

We also talked about partisan data in

19

kind of measurable standard, like keeping

19

20

counties whole. I know there are political

20

could be considered in drawing the maps.

21
21

scientists that can do research, but I don't

21
21

Q. Did you instruct him that the criteria should

22

know how to do all that.

22

include understanding partisan data to construct

23

the maps?

23

So we talked about trying to keep

terms of historic elections were a factor that

24

counties whole and keeping VTDs and precincts

24

A. I believe the way I had been -- I believe the

25

whole largely because, well, one, we had gotten

25

way that I had told Dr. Hofeller and the way

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January 26,
26, 2017

that I told Brent is the only way we can get

11

Q. What else did you instruct Brent Woodcox?

2

this by the court is if we use only political

2

A. I don't know if he was tasked with making sure

3

data as the only other identifying information

3

we had the court reporter or not; probably not.

4

-because you've got to recall the Harris court --

4

As counsel, he wouldn't have been tasked with

5

you know, we were under the order because they

5

that.

said we had racially gerrymandered a map.

6

11

6
7
8

Q. I understand. What definition of political data

Q. More specifically, what did you instruct Brent

did you provide to Brent Woodcox? You've
earlier testified that you wanted to look at

8

Woodcox should be included in the adopted

9
10
11
12

I don't think there was ---

7

9

criteria?

10

A. I don't think there was anything else.

A. Yeah.

11
11

Q. Did you instruct Brent Woodcox that the partisan

Q. Did you specify that political data should

12

advantage criteria should be included in the

13

adopted criteria that you presented?

election returns.

13

include returns of prior elections?

14

A. I believe I did, yes, with the exception of

14

A. Yes.

15

Obama-McCain and Obama-Romney.

15

Q. What did you communicate to Brent Woodcox about

16

Q. You specified that the election returns to be

16

the partisan advantage criteria?

17

used as political data for the 2016 map would be

17

18

statewide elections that did not include the two

18

Congress consisted of 10 Republicans and 3

19

presidential elections in 2008 and 2012?

19

Democrats, and so to the extent possible, the

A. Yes, I believe that to be correct.

20

new -- or contingent map should reflect that

20
21
21

A. That the current registration of the members of

Q. Brent Woodcox included that at your direction?

21
21

22

A. Yes.

22

Q. One of your goals was to maintain the partisan

23

Q. Did you discuss any weighting of the elections

23

balance under what you've referred to as the

to be used for determining the relevance of the

24

benchmark map, correct?

political data?

25

24
25

Q.

because, again, that was one of my goals.

MR. FARR: Objection to the form.

89

91

11

A. Not with Brent, no.

1
1

2

Q. Did this discussion happen before or after you

2

3

reviewed maps with Dr. Hofeller looking at the

3

BY MR. THORPE:

4

Tillis-Hagan race?

4
4

Q. Did you give him any instruction on the specific

5
6
7
8
8
9
10
io

A. It was almost certainly before.
Thank you for providing this calendar,

language to be used for the political advantage

6

criteria?

8

It would have been -- certainly would

9

have been prior to --

10

Q. To refresh your memory, Representative, I

THE WITNESS: Yes.

5

7

by the way. It's actually very helpful.

You can answer.

A. I don't recall giving him any specific language.
That's why I was asking for his help.

Q. Did you give him any instruction about including
political considerations in any other criteria?

11

believe you earlier testified that you looked at

11
11

12

the Tillis-Hagan race for Mecklenburg county

12

13

when you met with Dr. Hofeller on Wednesday of

13

Q. Did you give him any instruction about, for

14

example, what you earlier testified as the

I'm not sure I understand your question. Pm
I'm
A. Pm
sorry.

that week.

14

15

A. That's right.

15

importance of political considerations in

16

Q. This meeting with Brent Woodcox occurred after

16

protecting incumbents?

17
18
19

17

the Wednesday of that week, correct?
A. Yes, sir.

18

Q. So at the time that you instructed Brent Woodcox

19

A. I did not give Brent any additional instructions
that I can recall.

FARR: Ben, keep going until you're
MR. FARR

20

to include partisan data, including the 2014

20

21
21

senate election as a criteria for the 2016 map,

21
21

22

you had already viewed a map with Dr. Hofeller

22

BY MR. THORPE:

23

that evaluated the performance of a district

23

Q. What direction did you give Brent Woodcox about

using that data, correct?

24

when he should provide you with the document you

25

requested?

24
25

A. Yes, sir.

90

ready to stop, but can we get to a quick break
time.

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January 26,
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A. The absolute latest that it could have been done
would have been Tuesday, February 16th, in time

1
1

A. At Dr. Hofeller's house, yes.

2

Q. So this meeting that occurred on Wednesday is
the only meeting that you attended with Senator

3

for the committee to meet. Probably I would
have asked for it on Monday the 15th.

4

Q. Did you expect to see drafts of that document
before it was completed, or did you expect to
receive a single document and accept that
document?

5
6

A. Yes.

7

Q. So yesterday Senator Rucho testified that in

8
9

A. I believe I anticipated receiving drafts and

looking at maps with Dr. Hofeller there was a
point where you were essentially choosing

adding or subtracting from them. I don't know

10

that I actually did because I think we had to
amend the -- amend the criteria once it was

11
11
12

A. I do.

presented because something was left out, but I
can't remember what it was at this exact moment

13

Q. Do you recall what the differences were between

14

in time.

15

those two maps?
A. One of the maps split more counties and more

16

Q. So just to be very clear on this, did you

17

receive any drafts of this criteria before you
presented it to the committee on Tuesday, the

18
19

following Tuesday?
A. So to be absolutely clear, I'm certain that I

20
21
21

received the language before I presented it to
the committee.

22

23

Q. In the form that it was presented?

23

24

A. Yes. I don't remember if I received other

24

25

Rucho where you evaluated maps drawn by
Dr. Hofeller, correct?

25

versions of it or not.

between two different maps.
Do you recall that process?

VTDs than the one we ultimately decided to go
forward with.
Q. So what direction did you give to Dr. Hofeller
as to which map to choose?
A. The one that best complied with all the criteria
was the one that split the fewest counties,
fewest VTDs, so that was the one that we decided
upon.
Q. And you testified earlier that you had looked at
Q.

that meeting at the election results from the

93
11
2
3
4
5
6
7
8
9
10
11

95
1
1

Tillis-Hagan Senate election when looking at

previously, would they have been received by
e-mail?

2

some district map.
Did you look at the result of the 2014

A. With Brent, probably so.
MR. THORPE: Okay, we can take a break

4

or a lunch break.
THE VIDEOGRAPHER: Off record at

6

A. Yes, sir.

7

Q. Did you look at the result of any other election

12:04 p.m.

8

when looking at the map that you chose?
A. I did not intentionally do that. At one point

Q. If you had received other versions of it

3

5

9

(Lunch Recess.)

10

THE VIDEOGRAPHER: On record at
1:13 p.m.

11
11

12

BY MR. THORPE:

12

13

Q. Representative Lewis, I want to follow up on a

13

14

couple conversations that you had in that first
week of the process that we were previously

15
16
17
18
19

20
21
21

14
15
16

discussing.

17

On Wednesday, that would be
February 10th, you attended a meeting at
Dr. Hofeller's home with Senator Rucho. You
testified earlier that at that meeting you
evaluated maps that Dr. Hofeller had worked on.

18
19

20
21
21

22

A. Yes, sir, that's correct.

22

23

Q. The only other meeting at which you evaluated

23

24
25

maps with Dr. Hofeller was on either Friday or
Saturday of that week, correct?

94

24
25

Senate election when looking at the map that you
chose?

there was a map up that I think Dr. Hofeller had
his own formula that he was using, and I just
asked for the Tillis results because I thought
that was the most reliable, most frequent -most in my mind.
Q. Do you know which other races went into the

formula that was displayed on the screen that
you saw?
A. Offhand I don't.
Q. And did you give Dr. Hofeller any direction as
to which races should be given priority in
making decisions about the map?
A. No, other than not to use the presidential in
'08 and '12.
Q. But as between the races that were available -well, first of all, were the races that were

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January 26,
26, 2017

1
1

available to Dr. Hofeller for evaluating these

1
1

2

maps identical to the races that are in the 2016

2

know that I specifically said identify their

3

stat pack?

3

party because I knew what it was, and I assume

member of Congress from your state, so I don't

4

A. Yes, sir. The one -- and to be clear, the one

4

most everybody else that serves in the General

5

that was distributed to the committee by me,

5

Assembly knows what political party the seated

6

yes.

6

7
8
9
10

11
11

Q. Understood. Which is 20 statewide races and

excludes the 2008 and 2012 presidential
elections, correct?
A. I believe that to be correct.

7
8

designed to avoid placing two incumbents in the

9

same revised district, correct?

10

Q. And those were the only races available to

members of Congress belong to.
Q. And the instruction regarding incumbency was

A. Yes, sir.

11
11

Q. And was that goal achieved?
A. With one exception.

12

Dr. Hofeller, as you just testified, were -- did

12

13

you instruct him not to use any other races to

13

Q. And that exception was?

14

which he may have had access?

14

A. Congressman Holding paired with Congressman

15
16

A. I did not.

15

Q. As between those 20 races, did you express any

16

17

preference for one race as against another in

17

18

terms of its relevance?

18

19

20

A. Again, I thought the Tillis-Hagan race was the
most relevant.

Price.
Q. And Congressman Holding, nonetheless, ran and
won in a district where he is not resident,

correct?

19

A. Yes, sir.

20

Q. Was Senator Rucho present for the conversation

21
21

Q. And you communicated that to Dr. Hofeller?

21
21

22

A. I did.

22

A. No, he was not.

23

Q. Did he communicate to you which races he felt

23

Q. Did you make Senator Rucho aware of the

24
25

24

were relevant?

25

A. He probably did say which ones were in his

with Brent Woodcox?

conversation with Brent Woodcox?
A. I don't know that Senator Rucho and I talked

97
11
2

3
4
4

99
1
1

figuring, but I don't remember what they were.
Q. Did Senator Rucho have any perspective on which
of those basket of races were relevant?

about the criteria before it was presented to

3

the committee.

4
4

A. I don't -- I don't recall that he expressed much

5

of a -- that he engaged a lot on that particular

5

6

subject.

6

7

Q. The second conversation that I had a few

about the conversation. I know that we talked

2

Q. You -- did you communicate to Senator Rucho that
there would be written criteria that you had
instructed someone to draft?

7

A. Yes, sir.
Q. Did he have the opportunity to review that

8
8

questions about was the conversation with Brent

8

9

Woodcox that we were talking about right before

9

10

lunch. You instructed Brent Woodcox to include

10

11

an incumbency criteria in the criteria that he

11
11

12

was to draft at your instruction.

12

Q. When did he have that opportunity?

13

I'm certain he would have seen it -- Pm
I'm certain
A. Pm

13
14
15
16

How did you define incumbency for Brent

14

Woodcox?
A. The current seated member of Congress under the
2011 map.

criteria before it was presented to the
committee?
A. Yes, sir.

he would have seen it by the Monday,

15

February 15th, meeting at 5:00. He may have

16

seen it earlier in the day, but I don't think

17

Q. Did you instruct him to include in that

17

18

definition anything about that member's

18

Q. Returning to something we were talking about

19

political party?

19

before lunch, when did you first see it? And
when I say "see it," I mean the document that is

so. I think that's when he saw it.

20

A. I did not.

20

21
21

Q. Did you feel it was necessary to know or

21
21

I'm sorry -- the document
now Exhibit 24 -- or Pm

22

identify the political party of any incumbent

22

that includes all of the adopted criteria as

23

for the purposes of the incumbency criteria?

23

they were presented to the joint committee.

24
25

A. I know you want a shorter answer. When you're

24
25

in politics, you simply know the party of the

98

A. May I ask for clarification, sir. Are you
referring to Exhibit 24 or the individual parts

100

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January 26,
26, 2017
11

of Exhibit 24?
Q. Either, to be honest, but the actual draft that

that would have needed to have been made to the

2

map. None were discovered. I believe ---

3

was presented by -- drafted by and presented to

3

Q. Who had access to the map at that time?

4

you by Brent Woodcox either in a form that

4

A. Rucho and me.

5

separated them out or in a complete form.

5

Q. And how did you have access to the map?

6

A. Via Dr. Hotelier's
Hofeller's computer.
Q. So only when you were present in meeting with

6

A. Yes, sir. Certainly some time on February 15th.

7

I do not believe I saw anything over the

7

8

weekend.

8

Dr. Hofeller did you see the map that you knew

9

was going to be sent to the legislature?

9
10

Q. And again, you have no memory of receiving

drafts of that document?

10

A. That's right.
Q. And do you know when Senator Rucho last viewed

A. I do not.

11
11

12

Q. So the only version of that document of which

12

13

you're aware is the one that was presented to

13

A. I don't.

14

Q. Did Dr. Hofeller indicate to you that anyone

11

14
15
16

committee?

that map?

A. Yes, sir.

15

Q. When that document was presented to you on the

16

A. I don't recall that he said that.
Q. Did he indicate that -- do you know whether

else had come to view the map?

17

15th and to Senator Rucho on the 15th, did

17

18

anyone else receive a copy of that document or

18

19

the information contained in that document?

19

A. I don't know.

20

A. Yes. I believe the people who were present in

20

Q. Do you know whether Speaker Moore had
bad viewed the

the meeting at 5:00 p.m. all would have seen it.

21
21

21
21
22

Q. Okay. So the meeting at 5:00 p.m. is entitled

22

Senator Berger had viewed the map?

map?
A. I don't know.

23

"Status Check." And who was present at that

23

Q. Had Andrew Tripp viewed the map?

24

meeting?

24

A. I don't know.

25

Q. Did Andrew Tripp -- what was Andrew Tripp's

25

A. I was. Senator Rucho was. Brent Woodcox was.
101

103

1
1

I'm going to say Andrew
It says Andrew Tripp so Pm

1
1

2

Tripp was there.

2

purpose at the meeting?
A. As general counsel to Senator Berger, he often

3

Q. And who is Andrew Tripp?

3

assists, just like Mark Goodson who was general

4

A. Andrew Tripp is counsel for Speaker Berger.

4

counsel to Speaker Moore. How do you say this
politely. I think they just kind of look over

5

FARR: Speaker Berger?
MR. FARR

5

6

I'm getting
THE WITNESS: Sorry.
Sony. Now Pm

6

our shoulder to be sure that the corner offices

7

are in the loop of what's going on.

7

tired.

8

Andrew Tripp is counsel for Senator

8

9

Berger. And there were no other members in the

9

10

Q.
Q.

And with the understanding that this would

prompt an instruction, I need to be clear: Had

room. It is possible that my staff aide, Mark

10

you received any instruction from either Senator

11
11

Coggins, was there as well, but I don't

11
11

Berger or Speaker Moore regarding the criteria

12

remember.

12

that are to be included in the 2016 map?

13
14
15

BY MR. THORPE:

13

Q. And the purpose of that meeting was to discuss

14

legislative privilege, he cannot answer that

15

question.

the criteria that had been drafted?

16

A. That was one of the purposes, yes.

16

17

Q. What were the others?

17

18

A. We talked about the criteria that had been

19

20

18

FARR: Because he can't waive their
MR. FARR

MR. THORPE: I understand. Can you

instruct him not to answer.
MR. FARR
FARR: I think I just did.

drafted. We talked about some of the individual

19

BY MR. THORPE:

feedback from the public hearing that we had

20

Q. Okay. Was there any -- there were no changes to

21
21

just held. We talked about the logistics as far

21
21

the adopted criteria that had been presented for

22

as we were going to use -- which committee room

22

23

we were going to use.

23

A. That's correct.

24

Q. So it was decided that the adopted criteria as

24
25

We talked about, basically, were there
any changes from -- you know, that at that point

102
102

25

the purpose of that meeting?

presented at that meeting would be submitted to

104
104

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January 26,
26, 2017

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the joint committee at the meeting to follow the

11

2

next morning?

2

3

A. That's correct.

3

4
4

Q. And it was decided that you would present the

4

5

5

adopted criteria to the joint committee?

determining that or that would be governed by
legislative rule?
A. The leadership has the discretion to appoint the

committee.
Q. And the limited role of the committee was to

6

A. That's correct.

6

7

Q. Who made that decision?

7

8
8

A. To be candid, Senator Rucho likes to preside.

8

A. I think that's accurate, yes, sir.

9

Q. And what defines the role of the chairs within

9
10
11

So we've worked together, so I got to present

10

and he presided.

11

Q. Did you present the criteria that were then

-offer an enacted plan to be voted on by the -in the special session?

the committee?
A. Well, a chair is responsible for the

12

available to you and those at that meeting to

12

13

Dr. Hofeller at that time?

13

our job to ensure that staff is adequately

14

A. I don't -- I don't think so.

14

provided a committee room, that the materials

15

Q. So the written criteria were not available to

15

are available for the members, that the public
has access, you know, everything from the copies

administrative functions of the committee. It's

16

Dr. Hofeller before -- when did the written

16

17

criteria become available to Dr. Hofeller?

17

are made to the microphones work to the actual

18

policy leadership.

18
19

20
21
21

22

A. I don't think the written criteria was available

19

to him until it was adopted by the committee.

Q. Okay. And how was it communicated to him after
it was adopted by the committee?
A. I believe that I had a phone call with him that

20

Typically a committee chair will chair
a committee of which they have particular

21
21

interest. If you have interest in tax law, you

22

would chair the finance committee, for instance.

23

said the map that we saw was the one that I want

23

24

to introduce. If any of this criteria hadn't

24

for 2016, did you receive any instruction as ---

25

passed the committee, we'd have to really

25

I'm sorry.

Q. In your role as cochair of the joint committee

105
11
2
3
4
5
6

107
1
1

scramble and redraw, but it did.
Q. That conversation occurred after the joint

2

select committee meeting on February 16?

3

A. Yes, sir.

4

Q. This was a telephone conversation just between

5

letter that Speaker Moore would have written and

6

signed.

you and Dr. Hofeller?

7

A. Yes.

7

8
8

Q. And you communicated to him because the adopted

8

9

Is there any written document that

explains your authority in that role?
A. I don't believe the document addressed my

9

criteria had passed, the map that you had both

10

viewed in your earlier meeting was the map that

10

11

you would use?

11
11

authority. There would be a written appointment

A lot of the authority of a committee

chair is just inherent to being named the chair.
Q. Did anything in that appointment letter
reference the adoption of criteria that would

govern the drawing of the map?

12

A. Yes, sir.

12

A. No, sir.

13

Q. Let's talk about the makeup of the joint

13

Q. So on what basis did you and Senator Rucho

14

determine that part of your responsibility in
chairing the committee was to develop written

14
14
15

committee for a second.

15

You said that you served on the House

16

committee during 2011 as senior chair. Senator

16

17

Rucho was in the Senate. The joint committee

17

A. In 2011, we adopted criteria. We sought input

18

has a different makeup. Who determined the

18

makeup of that committee?

19

from various sources. We produced the
Legislator's Guide to Redistricting, and to be

19
20

21
21
22

A. Speaker Moore on behalf of the House and Senator
Berger on behalf of the Senate.

criteria?

20

candid with you, during one of the depositions,

21
21

I believe in this room, one of the attorneys,

22

Mr. Speas, I believe, asked me several questions

committee?

23

to the tune of you -- you put this book out

24
24

A. I don't know.

24

there but the committee never voted on it. So I

25

Q. But they would have been responsible for

25

was trying to learn from past things that had

23

Q. And what is the partisan makeup of that

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January 26,
26, 2017

caused consternation and I thought by having the

1

marked Exhibit 34 which is committee transcripts

committee adopt the criteria that I had used
that that would be one less thing that a court

2

and specifically the joint committee hearing on
the 16th.

could object to or I could be criticized for not
being open about the criteria that I used.

4

3

5

Who made the decision to present the
written criteria one by one?

6

A. I did.

criteria adopted by the committee would bind the

7

Q. And did you also make the decision to have the

committee's members in consideration of a map?
committees
A. The criteria that was adopted by the committee

8

Q. And as to the former, is that because the

would be the guiding point, if you will, of maps
that the committee would consider.
Q. So the committee would not consider maps that
violated the criteria laid out by the committee?
A. So -MR. FARR: I want to object to the form

9
10

A. I did.

11
11

Q. Why did you make that decision?

12

A. I wanted to make sure that each of the members,
first of all, focused on the criteria that was

13
14
15

of that, but you can answer.
THE WITNESS: Well, to be clear, I

16

don't -- I don't feel comfortable saying what
Senator Rucho as the chairman would have allowed

18

17

to be sent forward. I would have opposed it if
it violated the criteria that the committee had

committee members vote on the criteria before
all of the remaining criteria were available?

19

20

before them.
It's been my experience in the
legislature, as with many other things, if you
put ten items on a sheet, people get distracted
looking at number six when you need their
attention on number one. So that's the first
reason.

21
21

The second is had any of these not

adopted.
BY MR. THORPE:

22

passed, we may would have had to adjust
subsequent ones to be able to produce a map.

Q. Now, you referenced a moment ago a book that
came up in your depositions from the 2011

24

23

25

Q. Did you have alternative drafts of subsequent
criterion in case some of these didn't pass?

109

111

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redistricting. Is that any written criteria or

1
1

2

is that the legislative guide that was
introduced as an exhibit on Tuesday?

2

3
4
5
6
7
8
8
9
10

ii
11
12
13
14
15

16

3

A. I was referring to the legislative guide that

5

was introduced on Tuesday.
Q. So in the 2011 redistricting, there was no
written set of criteria for how maps were to be
drawn?
A. No. In 2011, there was written criteria that
was released with each map, but what the
criticism was was that it was Rucho and my
criteria and not formally adopted by a
committee. We released a statement explaining
the criteria with each map that we released, but
the committees didn't vote on those statements.
Q. I understand. So the formal adoption of the
criteria is meant to reflect the joint

18

committee's at least majority view on the
committees
constraints under which the maps will be built,

20
21
21
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23

6
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14
15
16
17

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4

18
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correct?
A. Yes, sir.

20

Q. If you've -- I think you've already got it in
we're going to talk about
front of you, but were

22

21
21

23

A. I did not. We would have -- I thought about
that a lot, and we would have had to recess and
regroup had that happened.

Q. So you began the session by explaining the goal
of this plan. What was the goal as you stated
it to the joint committee?
A. Sir, I know you're looking at the committee
transcript. I'll be happy to read it, but I
don't remember what I said.
Q. Well, more generally, what was your
understanding of the goal of placing these
particular adopted criteria before the
committee?
A. In this case, I think that the transcript would
better speak for itself. As I recall, it is to

establish what criteria were going to be used in
creating and evaluating the finished product
that the committee was tasked with producing.
Q. And you had previously testified that -- scratch

that.
that
So I want to jump to the discussion of
-political data as a criteria that begins -criterion that begins on Page 24.

24

I'm also likely to
Deposition Exhibit 24, and Pm

24

A. I'm at Page 24, sir.

25

talk about stuff from the Exhibit 34, previously

25

Q. So we just testified that these were being

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January 26,
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introduced one at a time, but in fact, what
would happen is as one was being discussed, the
next individual page would be circulated to the
members, correct?
A. I don't recall. The sergeant-at-arms kind of
take control of the administrative part of that.
I don't know that it was my intent that they
went out early, but that may have happened. I
don't know.
Q. And if you look at the bottom of Page 24,
there's a short back and forth between Senator
Rucho and you about whether to hand out the
criteria as before after Political Data and you
indicate on Line 25 "Let's not distribute."
Which is the criteria that follows
Political Data? That's Partisan Advantage,
correct?
MR
MR. FARR: Objection to the form, but
you can answer if you can.
BY MR. THORPE:
Q. The criteria to be distributed following after
Political Data was Partisan Advantage, correct?
A. So I apologize if I didn't understand exactly
-what you were asking. On Page 24, it does -Senator Rucho does ask me do I -- he said

11
2
3
4
5
6
7
8
8
9
10

11
11
12
13
14
15
16
17
18

first criteria that was made available to the
committee was Equal Population. And you earlier

testified that that is sacrosanct, correct?
A. I did.
Q. Meaning that all necessary steps would be taken
to make districts as equal as practicable?
A. Yes, sir.
Q. And in North Carolina, that means essentially
one person difference?
A. Yes, sir.

Q. Did you make -- is your testimony before the
committee or before any of these other groups
that that is necessary and non-negotiable as a
criterion?
A. I don't recall what I said to the committee
about that.

I'll go on, if you'd like, and say that
when you're working on getting things going, a

19

lot of times you start with the one that the

20

most people understand, and this -- of course

21
21

there was no objection to that one. So you kind
of establish how the committee's going to run by

22
23
24
25

something that there's not going to be
disagreement on.
Q. But the members of a Congressional Redistricting
Q.

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115

1

"You've got political data before you. Do you

1

2

want the next criteria sent out to members," and
I said "Let's do the political data and then

2

move on to the next one. Let's not distribute."
Q. And when you refer to the "next one," the next

4

-one would be Political Data -- I'm sorry -Partisan Advantage, correct? This is -- I would

6

just refer you to 24 as they were handed out in
order.

8
8

3
4
5
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10

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15
16
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18
19

20
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24
25

A. Well, to be candid with you, I don't know -- so
for the sake of this deposition, I will say that
we went in the same order that they're on this
page, but I just don't remember.
Q. Okay. You can also, if you want, have
Deposition Exhibit 35 in front of you because it

3

5

7

9
10
10
11
11
12
13
14
15

has them in the order that they were handed out.
Regardless, was there a discussion in

16

advance of the joint committee hearing of the
difficulty associated with including partisan

18

17

19

advantage as a criteria in the adopted criteria?
A. I don't recall a discussion noting that this

20

criteria had any more difficulty than the rest.
Q. Okay. So to go through the criteria sort of one
by one -- and we'll go back to certain aspects
of your testimony before the committee -- the

22

114
114

21
21

23
24
25

Committee generally understand the one-person,
one-vote requirements to be mandatory?
A. Yes, sir, I think so.

Q. What about the criterion for contiguity, is that
similarly easy to sell as a pretty much
mandatory criteria?
A. I believe so.
Q. And the third criterion, Political Data, we've
earlier talked about some of the details of this
which is the basket of elections that would be
used.
How did you determine that this
criteria should include election results rather
than registration data?
A. It is my belief that election results are a
better predictor of voting behavior than is
registration.
Q. Why is that?
A. Because registration is generally a one-time
thing. People sometimes change their mind,
change the way they think about things but don't
go to the trouble to change their registration.
And also, frankly, North Carolina has a very
large population that is registered as
unaffiliated with either political party. So it
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January 26,
26, 2017

11

is -- you can just tell more about how an area

1

A. We did not.

2

generally votes by the way it votes than the way

2

Q. You had no discussion with Dr. Hofeller

3

folks are registered.

3

4
5

Q. And the data that would be available to the map
Q.

4

regarding VRA compliance?
A. We did not. And the reason is that our

drawer and to the folks voting on the map under

5

reading -- my reading of the Harris case said

6

political data would be at the voting district

6

that we had not established a pattern of

7

level?

7

racially polarized voting. Again, I would

8
9
10

A. So two-part question. Certainly the data would
have been available to the map drawer. The

8

respectfully disagree with that, but

9

nonetheless, the Court made that determination,

committee was provided basically towards the end

10

11

a stat pack. They could have asked and got more

11
11

12

detailed. I don't know if any of them did or

12

13

not.

13

no discretion to evaluate the VRA compliance of

14

the maps that he drew, correct?

14
15
16
17
18
19

Q. So the stat pack that was provided to the

and so we were drawing a map to comply with the
Harris order.
Q. So based on your instruction, Dr. Hofeller had

15

MR. FARR
FARR: Objection to the form.

A. Yes, sir, I believe that's correct.

16

Go ahead.

Q. And you made the determination not to include

17

committee provided it at a district-wide basis?

the last two presidential contests, correct?

THE WITNESS: I don't exactly

18

understand what you're asking, but I will simply

19

say Dr. Hofeller was instructed not to look at

if it was the Harris court or another court, but

20

the race of the people in the districts in which

21
21

1I had come under the understanding that we were

21
21

he was drawing. Race was not to be a

22

directed not to use that race.

22

consideration or factor in the drawing of these
maps.

20

A. It was my understanding that -- I don't remember

23

Q. But you made that decision?

23

24

A. Yes, sir.

24

Q. And you instructed Dr. Hofeller to follow that

25

25

And, sir, while you're getting ready, I

do want to state for the record that you were

117

119

11

decision?

1
1

right, based on this, the next one considered

2

A. Yes, sir.

2

was partisan advantage. I was ambiguous about

3

Q. And also included in this criterion "No data

3

4

identifying the race of individual voters shall

4
4

BY MR. THORPE:

5

be used in the construction or consideration of

5

Q. Do you recall why you responded to Senator

6

districts."

6

Rucho's question by asking him to hold back the
partisan advantage criteria from distribution?

7

A. That's correct.

7

8

Q. That means that unavailable to the map drawer

8

9
10

would be your standard census data that includes

9
10

metrics like race, correct?

that. You were correct.

A. Yes. Because I wanted members to focus on what

we were saying one at a time.
Q. And you recognize that with other criteria, like

11

A. Yes, sir.

11
11

contiguity, they were passed out while the prior

12

Q. And did you instruct Dr. Hofeller not to look at

12

one was being discussed, correct?

13

any data he may otherwise have regarding the

13

race of individuals that would live in the

14

designed districts?

15

14
15

A. I don't recall that. I can say that when you're

presenting to the committee, you're not in
control of the functions of it.

16

A. I did.

16

17

Q. How did you instruct him of that?

17

18

A. That was one of the initial conversations we had

18

being distributed that partisan advantage would
be among these criteria more controversial than

19

in trying to understand and communicate what we

19

20

thought the Harris court said, which is race

20

21
21

shouldn't be used as a factor. So we just said

21
21

we won't use it at all.

Q. Understood.
Did you know at the time that this was

others?
A. I feel like it probably would, yes.

22

Q. And why is that?

23

Q. In the context of that discussion, did you also

23

A. Partisanship always gets people concerned. And,

24

discuss whether and how the 2016 map would

24

its clear to me that the Democrats in
you know, it's

25

comply with the Voting Rights Act?

25

the General Assembly would prefer some map be

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January 26,
26, 2017

11

created that better suited what they considered

1

question, please.

2

to be the correct partisan makeup of the maps.

2

BY MR
MR. THORPE:

Q.
Q.

3

I thought long and hard about maybe

3

4

saving that one and running the incumbency one

4

5

because, again, people know what the incumbents

5

6

are, I mean, you just do, but I believe that

6

7

every decision that is made, even if it's in a

7

8

capacity in which you're not trying to exercise

8
8

9

partisanship comes from the perspective of your

9

10

view of life, and I think it's just honest to

10

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say that we're going to -- we're going to

11
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12

acknowledge that partisanship is in this.

12

13

And I will point out that as it's

14

written that it just says that the committee

14
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15

shall make reasonable efforts to construct the

15

16

2016 Contingent Congressional Plan to maintain

16

17

the current partisan makeup.

17
17

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13

18

Q. And that is the current partisan makeup as

19

reflected in the 2011 maps, correct?

20

A. Yes, sir.

20

21
21

Q. And the partisan performance of the districts in

21
21

22

the 2011 map was evaluated at the time the 2011

22

maps were enacted, correct?

23

23
24

I'm sorry. Would you repeat that question.
A. Pm

24

25

Q. At the time that you passed the 2011 maps, one

25

When you say maintain the current partisan
makeup of North Carolina's congressional

delegation, you are referring to the partisan
makeup, in your words, established by the 2012
election, the first election in this
redistricting cycle, correct?
MR. FARR: Objection.
MR
THE WITNESS: I apologize. I'm not
understanding what you're asking.
BY MR
MR. THORPE:
Q. The current partisan makeup of the
North Carolina congressional delegation at the
time of this map is 10 Republicans and 3
Democrats, correct?
A. Yes, sir.
Q. That has been the partisan makeup of the
North Carolina congressional delegation since
the 2014 election, correct?
A. I believe since the 2012 election.
-Q. Just to -MR. FARR: We'll stipulate to the
MR
facts.
MR. THORPE:
BY MR

121

123

11

of the factors that you evaluated was the

1
1

2

expected partisan performance of those maps.

2

3

A. Yes, sir.

3

4
4

Q. And the 2012 congressional election did not

4

5

maintain the partisan balance of

5

6

North Carolina's congressional delegation, did

6

7

it?

7

8
8
9
10

11
11

A. The 2012 election elected 13 members of Congress

and that established the balance, if you want to

8
8
9
10

use that word.
Q. It established a balance. So is it correct to

Q. Just to stipulate to the facts, let's assume the
2012 election was 9 Republicans and 4 Democrats.
MR. FARR: Excuse me. Can I just say
something. David McIntire was elected in 2012.
THE WITNESS: Okay. I was just trying
to answer. I didn't remember that.
MR. FARR: Right. He just didn't
remember that. No big deal.
BY MR. THORPE:
Q. But the current partisan makeup is 10-3 and

11
11

that's a makeup that existed under the 2011

12

say that each decennial redistricting, assuming

12

maps?

13

that there's just one in a ten-year period,

13

A. Yes, sir.

14

establishes the balance between parties for the

14

Q. A goal that these criteria pursue is maintaining

purposes of a congressional delegation?

15

15

the balance from that map?

16

A. I think that after the census is performed, the

17

task of establishing criteria to draw lawful

17

Q. And why is that a legitimate goal?

18

districts begin, and the construction of those

18

A. In my opinion and in my firmest belief, the 2011

19

districts will yield some political outcome when

19

enacted map was drawn in compliance with the

20

the elections are held.

20

law. That map had elected -- in 2014 ---- Pll
I'll

21
21

16

Q. And the political goal of maintaining that

A. Yes, sir.

21
21

correct myself -- 10 Republicans and 3

22

balance over the course of a redistricting cycle

22

Democrats. We were being ordered by a court to

23

is what you are referring to in this criterion?

23

redraw the map. I could not see any reason to

24
25

MR. FARR
FARR: Objection to form.

24

not consider among the other factors that as of

THE WITNESS: Would you repeat the

25

the day before the Harris decision came down the

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 REPRESENTATIVE DAVID LEWIS
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January 26,
26, 2017

Republicans maintained a partisan advantage of
10 seats to 3 seats. I could not see a reason

11

3

why -- again, being ordered to redraw these

3

4

maps -- that we would not make maintaining that

4

2

5
6
7
8
8
9
10

2

5

a goal, not the sole goal but a goal.
Q. When you said before the committee you
Q.

6

acknowledge freely this would be a political
gerrymander, which is not against the law, what
was the basis for that statement?
A. We were back in session. Because a court had

7
8
9

MR. THORPE: This is the joint

committee.
THE WITNESS: Page 48.
MR. THORPE: Page 48 of the joint

committee hearing on the 16th.
THE WITNESS: Yes, sir, that's what I
said. And to be clear for everybody, we're on
Exhibit 34, Page 48.

MR. THORPE:
BY MR

10

Q. Is it Tab 1?

ruled that an idea, a map, if you will, that I
drew -- that I was responsible for, I take

11

A. Yes, sir.

12

Q. There was already a map that had been drawn at

13

ownership, my name is on it, Rucho-Lewis 2 or

13

14

something like that -- was racially

14

the time that you made this statement, correct?
A. Yes, sir.

15

gerrymandered, I took -- I respectfully continue

15

to disagree with that, but my comment -- and if

16

11
12

16
17
18
19

17

-you show me the page, I'll be -Q. This is on Page 48.

18

A. My comment there was to reinforce the fact that

19

20

we were there because we were accused of doing a

20

21
21

racial gerrymander and that there was no way
anybody could accuse us in this map because we

21
21

did not look at race.

23

22
23
24
25

22

24

What I should have continued to say
probably is those that will continue to disagree

25

Q. And did that -- was that map likely to elect 10
Republicans and 3 Democrats in your assessment
based on what you knew at the time?
A. Based on my assessment and what I knew at the
time, it gave Republicans an opportunity to
elect 10 members to Congress.
Q. And what was your basis for believing that?
A. I had looked at the historical performance of
the districts, namely, the Tillis-Hagan race,
and I believe that because Tillis had done well,
that gave the Republicans an opportunity to

125

127

11

with the map will call it a political

1
1

2

gerrymander, but I don't -- I did say "which is
not against the law" because it's my

2

understanding that it's not.
So Pll
I'll be happy to try to elaborate

4

3
4
5
6
7
8
8
9
10
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11
12
13
14
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3

5

more, but I don't want to take your time either.
Q. You stand by the statement that you make on

6
7
8

I'm sorry -- Lines 4 to 6 on
Pages 4 to -- Pm
Page 48?

9

A. I would point out -- first, yes, but I would
point out on Line 4 that my use of saying that
this would be is I could have better worded that
and saying there is no way you could consider
this a racial gerrymander, which is what's
brought all of us back up here to Raleigh. The
only way you could possibly attack it would be
as a political gerrymander.
Q. Understood.
And you acknowledge that that attack

10
11
11

12
13
14
15
16
17
18

elect possibly 10 seats.
Q. To be clear, you had evaluated each new district
under the results of the 2014 Senate

Tillis-Hagan race?
A. That's correct.
Q. And the result of placing those election results
into the new districts was a 10-3 Republican
advantage, correct?
A. To the best of my memory, yes.
Q. Did you evaluate the historical performance of
all of those districts by any other race?
A. At the time of drawing the map, no, but prior to
presenting the map I did, yes.
Q. Prior to presenting the map to the committee?
A. Yes, sir.
Q. Okay. Please explain when that occurred, how
that occurred.
A. The next day, or whenever I rolled the map out,

19

the stat pack was there and I had to explain it

20

21
21

might occur after saying "I would propose that
to the extent possible, the map drawers create a

to the committee. So at the same time I was
familiarizing myself with it, obviously I read

22

map which is perhaps likely to elect 10

22

Republicans and 3 Democrats."

23

So I would have learned, for instance,
that in 2008, Attorney General Roy Cooper
carried all 13 of these seats. I would have

19

20

23

21
21

24

Did I read that correctly?

24

25

MR. FARR: What tab and page is this?

25

126

it.

128

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 REPRESENTATIVE DAVID LEWIS

January 26,
26, 2017

11

learned that in 2012, the state auditor, who was

11

2

a Democrat, won six or seven of these seats. I

2

3

would have seen all that, yes.

3

A. Yes, sir, that's what I said.

4

Q. And at the time that you made this statement,

4

Q. And at the time you had seen the map, but the

5
6

of, in your words, gaining partisan advantage,

correct?

others that were going to see the stat pack had

5

you had evaluated the likely outcome of

not seen the map; is that correct?

6

congressional races in the newly designed

7

A. That's right.

7

districts under at least some of those

8

Q.
Q.

8

historical election returns, correct?

9

So at the time you made this statement to the

9

committee in asking them to vote for the

A. Yes, sir.

criterion partisan advantage, you were the one

10

Q. And other than Senator Rucho and Dr. Hofeller,

11
11

that had viewed, other than Dr. Hofeller, the

11

no one else had at that time evaluated the new

12

historical performance of these new districts

12

districts under that same data?

13

based on these prior elections, correct?

13

MR. FARR: Objection to the form.

10

14

FARR: Objection.
MR. FARR

14

You may answer.

15

THE WITNESS: It's possible that

15

THE WITNESS: I don't know. I hadn't

16

16

Senator Rucho had as well.

shown it to anyone else.

17

BY MR. THORPE:

17

18

Q.
Q.

18

Q. But to your knowledge they had not?

If you would turn in the same transcript to

BY MR. THORPE:

19

Page 54, though you may want to start on Page 53

19

A. Correct.

20

which is the beginning of your statement. You

20

Q. I want to better understand exactly why the

21
21

say at the end of Page 53:

21
21

political data matters for that purpose. So if

22

you could turn to Page 57. Beginning on

22

"Mr. Chairman, the only thing I

23

could add is that we want to make clear

23

Line 7, in response to a question of what

24

that we -- that we, to the extent we are

24

constitutes partisan advantage, you say -- I'm

going to use political data in drawing

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sorry -- beginning on Line 8:

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this map, it is to gain partisan

1
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"To perhaps expound on it a bit,

2

advantage on the map. I want that

2

this would contemplate looking at the

3

criteria to be clearly stated and

3

political data, which was an earlier

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understood."

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criteria adopted by this committee, and

5
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7

What do you mean by "gain partisan
advantage"?
A. Every line that's drawn creates some grouping of

5

as you draw the lines, if you're trying

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to give a partisan advantage, you would

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want to draw the lines so that more of

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people. I was being clear that the use of the

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the whole VTDs voted for the Republican

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political data would be for the purpose of

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on the ballot than they did a Democrat,

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trying to comply with the criteria, specifically

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the one about the partisan advantage.

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if that answers your question."

So is that your understanding of how

12

the map drawer, here Dr. Hofeller, uses

more mechanically, you have asked the committee

13

political data for drawing maps that better

satisfy the partisan advantage criteria?

Q. Okay. So just to walk through that a little bit
to approve a criterion that says let's use

14

15

political data and defines that political data

15

A. Among the other criteria, yes.

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as past election results, correct?

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Q. To repeat the question. To better satisfy

14

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A. Yes, sir.

17

specifically the partisan advantage criteria, is

18

Q. And you have asked the committee to approve a

18

it your understanding that the mechanism you

19

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criteria that says partisan advantage will be

19

describe here on Page 57 is what Dr. Hofeller

one of the considerations in determining, as you

20

does to change the lines within the maps?

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testified earlier, the constraints that will

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FARR: Objection to the form.
MR. FARR

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govern the map that we adopt, correct?

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You may answer.
THE WITNESS: Yes.

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A. Yes, sir.

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Q. And this statement is a statement that the use

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BY MR. THORPE:

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of that political data will be for the purpose

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Q. Have you observed Dr. Hofeller, or any other map

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January 26,
26, 2017

drawer, moving a VTD from one district to
another and the resulting difference in likely
election results?
A. I have, yes.
Q. And on Page 62, we have mostly covered this
ground, but on Line 18 and 19 you say:
"The goal is to elect 10 Republicans
and 3 Democrats."
Is that correct? Did I read that -A. You did, sir.
Q. And you stand by that statement as to the
partisan advantage criteria?
A. Yes, sir.
Q. Was there any reason that you felt that the
partisan advantage criteria was necessary to the
plan that you would adopt?
MR. FARR: Objection to form.
MR
You may answer.
THE WITNESS: I -BY MR. THORPE:
Q. I'm going to ask a different question.
You earlier described certain partisan
considerations as discretionary. Was there
anything about the drafting of the 2016 plan and
your responsibility for it that made you feel

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So when you have 10 incumbent members
of Congress who are Republicans, it kind of
reassures them that you're not out to get them
too.

MR. THORPE:
BY MR
Q. To move forward in the -- let me ask one other
version of my question.
Based on your understanding of the
Harris decision, was there any requirement in
the Harris decision that you consider partisan
advantage?
A. No.
Q. There was, however, what you viewed as a
requirement to change the shape of the 12th

district, correct?
A. Yes, sir.
Q. And that is the explanation for the 12th
district criterion?
A. Yes, sir.
Q. And your solution, as you earlier testified, to
the 12th district problem was to move the 12th
district into Mecklenburg county, correct?
A. Yes, sir.
Q. And that new county -- I'm sorry. That new
district at the time that you presented this

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that you were required to include partisan
advantage as a criteria?
FARR: Objection to the form.
MR. FARR
You may answer.

THE WITNESS: We were there because we
had been accused in my opinion wrongly, a court
found wrong in my opinion, respectfully, that we

racially gerrymandered a map.
We made clear at the time that we
followed the law in 2011. We also made clear

that we had political considerations then as
well. Those were, for whatever reason -- well,
because of the court order we were back.
So
SO I was making sure in part that I was
reaffirming that the districts that I was going
to produce were going to provide an opportunity
for 10 Republicans to win reelection.

And if I may, because I was going to
answer you a while ago, if you've ever been
asked -- if you ever have the opportunity to be
tasked with doing this, there's nothing more
personal to a member of a legislature than the
district they serve. It doesn't matter if it's

the State House district, a U.S. House district,
that district is precious to those folks.

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criterion, you were aware of the partisan

political performance of that new district,
correct?
A. Yes, sir.
Q. You knew that that would be a -- remain a
Democratic district?
A. I knew that it likely would, yes.
MR. FARR: I think you said that
before.

BY MR. THORPE:
Q. The compactness criteria that you introduced you
earlier testified includes on your instruction
the idea that division of counties should be
minimized and that VTDs should be kept whole
where possible, correct?

A. Yes, sir.
Q. There is a sentence in here I want to discuss
which is "Division of counties shall only be
made for reasons of equalizing population,
consideration of incumbency and political
impact."

The new district that we just
discussed, the district that is in Mecklenburg
county, has a county line split to -- that is
made for reasons of equalizing population,

136

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5-1 Filed 10/14/19 Page 2981-919-424-8242
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DISCOVERY COURT REPORTERS
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January 26,
26, 2017

correct? There are more people in Mecklenburg

11

So whatever date that was, that's when that was

county than you can have in a single district.

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discovered. It was not known before then.

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A. That's correct.

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Q. So that is an example of making a division of a

4

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county for reason of equalizing population; is

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MR. THORPE: No. Understood.

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that correct?

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MR. FARR: Thank you.

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A. Yes, sir.

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Q. So what's an example of dividing a county for

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consideration of incumbency?
A. In Guilford county, Representative Mark Walker

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MR. FARR: Excuse me. Do you mind if
we take a break.

THE VIDEOGRAPHER: Off record at
2:22 p.m.
(Brief Recess.)
THE VIDEOGRAPHER: On record at

11

and Representative Alma Adams both had homes in

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Guilford county, and we were tempted not to put

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BY MR. THORPE:

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them in the same district. So that's an example

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Q. Representative Lewis, we had been discussing the

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of that.

14

2016 Contingent Congressional Plan Committee

15

Adopted Criteria that were adopted by the joint

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Q. And so in consideration of their -- and I'm

2:37 p.m.

sorry, the political parties of those

16

committee on the 16th of February -- 16th or

individuals?

17

17th of February, and we were talking about

18

compactness.

A. Representative Adams is a Democrat.

19

Representative Walker is a Republican.

Q. And so the consideration of their incumbency

The sentence we were discussing states

20

"Division
"Division of counties shall only be made for

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results in a county line split in Guilford

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reasons of equalizing population, consideration

22

county?

22

of incumbency and political impact."

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A. Yes, sir.

23

We had discussed an example of why such

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Q. And where that county line split occurs in

24

a division would be made to equalize population

25

and an example of why such a division would be

25

Guilford county, there are presumably whole VTDs
137

139

1
1

on both sides of that line? Or is there a VTD

1
1

2

split?

2

What is an example of a division of
county that would be made for political impact?

made for consideration of incumbency.

3

A. I do not recall if that's one of the VTDs that

3

4

had to be split. And I'll tell you why, if I

4

A. I don't know. And to be clear, the only reason

may.

5

a county would be divided is the one-person,

6

one-vote rule.

5
6

When Dr. Hofeller -- by this point we

7

got this map here was able to load the map on

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the General Assembly's computer and we had the

8

divided. I don't know exactly where

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wrong address for Representative Walker, so

9

Dr. Hofeller divided a county to give you an

There are 83 counties that aren't

10

obviously you can't
cant move where he lives. So we

10

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changed -- we either changed a whole VTD or that

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might have been one of the ones we had to

12

would be divided would be for a one-person,

13

divide. I just don't remember. By this point

13

one-vote rule, but there was in fact an

14

it was kind of fast and furious.

14
14

amendment offered in the committee that would

15

have reduced this sentence to just that and that

15

Q. And based on Dr. Hofeller's testimony, that

example of that.
Q. Now, you state that the only reason a county

16

change that you just explained to deal with that

16

17

incumbency issue was the only change to the map

17

A. I don't remember.

18

Q. Okay. So if we can look at -- this is

amendment was rejected, correct?

that Dr. Hofeller showed you in your meeting the

18

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previous Friday or Saturday in the map that was

19

Exhibit 35. If you'll look at the page at the

20

ultimately enacted; is that correct?

20

bottom that says DEF 00025.

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A. No. This -- the Walker-Adams double bunk

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A. I have it.
Q. Senator Dan Blue offered an amendment that would

22

situation was not discovered until the map was

22

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loaded on the state computer, and that occurred

23

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on -- I apologize, I've lost my calendar now.

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That occurred after the criteria were adopted.

25

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have had that exact sentence read:
"Division of counties shall only be
made for reasons of equalizing population
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January 26,
26, 2017

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and for reasons of complying with federal

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of Congress are not paired with another

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law."

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incumbent in one of the new districts

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That amendment was -- if you look at
the next page -- rejected 23-11, correct?

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conducted in the 2016 Contingent

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Congressional Plan."

A. Yes, sir.

5

-What is required of the map maker --

Q. If what you just said is true and the only

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what did you intend to require of the map maker
in stating that reasonable efforts shall be

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reason that counties would ever be divided is

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for equalizing population, why was that

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amendment rejected?

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MR. FARR: I object to -BY MR. THORPE:

the same district, then that would have been the

Q. Why did you vote against that amendment?
MR. FARR: I don't object to that.

12

preferred method.
Q. Did you give Dr. Hofeller any instruction of how

THE WITNESS: The way the original

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criteria was written, it specified equalizing

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population, which is one-person, one-vote,
consideration of incumbency and political

16

impact.

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I voted against that amendment because

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I knew the next factor was going to be

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incumbency, so...

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BY MR. THORPE:

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Q. And you knew that division of counties was

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criteria and not have to put two incumbents in

11

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made?
A. If it were possible to comply with all the

24

necessary for incumbency?
A. So division of county is necessary to equalize

25

to rank the different criterion in terms of
whether it is more okay to violate one than
another?
A. No.
Q. Did you give Dr. Hofeller any tools or
mechanisms by which to weight the criteria
relative to one another?
A. No.

Q. Did you indicate to Dr. Hofeller that they
should all be weighed equally?
A. Yes.
Q. Do you consider incumbency as it's defined in

141
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population. The consideration of where that can
be made is for consideration of incumbency or
for political impact.
Q. And my question is: What was your rationale for

143
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including the phrase "and political impact" in

5

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this sentence?

6

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A. Because -- forgive me for interrupting you.
Because I believe you ought to be

8
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honest in the work that you are doing. I've
Pve
already said in this deposition that I believe

10

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every choice that we make is in some way

11
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political, and I'm -- this simply acknowledges

12

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that Dr. Hofeller may have chosen to divide a

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county in a certain way because of the political

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impact of the districts contained therein.

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Q. Did you evaluate -- at the time that this was

16
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voting on in committee, had you evaluated
whether any of the county splits in the 2016

18

plan divided counties based on political impact?
A. I don't -- I don't remember.

19

Q. Okay. Let's talk about incumbency, which we've
already discussed a little bit.

21
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20

22
23

From that second sentence:
"However, reasonable efforts shall

24

be made to ensure that incumbent members

142
142

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this adopted criteria document to be a
traditional redistricting criteria?
A. Yes.
its defined in
Q. Did you consider incumbency as it's
this document during the redistricting in 2011?
A. Yes.
Q. How did you consider incumbency during
redistricting in 2011?
A. We were aware of where the incumbents lived and
made effort to not combine one district with two

incumbents.
Q. What efforts were taken in that regard in 2011?
A. I would say substantial efforts were taken in
2011. As you know, what I refer to as the
enacted plan or the baseline plan, whatever, is
Rucho-Lewis 2A. Rucho-Lewis 1,1
1, I don't think
there were any incumbents that were combined.
There were a variety of reasons why the
changes to the map were necessary and that
created a situation of double bunking some
incumbents, but our first stab at it I don't
think double bunk any of them.
Q. The plan actually enacted double bunked how
many?
A. I didn't remember. I think I heard in this room

144
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36 (Pages
141 to 144)
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(Pages 141
Case
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Document
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DISCOVERY COURT REPORTERS
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January 26,
26, 2017
1
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that you give on the floor of the House of

Q. And in addition to incumbency, one of the

2
2

Representatives.

considerations in the 2011 plan was also
partisan advantage; is that correct?
A. In the 2011 plan?
Q. Yes.
A. Yes.
Q. And how did you weigh the consideration of
partisan advantage against the consideration of
incumbency?
A. In 2011?
Q. '11.
A. I don't know that it would be accurate to say
they were weighed equally, but I don't remember
making a conscious choice to put one over the
other.
Q. What is the interest of the state or the
legislature in incumbents being reelected to
Congress in your view?
MR
MR. FARR: I'll object to the extent
that calls for a legal opinion, but otherwise
you can answer.
THE WITNESS: You know, there's a lot
of people -- just like in independent
redistricting, there's -- a lot of people have

3
3

yesterday it was four.

So let me introduce as Exhibit 40 --

4
4

A. May I put this book away, please.

5
5

Q. Yes.

6
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-- transcripts from the House floor.

7
7

(WHEREUPON, Plaintiffs' Exhibit 40 was

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marked for identification.)

MR. THORPE:
BY MR
Q. This hearing occurs on the 19th, and at this
time the committees --

12
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MR. FARR: Which tab?

13
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14

MR. THORPE: I'm sorry. It's 2016/2/19

Session One.

15
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MR. FARR: Does it say Floor Session
One?

17
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MR. THORPE: Floor Session One,

11:30 a.m.

19
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MR. FARR: Yeah. I think, David,
that's Tab 3.

21
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THE WITNESS: I have it before me.

22
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BY MR. THORPE:

23
23

Q. You are at this point testifying to the full

24
24

house on the criteria used in the 2016

25
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redistricting; is that correct?

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strong opinions about term limits and they think

incumbency is not something that is valued.
I can tell you as somebody who has been
around a while, knowing how to get things done
for the people that you represent is important.
So
SO to the extent that I think -- for
instance, in District 1, if he's not currently,
he's the immediate past, I know Representative
Butterfield is the chair of the Congressional
Black Caucus. That's certainly a very
influential spot. I know in the 10th,
Representative McHenry either is or has just
come off being the chair of the banking
committee. These things are important.
I do think incumbency is -- is a worthy
traditional consideration in redrawing of lines.
BY MR. THORPE:
Q. So one of the factors that you've cited as to
why is the seniority of members in the House?
A. That was -- yeah, I think that's a fair
characterization.
Q. I want to move on from the adopted criterion
and, given our time constraints, I'm actually
going to skip forward a little bit in the
two-week period of the drafting to the testimony
146

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4

A. House rules would refer to it as debating the
bill, but, yes, largely it's the same thing.
Q. You are speaking to the House. And at this time
has the map been released?

5
5

A. Yes.

6
6

Q. And the map that has been released is based on

7
7

criteria that at that time have been adopted and

8
8

are publicly available?

9
9
10
10

11
11

A. Yes.
Q. And you are speaking to encourage passage of the
bill; is that correct?

12
12

A. Yes, sir.

13
13

Q. I want to go to Page 5.

14
14

A. Yes, sir, Pm
I'm there.

15
15

Q. On Line 3 --

16
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MR. THORPE: Does somebody have a
highlighted copy?

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THE WITNESS: I do.

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MS. MACKIE: Can we switch those out?

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part's not
THE WITNESS: Well, that parrs
highlighted but certain parts are.
(Discussion held off the reporter's
written record.)
THE WITNESS: So we're returning to

Section 3, page -148

37 (Pages
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Case
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Document
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Filed
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DISCOVERY COURT REPORTERS
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January 26,
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BY MR. THORPE:

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Q. Page 5.
Q.
I'm there.
A. Yes, sir, Pm
Q.
And
we
are
really staying on the topic of
Q.

2

4

aware that Orange county is typically a solid

partisan advantage.
So beginning on Line 3, a further -you are explaining the criteria.
"A further criteria was partisan
advantage. We believe this map will
produce an opportunity to elect 10
Republican members of Congress, but make
no mistake, this is a weaker map than
the enacted plan in that respect."
I sort of want to take that sentence in
two parts.
What do you mean when you say "an
opportunity to elect 10 Republican members of
Congress"?
A. Past election results are a pretty good
indicator of future performance.
Q. And you have just explained that past election
Q.
results were used in building these districts,
correct?
Pm
I'm sorry. In your actual speech
before the House on Page 4, you say:

5

Democratic stronghold. The whole VTD precincts
that connect through Durham I think fit that

3

6

Q. Okay. So to break that up a little bit, how do
Q.

you define a strong opportunity?
A. In Congressional District 4, I am personally

7

description as well. And based on only the

8
8

ocular test and knowing where the state house

9

districts kind of fall, there appear to be
Democratic areas in Wake.

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1I would say District 4 is a strong

12

opportunity for Democrats to elect or for the

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people to elect a Democrat to congress.
Q. Do you think there is any opportunity for the
Republicans to elect a member to congress from
District 4?

A. I think it would be a real challenge. It would
have to be somebody -- and again, I don't want
to speculate with the time we have. I think the
right person from Orange county may be
affiliated with the university might could make
a stab at it.
Q. In your review of historic election data in
evaluating what became the 2016 Contingent
Congressional Map, did you see any evidence in

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151

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"The stat pack attached to the maps

1
1

2

placed on each one of your desks show
which election results were used in

2

3
4
5
6
7
8
8
9
10

11
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3

building these districts."
A. Yes, sir, I see that.

4

Q. So when you say an opportunity to elect, you
mean looking at the likely outcomes based on

6

past election results?
A. Yes. Yes.

8

5

7

9

Q. And did you use any metric or discuss any metric
to determine how competitive a seat needs to be

10
11
11

12

in order to consider that one party or another

12

13

has an opportunity to elect a member to that

13

14

seat?
A. None other than looking at the historic data. I

15
16
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18

wish I were smart enough to know another way,
but I don't.
Q. And so looking at that historic data, how many
Q.

14
15
16
17
18

19

seats would you say that -- based on the

19

20

information you had in front of you at the time

20

21
21

the Democratic Party had an opportunity to elect

21
21

22
23
24
25

members of Congress too?
A. I think they had a strong opportunity to elect
members to three of the seats and a lesser
opportunity to elect members in the other seats.
150

22
23
24
25

the election results that a Republican could win
District 4?
A. Not that I recall.

Q. What other districts were you referring to as
strong Democratic districts in your earlier
answer?
A. Well, District 1 is in a part of the state that

is traditionally Democratic. I believe all the
seats in the North Carolina House that are
contained within District 1 have elected a
Democrat. And I know the county of Durham
itself is a pretty strong Democratic county, so
I would say District 1 is an opportunity -pretty strong opportunity for the Democrats to
elect a Democrat to congress.
Q. And you evaluated election returns from historic
elections to determine -- in part to determine
that it is a strong Democratic district?
A. I did.
Q. What's the third strong Democratic district?
A. The third strongest would be the 12th in
Mecklenburg. The -- while there is some
Republican strength there, I think there are
maybe one or two Republican state House seats
contained in there. If -- there's like four or

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January 26,
26, 2017

11

five Democratic state seats so I would assume

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2

state house seats. So I would assume -- and

2

3

based on past performance that that would be a

3

4

pretty good opportunity for the Democrats to

4

5

elect a Democrat to congress.

5

A. Yes, sir, it does.

6

Q. Did you evaluate the performance of voter

6

Q.
Q.

What would you include in the category of lesser

7

-opportunities for -- and that's your phrasing --

7

8

for Democratic members of Congress to win a

8

9

9

congressional seat?

the right Democratic candidate to be able to run
a competitive race.
Q. That district also contains a county line split,

correct?

districts in Pitt county?
A. I don't remember if I looked at them
specifically or not.

10

A. Okay. Well, you take District 9, for instance.

10

11

Anson, Richmond, Scotland and Robeson and

11

Dr. Hofeller could move VTDs either into or out

12

Bladen, frankly, are traditionally Democratic

12

of District 3 in Pitt county for political

13

counties. They are offset in large part by the

13

14

big population of Union county and the area of

14

A. Yes.

15

Q. Are there any additional districts where a

Mecklenburg county, but I can tell you the area

15

16

of Cumberland county that is contained in

16

17

District 9, if you evaluated state house seats

17

18

are all three Democratic seats.

18

19

19

So I would say that the -- even though

Q. But consistent with your instructions,

impact, correct?

Democratic candidate has an opportunity to be

elected?
A. The next one would be the 6th district: Lee

county. While it has one Democrat and one
Republican in the state House is a pretty evenly

20

the historic results gave an opportunity for the

20

21
21

Republicans to win nine, it's by no means a slam

21
21

divided county as far as how they perform voting

22

dunk for them to win nine.

22

wise. Chatham is a solid Democratic county.

23

The area of the 6th that is in Guilford county
is a pretty solid Democratic base.

23

Q.
Q.

You did evaluate historic election results as to

24

District 9 in looking at this map with

24

25

Dr. Hofeller, or at least before the enactment

25

So I would say the 6th also provides an

153
11

155
1
1

opportunity for a Democrat to be elected to

A. Yes, sir.

2

Congress.

3

Q. Did you evaluate the VTDs on the county line

3

4

splits in Mecklenburg, Cumberland and Bladen

4

has a county line split, and that split, you

counties?

5

testified earlier, addresses an incumbency issue

2

5
6
7
8
9

of the map, correct?

A. I don't remember specifically if I looked at
them or not.

6

for Representatives Walker and Adams; is that

7

correct?

Q. Consistent with your instructions to him, was

8

Dr. Hofeller allowed under your instructions to

9

10

move the county line -- the VTDs bordering the

10

11
11

county line into or out of District 9 consistent

11
11

12

with the instructions that you gave him for

12

13

political impact?

13

14
15
16

A. That would have been one of the criteria that he

could have done it, yes.
Q. So that is a district that -- well, what's the

Q. And as we discussed before, Guilford county also

14
14

A. That split is necessary to comply with the
one-person,
person, one-vote and apparently also
one

separates Walker and Adams.
Q. Did you evaluate the partisan performance of
individual VTDs in Guilford county?
A. I did when we made the change to take Walker and
Adams out of the same district. And, frankly,

15

doing that made the 6th, to the best of my

16

memory, a -- the VTD that got included was a

17

next district that you would consider a lesser

17

little bit of a higher performing Democratic VTD

18

opportunity for a Democratic candidate?

18

than the one that we took out.

19

A. The 3rd -- yes, the 3rd. If you'll look at what

19

Q. And consistent with the districts that we

20

we refer to in North Carolina as the finger

20

earlier discussed, Dr. Hofeller, while still

21
21

counties, which are Chowan, Perquimans,

21
21

complying with all the instructions that you

22

Pasquotank, Camden, Currituck, those are

22

gave him, was able to or allowed to move

23

traditionally Democratic areas as well. Hyde

23

individual VTDs from District 6 to District 13

24

county traditionally Democrat. Greene, Lenoir.
The 3rd is certainly an opportunity for

24
24

in Guilford county, or vice versa, for political

25

impact; is that correct?

25

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January 26,
26, 2017

11

A. Yes.

11

2

Q. Are there other districts where Democrats had an

2

3
4

opportunity to be elected?

A. You know, it's
its really hard to speculate. I've

3

A. Yes.

4

Q. And did you give Dr. Hofeller instructions to do

already gone through almost half the map.
The 11th, which is sort of the mountain

5

7

district, has almost always -- I stand corrected

7

8
8

from something I said this morning.

8

9

I did realize that Heath Shuler briefly
represented that area, but for most of my

5
6

10

6

9
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lifetime it's
its been a Republican stronghold just

11
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based on past vote. The 10th is the same way.

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13

So those are just -- those people just vote

13

14

Republican. The 13th, the same way.

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The 8th -- the Hoke incumbent part of
the 8th are a little bit more inclined to vote

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18
19

20
21
21
22
23

16

Democratic, but typically Rowan and Cabarrus and
Stanley and Montgomery typically vote

political impact from one district to another
district; is that correct?

17

so consistent with the partisan advantage
criteria that was later adopted?
A. Along with the other criteria, yes.
Q. The second part of the sentence is "make no
mistake, this is a weaker map than the enacted
plan in that respect."
What's the basis for that statement?
A. Again, looking at historical data, this map is
much weaker as far as a Republican-performing
district in the 9th. It's much weaker in the

6th. It's much weaker in the 2nd.
So I don't remember, frankly, if the
11th or the 10th changed much, but in terms of

18

districts that had historical performance ---

Republican. So I would say that was probably a
lesser opportunity for the Democrats to win.

19

performing for Republicans, if I had access to

20

that stuff I could show you which ones, but this

The 7th 1I say would be a lesser
opportunity for them to win.

21
21

is a weaker map than -- if you look district by
district only at historical data, in many of the

22
23

The 2nd -- the 2nd is a little more

24

competitive, and I probably should have

24

25

mentioned that.

25

districts, historical data would have shown a
stronger Republican performance level than the
one will for this one.

157
11
2
3
4
5
6
7
8
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9
10
lo
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12
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16

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19

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21
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25

The Wake county area is not necessarily

159
1
1

2

a consistent historic Republican voting
precinct. Certainly Nash county is not.

3

Harnett county, my own, is pretty -- is
a county I would classify as trending Republican
but it's not rock solid. So the right candidate
in District 2 could make an impact as well
Q. Now, just as a -- we're both looking at
Deposition Exhibit 25. Does any district under
the 2016 Contingent Congressional Plan not
contain a county split?
A. Does any district not contain a county split?
Q. Is there any district without a county split?
A. 12. Mecklenburg is a county that has two, but
the 12th does not contain a split.
Q. That's correct. Thank you for the correction.
And the 12th is exactly the size that
the 12th needs to be because of the equal
population requirement, correct?
A. Correct. But the other answer to your question
is I believe all the other districts contain a
county split.
Q. Right. And the followup to that is where a
district contains a county split, there is the
opportunity to move individual VTDs based on
158

4
5
6
7
8
9
10
11
11

12
13

Q. Under the 2011 map?
A. Yes, sir.
Q. Are there any districts that under the 2016 map
show a stronger Republican performance than the
2011 map?
A. Not that I recall.
Q. And from that you have characterized the map as
a whole as a weaker map in this statement?
A. Yes.

Q. If we could turn to Page 22, we're going to talk
about the 11th district again for a moment.
On Line 14, you say:
"The 11th, for instance, the

14

mountain district, really I think the

15

only change that was made there had to do
with trying to equalize some population

16
17
18
19

20
21
21

22
23
24
25

because additional population had been
pushed west, if you will, from the 10th
and from the 5th."
So those are the districts that border
11, and I presume that means 11 geographically
has to get a little bit smaller because it's got
more population; is that correct?
MR. FARR
FARR: If you know.

BY MR. THORPE:
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January 26,
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Q. What does it mean to try to equalize some
population because additional population had

11

been pushed west?
A. Oh, so the Harris court didn't like the 2011

3

drawing of the 12th. And essentially the 12th,
think of it as a wall that basically ran through
the state. So when that was gone, it let the -some of the population could flow west, and I
think that's what I'm trying to say there.
Q. And that population that had been in the 12th
that extended up the state, some of it goes to
-the adjoining -A. Yes, sir.
Q. Okay. So what changes did you observe to the
11th in the 2016 plan as a result?
A. I really don't recall. As I told you earlier
today, the reason that's probably in my remarks
is we made an effort to see if we could keep
Buncombe county together. We could not figure
out how to do that, and so it was probably just
on my mind.
I was probably trying to tell the
members of the House that in terms of looking
for the changes to the maps, 11 and 10 and 5
were probably as pretty close to the old map or

5

2

4

6
7
8
8
9
10
11
11
12
13
14
15
16
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18
19

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25

correct?
A. Yes.
Q. And it was drawn by Dr. Hofeller on your
instructions prior to the written criteria being
adopted by the Joint Redistricting Committee,
correct?
A. Correct.
And if I could pause one moment, the

question you asked me before this, the only
change that was made after the criteria was
adopted was the Guilford county change. So
there was that one change made.
Q. Other than the Guilford county -- thank you for
that.
Other than the Guilford county change,
the map being debated and voted on in this
hearing had been drawn prior to the Joint
Redistricting Committee meeting?
A. That's right.
Q. And it had been drawn prior to the criteria that
were voted on by the Joint Redistricting
-Committee -A. That's right.
Q. -- being -- I'm sorry, two separate questions.
Prior to that criteria actually being

161
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2
3
4
5
6
7
8
9
10
11
11

the enacted map as -- or more close -- more
closely resembling them than the other -- the
other districts are.
Q. Whatever changes happened in District 11 in the

163
1
1

2
3
4

2016 map, they would have had to happen in
Buncombe county, correct?

5

A. Sir, I don't have the enacted map in front of
Pm not -- I don't
me. That sounds right, but I'm

7

have the 2011 map, but that's my recollection.

My recollection is that is basically the same.

6

8
9
10

Q. Did you evaluate the partisan impact of whatever
changes occurred in Buncombe county?

11
11

13

A. Yes.

13

14

Q. If you could turn to Page 29. In Line 6 you

12

15

17
18
19

20
21
21

22

14
15

say:

16

12

16

"To be clear, the map that you have

17

before you was drawn using criteria that
was openly debated and adopted by the

18

Joint Redistricting Committee."
You're making this statement on the

19

19th as the House is considering whether to

21
21

adopt the bill with the new districts?

22

20

23

A. Yes.

23

24

Q. The map that is being evaluated was drawn prior

24

25

to the Joint Redistricting Committee meeting,

25

162
162

written down?
MR. FARR: Objection to the form.
THE WITNESS: I believe that to be

correct.
BY MR
MR. THORPE:
Q. If you would turn to 31.
MR. FARR: Page 31?
MR. THORPE: Yes.
BY MR
MR. THORPE:
Q. You explain -- actually, beginning at the bottom
of Page 30 -- that you look at election results
rather than political registration because
election outcomes are much better predictors of
how people actually vote than partisan
registration is. You then discuss unaffiliated
voters in North Carolina, which is similar to a
discussion we had before.
Do you consider for the likely partisan
performance of any district the number of
unaffiliated voters in a given district?
A. I didn't in drawing this map. I can't say that
I don't from time to time look at things like
that.
Q. But for purposes of drawing this map,
registration data made no difference whatsoever?

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26, 2017

A. That's right.

11

2

Q. The sole political data used were the historic

2

3

election results?
A. Yes, sir.

3

you follow all the criteria, I don't know how

4
4

you would create a different map than what we

Q. And where you say on Line 15 "I freely

5

11

4
5

testimony?
A. I stand by the testimony because, as I said, if

have.

6

acknowledge that I sought partisan advantage as

6

7

based on the criteria in drawing this map," you

7

8

stand by that statement?

8
8

Senator Rucho whether it was possible to design

9

an 11-2 map?

9
10

A. Yes, sir.

Q. Did you discuss whether it was possible either
with Senator Rucho -- did you discuss with

Q. Number -- Page Number 32, Line 16. I actually

10

11
11

want to discuss a couple different statements.

11
11

Q. What does that mean?

12

If you still have the committee transcripts in

12

A. I never devoted much time because we didn't have

13

front of you, we're going to talk about
something from that too, but on Line 16 you say:

13

it, but if your sole goal was to create a

14

political draw, you could find a way to group

15

enough people that would create Republican

14
15
16
17

18
19

"But for the criteria adopted by

A. Never seriously, but yes.

the committee which instructed the map

16

opportunity districts, if you will, but you

drawers to do certain things like try to
maintain compactness, try to make -- you

17

would have to violate all the other criteria

18

that we have.

know, take incumbency into account, try

19

20

to make the districts look more compact,

20

counties intact. You couldn't only have 12

21
21

be more compact, keep more counties

21
21

split VTDs. So if -- you know, the gerrymander

22

compact, we could have been much more

22

is what's at issue here.

23

aggressive partisan-wise trying to obtain

23

24

a map that would elect 11 Republicans.

24

court was going to look at this map, and when

25

But you can't really do that if you

25

they look at this map, what I think they see is

You certainly couldn't have kept 83

Certainly we knew also that the Harris

165

167

11

simply consider partisanship as a part

1
1

whole counties and lines that make sense, and we

2

of the criteria, which is what we did."

2

didn't want to take any chances to do anything

3

extreme
exiLdlite that would throw it out.

3
4
5
6

That was your testimony before the full

4

House, correct?

So again, all the criteria are

A. Yes.

5

followed, and if all the criteria are followed,

Q. And before the Joint Committee --

6

I don't see how you would make an 11 -- how you

7

FARR: Is that Exhibit 34?
MR. FARR

7

would provide opportunities for 11 Republicans,

8

MR. THORPE: Yes.

8

perhaps, to win.

9

MR. FARR
FARR: What's the date?

9

10

MR. THORPE: The 16th.

10

11
11

FARR: Which would be Tab 1.
MR. FARR

11
11

Q. So in your view, constrained by the other
criteria, 10-3 is the best you can do?
A. I don't know if I would use the word

12

BY MR. THORPE:

12

"constrained." I would say consistent with all

13

Q. On Page 50, you are asked a question by Senator

13

the criteria that I provided Hofeller and the

14

McKissick that actually begins on Page 49. It

14

committee agreed with and adopted and

15

is discussing the partisan advantage criteria.

15

harmonizing those together, then the map is what

16

And you respond to say "I propose" -- this

16

17

begins on Line 7.

17

18
19

20

18

"I propose that we draw the maps to

it is.
Q. Constrained by the other criteria, the
opportunity to elect, as you defined it, 10

give a partisan advantage to 10

19

Republicans to congressional seats is the

Republicans and 3 Democrats because I do

20

maximum number of seats that the partisan

21
21

not believe it's possible to draw a map

21
21

advantage criteria will allow?

22

with 11 Republicans and 2 Democrats."

22

23

23

Do you recall that statement?

MR. FARR
FARR: Pm
I'm going to object to that

question.

24

A. Yes.

24

You can answer.

25

Q. And in both circumstances you stand by that

25

THE WITNESS: I believe I already have,

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January 26,
26, 2017
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but I'll say yes.

this is on Page 34.

2

BY MR. THORPE:

2

A. Yes, sir.

3

Q. Did you consider any maps that were likely to

3

Q. -- you sort of expand on what you have

4

4

previously discussed as a rationale for the

A. Yes.

5

partisan advantage criteria. On Line 16 you

6

Q. When did you consider those maps?

6

say:

7

A. One of the scenarios that I looked at with

7

5

8
9
10
11

elect 9 Republicans and 4 Democrats?

Dr. Hofeller would have accomplished that, but

it would have been at the expense of splitting
more counties and more VTDs.
Q. You did not evaluate any maps with an equal

"I will tell you that the committee
"1

8

adopted the criteria -- adopt criteria,

9

one of which was to seek partisan

10

advantage for the Republicans. Now, if

11
11

you ask me personally if I think that is
a good thing, I will tell you I do.

12

number of county or VTD splits that would have

12

13

elected fewer -- would have likely elected fewer
than 10 Republicans?

13

"I think you are a great man."

14

You are referring to the person asking

14
15
16

15

A. I'm sorry. I don't understand the question.
You just asked me if we looked at a 9-4

17

map and I said we did. So, yes, we looked at a

18
19

20
21
21
22

the question.

16

"I think you are a fine public

17

servant. I think electing Republicans is

map that gave us a stronger likelihood of

18

better than electing Democrats. So I

electing 9 Republicans. If you're going to --you know, but it would have violated the other

19

drew this map in a way to help foster

20

what I think is better for the country."

criteria.
Q. So the only change to my second question was:

21
21

Now, earlier you testified that

22

partisan politics is just an inevitable

23

Did you evaluate any maps with an equal number

23

consideration in redistricting. Here it seems

24

of county and VTD splits to this map?

24

like you are testifying that maximizing

A. No. And I'm sorry, I misunderstood.

25

benefit.
Republican advantage has a separate benefit

25

169
11
2
3

Q. No, that's okay.

-Back in your House testimony --

171
1
1

MR. FARR: Objection to the form.

2

I also would like to point out that

3

he's referring to Representative Martin. I'd

you listening to what I'm going to say.
It might be possible to ask my staff,

4

like to make that clear because I think he's a

5

great guy too.

6

Mark, to see if the meeting with the governor's

6

7

people can be pushed back. I know he's not

7

8

finished. I don't mind trying to get this done
today.

8
8

BY MR. THORPE:

9

Q. Does this testimony provide in your view a

4
5

9
10

11

A. May I ask my attorney a question. I don't mind

MR. FARR: How much time do you think
you need?

THE WITNESS: So would you ask the

question again.

10

reason for partisan advantage as a criteria in

11
11

the 2016 redistricting?

12

-MR. THORPE: Significant enough that --

12

13

MR. BONDURANT: I think you probably

13

only that it may have been said in a little more

ought to go with the meeting and we'll split it

14

cavalier fashion than was dignified on the House

and come back if we need to.

15

floor.

14
15
16
17

THE WITNESS: Yes, sir, I'll be more
than glad to do that.

16

we're political adversaries, are personal

friends. I've been to his home.

I'm sorry, I've tried to answer the

18

questions that you have, and I'm sorry that I

19

20

asked you to stop them.

20

21
21

22
23
24
25

MR. BONDURANT: You've done the best

21
21

22

you can. We work together on this.
BY MR. THORPE:

23

Q. In your House floor session testimony, which is

24

from the 19th and that we were previously in -170

Representative Martin and I, although

17

19

18

A. I stand by this statement. I would point out

25

This was more the kind of conversation
that we should have had outside and not on the

floor, but, yes, I mean, I stand by what I said.
Q. And then on Page 37, Line 18, you're asked again
by Representative Martin:
"Are there any races that are not

listed on these charts that the mapmakers

172
172

43 (Pages
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(Pages 169 to 172)
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 REPRESENTATIVE DAVID LEWIS
11
2

January 26,
26, 2017
11

considered?"
And I assume that Representative Martin

(WHEREUPON, Plaintiffs' Exhibit 41 was

2

marked for identification.)

3

is there referring to the stat pack that

3

4

contains the basket of races we've been

4

BY MR. THORPE:

5

discussing; is that correct?

5

Q. So on Page 4, beneath the large block of space,

6

A. He was.

6

7

sir"?
Q. And your response is: "No, se?

7

8
8

A. Which is accurate.

8

9

Q. And you did not consider any other races and you

THE WITNESS: No, I'm fine.

you are quoted as saying:
"I think partisanship is an
inherent part of who we are, and I think

9

10

did not instruct Dr. Hofeller to consider other

10

it will always have some role in the
decisions that we make and that includes

11

races?

11
11

redistricting. It should not be a

12

A. Correct.

12

predominant factor, but it will always

13

Q. Did you instruct Dr. Hofeller to use all of the

13

be a factor. Whether you acknowledge it

14

or not, it will always be a factor, and

A. No, I did not.

15

to not acknowledge that is either naive

Q. At Line 3 of this same page, Representative

16

or dishonest."

14
15
16
17
18

races that were provided in the stat pack?

17

Martin asks you:

Were you accurately quoted in this

18

"Representative Lewis, would it be

"Representative

article?

19

accurate to say that the mapmakers

19

20

considered every one of the races that's

20

Q. And do you stand by that statement?

21
21

listed in the charts that were presented

21
21

A. I do.

22

at committee several times."

22

Q. When you say it's an inherent part of who we

23

And you respond: "Yes, sir."

23

24

Is that correct?

24

25

A. Yes.

are, what do you mean?
A. We're all the sum of our parts. The collective

25

A. I did respond to that by saying "Yes, sir."

being of my political lens that I apply to taxes

173

175

11

Looking back, perhaps the answer would have been

1
1

2

so" or "I think so."
"I assume se

2

largely reflect the Republican label behind my

or to spending or to whatever is going to

3

Q. When did you learn that not all the races listed

3

name. So I -- when I make decisions, that is

4
4

in those charts were used in constructing the

4

the honest way to reflect the lens or the method

2016 maps?

5

5
6

6

A. Well, to be candid, I don't know that I ever

by which I make those decisions.

Q.
Q.

And how does that belief that it's an inherent

7

learned that. I'm just saying when I looked at

7

part of who we are translate to the

8
8

the maps, to make it simpler for me,

8

redistricting process that you reference in this

9

Dr. Hofeller would just turn on the Tillis-Hagan

9

quote?

10
11
12

thing. I don't really know what he looked at.

10

A. While you only divide -- you know, you've got to

Q. You did not instruct and the written criteria do

11
11

do the one-person, one-vote thing. It would be

not instruct every one of the races to be used?

12

dishonest and naive of me to say that where you

13

put a line in X county may not affect the

13

A. That's correct.

14

Q. You have testified a couple times today that

15
16

17
18

14

balance of a congressional district. So if I

partisanship is an inevitable part of the

15

have a different political philosophy or I have

redistricting process.

16

no political philosophy that I'm willing to

Is that a correct assessment of your
testimony?

17

acknowledge, still whatever you put a line for

18

whatever purpose will have political impact.

19

A. Yes, sir.

19

20

Q. And -- well, I'll just -- if we could mark as

20

me, I want to embrace and be able to say that I

I just -- it would be easy -- believe

21
21

Exhibit 41 a printout of a recent news article

21
21

think the non-partisan thing is a great thing.

22

that I will ask you about a quote. And then

22

People love to hear about that.

23

this is on Page 4, but if you want to take a

23

24

minute to read through the article, I have, of

24

Pm going to follow
going to follow the law, and I'm

25

course, no objection.

25

everything that's required of me by the law ,

174
174

I think it's more honest to say I'm

176

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176)
(Pages 173 to 176)
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 REPRESENTATIVE DAVID LEWIS

January 26,
26, 2017

11

but if there is a -- if there is a discretionary

1

2

decision to make, I will make it through the

2

3

lens of an elected Republican.

3

4
5
6
7
8
9
10

11
11
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13

Q. And do you consider the inclusion of partisan
advantage as a criteria in the 2016 Contingent

4
5

Congressional Plan -- used to adopt the 2016
Contingent Congressional Plan such a

6

discretionary decision?

8
8

7

9

A. Yes.
Q. Do you consider any of the other criteria in the
2016 adopted criteria a discretionary decision?
A. Largely, yeah. I mean, you can draw -- you
know, I chose to apply the definition of

10

11
11
12
13

14

compactness that I believe, which is trying to

14
14

15

keep as many counties whole as we can. If I had

15

16

not had that as a goal, I think we could have
still drawn a pretty map; it just -- maybe it's

16

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20
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25

17
17
18

just stripes through the state. I don't know.
1I think that these -- these -- other

19

than the equal population that these were
considered and balanced and harmonized together

20

and produced a map that to the eye of a judge I
think they recognized that we tried to follow

22

the instructions they gave us, which were very
limited.

24

21
21

23

25

that the districts were supposed to touch. I
know there's been some drawn in the past that

didn't touch. Those weren't found to be
constitutional.
So, I mean, I certainly think -- I
can't cite you a case. I'm not an attorney. So
I will just say it's a traditional redistricting
principle.
Q. For the 2016 Contingent Congressional Plan
Adopted Criteria, did you consider the use of
political data as opposed to any other data
discretionary?
A. I consider the use of political data to
reemphasize that we in no way were using racial
data, which is the whole point of the Harris
case. So I do think it is absolutely necessary
to point out that the only data other than the
population that can be used would be political,
which means you can't use race.
So, yeah, I think that was essential to
complying with the Harris order.
Q. Okay. We began this discussion with partisan
advantage. Did you think it was discretionary
whether this plan needed to address the shape of
the 12th district?

177
11
2
3
4

its valuable to address
Q. So if we could, I think it's

179
1
1
2

those criteria one by one on the question that
we just discussed.

3
4
4

This is -- I'm not looking at in

5

Exhibit 24, but I think the actual criteria are

5

6

Exhibit 24.

6

7

A. Yes, sir, they are.

7

8
8

Q. Equal population, observing the equal population
requirement is not a discretionary decision,

8

9
10

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15
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correct?
A. In my opinion it is not.

9

15

Q. And as a traditional redistricting criteria,
Q.
your understanding is that the use of a

16

traditional redistricting criteria like
contiguity will be a factor in assessing the

18

17

19

likelihood that a court will allow a given plan;

20

21
21

is that correct?

21
21

23
24
25

A. Yes, sir.
Q. But is it discretionary?

22

A. You know, I'm not as familiar with the law as

24

23

some folks are. Obviously I've always believed
178

So as to compactness, again, I can't

of compactness that was consistently applied.
So I would say that the concept, as abstract as

20

22

that looks pretty and seems to flow will have a
better chance of being accepted.
really -- I could not really find
fmd a definition

14

criteria.

A. I think to a judge or to the general public or
to any interesting -- interested person, a map

11
11

13

A. I believe it is a traditional redistricting

Q. Did you think it was discretionary whether the
plan needed to meet some measure of compactness?

10

12

Q. Is requiring contiguous territory a
discretionary decision?

A. No. I thought that was a requirement of the
Harris court.

25

it might be, of compactness is a traditional
redistricting criteria, but I don't really think
there's a uniform way to define what that is.
Q. Understood. But as a -- finding some measure of
compactness, you felt that was necessary for the
2016 adopted criteria?
FARR: Objection to the form.
MR. FARR
BY MR. THORPE:

Q. Did you think -- could you have asked your -- in
drafting the 2016 adopted criteria, did you feel
you had discretion as to whether compactness
would be one of the criteria?
A. I didn't think there was anything that was
180

45 (Pages
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(Pages 177 to 180)
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DISCOVERY COURT REPORTERS
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 REPRESENTATIVE DAVID LEWIS

January 26,
26, 2017
E R R A T A SHEET
SHEET
ERRATA

absolutely requiring us to consider compactness

1

2

other than in previous court cases the word

2

3

"compactness" had been used often.

3

3

Witness Name: DAVID LEWIS

4

Deposition Date: Thursday, January 26, 2017

1
1

4
4

Q. And so similar to your response on contiguity,

Case Name: Common Cause v Rucho / LWV NC v Rucho

5

one of the things you considered about

5

6

compactness was it may be a factor that weighed

6

Page/Line

7

in favor of or against a court allowing the 2016

7

____/____ _______________________ ___________________________
/

8

plan?

8

____/____ _______________________ ___________________________
/

9

A. Yes.

9

____/____ _______________________ ___________________________

10

____/____ _______________________ ___________________________
____/____ _______________________ ___________________________

10

Q. And finally, incumbency, did you consider

Reads

Should Read

11
11

incumbency a discretionary choice that you made

11

12

in drafting the 2016 adopted criteria?

12

____/____ _______________________ ___________________________

13

A. I think it is a traditional redistricting

13

____/____ _______________________ ___________________________

14

criteria. We were trying to comply with the

14

____/____ _______________________ ___________________________

15

court order, not pick a fight with the members

15

____/____ _______________________ ___________________________

16

of Congress, so that's why I did that.

16

____/____ _______________________ ___________________________

17

MR. THORPE: Okay. We're good.

17

____/____ _______________________ ___________________________

18

(Discussion held off the reporter's

18

____/____ _______________________ ___________________________

19

____/____ _______________________ ___________________________

19

written record.)

20

FARR: We can go off the record.
MR. FARR

20

____/____ _______________________ ___________________________

21
21

THE VIDEOGRAPHER: Off the record at

21
21

____/____ _______________________ ___________________________

22

____/____ _______________________ ___________________________

22
23
24

3:44 p.m.
[SIGNATURE RESERVED]

23

[DEPOSITION CONCLUDED AT 3:44 P.M.]

25

24
25

Signature

Date

181
181
1

ACKNOWLEDGEMENT
A C K N O W L E D G E M E N T OF
O F DEPONENT
DEPONENT

183
1

STATE OF NORTH CAROLINA

3

2
2

I, DAVID LEWIS, declare under the penalties of

4

perjury under the State of North Carolina that I have read

3

5

the foregoing pages, which contain a correct transcription

4
4

6

of answers made by me to the questions therein recorded,

7

with the exception(s) and/or addition(s) reflected on the

8

correction sheet attached hereto, if any.

9

)

CERTIFICATE
) CERTIFICATE

2

Signed this the

day of

, 2017.

10

)

5

I, DENISE MYERS BYRD, Court Reporter and Notary

6

Public, the officer before whom the foregoing proceeding was

7
7

conducted, do hereby certify that the witness(es) whose

8

testimony appears in the foregoing proceeding were duly

9

sworn by me; that the testimony of said witness(es) were

10

11
11

DAVID LEWIS

COUNTY OF WAKE

taken by me to the best of my ability and thereafter

11
11

transcribed under my supervision; and that the foregoing

12

pages, inclusive, constitute a true and accurate

13

transcription of the testimony of the witness(es).

12
12
13
14
14
14
15

I do further certify that I am neither counsel for,
related to, nor employed by any of the parties to this

15

16
17
17
18
19

16

action, and further, that I am not a relative or employee of

17

thereof, nor
any attorney or counsel employed by the parties thereof;

18

financially or otherwise interested in the outcome of said

19

action.

20

20

This the 14th day of February 2017.

21
21

21
21

22

22

23

23

Denise Myers Byrd

24
24

24

25

25

182

CSR 8340, RPR, CLR 102409-02

184
184

46 (Pages
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 Exhibit 

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 311 of 662

2016 Contingent Congressional Plan Committee Adopted Criteria

Equal Population
The Committee will use the 2010 federal decennial census data as the sole
basis of population for the establishment of districts in the 2016 Contingent
Congressional Plan. The number of persons in each congressional district shall be
as nearly as equal as practicable, as determined under the most recent federal
decennial census.
Contiguity

Congressional districts shall be comprised of contiguous territory.
Contiguity by water is sufficient.

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
2016 Contingent
Congressional Plan.
Voting districts
districts ("VTDs")
(“VTDs”)
districts
in the
Contingent Congressional
Plan. Voting
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.

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
makeup of
of North
North Carolina's
Carolina’s congressional
delegation.
current partisan
congressional delegation.
Twelfth District
The current General Assembly inherited the configuration of the Twelfth
District from past General Assemblies. This configuration was retained because the
district had already been heavily litigated over the past two decades and ultimately
approved by the courts. The Harris court has criticized the shape of the Twelfth

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 312 of 662

 its "serpentine"
“serpentine” nature.
nature. In
this, the
the Committee
shall construct
District citing its
In light
light of
of this,
Committee shall
construct
districts in the 2016 Contingent Congressional Plan that eliminate the current
configuration of the Twelfth District.
Compactness
In light
the Harris
Harris court’s
the compactness
the First
First and
and
In
light of
of the
court's criticism
criticism of
of the
compactness of
of the
Twelfth Districts, the Committee shall make reasonable efforts to construct
districts in the 2016 Contingent Congressional Plan that improve the compactness
of the current districts and keep more counties and VTDs whole as compared to the
current enacted plan. Division of counties shall only be made for reasons of
equalizing population, consideration of incumbency and political impact.
Reasonable efforts shall be made not to divide a county into more than two
districts.
Incumbency
Candidates for Congress are not required by law to reside in a district they
seek to represent. However, reasonable efforts shall be made to ensure that
incumbent members of Congress are not paired with another incumbent in one of
the new districts constructed in the 2016 Contingent Congressional Plan.

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 313 of 662

 Exhibit 

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 314 of 662

1
1

NORTH CAROLINA GENERAL ASSEMBLY
JOINT COMMITTEE ON REDISTRICTING

___________________________________________________________
TRANSCRIPT OF THE PROCEEDINGS
___________________________________________________________

In Raleigh, North Carolina
Tuesday, February 16, 2016
Reported by Carol M. Smith

Worley Reporting
P.O. Box 99169
Raleigh, NC 27624

919-870-8070

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 315 of 662
Case 1:13-cv-00949-WO-JEP Document 159-9 Filed 03/07/16 Paae
Page 1 of 45

 Joint Redistricting
Redistricting Committee 2_16_16
N.C.
Redistricting 2016
N
.0 . General Assembly Extra Session on Redistricting

Pages 2 to 5
2
1

SEN. RUCHO: Let's come to order for a

2

few moments. Would everybody please take their

3

seats? We're going to have about a 10- or 15-

4

minute break to get some papers printed up and

5

ready to go as a part of our agenda, but what we

6

will do first is identify the Sergeant-at-Arms that

7

are here today. We've got -- for the House side,

8

we've got Reggie Sills, Marvin Lee, David Layden

9

and Terry McCraw, and then we've got our Senate

10

Sergeant-at-Arms Jim Hamilton, Ed Kesler and Hal

11
11

Roach. These folks help us make this meeting

12

organized and run efficiently, and we wouldn't be

13

able to do a good job without them.

14
15

I appreciate everybody yesterday coming
out and helping us accomplish our public hearing.

16

We had a lot of good thoughts and advice, and I

17

hope that you've taken some time to read the public

18

comments that came over the Internet so that we can

19

be able to talk about the subject matter on an

20

intelligent level.

21
21

Representative Lewis and I want to again

22

remark about the fact that the staff has done a

23

remarkable job for us in putting together

24

yesterday's public hearing and this meeting, and

25

the IT folks were miracle workers in trying to

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SEN. MCKISSICK: Here.
CLERK: Senator Smith?
SEN. SMITH: Here.
CLERK: Senator Smith-Ingram?
SEN. SMITH-INGRAM: Present.
CLERK: Senator Wells?
SEN. WELLS: Here.
CLERK: Senator Blue?
SEN. BLUE: Here.
CLERK: Senator Ford?
(No response.)
CLERK: Senator Ford?
(No response.)
CLERK: Senator Wade?
(No response.)
CLERK: Senator Barefoot?
SEN. BAREFOOT: Here.
CLERK: Senator Randleman?
SEN. RANDLEMAN: Here.
CLERK: Senator Jackson?
SEN. JACKSON: Here.
CLERK: Representative Lewis?
REP. LEWIS: Here.
CLERK: Representative Jones?
REP. JONES: Here.

3
1
1

coordinate six sites plus Raleigh to do a good job

2

and allow us to be able to reach out across the

3

state with this public hearing that is -- that was

4

yesterday, and it was successful, and we're

5

thrilled that they could do such a good job for us.

6
7

All right, the first point -- and I'm
going to have Mr. Verbiest, our clerk, do a roll

8

call, and would you just, as your name is

9

mentioned, please recognize it, or if we hear

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quiet, we know you're not here.
CLERK: Senator Sanderson?
SEN. SANDERSON: Present.
CLERK: Senator Brown?
SEN. BROWN: Here.
CLERK: Senator Apodaca?
(No response.)
CLERK: Senator Clark?
SEN. CLARK: Present.
CLERK: Senator Harrington?
SEN. HARRINGTON: Here.
CLERK: Senator Hise?
SEN. HISE: Here.
CLERK: Senator Lee?
SEN. LEE: Here.
CLERK: Senator McKissick?

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CLERK: Representative Hager?
REP. HAGER: Here.
CLERK: Representative Stevens?
REP. STEVENS: Here.
CLERK: Representative Hurley?
REP. HURLEY: (No response.)
CLERK: Representative Stam?
REP. STAM: Here.
CLERK: Representative Jordan?
REP. JORDAN: Here.
CLERK: Representative Johnson?
REP. JOHNSON: Here.
CLERK: Representative Brawley?
REP. BRAWLEY: Present.
CLERK: Representative Hardister?
REP. HARDISTER: Here.
CLERK: Representative Davis?
REP. DAVIS: Here.
CLERK: Representative McGrady?
REP. MCGRADY: Here.
CLERK: Representative Michaux?
REP. MICHAUX: Here.
CLERK: Representative Cotham?
REP. COTHAM: Here.
CLERK: Representative Hanes?

Reporting
Worley Reporting

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 316 of 662
Case 1:13-cv-00949-WO-JEP Document 159-9 Filed 03/07/16 Paae
Page 2 of 45

 Joint Redistricting Committee 2_16_16
N.C.
Redistricting 2016
N
.C. General Assembly Extra Session on Redistricting

Pages 6 to 9
6

8

1

REP. HANES: Here.

1

2

CLERK: Representative Moore?

2

precaution, and we anticipate some reaction from

3

REP. MOORE: Here.

3

the Supreme Court on the motion for stay which will

4

CLERK: Representative Farmer-

4

allow the election to continue forward, and then

5

allow the court case to continue on its normal

5

Butterfield?

so under the circumstances, we are taking a

6

REP. FARMER-BUTTERFIELD: Here.

6

course, which would be, in my judgment, a better

7

CLERK: Representative Dixon?

7

way to go, since the election has already been

8

(No response.)

8

started, and we don't want to disenfranchise the

9

voters in any manner.

9

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CLERK: Representative Hurley?
REP. HURLEY: Right here.
CLERK: Thank you.
SEN. RUCHO: And I think my name was
omitted, so I might just mention the fact that I'm
-here today -CLERK: Yes. Sorry.
SEN. RUCHO: -- despite a long day
yesterday. All right.
We've got some work to do today. We've
got just about 15 minutes, and may I ask you to
just stay at ease for about 15 minutes, and then we
will begin the meeting and have a full agenda
before us.
Representative Lewis, do you have any
other thoughts or comments you'd like to share?
REP. LEWIS: No.

10

That being said, we are going to begin

11
11

our agenda. Representative Lewis, would you have

12

any comments at this time?

13

REP. LEWIS: No, sir.
SEN. RUCHO: No? Okay. Then we're going
to go on to the second, which is discussion of the
criteria of the 2016 Contingent Congressional Maps,
and what these are, are criteria as to how these
maps should be drawn to try to meet the
requirements imposed by the Court and also remain
within the legal limits of the law. Representative
Lewis?
REP. LEWIS: Mr. Chairman, ladies and
gentlemen of the Joint Select Committee on
Congressional Redistricting and members of the
public, I too would like to offer a brief

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historical perspective on what brings us here

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about 10 to 15 minutes. Thank you.

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today.

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(DISCUSSION OFF RECORD)
SEN. RUCHO: Spend a few minutes taking a
look at that, and see from its beginning on through
the latest maps what has transpired. I think it
would be very educational. Thank you.
(RECESS, 10:14 - 10:23 A.M.)
SEN. RUCHO: All right, let's call this
Joint Select Committee on Redistricting back into
order. You have a copy of the agenda before you,
and there's just one correction on the agenda. On
the right quadrant, under Senate, it had Harry
Warren. It should be Senator Harry Brown, so fix
that. Okay.
Well, yesterday we had a chance to have a
public hearing, and I think each of you knows that
the General Assembly, based on the Harris case,
there was an opinion given by the three-judge
panel, and we are responding to that. We still
believe that the maps that are presently enacted
are fair, legal, and constitutional, as has been
validated by five different bodies, including the
Justice Department, including a three-judge panel,
including the Supreme Court on three occasions, and

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SEN. RUCHO: Okay. Then just at ease for

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In 2011, after the release of the Census,
this General Assembly set out to create fair and

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legal Congressional districts. In doing so, the

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2011 process included an unprecedented number of
2011

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public hearings, 36 scheduled before the release of

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the maps, 7 after the release of our original

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proposed districts, 10 dedicated to receiving
public comment on the release of the entire plan,
and an additional 10 after the release of our
respective proposals for the legislative districts.
Additionally, we provided easy public
access for public comment via the North Carolina
General Assembly Web site, and invited additional
written comments through both e-mail and the US
Postal Service. Senator Rucho and I thank the
thousands of citizens who exercised their right to
offer comments at that set of public hearings or
submit written comments. All of those comments
were reviewed by the chairs and preserved as a
permanent record of citizen input on this important
task.
We also took back then the unprecedented
step of providing the leadership of the minority

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parties in the House and the Senate and the
Legislative Black Caucus specialized computer
hardware and software in their respective offices,
along with staff support which was available to all
2011 General Assembly did ultimately
members. The 2011
adopt redistricting plans, as I recall, largely
along party lines, as unfortunately, so many items
here are decided.
For purposes of my discussion today, I
2011 plans as the enacted plans.
will refer to the 2011
The enacted congressional redistricting plan of
2011 was first precleared by the United States
2011
Department of Justice, as was required by Section 5
of the Voting Rights Act. The enacted
Congressional redistricting plan was then
challenged in state courts through what is known as
the Dixon versus Rucho case. The plan was affirmed
by a three-judge panel and by the North Carolina
Supreme Court.
The enacted Congressional redistricting
plan has been used to elect members of the US House
of Representatives in 2012 and 2014, and has also
seen citizens file for election in each of the 13
districts this year. Further, voting has begun,
and we are informed by the State Board of Elections

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70 speakers participating. There were also more

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than 80 comments submitted online.

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The chairs thank all the citizens who

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participated yesterday. The chair reminds the

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members that the written comments have been placed

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on the General Assembly's Web site, and a link e-

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mailed to each of your e-mail accounts.

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Mr. Chairman, at your direction, I would
like to submit to the committee a series of

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proposals to establish criteria for the drawing of

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the 2016 contingent Congressional map.

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SEN. RUCHO: Yes, sir, Chairman Lewis.

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You can begin and go through the rotation as -- as

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you planned.
REP. LEWIS: Mr. Chairman, I'd like staff

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to distribute the 2016 Congressional -- pardon

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me -- the 2016 contingent Congressional plan

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proposed criteria, beginning with "Equal

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Population," to the members.

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SEN. RUCHO: Sergeant-at-Arms will be

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passing this out, and we're going to take our time,

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read it thoroughly, and then -- so Representative

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Lewis will explain it, and then we'll debate each

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of them as we move forward. (Pause.)
Has everyone received a copy of the first

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that more than 16,000 citizens have already

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one? They're not in any order as far as priorities

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requested to vote by mail.

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or anything. They're just going to be set forward.

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Unfortunately, the enacted plan was

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challenged again in what is known as the Harris

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versus McCrory case. In that decision, in which we

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respectfully disagree with the three-judge panel,

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it was found that the 1st Congressional District

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that -- now, let's be clear. Ladies and gentlemen

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and the 12th Congressional District are racial

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in the audience, the members of the committee will

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gerrymanders, and they ordered new maps be drawn by

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VARIOUS COMMITTEE MEMBERS: No, no.

SEN. RUCHO: Okay. Hang on. This first
one is called "Equal Population." (Pause.)
All right, does everyone have a copy

be participating within this meeting. I know we

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February 19th, and that the election for US House

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have a number of members that have come here with

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not be held under the current maps.

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interest, and we're delighted to have them, and

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While, as Chairman Rucho said, we are

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recognize that every member that is here can submit

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confident that a stay of this decision, which

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a reimbursement form, but the people that are on

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interrupts an election already in progress, will be

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the committee will be the ones participating in

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granted, and that the enacted map will ultimately

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today's business activity of this committee

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be upheld on appeal, we are required to begin the

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meeting.

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process of drawing a 2016 contingent Congressional

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2011 plan was
map. I reiterate that while the 2011

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dictated by the Cromartie and Strickland decisions

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of the US Supreme Court, we will move forward to

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this one, I would request that the Sergeant-at-Arms

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establish a plan based on the Harris opinion.

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go ahead and distribute the second one, which is

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The process -- this process began with

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entitled "Contiguity."

All right, Representative Lewis, first
one.

REP. LEWIS: Mr. Chairman, as I explain

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the appointment of this joint select committee, and

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Mr. Chairman, the first criteria that I

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continued yesterday with the public hearings held

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would urge the committee to adopt is that each

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in six locations across the state, with more than

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district should be of equal population. This is

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pretty self-explanatory. This is in line with one
person, one vote. It simply says, as members can
read, that the number of persons in each
Congressional district shall be as near equal as
practicable, as determined under the most recent
Census, which of course would be the 2010 Census.
Mr. Chairman, I move adoption of this criteria.
REP. STEVENS: Are you waiting for a
second?
SEN. RUCHO: I've got a motion from
Representative Lewis to move forward with this
adoption of this first equal -- equal population.
Representative Stevens, thank you. We've got a
second. Discussion, ladies and gentlemen?
(No response.)
SEN. RUCHO: All right, I see none. All
in favor of the adoption of the equal population --yes. I'll go back. We're going to go ahead and
we're going to do roll-call vote on this. And so
I'm saying we're going to have a roll call from the
clerk on the equal population. Please identify --or just say "Aye" or "Nay," please. Mr. Verbiest?
CLERK: Senator Rucho?
SEN. RUCHO: Aye.
CLERK: Chairman Lewis?

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CLERK: Representative Jordan?
REP. JORDAN: Aye.
CLERK: Representative McGrady?
REP. MCGRADY: Aye.
CLERK: Representative Michaux?
REP. MICHAUX: No.
CLERK: Representative Moore?
REP. MOORE: Aye.
CLERK: Representative Stam?
REP. STAM: Aye.
CLERK: Representative Stevens?
REP. STEVENS: Aye.
CLERK: Representative Dixon?
(No response.)
SEN. RUCHO: You do have Senator Apodaca

is here now?
CLERK: Yes, I do.
SEN. RUCHO: Okay.
CLERK: Senator Apodaca?
SEN. APODACA: Aye.
CLERK: Senator Barefoot?
SEN. BAREFOOT: Aye.
CLERK: Senator Blue?
SEN. BLUE: Aye.
CLERK: Senator Brown?

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REP. LEWIS: Aye.
CLERK: Representative Jones?
REP. JONES: Aye.
CLERK: Representative Brawley?
REP. BRAWLEY: Aye.
CLERK: Representative Cotham?
REP. COTHAM: Aye.
CLERK: Representative Davis?
REP. DAVIS: Aye.
CLERK: Representative FarmerButterfield?
REP. FARMER-BUTTERFIELD: Aye.
CLERK: Representative Hager?
REP. HAGER: Aye.
SEN. RUCHO: Please speak up, please.
CLERK: Representative Hanes?
REP. HANES: Aye.
CLERK: Representative Hardister?
REP. HARDISTER: Aye.
CLERK: Representative Hurley?
REP. HURLEY: Aye.
CLERK: Representative Jackson?
REP. JACKSON: Aye.
CLERK: Representative Johnson?
REP. JOHNSON: Aye.

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SEN. BROWN: Aye.
CLERK: Senator Clark?
SEN. CLARK: Aye.
CLERK: Senator Ford?
(No response.)
CLERK: Senator Harrington?
SEN. HARRINGTON: Aye.
CLERK: Senator Hise?
SEN. HISE: Aye.
CLERK: Senator Jackson?
SEN. JACKSON: Aye.
CLERK: Senator Lee?
SEN. LEE: Aye.
CLERK: Senator McKissick?
SEN. MCKISSICK: Aye.
CLERK: Senator Randleman?
SEN. RANDLEMAN: Aye.
CLERK: Senator Sanderson?
SEN. SANDERSON: Aye.
CLERK: Senator Smith?
SEN. SMITH: Aye.
CLERK: Senator Smith-Ingram?
SEN. SMITH-INGRAM: Aye.
CLERK: Senator Wade?
(No response.)

Reporting
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CLERK: Senator Wells?
SEN. WELLS: Aye.
CLERK: Only one nay.
SEN. RUCHO: Okay. Ladies and gentlemen,
we had the roll vote, and there was just one
negative, so the first criteria establishing equal
population has passed. All right. Representative
Lewis?
REP. LEWIS: Thank you, Mr. Chairman.
Mr. Chairman, the next criteria I propose the
committee adopt -- adopt is "Contiguity." This
simply says that --REP. STEVENS: Mr. Chairman, we don't
have copies of it yet.
SEN. RUCHO: I'm sorry? Please repeat
that again. You don't have the second?
REP. STEVENS: I do not have a copy, and
perhaps I'm sitting a little out of the way.
SEN. RUCHO: Okay. Sergeant-at-Arms,
would someone please get the contiguity criteria?
REP. LEWIS: Mr. Chairman, if it pleases
the Chair, I would respectfully request that -- the
next criteria I intend to offer is "Political
Data." If that could be distributed to the
committee, perhaps to save a little time?

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REP. LEWIS: Senator Blue, thank you for
that question. Let me be clear that it does not,
and I would be opposed to any form of single-point
contiguity has been ruled as not a legal form of
mapmaking in the past.
SEN. RUCHO: Follow-up?
SEN. BLUE: Does it contemplate any
minimal distance on the water that is used to
determine that geographically, areas are
contiguous?
REP. LEWIS: Senator Blue, I don't
believe it contemplates the Atlantic Ocean, but, I
mean, as you know, sir, we have beautiful sounds in
our state that that is a community, and so the
water -- I can't give you an exact -- an exact
definition of how much water is too much water.
SEN. BLUE: Last point.
SEN. RUCHO: Follow-up?
SEN. BLUE: Does it contemplate the point
in the Cape Fear River in one of your counties
that's currently used as a basis for connecting
geographically parts of the 4th Congressional
District?
REP. LEWIS: Senator Blue, I appreciate
that inquiry. I would -- I would point out that

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SEN. RUCHO: Okay, that's fine.
Sergeant-at-Arms, would you please distribute the
third criteria, which is "Political Data"?
Representative Lewis, would you want staff to read
this, the specifics as they're presented, or do you
prefer to do it yourself?
REP. LEWIS: Mr. Chairman, are you trying
to imply I can't say "contiguity"?
(Laughter.)
SEN. RUCHO: That is a mouthful. I agree
with you. All right. We have before us -- would
you please read this first -- or the second,
"Contiguity"?
MS. CHURCHILL: "Contiguity:
Congressional districts shall be comprised of
contiguous territory. Contiguity by water is
sufficient."
SEN. RUCHO: Representative Lewis?
REP. LEWIS: Members, this is a standard
redistricting practice, and I would move the
adoption of the criteria by the committee.
SEN. RUCHO: All right. Senator Blue?
SEN. BLUE: Question of Representative
Lewis: Does this contemplate single-point
contiguity in water?

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there is an island there, so there is actually land
in the middle of the Cape Fear, that exact point
that you're referring to, but I would have to say
that I do not believe that that is the intent of
this.
SEN. RUCHO: Senator Smith, did you have
a question?
SEN. SMITH: No.
SEN. RUCHO: Oh, okay. Any additional
questions or comments on the contiguity criteria?
(No response.)
SEN. RUCHO: Seeing none, all right, Mr.
Verbiest, would you do roll call again?
CLERK: Representative Lewis?
REP. LEWIS: Aye.
CLERK: Representative Jones?
REP. JONES: Aye.
CLERK: Representative Brawley?
REP. BRAWLEY: Aye.
CLERK: Representative Cotham?
REP. COTHAM: Aye.
CLERK: Representative Davis?
REP. DAVIS: Aye.
CLERK: Representative FarmerButterfield?

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REP. FARMER-BUTTERFIELD: Aye.
CLERK: Representative Hager?
REP. HAGER: Aye.
CLERK: Representative Hanes?
REP. HANES: Aye.
CLERK: Representative Hardister?
Ha rdister?
REP. HARDISTER: Aye.
CLERK: Representative Hurley?
REP. HURLEY: Aye.
CLERK: Representative Jackson?
REP. JACKSON: Aye.
CLERK: Representative Johnson?
REP. JOHNSON: Aye.
CLERK: Representative Jordan?
REP. JORDAN: Aye.
CLERK: Representative McGrady?
REP. MCGRADY: Aye.
CLERK: Representative Michaux?
REP. MICHAUX: Aye.
CLERK: Representative Moore?
REP. MOORE: Aye.
CLERK: Representative Stam?
REP. SIAM:
STAM: Aye.
CLERK: Representative Stevens?
REP. STEVENS: Aye.

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CLERK: Senator Sanderson?

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SEN. SANDERSON: Aye.

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CLERK: Senator Smith?

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SEN. SMITH: Aye.

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CLERK: Senator Smith-Ingram?

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SEN. SMITH-INGRAM: Aye.

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CLERK: Senator Waddell?

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(No response.)

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CLERK: Senator Wade?
(No response.)

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CLERK: Senator Wells?

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SEN. WELLS: Aye.

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SEN. RUCHO: Any against?

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CLERK: Unanimous.

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SEN. RUCHO: All right, members of the

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committee, the criterion on contiguity passed
unanimously and was adopted unanimously. All
right.
REP. LEWIS: Mr. Chairman, I'd like to -SEN. RUCHO: Mr. Lewis, you've got
"Political Data" before you, and you would like the
next criteria sent out to the members?
REP. LEWIS: Mr. Chairman, if we could,
let's do "Political Data," and then we'll move on
to the next one. Let's not distribute --

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CLERK: Senator Rucho?
SEN. RUCHO: Aye.
CLERK: Senator Apodaca?
SEN. APODACA: Aye.
CLERK: Senator Barefoot?
SEN. BAREFOOT: Aye.
CLERK: Senator Blue?
SEN. BLUE: Aye.
CLERK: Senator Brown?
SEN. BROWN: Aye.
CLERK: Senator Clark?
SEN. CLARK: Aye.
CLERK: Senator Harrington?
SEN. HARRINGTON: Aye.
CLERK: Senator Hise?
SEN. HISE: Aye.
CLERK: Senator Jackson?
SEN. JACKSON: Aye.
CLERK: Senator Lee?
SEN. LEE: Aye.
CLERK: Senator McKissick?
SEN. MCKISSICK: Aye.
CLERK: Senator Sandleman? Senator
Randleman? I'm sorry.
SEN. RANDLEMAN: Aye.

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SEN. RUCHO: All right. So you want to

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just take care of that. Would -- Ms. Churchill,

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would you read the one on political data, please?
MS. CHURCHILL: "Political Data: The
only data other than population data to be used to
construct Congressional districts shall be election
results in statewide contests since 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, referred to as VTDs,
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."
SEN. RUCHO: All right. Representative
Lewis, that is before the committee.
REP. LEWIS: Mr. Chairman, I -SEN. RUCHO: Let him explain it, please.
REP. LEWIS: I believe it explains
itself. I'll be happy to yield to -SEN. RUCHO: All right. Question,
Senator Blue?
SEN. BLUE: Yeah. This might be one for

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the staff, Mr. Chairman.
SEN. RUCHO: All right. Staff?
SEN. BLUE: The second -- the second full
paragraph, can you restrict -- and I think I know
where you're trying to go to, but can you restrict
the use of race in drawing the two districts in
question and be in conformity with the Voting
Rights Act as the Court enunciated in its decision
several weeks ago?
SEN. RUCHO: Representative Lewis, do you
want to respond to that?
REP. LEWIS: Mr. Chairman, thank you.
Senator Blue, I appreciate that inquiry. It is my
understanding and reading of the opinion that race
is not to be a factor in drawing the districts.
Adoption of this criteria would mean that the ISD
staff of the General Assembly would be instructed
to establish computers, and I believe the software
is called Maptitude, and the staff would be
instructed not to include race as a field that
could be used to draw districts.
I'll go one step further and say
respectfully that race was not considered when the
General Assembly passed the 12th District of the
enacted plan, but the Court still questioned its

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what you're trying to do here, but I think it's an
insult to their intelligence to take this approach,
and I think that they will show you the ultimate
power of the federal judiciary that's existed since
1802 in Marbury versus Madison if you do this.
REP. LEWIS: Respectfully, sir, it would
never be my intent to offend or to question the
dignity of the office of a federal judge. If
anything I said hitherunto has done that, I
apologize; however, it is my understanding that
when we drew the enacted plan, we applied the
Cromartie and Strickland decisions as best we knew
how to do in drawing the 1st. We did not use race
when we drew the 12th.
The Court has found those both to be
racial gerrymanders. It would be my -- they also
found, based on my reading of the opinion -- I'm
certainly not spitting in their face; I'm trying to
read what they said -- that there's not racially
polarized voting. If that is indeed the case, then
race should not be a factor.
SEN. RUCHO: Smith-Ingram?
Representative Smith-Ingram? I'm sorry. Before I
do that, I -- Senator McKissick got me first.
Please, Senator McKissick.

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use. This would contemplate that that data would
not be available to mapmakers who make maps to
comply with the Harris order.
SEN. RUCHO: Follow-up?
SEN. BLUE: You're saying that
notwithstanding all of the jurisprudence in this
area, at least that I've seen over the last 25, 30
years, that you're going to draw minority districts
without taking into account whether minorities are
in the minority district?
REP. LEWIS: Senator Blue, I believe the
Harris opinion found that there was not racially
polarized voting in the state, and therefore, the
race of the voters should not be considered. My
proposal would be that we use political data only,
and do not use race to draw Congressional
districts.
-SEN. BLUE: One last -SEN. RUCHO: Follow-up?
SEN. BLUE: I long for the day, just like
you do, Representative Lewis, when we can do that,
and I hope it's sooner rather than later, but I
don't think it's wise to spit in the eyes of three
federal judges who control the fate of where we're
going to go with redistricting, and I understand

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SEN. MCKISSICK: Sure. The thing that

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I'm deeply concerned about is that the Voting
I'm

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Rights Act and the courts have historically
indicated that it's appropriate to use race in
drawing Congressional districts, and I don't
understand why we would abandon it as a criteria.
From what I understand from reading the
most recent decision, Harris versus McCrory, what
they were concerned about was the fact that it was
a predominant consideration, so there was an
overconcentration of African-American voters
because majority-minority districts were created,
and I think that was what I understood to be the
finding, the creation of these majority-minority
districts, when historically the 1st and 12th
districts could elect a candidate choice without
being a majority-minority district. I think it
would be a misreading of the case to say that race
could not be used as a consideration.
REP. LEWIS: Senator McKissick, as
always, I appreciate your counsel. I would
reiterate that in drawing of the 12th, race was not
con- -- race was not a considered factor. In the
drawing of the 1st, we attempted to comply with the
Cromartie and Strickland cases, which we believed

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called for, and still believe called for the -- if
a district is drawn under the Voting Rights Act to
be a majority-minority district, that it contain a
majority of minorities. The Court has found that
racially polarized voting does not exist to the
extent to do that.
During the trial, which I know Senator
Blue attended -- I don't remember who-all else was
there -- there was various testimony offered from
the stand of how much minority population is
enough. The judges were well aware that that
conversation had gone on from the stand. They
offered no guidance into how much minority
population should be used; therefore, I simply say
we draw the maps without using minority -- without
using any race considerations. That way, they
cannot -- the federal court will be clear that in
the construction of districts that we did not use
racial consideration if it's not even a factor that
can be selected on the computer.
SEN. MCKISSICK: Follow-up, Mr. Chair?
SEN. RUCHO: Follow-up.
SEN. MCKISSICK: So how would you propose
that you comply with the requirements, say, of the
Voting Rights Act, which basically indicates that

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the trigger point to draw a VRA -- VRA district.

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the enacted maps should stand as they are. If

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we're going to redraw the maps with the Harris

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order, which says there's not racially polarized

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voting, then we believe that race should not be a

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consideration in drawing the maps.

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SEN. MCKISSICK: Follow-up, Mr. Chairman.
SEN. RUCHO: Follow-up.
SEN. MCKISSICK: Why would we not here
want to consider the election results of the 2008
and 2000 -- I guess '12 presidential elections? Is
there a specific reason why we want to exclude
those specific election results and include other
potential election results within that same general
time frame?
REP. LEWIS: Yes, sir.
SEN. MCKISSICK: Because, I mean, the
thing that's obvious to anybody is we had an
African-American running for President in those two
election cycles.
REP. LEWIS: Yes, sir, and I don't recall
which pages it's on, but in the Harris opinion, one
of the judges wrote that using the 2008
Obama/McCain data was really a code for trying to

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you should create districts that allow minorities

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use black versus white, so we simply say we

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to elect a candidate of choice if race is not an

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exclude -- we take that off the table. We can use

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appropriate consideration? I don't know how you

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all the other ones.

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accomplish that objective without having it,

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certainly not as the predominant consideration. I

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we should --

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would agree that cannot be done, and should not be

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done, but I'm trying to understand how you do that

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otherwise if you completely eliminate race as a

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criteria that you look at in drafting the maps, and

SEN. RUCHO: Follow-up?
SEN. MCKISSICK: Yes. Thank you, Mr.
Chair. I would suggest that there's nothing
improper in considering those particular races
within a greater context of all races that we might
have used as benchmarks for consideration for the
performance of districts or how they might vote,
but I think to eliminate those specifically would
be an inappropriate criteria.
I would have to go back to the decisions.
I think things can be used as code in combination
with other actions that are taken, like drawing
minority -- majority-minority districts, but yet
saying race is not a factor, and it was done for
political reasons. I think within the greater
context, perhaps the Court might have viewed it
that way, but if you identify this discretely as
being one parameter among many, I don't think that
that would be inappropriate to consider.
I find it fine -- you know, I don't think

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bit -- why would we not want to consider the --

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SEN. RUCHO: Which question? Is this
your -SEN. MCKISSICK: Okay, yeah.
SEN. RUCHO: -- first question?
SEN. MCKISSICK: Yeah, first question.
SEN. RUCHO: Okay.
SEN. MCKISSICK: Go ahead, Representative
Lewis. Thank you, sir.
REP. LEWIS: Senator, I believe that my
earlier answer that -- and I have a great deal of
respect for you. I understand that you are an
attorney, and I am not an attorney. It's my
reading of the case that the Court has found that
there was not racially polarized voting, which is

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SEN. MCKISSICK: And I would suggest that

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we need to go in there and split these precincts.

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I think splitting the precincts would probably be a

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what you are saying that the only reason we had

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code word for understanding that you could

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split counties and split precincts in the previous

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segregate voters out based upon race as well, so I

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plan is because we were trying to meet the mandate

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mean, I have no problems not -- not going in there

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of the zero deviation?

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and splitting out these precincts, and I think

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REP. LEWIS: No, ma'am, that's not at all

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keeping the voter tabulation districts as whole as
possible is a good component, but I would be
opposed to the elimination of consideration of the
2008 and 2012 presidential data as well as other -any other racial data that would be provided in the
normal data packages that for many, many years have
always been used by this General Assembly in
drawing these Congressional districts. Thank you,
sir.
REP. LEWIS: Mr. Chairman, respectfully,
I -SEN. RUCHO: Yes, sir?
REP. LEWIS: -- believe that was a
statement, to which I'll just respond I
respectfully disagree with the gentleman from
Durham.
SEN. RUCHO: All right. Thank you.
Senator Smith-Ingram?
SEN. SMITH-INGRAM: Thank you, Mr. Chair.

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what I said. What this says is that -- what this

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SEN. SMITH-INGRAM: So I can assume from

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says is in drawing the map, this contingent plan

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that we are -- that we are talking about is that

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the VTDs should be split only when necessary to

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comply with the zero deviation requirements. I was

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not at all speaking about the enacted map, in which

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I'm certain that some precincts and voting

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districts were split for political purposes.

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SEN. SMITH-INGRAM: Last follow-up, Mr.

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Chair.

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SEN. RUCHO: Last follow-up.
SEN. SMITH-INGRAM: Just a statement. I
understand that our voters across the state are
very sophisticated; however, there was a lot of
confusion created with the split counties and the
split precincts, and so I just -- as we're moving
forward, we need to be careful that they are not
disenfranchised by that confusion. Thank you,
Representative Lewis.

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In regards to the proposed criteria as it relates

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to the voting districts and the split, one of the

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concerns that resonated across the state, as shown

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REP. STAM: Yes. I like this criteria.

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in the hearings, and as we talked to constituents,

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It's very principled, and it's principles that I've

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particularly in the finger counties in
Congressional District 1, there is some concern
about precincts being split, and a lot of voter
confusion because of split counties and split
precincts. Do you think the language in the last
sentence goes far enough to help us alleviate that
problem, and not have that issue as we move toward
drawing new maps?
REP. LEWIS: Senator, I thank you for
that question. I would say that, as I've
maintained all along, I believe that voters are
sophisticated enough that split political districts
do not cause confusion, but to the extent that we
can not split them, we shouldn't, so I do think
this sentence goes far enough in saying the only
reason you would want to split a VTD, or a voting
district, is to help with the zero population
requirement that this committee has already
adopted.
SEN. SMITH-INGRAM: Follow-up.
SEN. RUCHO: Follow-up.

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heard, for example, the Senate Minority Leader

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state publicly many times. Let's not -- let's not
consider race anymore. We're past that.
SEN. RUCHO: Okay. Representative
Michaux?
REP. MICHAUX: Mr. Chairman, I'm having a
problem not identifying race, and if I recall, Mr.
Lewis -- and I'm reading from the opinion. It says
here that "This does not mean that race can never
play a role in redistricting. Legislatures are
almost always cognizant of race when drawing
district lines, and simply being aware of race
poses no Constitutional violation."
What they're saying to you is that you
still can use race in the matter, but you cannot
make it the predominant factor. That's the way I
-read it, and I think that this -SEN. RUCHO: Representative Lewis?
REP. LEWIS: Representative Michaux,
thank you for that. My response to that would be
that not being aware of race means that you

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SEN. RUCHO: Thank you. I've got
Representative Stam.

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couldn't have been motivated by race.
REP. MICHAUX: May I follow up?
SEN. RUCHO: Follow-up, Representative
Michaux?
REP. MICHAUX: What did you say just now?
REP. LEWIS: Sir, I believe you read from
the opinion, which I don't have before me, that -in which the judges said being aware of race does
not necessarily mean that race was a predominant
factor, but it doesn't require it. And if that's
not what you read, understand that you have the
opinion in front of you, and I don't.
REP. MICHAUX: What they're saying is it
cannot be a predominant factor, Mr. Lewis, but you
can use race.
SEN. RUCHO: Representative Michaux, I
think what Senator -- Representative Lewis is
saying is you can use race, but it doesn't require
you to use race.
REP. MICHAUX: It says you can use race,
but it must not be the predominant factor.
REP. LEWIS: Mr. Chairman, I would say
"can use
use" does not say "must use." Therefore, I
would move the adoption of this criteria.
SEN. RUCHO: Representative Hager,

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choice.

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the power of its own to draw districts, and we can

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play these games with them. I thought that as a
body from the standpoint of letting the
Legislature, the reason that we ordered -- or at
least required that the Court, if reversing these
districts, sent it back to the Legislature to have
an opportunity or a shot at fixing it is because it
was felt that the Legislature could fix it, but I
can assure you that if you go about doing this,
then those three gentlemen are going to draw
districts for you.
Maybe that's what you want, and if that's
what you want, I will vote with you on this
amendment, but I think that you -- that it's
transparent the game that you're trying to play.
Some of us do strongly believe that we should move
away from using race in making any decision in
American life, but we also believe that you comply
with the law until we get to that point, and I
think that you're aware of the fact, just as I am,
that if you take this blind approach, you're in
direct violation of Section 2 of the Voting Rights
Act. And so I'm just -- I just say that to you.

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please?
REP. HAGER: Thank you, Mr. Chairman.
Representative Lewis, I want to commend you on
the -- when you said only when necessary when you
split districts and precincts. I come from a
district and precinct prior to these maps. My
precinct was split, and we worked it out, like I
said, and I appreciate what you said about the
sophistication of the voters. It was there, but
this criteria does help that situation, and prior
to these maps, we see -- we saw that with the
previous maps in Rutherford County, so thank you
very much.
SEN. RUCHO: I'm sorry. I've got Senator
Blue. Excuse me.
SEN. BLUE: Just a comment, since the
motion to adopt it has been made. Mr. Chairman, I
agree totally with Representative Stam. As I told
Representative Lewis, there are places in this
state where considering race in redrawing districts
is inappropriate under the Voting Rights Act, under
the 14th Amendment. There are places in this state
where the Voting Rights Act requires that race be
considered to some degree to ensure that, based on
history, that minorities can elect people of their

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I'm going to vote against this proposal.

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I'm going to vote against it because I think that

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it's showing disrespect for the law as it exists

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and disrespect for this three-judge federal

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district court.

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REP. LEWIS: Well, Senator --SEN. RUCHO: Representative Lewis?
REP. LEWIS: Thank you, Mr. Chairman.
I'm going to reiterate my earlier comments to you,
sir, that in no way has anything that I have said
had the intent, and I hope not the effect, of
causing any offense to any member of the federal
judiciary. I would reiterate the only way to make
sure that race is not the predominant factor is to
make sure it's not a factor when the maps are being
considered.
This Court -- I'll go one step further.
With the utmost respect to the Court, this Court
was shown that race was not a factor that was
considered in drawing of the 12th, but they still
found that it was a factor. This is -- this way we
make sure that in fact, it is not.
SEN. RUCHO: Members of the committee?
Senator McKissick?

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SEN. MCKISSICK: Representative Lewis,
are you aware of any racially polarized voting
studies which have been conducted since the 2010
Census occurred?
REP. LEWIS: Senator McKissick,
respectfully, I would direct you to the
redistricting tab of the General Assembly Web site.
I believe there are some studies that are listed
there. Certainly there are numerous studies that
are referenced in the various lawsuits. I know the
General Assembly did commission a study on racially
polarized voting. I do not believe the Harris
court admitted or considered it.
SEN. MCKISSICK: Follow-up, Mr. Chair.
SEN. RUCHO: Follow-up.
SEN. MCKISSICK: Is it not possible to go
back and find that data, which is reasonably
current, since it was done since 2010, to examine
the racially polarized voting patterns throughout
the state, because different parts of the state are
different? Our urban areas have different
characteristics, and there's more coalition
politics. Other parts of our state, racially
polarized voting patterns are present, and continue
to exist.

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REP. MCGRADY: Second.
SEN. RUCHO: Second, Representative
McGrady. Any additional discussion?
(No response.)
SEN. RUCHO: All right. Seeing none, we
can -- Mr. Clerk, would you begin the roll call?
CLERK: Lewis?
REP. LEWIS: Aye.
CLERK: Jones?
REP. JONES: Aye.
CLERK: Brawley?
REP. BRAWLEY: Aye.
CLERK: Cotham?
REP. COTHAM: No.
CLERK: Davis?
REP. DAVIS: Aye.
CLERK: Farmer-Butterfield?
REP. FARMER-BUTTERFIELD: No.
CLERK: Hager?
REP. HAGER: Aye.
CLERK: Hanes?
REP. HANES: No.
CLERK: Hardister?
REP. HARDISTER: Aye.
CLERK: Hurley?

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I would suggest that we go back and look
at those studies, analyze them, and use those
studies as part of the database that would be used
to move forward in drawing these districts. Any
reason why we cannot do that?
REP. LEWIS: Respectfully, sir, I may -I may agree with you, but the Court does not.
SEN. MCKISSICK: And I'd have to
respectfully disagree on that.
REP. LEWIS: Noted.
SEN. RUCHO: Senator Clark?
SEN. CLARK: Thank you, Mr. Chairman.
With regard to the language on the voting districts
in here, would it not be more appropriate to
separate that and have it stand alone as its own
criteria? I don't understand the rationale for
including it in the criteria about political data.
REP. LEWIS: Senator, I appreciate that
question. Frankly, we could have had an additional
criteria. I prefer just to let it stay as it is.
SEN. RUCHO: Excuse me. Representative
Lewis, do you make the motion to adopt the
political data criteria?
REP. LEWIS: I do, Mr. Chairman.
SEN. RUCHO: All right.

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REP. HURLEY: Aye.
Aye.
CLERK: Jackson?
Jackson?
CLERK:
REP. JACKSON:
JACKSON: No.
CLERK: Johnson?
Johnson?
CLERK:
REP. JOHNSON:
JOHNSON: Aye.
Aye.
CLERK: Jordan?
Jordan?
CLERK:
REP. JORDAN:
JORDAN: Aye.
Aye.
CLERK: McGrady?
CLERK:
REP. MCGRADY: Aye.
Aye.
CLERK: Michaux?
CLERK:
REP. MICHAUX: No.
CLERK: Moore?
CLERK:
REP. MOORE: No.
CLERK: Stam?
Stam?
CLERK:
REP. SIAM:
STAM: Aye.
Aye.
CLERK: Stevens?
Stevens?
CLERK:
REP. STEVENS: Aye.
CLERK: Rucho?
Rucho?
CLERK:
SEN. RUCHO: Aye.
Aye.
SEN.
CLERK: Apodaca?
Apodaca?
CLERK:
SEN. APODACA:
APODACA: Aye.
Aye.
SEN.
CLERK: Barefoot?
CLERK:
SEN. BAREFOOT: Aye.
Aye.
SEN.
CLERK: Blue?
CLERK:
SEN. BLUE: No.
SEN.

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CLERK: Brown?
SEN. BROWN: Aye.
CLERK: Clark?
SEN. CLARK: No.
CLERK: Harrington?
SEN. HARRINGTON: Aye.
CLERK: Hise?
SEN. HISE: Aye.
CLERK: Jackson?
SEN. JACKSON: Aye.
CLERK: Lee?
SEN. LEE: Aye.
CLERK: McKissick?
SEN. MCKISSICK: No.
CLERK: Randleman?
SEN. RANDLEMAN: Aye.
CLERK: Sanderson?
SEN. SANDERSON: Aye.
CLERK: Smith?
SEN. SMITH: No.
CLERK: Smith-Ingram?
SEN. SMITH-INGRAM: Nay.
CLERK: Wells?
SEN. WELLS: Aye.
SEN. RUCHO: What have we got?

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drawing of the maps, I would propose that to the

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SEN. RUCHO: All right. Members of the
committee, any questions? Senator Blue?

SEN. BLUE: Just one, Mr. Chairman, and

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the rules committee chairman up there. What are

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the rules under which this committee is operating,

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14

neither, where do they come from, but if it's the

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Senate, aren't ayes and nays prohibited in

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SEN. APODACA: The chairs agreed we'd

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(Laughter.)
SEN. RUCHO: All right. Senator Blue?
SEN. BLUE: One follow-up.
SEN. RUCHO: Let me have your attention.
SEN. BLUE: Since I'm not familiar with
the House rules anymore, there is a permitted

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CLERK: Nine nays. Nine nays. (Pause.)

11 out of 34.
There's 11. 11

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abstention in the ayes and nos under the House

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rules; is there not?

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11 out of 34 nays. Okay.
SEN. RUCHO: 11

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11 nos, and two were
The result of that is 23 ayes, 11

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not present. Okay. Representative Lewis?

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REP. LEWIS: Mr. Chairman, I would ask --

with your permission, I've asked the Sergeants-atArms to distribute the criteria labeled "Partisan
Advantage." If you could direct the staff to read
that, I'd be happy to speak on it.
SEN. RUCHO: Ms. Churchill, would you
read the one on partisan advantage?
MS. CHURCHILL: "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."
SEN. RUCHO: Representative Lewis,
explain.
REP. LEWIS: Mr. Chairman, the
explanation of this is reasonably simple. As we
are allowed to consider political data in the

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SEN. APODACA: Mr. Chairman?
SEN. RUCHO: Representative Stam, if you
can respond to that question?

STAM: I could. There is no such
REP. SIAM:

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rule under House rules now or when Senator Blue was

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the Speaker of the House.

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SEN. RUCHO: Senator Blue, did you get
your answer?
SEN. BLUE: I got an answer.

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(Laughter.)

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SEN. RUCHO: Good. Thank you. Okay.

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Members of the committee, let's pay close attention

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to this. Senator McKissick?

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SEN. MCKISSICK: In looking at this

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particular criteria, I mean, certainly partisan

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advantage is a legitimate consideration, but I

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don't know why, based upon the number of Democratic

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registered voters, Republican registered voters and

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unaffiliated voters in this state we would want to

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ever sit and ingrain as a criteria for

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redistricting that we would only allow one party 3

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seats in Congress, and the other one, 10 in

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Congress, when not very long ago, before 2010, we

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had 7 Democrats and 5 Republicans, so I'm trying to
understand why you feel this would be fair,
reasonable, and balanced in terms of voter
registrations in this state as it is currently
divided.
REP. LEWIS: Thank you for your question,
Senator. I propose that we 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
11 Republicans and 2 Democrats.
(Laughter.)
SEN. MCKISSICK: Follow-up, if I could.
SEN. RUCHO: Follow-up.
SEN. MCKISSICK: Were you aware of the
fact that in the 2012 election cycle, if you total
the total number of votes received by Democrats
running for Congress versus the total number of
votes cast for Republicans running for Congress,
that Democratic candidates had a higher number of
total votes, but ended up with fewer seats? Were
you aware of that factor in drawing up this
criteria?
REP. LEWIS: I am aware, Senator -- first
of all, thank you for your question. I am aware
that there are numerous examples, especially

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Come up with something different. It
could be 5 Democratic seats, and there's no reason
why that couldn't be accomplished. It could be 6
Democratic seats and still give the Republicans an
edge, but to say you're going to marginalize with
only 3 seats as a criteria, let the voters decide.
REP. LEWIS: Well, sir, I definitely -- I
thank you for that comment. Certainly we look
forward to receiving -- what I'm asking this
committee to adopt is the maps that this -- that
the chairs will present to this committee absent a
stay arriving from the Court. Certainly the
members of this committee that don't feel this
balance is appropriate can certainly offer their
own maps for consideration.
SEN. RUCHO: Representative Lewis, in the
case Senator McKissick brought forth, if you see
some districts that tend to have a larger voter
turnout than others, that could easily explain what
Senator McKissick described. Am I not correct?
REP. LEWIS: Yes, sir. I think that's a
constant variable in this. If you have an area
that has a lot of contested races, those areas tend
-to produce more folks to the polls. If you have -you know, we don't want to get into the Electoral

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through the 2000s, when the majority of seats went
to a party that had the fewer votes. We elect our
representatives based on a system of drawing
districts and the people in those districts being
able to vote. We do not elect at large. I know
you're very much aware of that, and we will -- this
will maintain that system.
SEN. MCKISSICK: Last follow-up, Mr.
Chairman.
SEN. RUCHO: Follow-up. Last follow-up.
SEN. MCKISSICK: I would simply say this:
If we were looking at a fair and reasonable
division as a criteria moving forward, it wouldn't
necessarily have to be an even division. It
could -- obviously, since majority -- Republicans
are a majority now, give Republicans a slight edge,
but to come up with such an imbalance in a split I
think is highly inappropriate. It's unfair. It
does not recognize the way votes have been cast in
this state as recently as 2012. It doesn't
recognize the division of registered voters in this
state between Democrats, Republicans, and
Independents, and it's really a matter of political
gerrymandering in the worst sense in which we can
do so.

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College, but I can remember this debate's been
going on since 2000 because of the use -- you know,
there are times -- do you maximize or, for lack of
a more polite term, do you pump up or boost up
votes in certain areas to try and create the larger
cumulative total, or do you file, run, and win in
the districts in which you live? Our system has
historically been the latter.
SEN. RUCHO: I have a follow-up there.
Senator McKissick, go ahead.
SEN. MCKISSICK: Yeah. Simply this: I
think what voters want are more competitive
districts, more competitive districts where they
have a clear choice between a Democrat, a
Republican, and perhaps an unaffiliated candidate
that's running, but not ones that are gerrymandered
to give one party or the other just a clear
partisan advantage. More competitive districts, I
support completely, but that means drawing the maps
in a way where you're not from the outset
establishing criteria that gives one party an
unfair advantage.
SEN. RUCHO: Representative Lewis?
REP. LEWIS: Mr. Chairman, the only thing
that I could add is that we want to make clear that

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we to the extent are going to use political data in

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For example, near a military base, they have much

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drawing this map, it is to gain partisan advantage

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fewer voters than the population -- in other words,

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on the map. I want that criteria to be clearly

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it's a bogus statistic, so I don't use it anymore.

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stated and understood. I have the utmost respect

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for those that do not agree with this particular

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balance.
I will say -- and the gentleman from
Durham did not say this, but I will say that during
the public comment yesterday, more than one speaker
referred to, "Can't we just draw them where there's
5 this way or 6 that way?" That is partisan
gerrymandering if you're drawing 5 and 7 or 6
and -- whatever it is. I'm making clear that our
intent is to use -- is to use the political data we
have to our partisan advantage.
SEN. RUCHO: Representative Michaux?
REP. MICHAUX: Yeah. Mr. Chairman, you
know if we were where you are today and we came up
with this idea, you-all would be jumping all over
the place, trying to dissuade us from that. First
you want to -- you really want to dissuade race
from being put in here. Now you want to make sure
that you keep your 10 to 3 advantage, the same
situation that got you in trouble before, and now
you're going to -- what you're telling us is, "We

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SEN. RUCHO: Thank you. I've got
Representative Hager.

REP. HAGER: Thank you, Mr. Chairman.

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You know I haven't been here long, but I guess in

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the House, I've become one of the more senior

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members with my colleagues that came in in 2011,

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but, you know, I got to thinking -- and I have the

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utmost respect for Senator McKissick and

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Representative Michaux, but, you know, if I beat my

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dog every day for 4 or 5 years and then I quit

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doing it and I told David to quit beating his dog,

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you'd consider me a little bit hypocritical,

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wouldn't you, David?

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If you look at that map on the wall and

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look at the 1992 map and look at District 10 and

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District 1, District 10 is my district now. Look

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at where we've come with District 10 since then. I

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mean, it's just -- it's amazing to me that we can

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argue that we shouldn't -- that the folks that have

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been here for a long time can argue that we

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shouldn't gerrymander these on political reasons,

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and they're some of the same people that developed

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want you to do this, and you vote for it, and this

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is the way it's going to be," period, end of

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report.

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SEN. RUCHO: Okay. There was no
question, I don't think, so -- unless you want to
respond to his comment.
REP. LEWIS: No.
SEN. RUCHO: Okay. I've got
Representative Stam first.
REP. STAM: Yes. I'd like to share a
statistic that I haven't used in about 10 years,
but I'll tell you why. During the last
redistricting by the other party in 2004, I did
jump up and down because I saw what was coming. In
the election of 2004 for the House -- write these
statistics down -- 52 percent of the voters chose
the Republican candidate, 44 percent, the
Democratic candidate, and 4 percent, Libertarian.
Well, that should be a landslide for Republicans,
but it ended up that we were in the minority, 57 to
63.
The reason I stopped using those type of
statistics is I realized that it can be totally
skewed by whoever happens to not have a candidate
opposing that person. That shows a huge advantage.

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that map of District 1 and District 10 in 1992.

SEN. RUCHO: Thank you. Any additional
questions? Senator Smith-Ingram?

SEN. SMITH-INGRAM: Thank you, Mr. Chair.

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Can you be specific as to what constitutes partisan

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advantage? Do we have to tie it to a number?

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REP. LEWIS: No, ma'am, but I will ---

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first of all, thank you for the question. To

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perhaps expound on it a bit, this would -- this

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would contemplate looking at the political data,

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which was an earlier criteria adopted by this

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committee, and as you draw the lines, if you're

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trying to give a partisan advantage, you would want

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to draw the lines so that more of the whole VTDs

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voted for the Republican on the ballot than they

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did the Democrat, if that answers your question.

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SEN. SMITH-INGRAM: I think that --SEN. RUCHO: Follow-up?
SEN. SMITH-INGRAM: Thank you. Followup. It answers about 50 percent of my question.
If I could ask you another one, maybe a different
way? You threw out some numbers. Would there not
be partisan advantage with 8/5?
REP. LEWIS: Thank you for that question,
Senator. I would point out that indeed, you could

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use political numbers to draw a partisan -- to draw

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districts in which 8 Republicans would win or 5

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comments for decades and decades and decades in

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Democrats. I'm saying to the extent that you can,

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North Carolina, whether it was the media, whether

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make it 10/3.

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it was the majority party, whomever, and so I guess

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SEN. SMITH-INGRAM: Last follow-up.
SEN. RUCHO: Last follow-up.
SEN. SMITH-INGRAM: Just a statement. I
am concerned that we are trying to mimic the
outcome of the previous election that never existed
for a very long time in North Carolina until this
district was redrawn in 2011. The challenge here
is we are balancing where we are with where we have
been historically, but at the end of the day, we
are elected to come together, to work together, to
serve the constituents and citizens of North
Carolina. This is one of the concerns resonated
yesterday, and many of us have it here. We are
drawing these lines so that we get to pick our
voters as opposed to them choosing us. It is
unfair. It should not be perpetuated in this
process, and I will not be supporting it.
SEN. RUCHO: Thank you. Representative
Jones?
REP. JONES: Thank you, Mr. Chair. I
appreciate it. I want to say how much I have

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the process is what it is.

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hearing them come from today. We never heard those

I'm glad that we have had some court

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decisions that have led to what I think is a lot

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less gerrymandering than what we had in prior

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decades, where we -- now we do have single-member

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districts. Now we do have where we don't just

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split counties in any possible way, and we have the

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pod system and things like that, so I really take

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offense when I hear those that say that somehow the

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political gerrymandering of today is greater than

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somehow it was in prior years, when anybody that

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goes back and studies the history knows that that's

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simply not the case.

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That's my comment, and I will ask I guess
a question for you, Representative Lewis. Is it

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possible that people might choose to vote for a

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candidate that is of a different political party

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than what their political affiliation is?

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REP. LEWIS: Well, thank you for that

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question, Representative Jones. Of course it is.

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I mean, we all offer ourselves, and the voters in

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enjoyed this discussion about -- about

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gerrymandering. You know, that's a word that seems

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believe the direction of the government should be

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to me, as someone who has lived in North Carolina

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and that's how they cast their votes, so certainly

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for all my life and has really kind of studied the

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a person is free to vote ever how they choose to

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political process particularly over the last few

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vote.

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decades, a word that was never really used until

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REP. JONES: Well, that's what I think,

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somehow the Republicans came to a majority in 2010.

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and I think regardless how you draw these

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Just as we're taking this little trip

down memory lane for just a moment, I -- I remember

our districts decide that we best represent what we

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districts -- you know, I come from an area where I

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can remember a time where voting for the Democratic

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things like multi-member districts in North

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party was extremely -- extremely high, and that

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Carolina when we were drawing the legislature. I

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time has changed, and those votes have changed. A

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thought what an extreme opportunity that was to

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lot of people that I can tell don't necessarily

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gerrymander.

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vote for the same party that they're registered,

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I saw it happen in my own area where, you

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and so I -- you know, I think we ought to respect

know, we couldn't do single-member districts. We

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the voters as individuals, and whether they're

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couldn't even do double-member districts.

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registered Democrat, Republican, Libertarian,

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Sometimes it had to be three- or four-member

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unaffiliated, whatever, recognize that they do have

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districts in order for the political party in

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an opportunity to vote for any candidate that is on

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charge at the time, which was the Democratic Party,

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the ballot before them. I appreciate your answer,

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to gain a political advantage, so Representative

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and I appreciate your honesty and integrity and

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Lewis, I appreciate your honesty as you come

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going forward with the process.

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forward today, and we -- and we explain that

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political gerrymandering I guess is what it is, but

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I just find it very interesting to hear some of the

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comments coming from some of the avenues that we're

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SEN. RUCHO: Thank you, Representative
Jones. Senator Clark?

SEN. CLARK: Thank you, Mr. Chairman.
I'm having difficulty understanding why I should

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agree to vote for maps to bake in partisan
advantage that was achieved through the use of
unconstitutional maps. Could you explain that to
me?
REP. LEWIS: Well, to be clear, sir,
we -- we are proposing that the maps that are drawn
now under this criteria which we have passed a
plank of, and continue to move forward, one of the
goals in drawing the map will be to preserve the
10/3. With all due respect, I've listened to this,
and we can of course continue to discuss this as
long as the committee wants to. It's always sort
of amazed me that if the map elects one side, the
other side considers -- considers it a gerrymander,
and something bad. If it elects their side, they
consider it a work of art, and good government, so
this is saying that one of the goals will be to
elect -- to speak directly to your point, the goal
is to elect 10 Republicans and 3 Democrats.
SEN. RUCHO: Thank you. Representative
Lewis, there was a comment earlier about the
districts, the 13 districts that exist, 10
presently Republican, and 3 Democrat, and under the
circumstances, could you explain a little bit about
the makeup of the Republican districts and who

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competitive. I pointed out before that in the race
for attorney general that Attorney General Cooper
won nearly all of these. We can go back through
2011 debate if we'd like to, but I would again
this 2011
maintain that you've got to put forward a good
candidate that appeals to the majority of folks,
and that the majority of folks in these districts
in the enacted plan are not registered Republicans.
In fact, to the best of my knowledge, in all but
perhaps one, we are the minority in all of the
districts.
SEN. RUCHO: Thank you. Okay,
Representative Jackson?
REP. JACKSON: Thank you, Mr. Chairman.
Senator Clark took one of my points that I was
going to make, but part of my uneasiness with this
is that it refers to the current Congressional
plan. I think you could make reference just saying
that you want to do it to a partisan advantage and
maximize Republican members, and I could agree with
that, I guess, but you have that opportunity.
I would point out that your maps
originally had a 9/4 split, and that any reference
to 10/3 is not what your maps were; your maps were
a 9/4 split. What you've done is taken out the

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they're composed of, and what is necessary for that
Republican to win an election?
REP. LEWIS: Thank you for the question,
Mr. Chairman. First of all, it would be necessary
to go back and review the stat packs and whatnot
from the 2011
2011 districts, which are online if
anybody would like to do that, but to the best of
my knowledge, Republicans hold no majority as far
as voter registration in any of those districts.
It's also -- well, and it is firmly my
belief that it's the responsibility of each of the
political parties to nominate quality candidates
who can appeal to the entire political spectrum.
It was pointed out yesterday during the public
hearing that the unaffiliated ranks in our state
continue to grow. If you don't get them -- if you
don't get a large percentage of the unaffiliated
vote in most of our districts, you're not going to
win, and so I would say that you are required to
have a good-quality candidate that appeals to the
political expectations of the majority of the folks
in that district.
I can go back, and we can go through some
of the points. I do still -- I actually maintain
that the districts that we have now are largely

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2012 election, but that's not my question.
My question is, are we going to rank
these criteria in any order, because you've used
words in this criteria like "reasonable efforts."
Well, if -- are the -- how will the mapmakers know
what a reasonable effort is? In trying to come up
with 10 Republican districts, will they be able to
make a reasonable effort that means they can now
consider race? Will they be able to make a
reasonable effort that means that now they can
consider the 2008, 2012 elections? Will they be
able to split precincts as part of making a
reasonable effort to make a 10/3 split?
REP. LEWIS: Representative Jackson,
thank you for that series of questions. The answer
to your question, the first part was -- I'm sorry.
Mr. Chairman, I'm sorry.
SEN. RUCHO: Go ahead, please.
REP. JACKSON: Will there be any type of
ranking of these criteria anywhere?
REP. LEWIS: No. No is the answer.
That's why these criteria are being presented
individually and discussed and debated
individually. Map -- drawing maps is largely a
balancing act. We are trying to specify certain

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race.
things that you cannot use. You asked about race.
You cannot use that, and I apologize; I don't
remember what else you asked about, Representative

Jackson.
REP. JACKSON: Follow-up, Mr. Chairman?
SEN. RUCHO: Follow-up.
REP. JACKSON: Okay. So it would be your
contention, then, that making reasonable efforts
would not include violating any of the other
criteria that we have passed?
REP. LEWIS: Absolutely. Mr. Chairman?

SEN. RUCHO: Yes?
REP. LEWIS: If there aren't further
questions, I move adoption of the 2016 contingent
Congressional plan proposed criteria labeled
"Partisan Advantage."

SEN. RUCHO: All right.
REP. JONES: Second.
SEN. RUCHO: Representative Jones has
seconded. All right, members of the committee,
there has been considerable discussion, and if
there's any additional thoughts, this is your
opportunity.

(No response.)
SEN. RUCHO: Seeing none, Mr. Clerk,

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CLERK: Jordan?
REP. JORDAN: Aye.
CLERK: McGrady?
REP. MCGRADY: Aye.
CLERK: Michaux?
REP. MICHAUX: No.
CLERK: Moore?
REP. MOORE: No.
CLERK: Stam?
STAM: Aye.
REP. SIAM:
CLERK: Stevens?
REP. STEVENS: Aye.
CLERK: Rucho?
SEN. RUCHO: Aye.
CLERK: Apodaca?
SEN. APODACA: Aye.
CLERK: Barefoot?
SEN. BAREFOOT: Aye.
CLERK: Blue?
SEN. BLUE: No.
CLERK: Brown?
SEN. BROWN: Aye.
CLERK: Clark?
SEN. CLARK: No.
CLERK: Harrington?

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please go through the roll.
CLERK: Lewis?
REP. LEWIS: Aye.
CLERK: Jones?
REP. JONES: Aye.
CLERK: Brawley?
REP. BRAWLEY: Aye.
CLERK: Cotham?
REP. COTHAM: No.
CLERK: Davis?
REP. DAVIS: Aye.
CLERK: Farmer-Butterfield?
REP. FARMER-BUTTERFIELD: No.
CLERK: Hager?
REP. HAGER: Aye.
CLERK: Hanes?
REP. HANES: No.
CLERK: Hardister?
REP. HARDISTER: Aye.
CLERK: Hurley?
REP. HURLEY: Aye.
CLERK: Jackson?
REP. JACKSON: No.
CLERK: Johnson?
REP. JOHNSON: Aye.

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SEN. HARRINGTON: Aye.

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CLERK: Hise?

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SEN. HISE: Aye.

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CLERK: Jackson?

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SEN. JACKSON: Aye.

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SEN. LEE: Aye.

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CLERK: McKissick?
SEN. MCKISSICK: No.

CLERK: Lee?

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CLERK: Randleman?

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SEN. RANDLEMAN: Aye.

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CLERK: Sanderson?

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SEN. SANDERSON: Aye.

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CLERK: Smith?

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SEN. SMITH: No.

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CLERK: Smith-Ingram?
SEN. SMITH-INGRAM: No.

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CLERK: Wells?

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SEN. WELLS: Aye.

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CLERK: 23-11.

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SEN. RUCHO: All right, members of the
committee, roll call on the "Partisan Advantage"

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criteria was ayes, 23, nos, 11.

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We'll be going on to the next one, and
that is -- okay, got it. This is the 12th

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District. Would you, Ms. Churchill, read out --

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read this criteria, please?

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MS. CHURCHILL: "12th District: The
current General Assembly inherited the
configuration of the 12th District from past
General Assemblies. This configuration was
retained because of the -- because the district had
already been heavily litigated over the past two
decades, and ultimately approved by the courts.
The Harris court has criticized the shape of the
12th District, citing its serpentine nature. In
light of this, the committee shall construct
districts in the 2015 contingent Congressional plan
that eliminate the current configuration of the
12th District."
SEN. RUCHO: And, Representative Lewis,
would you explain the criteria under the "12th
District" heading?
REP. LEWIS: Thank you, Mr. Chairman.
This largely goes -- I'll try to use my friend from
Wake, Representative Jackson's, words. As these
criteria stand on their own and have to be
considered together, what this is saying is that
the mapmakers will make an effort to draw the 12th
Congressional District in a shape that the judges

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good idea.

SEN. RUCHO: Members of the -- oh, I'm
sorry. Go ahead, Chairman Lewis.

REP. LEWIS: Mr. Chairman, I just -- I

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just wanted to thank Senator Blue for his words.

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I'm glad that after two decades of drawing maps,

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we've found something we can agree on.

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SEN. RUCHO: All right, members of the
committee. Senator McKissick?

SEN. MCKISSICK: While I appreciate the
fact that the 12th District has an unusual shaped

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appearance, I'm also aware of the fact that it's

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gone up before the Supreme Court previously, and

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when I think of the fact that one of the things we

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have to consider is communities of interest, and

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communities of interest is certainly something

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that's a very valid consideration in drawing

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Congressional districts, and I've heard it stated

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on numerous occasions that communities of interest

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test here is met and satisfied with the shape being

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what it is today.

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Now, while it may appear a bit

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serpentine, a little bit unusual, I think it's

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possible to reconfigure the district, perhaps to

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make it somewhat more compact, but it links

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would not consider serpentine.
SEN. RUCHO: Does that conclude your
explanation?
REP. LEWIS: Yes, sir.
SEN. RUCHO: Okay. Members of the
committee.
SEN. BLUE: Mr. Chairman?
SEN. RUCHO: Senator Blue?
SEN. BLUE: I want to commend
Representative Lewis. I agree that the 12th
District ought to be contiguous, it ought to be
compact, as all of the other districts in the
state, and I think a good starting point for
drawing constitutional maps would be to start with
the 12th District and make it compact, and let it
impact the other districts.
I think differently about the 1st,
because I think that the law requires it. I have
no particular love for the shape of any of these
strange districts, but if you're serious about
creating a district that's compact, that's
contiguous, and that covers as few counties as
possible by not unreasonably splitting county
lines, by not splitting county lines except where
necessary to comply with population, I think it's a

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together significant cores of the urban parts of

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our state along the main street of the state, which

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is now Interstate 85. Interstate 85 is the main

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corridor.

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Those urban areas are linked from
Charlotte going through Greensboro and back up into

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the Piedmont area of our state, so I would not want

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to abandon it. I'd want to perhaps reconfigure it,

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but keeping in mind the communities of interest
that it ties together, major urban cores with

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populations that have similar interests and

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concerns, along with major banking centers.

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One of the -- I've heard before that that
particular district had more banking headquarters
than any Congressional district in our country, and
I rely upon that based upon the sources of that
data, so I would not abandon it; I would simply try
to reconfigure it, perhaps make it more compact,
but to respect the communities of interest that it
does unify.
SEN. RUCHO: Thank you. Any additional
questions? Well, let me first say, Representative
Lewis, do you want to make a comment to that?
REP. LEWIS: (Shakes head.)
SEN. RUCHO: Representative Hanes?

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REP. HANES: Thank you, Mr. Chairman. I
think both the senators have -- have excellent
points. I agree especially with Senator Blue and
his statements with regard to what we need to be
looking at as a whole as we consider what these
districts look like. Certainly when it comes to
Democrats -- and I know we're trying to avoid the
word "race"
"race here, but when it comes to folks who
look like me, we want our voices heard everywhere,
and so in that regard, part of the way we do that
is
IS to put our communities together within our
counties. I think while we certainly don't have to
abandon what the 12th is right now, certainly we
need to be looking at very strongly doing what
Senator Blue suggests, and so I will be supporting
it. Thank you.
SEN. RUCHO: Thank you. Members of the
committee, any additional questions or comments?
(No response.)
SEN. RUCHO: Representative Lewis, do you
have a motion?
REP. LEWIS: Mr. Chairman, I move that
the 2016 contingent Congressional plan proposed
criteria labeled "12th District
District" be adopted.
SEN. APODACA: Second.

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CLERK: Hurley?
REP. HURLEY: Aye.
CLERK: Jackson?
REP. JACKSON: Yes.
CLERK: Johnson?
REP. JOHNSON: Aye.
CLERK: Jordan?
REP. JORDAN: Aye.
CLERK: McGrady?
REP. MCGRADY: Aye.
CLERK: Michaux?
REP. MICHAUX: Aye.
CLERK: Moore?
REP. MOORE: Aye.
CLERK: Stam?
REP. SIAM:
STAM: Aye.
CLERK: Stevens?
REP. STEVENS: Aye.
CLERK: Rucho?
SEN. RUCHO: Aye.
CLERK: Apodaca?
SEN. APODACA: Aye.
CLERK: Barefoot?
SEN. BAREFOOT: Aye.
CLERK: Blue?

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SEN. RUCHO: Second by Senator Apodaca.
Members of the committee, you have this motion
before you. Any questions or comments prior to a
roll call vote?
(No response.)
SEN. RUCHO: Seeing none, Mr. Clerk,
would you go through the roll call, please?
CLERK: Lewis?
REP. LEWIS: Aye.
CLERK: Jones?
REP. JONES: Aye.
CLERK: Brawley?
REP. BRAWLEY: Aye.
CLERK: Cotham?
REP. COTHAM: Yes.
CLERK: Davis?
REP. DAVIS: Aye.
CLERK: Farmer-Butterfield?
REP. FARMER-BUTTERFIELD: Yes.
CLERK: Hager?
REP. HAGER: Aye.
CLERK: Hanes?
REP. HANES: Yes.
CLERK: Hardister?
REP. HARDISTER: Aye.

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SEN. BLUE: Aye.
CLERK: Brown?
SEN. BROWN: Aye.
CLERK: Clark?
SEN. CLARK: Aye.
CLERK: Harrington?
SEN. HARRINGTON: Aye.
CLERK: Hise?
SEN. HISE: Aye.
CLERK: Jackson?
SEN. JACKSON: Aye.
CLERK: Lee?
SEN. LEE: Aye.
CLERK: McKissick?
SEN. MCKISSICK: No.
CLERK: Randleman?
SEN. RANDLEMAN: Aye.
CLERK: Sanderson?
SEN. SANDERSON: Aye.
CLERK: Smith?
SEN. SMITH: Aye.
CLERK: Smith-Ingram?
SEN. SMITH-INGRAM: Aye.
CLERK: Wells?
SEN. WELLS: Aye.

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CLERK: One no.
SEN. RUCHO: So 33 aye and 1 no, correct?
CLERK: Yes.
SEN. RUCHO: Members of the committee,
the roll call vote on that, the criteria for the
12th District adoption, is 33 aye and 1 no. All
right.
Before we go on to the next criteria,
I'll make a statement to the committee that under
the House rules, there is a way of amending or
submitting an amendment forward. If you'll contact
Ms. Churchill on this, she will assist you in doing
so if you desire.
All right, that being said,
-Representative Lewis, before us is -REP. LEWIS: "Compactness."
SEN. RUCHO: -- "Compactness." All
right. Please, Ms. Churchill, would you read that?
MS. CHURCHILL: "Compactness: In light
of the Harris court's criticism of the compactness
of the 1st and 12th Districts, the committee shall
make reasonable efforts to construct districts in
the 2016 contingent Congressional plan that improve
the compactness of the current districts and keep
more counties and VTDs whole as compared to the

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Mecklenburg. There's only 1 in Wake, I believe.

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There's only 1 in Wake, and so 2 counties. There

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may be 2 in Guilford. Is there any other county

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with more than 1 incumbent?

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REP. LEWIS: Senator Blue, thank you for

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that question, and candidly, I don't believe so,

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but I don't know that, either.

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SEN. RUCHO: Follow-up?
SEN. BLUE: So if the only place that you

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would worry about splitting the county to protect

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the incumbency would be Mecklenburg County based on

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the current layout -- I know that there are some of

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us counties that are split 3 and 4 different ways,

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but I know in Wake County, there's only 1 resident

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Congressperson, although we have 4 districts here,

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and I think that the same is true of every other

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county except Mecklenburg, with the exception of

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Guilford. There may be 2 from Guilford. I'm not

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sure, but nevertheless, why should we split

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counties if you don't have to, to protect the

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incumbents? Why shouldn't we leave counties whole

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all over the state except where you have to split

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them because of population?

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SEN. RUCHO: Representative Lewis?

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REP. LEWIS: Thank you for that question,

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current enacted plan. Division of counties shall
only be made for reasons of equalizing population,
consideration of incumbency, and political impact.
Reasonable effort shall be made not to divide a
county into more than two districts."
SEN. RUCHO: Representative Lewis, would
you please explain the "Compactness" criteria?
REP. LEWIS: Thank you, Mr. Chairman. To
be clear, the -- trying to explain compactness is
very difficult, as I don't know that there is a
hard-and-fast definition that I can offer to the
committee. The way that I will interpret it is
again trying to keep as many counties whole as
possible, to split as few precincts as possible,
and again, only to -- and to only do that to
equalize population.
I would -- I would point out, again going
back to my friend, Representative Jackson's
question, these criteria kind of layer on each
other, and so I would -- I would urge the committee
to adopt the guideline on compactness.
SEN. RUCHO: Senator Blue?
SEN. BLUE: Thank you. Representative
Lewis, other than in 3 counties, are there multiple
incumbents? I know that there's more than 1 in

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Senator Blue. My response would simply be that

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considering where incumbents live, and for lack of
a better way to say it, the protection of
incumbents has always been an accepted political
practice in drawing maps. This does not require us
to do that. This simply says that that could be
one of the reasons that a county would be split.
The most important part of this is trying
to establish that we won't split counties more than
2 times, and we've already passed a criteria that
this reiterates, that the biggest reason a county
should be split is only to equalize the population
between the districts.
SEN. BLUE: Follow-up.
SEN. RUCHO: Follow-up.
SEN. BLUE: And I agree with that, but
I'm saying under the current scenario -- and in
fact, I think Mecklenburg is the only county that
has two Congresspeople, so you could split
Mecklenburg anyhow because you've got to split it
because it's got over 750,000, or whatever the
number is, people. You've got to split Wake;
you've got to split Mecklenburg. The others could
be made whole except for population purposes, so
why would you adopt criteria saying that you're not

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going to split counties except to protect

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SEN. BLUE: If there is no incumbency,

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incumbents when you don't have any incumbents to

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then incumbents won't be considered in splitting

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protect, and you ultimately say that you will split
them for political impact, which means that you can
indiscriminately split counties however you want to
anyhow if you determine what the political impact
is? Why would you say that, and why would you put
that provision in there?
SEN. RUCHO: Representative -SEN. BLUE: And that being said, would
-you be willing to -SEN. RUCHO: One question. Let him
answer this one first, please.
SEN. BLUE: It's part of the same
question. That being said, would you be willing to
strike after the comma and the word "population" on
the third from the bottom line the phrases
"consideration of incumbency" and "political
impact" so that there's a clear signal that you're
not going to split counties since you don't have to
split them to protect incumbents, so that you're
not going to split counties except where you have
to, to get to the one person, one vote requirement?
SEN. RUCHO: Representative Lewis, why
don't you answer his first question first? He

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districts, and that can't be the reason for

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splitting it. I'm simply saying that when you say

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"political impact," you take away everything else

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you put in that phrase, and if we believe in

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keeping counties whole to the extent possible,

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especially small counties, if we believe in that,

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then all we've got to do is say we're only going to

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split counties to equalize population, and I'm

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wondering why it's so critical that you say

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"political impact," since that phrase is loaded

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with all kinds of subjective determinations, with

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the ability to totally disregard this earlier

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portion saying that you're not going to split

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counties, or you're only going to split counties to

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put them into two districts, because you don't say

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you won't split them; you say you'll make

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reasonable efforts not to. I'm saying why don't we

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have an absolute prohibition on splitting counties

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except when it's necessary to comply with one

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person, one vote?
REP. LEWIS: Thank you for that question,
Senator Blue. My response to that would be that we
will look forward to reviewing maps that you may

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asked too many questions.
REP. LEWIS: Senator Blue, thank you for
that series of inquiries. I do apologize because I
don't remember exactly what you asked.
SEN. BLUE: Do you need me to reask it?
REP. LEWIS: Let me just say that it is
my intent to split as few counties as we possibly
can, and to not allow the counties to be divided
more than two times. Our overarching goal of this,
as Representative Jackson and I have had some
continued conversation, all of these criteria kind
of overlap on each other.
I would agree with you that equalizing
population is a mandatory reason that a county may
have to be split. I would also say that it would
be dishonest of me to say that political impact
can't be considered in how you draw districts.
I don't see any harm in leaving the words
"consideration
"consideration of incumbency" because there's no
requirement that the districts be drawn to include
the current seated members. It just allows for
the -- the consideration that they are -- that they
are in fact there.
SEN. BLUE: One last follow-up.
SEN. RUCHO: Last follow-up.

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submit that follow that criteria. I feel very

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process of what our -- what our intents are, and I

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would prefer that this criteria remain as it's

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written.

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SEN. RUCHO: Thank you. Representative
Jones?

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REP. JONES: Thank you, Mr. Chairman. I

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just wanted to clarify the record that there are

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two Congressmen that live in Guilford County, Mark

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Walker of the 6th District, and Alma Adams of the

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12th District.

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SEN. RUCHO: Okay. I've got -- I've got
Senator Smith.

SEN. SMITH: Thank you, Mr. Chairman. I

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certainly appreciate the idea of compactness. I

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very much want to see precincts and counties left

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whole. I would respectfully tell you that in 2011,

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there was a district drawn where an incumbent was

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drawn out. It was the district that I lived in,

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and so the 7th Congressional District drew -- was

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changed to the 8th Congressional District, and the

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Congressman McIntyre, who was the incumbent, was

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drawn out essentially of his own district, and my

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concern is what Senator Blue has said. The idea of

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compactness is great, but when we leave in this

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other phrase about incumbency, we have taken away

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what I'm seeing is a statement of an aspirational

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the other reason, the only reason that really

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goal, but not a strict requirement. Is that

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should be the case, and that is population.

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correct, or is that a misreading? It's one thing

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REP. LEWIS: Senator, I appreciate that.
Again, I would state that equalizing population is
definitely the required reason that a county may
have to be split. This simply allows for
consideration of incumbency and consideration of
political impact. I don't -- I don't see that that
would interfere with us being able to use
compactness in drawing the maps.
SEN. SMITH: Follow-up, Mr. Chair?
SEN. RUCHO: Follow-up.
SEN. SMITH: I just would point out that
population was not the case in 2011, and my concern
is that if we agree to this and keep this as
incumbency and political impact, that that will end
up trumping population, and splitting counties and
precincts.
SEN. RUCHO: Thank you. Representative
Lewis, do you want to comment?
REP. LEWIS: No.
SEN. RUCHO: You're all set? Just a
quick -- is it -- a question for the Chair,

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to aspire to accomplish these things, which I

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Representative Lewis: The way this is drafted now,

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support. It's another thing if you make it a

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litmus test, so can you clarify that?

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REP. LEWIS: Thank you for that question,
Senator McKissick. Let me say that this is an
aspirational goal.

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SEN. MCKISSICK: In which case, I embrace
it.

SEN. RUCHO: Okay. From the Chair,

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Senator McKissick [sic], a question that

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Representative Jackson asked earlier, and when you

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talk about the criteria, is it accurate to say that

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all of them are weighted at the same level, and

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it's a matter of harmonizing to try to get to a map

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that meets those criteria?

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(No response.)
SEN. RUCHO: David?
REP. LEWIS: I'm sorry, Mr. Chairman.
SEN. RUCHO: Oh, I'm sorry. From the
Chair, a question for you.
REP. LEWIS: Yes, sir?

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Representative Lewis: Is it a requirement for a

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Congressional candidate to live in the district

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they're running in?

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that's being submitted and voted upon, is it fair

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to say that the criteria established are not ranked
as far as priorities, but are a matter of

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REP. LEWIS: No. A candidate for

SEN. RUCHO: Based on what Representative
Jackson asked earlier, all of these criteria listed

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Congress is not required to reside in the district

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in which they run.

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harmonizing until you can get a map that meets

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those criteria?

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SEN. RUCHO: Okay, thank you. I've got

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Representative Hager.
REP. HAGER: Thank you, Mr. Chairman, and

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thank you, Representative Lewis, for -- for this

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particularly, because as I said earlier, Rutherford
County, prior to the Rucho-Lewis maps that we're
under today, split Rutherford County between the
10th and the 11th. Now, I find it -- and I have a
question for you. I find it very ironic that that
split for the 11th included -- came down Main
Street in Rutherfordton to include Walter Dalton's
house, so the question I have for you is we won't
split districts depending on who we think may run
for that Congressional district; would that be
correct?
REP. LEWIS: Yes, sir, that's correct.
SEN. RUCHO: Okay. All right. I've got
Senator McKissick.
SEN. MCKISSICK: Let me ask you this,

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REP. LEWIS: That's correct, sir. We are
seeking aspirational harmony.

(Laughter.)
SEN. RUCHO: Okay. Do you have a motion?
REP. LEWIS: Mr. Chairman, I would move
that the 2016 contingent Congressional plan
proposed criteria labeled "Compactness" be adopted
by the committee.
SEN. RUCHO: All right. I've got --Representative Davis has seconded that motion.
Members of the committee, any questions, comments
prior to a roll call vote? Representative FarmerButterfield?
REP. FARMER-BUTTERFIELD: Thank you. I
want to ask about the hearings yesterday and how
much impact they had on the criteria, if any, based
on what you're presenting today.
SEN. RUCHO: Representative Lewis?

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REP. LEWIS: Thank you for that -- thank

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you for that inquiry, Representative. I will tell

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you that many things that stand out in my mind are

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do away with the 12th, keep counties whole, all of

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which we've addressed in this, so I would say that

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they had a great deal of impact on the criteria

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that you have before you.

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SEN. RUCHO: All set? Okay. Yes,
Representative Stevens?

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REP. STEVENS: Thank you, Mr. Chair, and

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I just wanted to commend Representative Lewis and

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perhaps answer some of the things that some of the
people are talking about, and I'd like to read -- I
guess it's about one and a half paragraphs of one
of the most recent redistricting cases in March of
2015.
It says, "Now consider the nature of
those offsetting 'traditional race-neutral
districting principles.' We have listed several,
including 'compactness, contiguity, respect for
political subdivisions or communities defined by
actual shared interests,' incumbency protection,
and political affiliation," those things that we've
done.
The next paragraph says, "But we have not

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CLERK: Brawley?
REP. BRAWLEY: Aye.
CLERK: Cotham?
REP. COTHAM: No.
CLERK: Davis?
REP. DAVIS: Aye.
CLERK: Farmer-Butterfield?
REP. FARMER-BUTTERFIELD: No.
CLERK: Hager?
REP. HAGER: Aye.
CLERK: Hanes?
REP. HANES: Yes.
CLERK: Hardister?
REP. HARDISTER: Aye.
CLERK: Hurley?
REP. HURLEY: Aye.
CLERK: Jackson?
REP. JACKSON: No.
CLERK: Johnson?
REP. JOHNSON: Aye.
CLERK: Jordan?
REP. JORDAN: Aye.
CLERK: McGrady?
REP. MCGRADY: Aye.
CLERK: Michaux?

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listed equal population objectives. And there is a

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reason for that omission. The reason that equal

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population objectives do not appear on this list of
'traditional' criteria is that equal population
objectives play a major -- different role in a
State's redistricting process. That role is not a
minor one. Indeed, in light of the Constitution's
demands, that role may often prove 'predominant' in
the ordinary sense of that word," because the equal
population, it goes on to talk about in the voting
rights districts we really have to take a different
focus on that, so I commend you for all of the
criteria you've set forward. It seems to comply
with the most recent case law.
SEN. RUCHO: Representative Lewis?
REP. LEWIS: Yes, sir, Mr. Chairman?
SEN. RUCHO: All set? We've got a motion
before us that we approve of the criteria that was
listed and debated on the compactness. We've had a
second from Representative Davis. Mr. Clerk, would
you call the roll?
CLERK: Lewis?
REP. LEWIS: Aye.
CLERK: Jones?
REP. JONES: Aye.

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REP. MICHAUX: No.
CLERK: Moore?
REP. MOORE: Yes.
CLERK: Stam?
REP. SIAM:
STAM: Yes.
CLERK: Stevens?
REP. STEVENS: Yes.
CLERK: Rucho?
SEN. RUCHO: Aye.
CLERK: Apodaca?
SEN. APODACA: Aye.
CLERK: Barefoot?
SEN. BAREFOOT: Aye.
CLERK: Blue?
SEN. BLUE: No.
CLERK: Brown?
SEN. BROWN: Aye.
CLERK: Clark?
SEN. CLARK: No.
CLERK: Harrington?
SEN. HARRINGTON: Aye.
CLERK: Hise?
SEN. HISE: Aye.
CLERK: Jackson?
SEN. JACKSON: Aye.

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CLERK: Lee?
SEN. LEE: Aye.
CLERK: McKissick?
SEN. MCKISSICK: Aye.
CLERK: Randleman?
SEN. RANDLEMAN: Aye.
CLERK: Sanderson?
SEN. SANDERSON: Aye.
CLERK: Smith?
SEN. SMITH: No.
CLERK: Smith-Ingram?
SEN. SMITH-INGRAM: Aye.
CLERK: Wells?
SEN. WELLS: Aye.
SEN. RUCHO: Members of the committee,
the roll was taken. We have the ayes, 27, the
noes, 7. That was adopted. Okay, everyone, pay
close attention here. We have before us another
criteria entitled "Incumbency." Ms. Churchill?
MS. CHURCHILL: "Incumbency: Candidates
for Congress are not required by law to reside in a
district they seek to represent; however,
reasonable efforts shall be made to ensure that
incumbent members of Congress are not paired with
another incumbent in one of the new districts

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REP. JONES: Aye.
CLERK: Brawley?
REP. BRAWLEY: Aye.
CLERK: Cotham?
(No response.)
CLERK: Davis?
(No response.)
CLERK: Farmer-Butterfield?
REP. FARMER-BUTTERFIELD: Yes.
CLERK: Hager?
REP. HAGER: Aye.
CLERK: Hanes?
REP. HANES: Aye.
CLERK: Hardister?
REP. HARDISTER: Aye.
CLERK: Hurley?
REP. HURLEY: Aye.
CLERK: Jackson?
REP. JACKSON: Aye.
CLERK: Johnson?
REP. JOHNSON: Aye.
CLERK: Jordan?
REP. JORDAN: Aye.
CLERK: McGrady?
REP. MCGRADY: Aye.

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constructed in the 2016 contingent Congressional
plan."
REP. LEWIS: Mr. Chairman, I'd call this
the Senator Smith criteria, and I'd move its
adoption.
SEN. RUCHO: All right. That was the
explanation?
REP. LEWIS: Well, this is also
aspirational, and attempting to harmonize the other
criteria.
SEN. RUCHO: All right. Members of the
committee, any questions or comments on the
criteria before you dealing with incumbency?
(No response.)
SEN. RUCHO: Seeing none, Representative
-Lewis has a motion that we -- that we approve -adopt the incumbency criteria. Representative
Brawley seconded. We have before us -- any
additional thoughts or questions?
(No response.)
SEN. RUCHO: If not, we'll take a roll.
Mr. Clerk?
CLERK: Lewis?
REP. LEWIS: Aye.
CLERK: Jones?

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CLERK: Michaux?
REP. MICHAUX: Aye.
CLERK: Moore?
REP. MOORE: Aye.
CLERK: Stam?
REP. SIAM:
STAM: Aye.
CLERK: Stevens?
REP. STEVENS: Aye.
CLERK: Rucho?
SEN. RUCHO: Aye.
CLERK: Apodaca?
SEN. APODACA: Aye.
CLERK: Barefoot?
SEN. BAREFOOT: Aye.
CLERK: Blue?
SEN. BLUE: Aye.
CLERK: Brown?
SEN. BROWN: Aye.
CLERK: Clark?
SEN. CLARK: No.
CLERK: Harrington?
SEN. HARRINGTON: Aye.
CLERK: Hise?
SEN. HISE: Aye.
CLERK: Jackson?

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SEN. JACKSON: Aye.

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amendments, so a couple of minutes to break.

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CLERK: Lee?

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SEN. LEE: Aye.

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CLERK: McKissick?

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SEN. MCKISSICK: Aye.

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CLERK: Randleman?

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SEN. RANDLEMAN: Aye.

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CLERK: Sanderson?

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SEN. SANDERSON: Aye.

(RECESS, 12:04 - 12:22 P.M.)
SEN. RUCHO: All right, members of the
committee, I think you have on each of your desks a
copy of an amendment submitted by Representative
Paul Stam, "Amendment to Political Data Criteria
#3." Representative Stam?
REP. SIAM:
STAM: Yes. It's just sort of
technical. I kept reading that thing, and the way
it read, you could read it that you couldn't
consider data from the 2008 election, since it said
"since 2008," so this makes clear that yes, you can
consider 2008 and things forward.
SEN. RUCHO: All right. You've explained
it. Is that a motion you're making?
REP. SIAM:
STAM: I move the amendment.
SEN. RUCHO: Representative Lewis?
REP. LEWIS: Mr. Chairman, if I could, to
the maker of the amendment, Representative Stam,
would the gentleman consider striking "#3" to make
clear that these are in no particular order? In
other words, it would say, "Amendment to Political
Data Criteria."
REP. SIAM:
STAM: Oh, sure. Well, it would
be -- yes, yes, I do. Whether it's spelled

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CLERK: Smith?
SEN. SMITH: Aye.
CLERK: Smith-Ingram?
SEN. SMITH-INGRAM: Aye.
CLERK: Wells?
SEN. WELLS: Aye.
SEN. RUCHO: All right.
REP. MICHAUX: Mr. Chairman?
SEN. RUCHO: One second. Let me call the
vote, please. We had aye, 31, no, 1. That
criteria for incumbency has been adopted. All
right. Question, Senator -- Representative
McKissick -- I mean, excuse me -- sorry. Mr.
Michaux, did you have a question?
REP. MICHAUX: No.
SEN. RUCHO: Okay. I thought I heard

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something from over there.

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REP. LEWIS: Thank you, Mr. Chairman,
members.
SEN. RUCHO: Okay, let me see. All
right. We -- I mentioned earlier that -amendments being submitted. Are there any
amendments that are going to be submitted? All
right. Representative Blue?
SEN. BLUE: I have one that -SEN. RUCHO: Excuse me, Senator Blue.
I'm sorry.
SEN. BLUE: I have one. I had to change
it after the adoption of one of the other
amendments. I had given it to Erika earlier.
SEN. RUCHO: All right. It's being
worked on?
SEN. BLUE: Yeah.
SEN. RUCHO: Okay. I think Senator Hise
has an amendment. Okay. Senator Hise, do you have
an amendment?
SEN. HISE: I have a motion.
SEN. RUCHO: Motion. One second. They
need to have copies for distribution. (Pause.)
I'd like to have the committee stand at ease for a
few moments while we have some copies made of the

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"criterion" or "criteria," I will.
SEN. RUCHO: All right. So therefore,
the amendment that you've having strikes out -- or
it just says "Amendment to Political Data," and
then you're striking out -- excuse me -- "Political
Data Criteria." You're striking out "#3"?
REP. SIAM:
STAM: We're striking out "#3."
SEN. RUCHO: Just "#3." Members of the
committee, is that clear?
REP. LEWIS: Mr. Chairman?
SEN. RUCHO: Who's calling me? Oh,
Representative Lewis?
REP. LEWIS: I would support the
gentleman's amendment.
SEN. RUCHO: All right. Representative
Stam has submitted an amendment before you, and
it's open for discussion. Members of the
committee?
(No response.)
SEN. RUCHO: Seeing none, would you have
a roll call, Mr. Clerk?
CLERK: Lewis?
REP. LEWIS: Aye.
CLERK: Lewis, aye. Jones?
REP. JONES: Aye.

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CLERK: Jones, aye. Brawley?
REP. BRAWLEY: Aye.
Aye.
REP.
CLERK: Brawley, aye. Cotham?
REP. COTHAM:
COTHAM: Aye.
Aye.
REP.
CLERK: Cotham, aye. Davis?
CLERK:
REP. DAVIS:
DAVIS: Aye.
REP.
CLERK: Davis, aye. Farmer-Butterfield?
CLERK:
Aye.
REP. FARMER-BUTTERFIELD: Aye.
CLERK: Farmer-Butterfield, aye. Hager?
CLERK:
REP. HAGER: Aye.
CLERK: Hager, aye. Hanes?
REP. HANES: Aye.
CLERK: Hanes, aye. Hardister?
CLERK:
REP. HARDISTER: Aye.
CLERK: Hardister, aye. Hurley?
REP. HURLEY: Aye.
CLERK: Hurley, aye. Jackson?
REP. JACKSON: Aye.
CLERK: Jackson, aye. Johnson?
REP. JOHNSON: Aye.
CLERK: Johnson, aye. Jordan?
REP. JORDAN: Aye.
CLERK: Jordan, aye. McGrady?
REP. MCGRADY: Aye.
CLERK: McGrady, aye. Michaux?

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CLERK: Jackson, aye. Lee?

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SEN. LEE: Aye.

3

CLERK: Lee, aye. McKissick?

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SEN. MCKISSICK: No.

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CLERK: McKissick, no. Randleman?

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SEN. RANDLEMAN: Aye.

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CLERK: Randleman, aye. Sanderson?
SEN. SANDERSON: Aye.
CLERK: Sanderson, aye. Smith?
SEN. SMITH: No.
CLERK: Smith, no. Smith-Ingram?
SEN. SMITH-INGRAM: Nay.
CLERK: Smith-Ingram, no. Wells?
SEN. WELLS: Aye.
CLERK: Aye. 4.
SEN. RUCHO: That makes 30 yeses. Did
everybody vote?
CLERK: Yes. 30 to 4.
SEN. RUCHO: All right, members of the
committee, on the roll-call vote on Representative
Stam's amendment dealing with -- and it's titled
"Amendment
"Amendment to Political Data Criteria." It is
adopted 30 to 4.
Okay, we'll now just -- we'll go on to
the next. (Pause.) All right, members, you have

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REP. MICHAUX: Aye.
CLERK: Michaux, aye. Moore?
REP. MOORE: Aye.
CLERK: Moore, aye. Stam?
REP. SIAM:
STAM: Aye.
CLERK: Stam, aye. Stevens?
REP. STEVENS: Aye.
CLERK: Stevens, aye. Rucho?
SEN. RUCHO: Aye.
CLERK: Rucho, aye. Apodaca?
SEN. APODACA: Aye.
CLERK: Apodaca, aye. Barefoot?
SEN. BAREFOOT: Aye.
CLERK: Barefoot, aye. Blue?

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an amendment coming out toward you, and it is

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"Amendment, Compactness Criteria." It's -- all

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right.

4

REP. LEWIS: Mr. Chairman?
SEN. RUCHO: Yes, sir, Representative
Lewis? Excuse me, Representative Lewis. I've
got -- we need to have Senator Blue explain his
amendment. Go ahead.
REP. LEWIS: I was wondering if Senator
Blue would agree to a -- to a technical fix to
strike the number sign and the 6.
SEN. BLUE: I would.
SEN. RUCHO: Okay. Members of the
committee, on Senator Blue's amendment, the title
will be, "Amendment, Compactness Criteria." You
will scratch "#6." That will not be in there.
All right, Senator Blue, everyone has a
copy of the amendment. Would you like to explain
your amendment?
SEN. BLUE: I would. Thank you, Mr.
Chairman. Mr. Chairman and ladies and gentlemen of
the committee and Senators and House members
present, what I tried to do in this amendment is
simply recognize that the county is the most
important governmental unit following the state,

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SEN. BLUE: No.
SEN.

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CLERK: Blue, no. Brown?
SEN. BROWN: Aye.
CLERK: Brown, aye. Clark?
SEN. CLARK: No.
CLERK: Clark, no. Harrington?
SEN. HARRINGTON: Aye.
CLERK: Harrington, aye. Hise?
SEN. HISE: Aye.
CLERK: Hise, aye. Jackson?
SEN. JACKSON: Aye.

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because they're extensions of the state, and to set
forth clearly that we are -- we're only going to
divide counties when you're equalizing population,
although that's a federal requirement, too, and
when you're complying with federal law.
It's something you've got to do. You
might as well admit that we have to comply with
federal law. Federal law is supreme, and so this
says that we will split counties only when you're
trying to get down to zero deviation in population,
which we're going to try to do, I take it, and only
when you're complying with a federal law regarding
redistricting. All of the other reasons that have
been given would not be justification for splitting
counties, and I move the adoption of the amendment.
SEN. RUCHO: Representative Lewis?
REP. LEWIS: Thank you, Mr. Chairman, and
thank you, Senator Blue, for that explanation. Let
me be clear, ladies and gentlemen. We of course
are going to comply with federal law. We would not
be here were we not attempting to comply with the
federal decision issued by the courts. I would
submit that this amendment is not necessary, and
should not be adopted because we of course are
going -- as Senator Blue said, of course we're

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want to.

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SEN. RUCHO: Okay. You all set? Members
of the committee -- oh, excuse me. Senator Hise?

SEN. HISE: Thank you, Mr. Chairman, and

6

this may be for -- just trying to get clarity on

7

what this amendment would actually do. One of the

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outcomes of the last maps is that all of the major

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urban areas in the state were represented by two
Congressmen that was coming in, and something we

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saw at least that was coming in. Would this

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amendment prohibit that type of decision for those

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districts so that -- as that would be a political

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impact that was coming in that we could not make

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sure that urban areas were represented by two

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Congressmen?

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SEN. RUCHO: Okay. Representative ---

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excuse me. Senator Blue, would you please answer

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that question?

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SEN. BLUE: I'll be happy to answer that.

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Certainly not. As I said, the only two counties

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that absolutely would be guaranteed to be

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represented by two Congresspeople would be

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Mecklenburg and Wake, since each of them has a

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population in excess of the 700-plus thousand

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going to comply with the federal law.
As we've already had a pretty lengthy

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that's necessary to draw a Congressional district.

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If you started drawing a district toward an urban

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discussion, that consideration, the word

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area, then you could split that urban area when you

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"consideration" of incumbency and political impact
may be considered. It's not required to be
considered, and I've already stated for the record
that equalizing population is the most important
reason that a county would be divided. I would
respectfully ask the members to vote against this
amendment.
SEN. RUCHO: I've got Representative
Stam.
REP. STAM: I would oppose the amendment,
and point out what may be obvious. Senator Blue as
the Minority Leader is going to be perfectly
entitled to submit his own plan, and nothing in
what we've written would prohibit him from striking
those two criteria from his maps. He doesn't need
this amendment to do what he wants to do.
SEN. RUCHO: Yes, Senator Blue?
SEN. BLUE: Just a comment. My cape
disappeared, and I'm not Superman anymore, so I
can't do a map in a day that takes into account all
of the stuff that we have as criteria. I was
thinking we were narrowing the things that we

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got to it so that it's in two separate districts.

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This would in no way prohibit having two

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Congresspeople from whichever other urban areas

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other than Wake and Mecklenburg, where you'd be

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guaranteed at least two, where you could bring them

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into one of the urban counties, but you couldn't

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split it but one time, so you get -- you could get

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two from Guilford, two from Cumberland, two from

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Forsyth, two from any of the counties, including

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the smallest, if you paired it with a much bigger

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population.
SEN. RUCHO: Representative Lewis,
comment?
REP. LEWIS: No, sir. I would say I'm
sure that the answer Senator Blue gave is correct
to Senator Hise's question. I just again would not
support the amendment as it's drafted for the
reasons that I've already stated.
SEN. RUCHO: All right. Members of the
committee, you have an amendment before you from
Senator Blue, and the amendment is entitled
"Amendment, Compactness Criteria." Any additional

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questions, comments?
(No response.)
SEN. RUCHO: Seeing none, the roll call,
Mr. Clerk?
CLERK: Lewis?
REP. LEWIS: No.
CLERK: Lewis, no. Jones?
REP. JONES: No.
CLERK: Jones, no. Brawley?
REP. BRAWLEY: No.
CLERK: Brawley, no. Cotham?
REP. COTHAM: Yes.
CLERK: Cotham, yes. Davis?
REP. DAVIS: No.
CLERK: Davis, no. Farmer-Butterfield?
REP. FARMER-BUTTERFIELD: Yes.
CLERK: Farmer-Butterfield, yes. Hager?
REP. HAGER: No.
CLERK: Hager, no. Hanes?
REP. HANES: Yes.
CLERK: Hanes, yes. Hardister?
REP. HARDISTER: No.
CLERK: Hardister, no. Hurley?
REP. HURLEY: No.
CLERK: Hurley, no. Jackson?

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CLERK: Brown, no. Clark?
SEN. CLARK: Aye.
CLERK: Clark, aye. Harrington?
SEN. HARRINGTON: No.
CLERK: Harrington, no. Hise?
SEN. HISE: No.
CLERK: Hise, no. Jackson?
SEN. JACKSON: No.
CLERK: Jackson, no. Lee?
SEN. LEE: No.
CLERK: Lee, no. McKissick?
SEN. MCKISSICK: Aye.
CLERK: McKissick, aye. Randleman?
SEN. RANDLEMAN: No.
CLERK: Randleman, no. Sanderson?
SEN. SANDERSON: No.
CLERK: Sanderson, no. Smith?
SEN. SMITH: Aye.
CLERK: Smith, aye. Smith-Ingram?
SEN. SMITH-INGRAM: Aye.
CLERK: Smith-Ingram, aye. Wells?
SEN. WELLS: No.
CLERK: No.
SEN. RUCHO: All right, members of the
committee, the roll call vote was aye -- excuse

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REP. JACKSON: Yes.
CLERK: Jackson, yes. Johnson?

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REP. JOHNSON: No.
CLERK: Johnson, no. Jordan?
REP. JORDAN: No.
CLERK: Jordan, no. McGrady?
REP. MCGRADY: No.
CLERK: McGrady, no. Michaux?
REP. MICHAUX: Aye.
CLERK: Michaux, aye. Moore?
REP. MOORE: Aye.
CLERK: Moore, aye. Stam?
REP. SIAM:
STAM: No.
CLERK: Stam, no. Stevens?
REP. STEVENS: No.
CLERK: Stevens, no. Rucho?
SEN. RUCHO: No.
CLERK: Rucho, no. Apodaca?
SEN. APODACA: No.
SEN.APODACA:
CLERK: Apodaca, no. Barefoot?
SEN. BAREFOOT: No.
CLERK: Barefoot, no. Blue?
SEN. BLUE: Aye.
CLERK: Blue, aye. Brown?
SEN. BROWN: No.

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and this one will be Senator Erica Smith-Ingram's

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amendment on criteria.

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REP. LEWIS: Mr. Chairman?
SEN. RUCHO: Yes, Representative Lewis?
REP. LEWIS: Would Senator Smith-Ingram
agree to a small technical amendment to strike the
number and "6"?
SEN. SMITH-INGRAM: Yes.
REP. LEWIS: Thank you, ma'am.
SEN. RUCHO: Members of the committee,
Senator Smith-Ingram has agreed to a technical
amendment that will strike the title, and the title
will read "Amendment to Compactness Criteria," and
that'll be all it'll say there.
Okay, I have Senator Smith-Ingram to
present her amendment.
SEN. SMITH-INGRAM: Thank you, Mr. Chair.
In light of our previous discussions and our effort
to promote harmony, you can have one-part harmony,
two-part, three-part. In this case, this will add
the four-part harmony, and I would ask staff if
there is needed discussion about the actual
language, it came from the federal case.

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me -- no, 23; aye, 11.
All right, we have another one before us,

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REP. LEWIS: Mr. Chairman?
SEN. RUCHO: Representative Lewis,
comment?
REP. LEWIS: Yes, sir. I appreciate the
amendment and the sentiment expressed by the
Senator. I would offer that it appears to me that
the language that's attempting to be added is
somewhat vague and nebulous, as I don't know that
we have a defined -- or an actionable definition of
what "community of interest" is, or "community of
shared interest," so respectfully, I would ask the
committee to defeat this amendment.
SEN. RUCHO: Members of the committee,
any questions or comments?
(No response.)
SEN. RUCHO: We have a motion before us
dealing with "Amendment to Compact Criteria"
submitted by Senator Erica Smith-Ingram. You have
that before you. Seeing no comments or questions,
Mr. Clerk, roll call, please?
CLERK: Lewis?
REP. LEWIS: No.
CLERK: Lewis, no. Jones?
REP. JONES: No.
CLERK: Jones, no. Brawley?

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CLERK: Michaux, yes. Moore?
REP. MOORE: Yea.
CLERK: Moore, yea. Stam?
STAM: No.
REP. SIAM:
CLERK: Stam, no. Stevens?
REP. STEVENS: Yes.
CLERK: Stevens --REP. STEVENS: Sorry. No.
CLERK: Stevens, no. Rucho?
SEN. RUCHO: No.
CLERK: Rucho, no. Apodaca?
SEN. APODACA: No.
CLERK: Apodaca, no. Barefoot?
SEN. BAREFOOT: No.
CLERK: Barefoot, no. Blue?
SEN. BLUE: Yes.
CLERK: Blue, yes. Brown?
SEN. BROWN: No.
CLERK: Brown, no. Clark?
SEN. CLARK: Yes.
CLERK: Clark, yes. Harrington?
SEN. HARRINGTON: No.
CLERK: Harrington, no. Hise?
SEN. HISE: No.
CLERK: Hise, no. Jackson?

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REP. BRAWLEY: No.
CLERK: Brawley, no. Cotham?
REP. COTHAM: Yes.
CLERK: Cotham, yes. Davis?
REP. DAVIS: No.
CLERK: Davis, no. Farmer-Butterfield?
REP. FARMER-BUTTERFIELD: Yes.
CLERK: Farmer-Butterfield, yes. Hager?
REP. HAGER: No.
CLERK: Hager, no. Hanes?
REP. HANES: Yes.
CLERK: Hanes, yes. Hardister?
REP. HARDISTER: No.
CLERK: Hardister, no. Hurley?
REP. HURLEY: No.
CLERK: Hurley, no. Jackson?
REP. JACKSON: Yes.
CLERK: Jackson, yes. Johnson?
REP. JOHNSON: No.
CLERK: Johnson, no. Jordan?
REP. JORDAN: No.
CLERK: Jordan, no. McGrady?
REP. MCGRADY: No.
CLERK: McGrady, no. Michaux?
REP. MICHAUX: Yes.

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SEN. JACKSON: No.
CLERK: Jackson, no. Lee?
SEN. LEE: No.
CLERK: Lee, no. McKissick?
SEN. MCKISSICK: Yes.
CLERK: McKissick, yes. Randleman?
SEN. RANDLEMAN: No.
CLERK: Randleman, no. Sanderson?
SEN. SANDERSON: No.
CLERK: Sanderson, no. Smith?
SEN. SMITH: Aye.
CLERK: Smith, aye. Smith-Ingram?
SEN. SMITH-INGRAM: Aye.
CLERK: Smith-Ingram, aye. Wells?
SEN. WELLS: No.
CLERK: Wells, no. 23-11.
SEN. RUCHO: 23 no; 11
11 yes?
CLERK: Yes.
SEN. RUCHO: Members of the committee, on
"Amendment to Compactness Criteria" from Senator
Erica Smith-Ingram, the ayes, 11; the noes, 23.
That amendment was not adopted.
All right, we have another one, and I
believe it's already at your desk, and this one is
"Communities of Interest," submitted by Senator

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Floyd McKissick. Senator McKissick, would you like

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on the vagueness of these terms, to reject this

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to explain your amendment?

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additional criteria.

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SEN. MCKISSICK: Sure, and it's very
straightforward. It's not seeking to amend any
other criteria. This would just be a criteria that
is aspirational, as many of the others. It does
follow case law in terms of what is stated, and
what this says is that the committee will make
reasonable efforts to respect political
subdivisions, cities, towns, what have you, as well
as communities as defined by actual interest. What
I would like to do is recognize Kara as well as
Erica, perhaps, to provide further clarification in
terms of existing case law.
I think we are -- we would be remiss if
we did not include this as one of the benchmarks
that we would seek to use in drawing the plans as
we move forward. I can't imagine why we would want
to ignore communities of shared interest or not
respect political subdivisions other than counties.
This is talking about other political subdivisions
or towns that might be within these Congressional
districts, which should also be respected to the
extent it's possible and feasible to do so, not
just counties.

3

SEN. MCKISSICK: Follow-up, Mr. Chair?
SEN. RUCHO: Senator McKissick?
SEN. MCKISSICK: Let me ask you this,
Representative Lewis: I see you have some problems
with that terminology that was used by the US
Supreme Court, which I think is pretty clear in
terms of a directive, but what is the objection to
respecting political subdivisions, because I would
think that we would all want to do so for the
-cities and towns and communities -SEN. RUCHO: Representative Lewis?
SEN. MCKISSICK: -- represent, and they
are used collectively by the Supreme Court, but I
mean, if you have problems with that, I think
you've got still to follow it, or you end up in
litigation. I don't think any of us want to end up
in litigation any more than we already are in this
state. I don't know why -- what's the objection to
respecting political subdivisions?
REP. LEWIS: Well, sir, to be clear, as I
pointed out when we adopted the compactness
criteria, it's not our intent to split -- we're
going to do the best we can to keep as many

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Kara, Erika, if you could comment,
please?
SEN. RUCHO: Please identify yourself and
respond to Senator McKissick's request if you can.
MS. MCCRAW: I'm Kara McCraw, staff
attorney with the Legislative Analysis Division.
Senator McKissick is referring to the last part of
this amendment. The term -- the language "respect
political subdivisions and communities defined by
actual shared interests" is language that was used
by the Supreme Court in the Miller v. Johnson case
from 1995 as part of the list of traditional raceneutral districting principles.
SEN. RUCHO: All right. Representative
Lewis?
REP. LEWIS: Thank you, Mr. Chairman, and
thank you, Senator, for offering this additional
criteria. As best I can understand it, to the
extent it's required by federal law, of course
we're going to be mindful of that, but as you and I
had an aside conversation earlier, I don't believe
we have defined in this state at least what a
community of interest is. I don't understand,
actually, what "actual shared interests" means, so
therefore, I would have to ask the committee, based

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counties and as many VTDs whole. I'll give you a

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direct example of why I think this is vague.

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We've already heard from the gentleman

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from Wake, Senator Blue, as he I think correctly

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stated that a county is the most important

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political subdivision. I actually -- I actually

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agree with that. Your city, Durham, has annexed

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into Wake County, so when I say it's vague and

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nebulous, how do you know which -- which interest

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you're going to follow? I think we've done a good

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job in this committee of saying we're going to keep

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as many counties and as many VTDs whole as we can.

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SEN. RUCHO: Okay, I've got
Representative Stam.

REP. STAM: Yes, I was about to make the

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same point. Cary has annexed into Chatham, so

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under this, it would give mapmakers an excuse to

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break the Wake/Chatham line so they could keep Cary

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together. Angier, if you can believe it, has

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annexed into Wake County. I don't know how David

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Lewis let them do that. With this amendment,

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mapmakers could despoil Wake County just to get a

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few more Republicans into the Harnett County

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district.

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REP. LEWIS: Mr. Chairman?

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SEN. RUCHO: Representative Lewis?

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REP. LEWIS: For the record, while I do

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ever defined it. I certainly think that to the

the citizens of Wake County? I don't think we've

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not support Senator McKissick's amendment, I think

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extent that it's not restricted from being used as

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anywhere Angier can be shared is a positive thing.

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the maps are prepared that, you know, I think

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(Laughter.)

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that's something that the map drawers may wish to

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SEN. RUCHO: Senator McKissick?

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try and use, but I don't know that it -- I don't

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SEN. MCKISSICK: I would simply say that

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we ought to try to respect these political
subdivisions. I don't think with the current mood
of this General Assembly, we have to worry about
too many more annexations occurring for a while,
so, you know, respecting political subdivisions is
a valid criteria regardless of what those political
subdivisions might look like, so obviously I
support it, but I can certainly put my finger in
the air and see the way these winds are blowing.
SEN. RUCHO: Members of the committee,
any additional questions? Senator?
SEN. SMITH-INGRAM: Yes. Representative
Lewis, I'm a little bit confused about your
objection to the use of this language inasmuch as
it relates to not having a definitive definition.
Is it possible for staff to be able to comment on
what is the definition used in North Carolina of
"communities
"communities of interest" as we have applied it in

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do want to take this opportunity to respectfully

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let my friend from Durham know that, as I reminded

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him, I'm not an attorney, and in no way have I

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tried to disrespect or disregard any ruling from

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the US Supreme Court, nor from this federal trial

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court, but I'm not prepared to stand before this

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committee today and say that I understand what this

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is trying to do; therefore, I continue to oppose

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this new criteria.

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SEN. RUCHO: Members of the committee?
(No response.)
SEN. RUCHO: From the Chair,
Representative Lewis, I recognize, and I think the
committee recognizes the full effort to keep
counties whole. I think the counties are
relatively stable in their -- in their borders, but
yet a municipality and a town and the like, with
annexation, deannexation and the like, is more

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the past?

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variable. Do you think that that may be one of the

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SEN. RUCHO: The chair will allow that.
Which staff member would like to define
"communities of interest"?
MS. MCCRAW: I'm Kara McCraw, staff
attorney with the Legislative Analysis Division.
North Carolina has not adopted a definition of
"communities of interest."
SEN. RUCHO: Follow-up?
SEN. SMITH-INGRAM: Follow-up. As I
recall, Representative Stevens just read from -- I
believe she was citing case law, but it just seems
that all the other elements that you have already
in the criteria are there, with the exception of
communities of interest, and so I'm just concerned
about why you have adopted the other three, and why
you feel comfortable with that, but not with the
communities of interest.
SEN. RUCHO: Representative Lewis?
REP. LEWIS: Well, again, thank you for
that inquiry, Senator. I would just say again that
as we've never defined what a community of interest
is -- and the example I tried to use with Senator
McKissick, how do you define -- is the City of
Durham a more important community of interest than

2

reasons for what could be adding confusion?
REP. LEWIS: I think that's fair. I
think that's a good indication of why I say this is
vague, and not really defined. We got a request
from a member for the central staff to explain how
communities of interest are defined in the state,
and they're not, so since there's not a definition,
they shouldn't be in the criteria.
SEN. RUCHO: Members of the committee,
we've had discussion on this issue. We have an
amendment before us, submitted by Senator Floyd
McKissick dealing with communities of interest.
Any additional questions, comments?
(No response.)
SEN. RUCHO: Seeing none, Mr. Clerk, a
roll call, please?
CLERK: Lewis?
REP. LEWIS: No.
CLERK: Lewis, no. Jones?
REP. JONES: No.
CLERK: Jones, no. Brawley?
REP. BRAWLEY: No.
CLERK: Brawley, no. Cotham?
REP. COTHAM: Yes.

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CLERK: Cotham, yes. Davis?
REP. DAVIS: No.
CLERK: Davis, no. Farmer-Butterfield?
REP. FARMER-BUTTERFIELD: Yes.
CLERK: Farmer-Butterfield, yes. Hager?
REP. HAGER: No.
CLERK: Hager, no. Hanes?
REP. HANES: Yes.
CLERK: Hanes, yes. Hardister?
REP. HARDISTER: No.
CLERK: Hardister, no. Hurley?
REP. HURLEY: No.
CLERK: Hurley, no. Jackson?
REP. JACKSON: Yes.
CLERK: Jackson, yes. Johnson?
REP. JOHNSON: No.
CLERK: Johnson, no. Jordan?
REP. JORDAN: No.
CLERK: Jordan, no. McGrady?
REP. MCGRADY: No.
CLERK: McGrady, no. Michaux?
REP. MICHAUX: Aye.
CLERK: Michaux, aye. Moore?
REP. MOORE: Aye.
CLERK: Moore, aye. Stam?

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CLERK: McKissick, aye. Randleman?
SEN. RANDLEMAN: No.
CLERK: Randleman, no. Sanderson?
SEN. SANDERSON: No.
CLERK: Sanderson, no. Smith?
SEN. SMITH: Aye.
CLERK: Smith, aye. Smith-Ingram?
SEN. SMITH-INGRAM: Aye.
CLERK: Smith-Ingram, aye. Wells?
SEN. WELLS: No.
CLERK: Wells, no.
SEN. RUCHO: Members of the committee,
the result of the vote on Senator McKissick's
amendment dealing with communities of interest,
aye, 11; no, 22. The motion is not adopted.
Members of the committee, any additional
amendments? Any motions?
REP. LEWIS: Mr. Chairman -SEN. RUCHO: Senator Hise? Oh, excuse
me.
REP. LEWIS: Mr. Chairman?
SEN. RUCHO: Yes, sir?
REP. LEWIS: I just wanted to thank the
members for their indulgence this morning, and I'm
proud of the 2016 contingent Congressional plan

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REP. SIAM:
STAM: No.
CLERK: Stam, no. Stevens? Stevens?
(No response.)
CLERK: Rucho?
SEN. RUCHO: No.
CLERK: Rucho, no. Apodaca?
SEN. APODACA: No.
CLERK: Apodaca, no. Barefoot?
SEN. BAREFOOT: No.
CLERK: Barefoot, no. Blue?
SEN. BLUE: Aye.
CLERK: Blue, aye. Brown?
SEN. BROWN: No.
CLERK: Brown, no. Clark?
SEN. CLARK: Aye.
CLERK: Clark, aye. Harrington?
SEN. HARRINGTON: No.
CLERK: Harrington, no. Hise?
SEN. HISE: No.
CLERK: Hise, no. Jackson?
SEN. JACKSON: No.
CLERK: Jackson, no. Lee?
SEN. LEE: No.
CLERK: Lee, no. McKissick?
SEN. MCKISSICK: Aye.

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proposed criteria that we have adopted. I did want
to say for the record that it's my intent that
these be used in the drawing of the 2016 contingent
Congressional plan in response to the lawsuit only.
This is not an attempt to establish any other longrunning criteria.
SEN. RUCHO: Okay. Senator Hise, you
have a motion?
SEN. HISE: Mr. Chairman, I have a
motion, a written motion.
SEN. RUCHO: Okay. Has that been sent
out to each member?
SEN. HISE: Sergeant-at-Arms -SEN. RUCHO: Are the Sergeant-At Arms
distributing it? Let's take about a two- or threeminute break so everybody can read this motion.
(Pause.)
Has everyone had an opportunity to review
Senator Hise's motion? Representative Jackson?
REP. JACKSON: Thank you, Mr. Chairman.
One question would be the way this is worded -SEN. RUCHO: Well, let me do this: if
it's dealing with what's in there, I'm going to
give Senator Hise a chance to explain it. I was
giving everybody a chance to review it.

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All right, everybody has it. Senator

REP. JACKSON: My question, I guess, was

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Hise, would you like to explain that motion, and

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then we'll open it up for discussion?

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Hise. I was just wondering if we could change the

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SEN. HISE: Thank you, Mr. Chairman.
Basically what this does is it consolidates the
criteria we've already adopted and voted on into
one piece, and then directs the co-chairs to go
through the process of developing the maps on the
basis of those criteria, and provides the sum of
$25,000 under the way we need to appropriate it,
with approval of the speaker, and those type of
things in the interim that are coming in, and then
allows the minority party to have access to the
same funds, and to draw maps under those criteria
or any other criteria that they would establish.
It also rescinds that provided that the Supreme
Court issues a stay.
SEN. RUCHO: Representative Lewis,
comment?
REP. LEWIS: Thank you, Mr. Chairman and
members. Just to be clear where I hope we're going
with this, as you know, we are still optimistic
that we'll receive a stay from the Supreme Court.
If we do not receive a stay, it would be the
chairs' intent to bring a map before this committee

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first sentence of Paragraph 3. The way you've got

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it written is that the co-chairs, Lewis and Rucho,

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directed to you as chairman, or either Senator

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can pick their mapmakers, but our entire caucus

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would have to do it, the members of this committee,

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which means we'd have to stay together and vote and

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do things like that, and I would just ask that you
consider substituting that, and as Minority Leader

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of the Senate, let Senator Blue make that choice

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for us, and our entire caucus not be involved and

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have to make that decision.

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SEN. RUCHO: Senator Hise, do you have a

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thought or a comment, or would you like to ponder

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that one a little bit?

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SEN. HISE: I don't see what's written as
requiring that type of vote or operation from the

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minority caucus. This coming in would allow them

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to decide if they want to allow their leader to

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make that decision all on his own. I think that's

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within the way it's written here, so I don't

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necessarily see that issue in the way it's written,

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but however the minority -- the members of the

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minority part of this committee choose to select

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for recommendation for introduction to a special

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who the mapmaker is their concern.

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session that would be held later this week.

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SEN. RUCHO: Okay. Senator Blue?
SEN. BLUE: Two questions, basically,
practical questions. I assume that the co-chairs
have consulted with somebody who's available to be
the consultant to draw a map. We haven't, but I
can assure you that anybody that you consult with
normally isn't going to do it, at least not for us,
on a contingent fee basis, and we don't know when
there may be an order one way or the other on this
stay if the plaintiffs have until midafternoon to
submit their papers. I don't know what the Chief
Justice is going to do or when he's going to do it,
but practically speaking, first, we haven't
consulted with anybody, but secondly, if you
consult with somebody, you've got to promise them
you're going to pay them, and this says that you
won't pay them even if they work two or three days
if a stay is granted.
SEN. RUCHO: All right. Representative
Lewis?
REP. LEWIS: Mr. Chairman and Senator
Blue, if we need to have the attorney review this,
we certainly can, and correct any offending
language. I just wanted to state for the record

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The chairs would encourage in the

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issue -- in the -- for the goal of increased

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transparency that should other people have maps

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that they'd like this committee to consider, that

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they get them prepared and submitted as well, but

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to be clear, once the General Assembly convenes,
there would also be an opportunity for maps to be
presented to either the House or the Senate
redistricting committees when they meet.
However, the House rules, and I believe
the Senate rules -- I won't speak for the Senate
rules, but I know the House rules will require that
any amendments that are offered to the plans that
are submitted in fact be complete plans. In other
words, you would have to have all 13 districts
drawn to -- you would -- instead of trying to amend
whatever plan that this committee will release, you
would have to in essence prepare and release a plan
to compete with this plan.
SEN. RUCHO: All right. Members of the
committee? Senator Blue? Oh, excuse me. Let me
do this: Representative Jackson asked a question
earlier. Go ahead, please.

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that it is the intent, after having consulted with

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MS. CHURCHILL: If there is a member of

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Tem, that any
the Speaker and the President Pro Tern,

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the General Assembly that would like a map drawn,

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mapmaker engaged would be paid.

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we will do so at their direction; however, we will

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I think -- well, I don't think. What the

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need instruction from that member how to assign all

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language is trying to say is that should a stay be

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the geography of the state.

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issued, the maps would never be released, not that

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the person would not be paid for their time. We're
not trying to get somebody to draw maps on a
contingency fee. We're having maps drawn
contingent upon us not getting a stay.
I would be glad, if you are concerned
about the way the language is written, to take a
moment and have that defined, but I did want to
state for the record that the intent would be any
map drawer that you would engage or the minority
party would engage would be paid for their time.
SEN. RUCHO: Senator Blue?
SEN. BLUE: Andrew has some language
that'll fix it.
SEN. RUCHO: All right. Senator Hise?
SEN. HISE: I think they may be -- I just
wanted to say I think they may be working on some
clarification, but the intent as drafted is that
work done while it's authorized to be done would be
paid for, but once the stay came out or a ruling

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SEN. RUCHO: Does that answer your
question?
SEN. BLUE: You need instructions as to
how to sign -- assign what?

SEN. RUCHO: No, how to assign.
MS. CHURCHILL: How to assign the
geography of the state.
SEN. RUCHO: How you want the -- they can
draw the map. Just give them the direction on how
you want the -- the districts to be drawn.
SEN. BLUE: Okay.
SEN. RUCHO: Follow-up?
SEN. BLUE: Yeah, one follow-up. I'm
trying to keep up with the many iterations of the
case -- cases involving redistricting, and I think
that in that sense, even those instructions now are
considered confidential; is that correct?
MS. CHURCHILL: At this point in time,
any member of the General Assembly that makes a
drafting or information request to any legislative

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came out that we would stop work at that point, and

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employee, that drafting and information request is

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wouldn't be paid for work done after that point

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treated as confidential, subjective to legislative

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that was coming in, but while the authorization

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confidentiality by that legislative employee. Upon

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exists, we would pay for those funds, thinking we'd

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enactment of any Congressional plan, the plans

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get the check cut within 24 hours.

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themselves and the drafting and information

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SEN. RUCHO: We'll stand at ease a moment
while we're studying some language, if we may.
While that's being looked at, Senator Blue, did you
have a second point that you were making?
SEN. BLUE: I did, as a matter of fact.
Do you have some experts hanging around who can do
this mapmaking that we might could talk to? We
haven't engaged anybody.
SEN. RUCHO: I think we're probably going
to use the one that you're presently using now.
SEN. BLUE: Which one is that one?
SEN. RUCHO: Whichever one that is.
SEN. BLUE: Is there capability within
the staff to do it, Mr. Chair?
SEN. RUCHO: I'm sorry. Say that again?
SEN. BLUE: Is there capability within
the staff to do mapmaking?
SEN. RUCHO: Ms. Churchill? Okay. Is
there capability within the staff of being able to
draw maps as requested by the minority party?

6

requests related to that plan do become a public
record.
SEN. RUCHO: Okay. Still working, so
just -- oh, excuse me. Senator McKissick? We're
working on the language, so -SEN. MCKISSICK: Sure. I understand.
This is a question to Erika to get further
clarification. In terms of the stat packs of data
that would be available, would we have the same
type of data that was available in 2011
2011 as a basis
for drawing -- drawing plans? I mean, I know
there was some discussion today about not
considering race as a factor and, you know, things
of that sort, but would we still have available
data packs that are -- provide the statistics and
data that we would have used in 2011
2011 were we
drawing those districts, and if so, is any of that
data updated at this time as well?
MS. CHURCHILL: Mr. Chair, as I
understand it -- and Mr. Frye will need to correct

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me, because he maintains our databases, but there
have been no changes to the 2011
2011 database. It
still has the 2010 Census data in it. It still has
the voter registration data in it. It still has
the election data in it. We still have the
capability of running exactly the same reports off
of that database.
SEN. MCKISSICK: Last follow-up.
SEN. RUCHO: Follow-up.
SEN. MCKISSICK: Yeah. Erika, I mean -and I know this is not a fair question, perhaps,
but to what extent can we get reasonably quick
turnaround, considering the time frame that we're
in? I think our challenge is obviously we relied
upon consultants and experts before, Mr. David
Harris and Mr. Bill Gilkeson, but they are both
attorneys engaged in private practice, handling
clients, and to think that we can displace them
this quickly to get them reengaged on less than 24
hours notice is not a -- perhaps a reasonable
expectation.
I'm trying to see if we want to get these
I'm
maps drawn, I think Senator Blue is on the right
track. We're going to need to rely upon in-house
resources, perhaps supplemented by consultants, but

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SEN. RUCHO: I think what you're -- what
you reflect is what our concern is, that we have a
short -- short window, and we're all faced with
that same tight timeline, so -- but I'm sure staff,
as Ms. Churchill said, will do its best to help you
achieve your goal. Representative -- or Chairman
Lewis?
REP. LEWIS: Thank you, Mr. Chairman.
Senator McKissick, just to be clear, sir, the
criteria that will be available to the mapmaker
that Senator Rucho and I employ will only be the
criteria that this -- that this committee has
adopted. The stat packs, as you well recall,
contain additional information. That information
obviously will be available at the end of the map
drawing process. Just to be clear, the map drawer
that Senator Rucho and I will contract with will
have only access to the criteria that this
committee has adopted.
SEN. MCKISSICK: Follow-up.
SEN. RUCHO: Yes, sir. Follow-up.
SEN. MCKISSICK: Some of the critical
language in here under Bullet 3, if we go down
about five lines, it talks about using the adopted
criteria or any other criteria selected by the

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are we going to be able to get quick turnaround?
MS. CHURCHILL: Mr. Chair, if I might, we
will do our best. We do have a limited number of
people who have the capa- -- the knowledge to
actually use the mapping software, but amongst
ourselves, once we know what the requests are, we
will try to efficiently meet all of the needs.
SEN. MCKISSICK: Thank you.
SEN. RUCHO: All right. Senator
McKissick, any specifics? I mean, you were talking
about the stat packs and all that. Do you have any
specific criteria that you want included in the
stat pack?
SEN. MCKISSICK: I mean, as long as we
have the same type of stat pack that we had
previously, the demographic data and the political
data that's available, I think we'll probably be
okay. I cannot think of any additional data that
we would need. As long as that's readily
accessible and we can get pretty quick
turnaround -- I am deeply concerned that since we
did not learn about the availability of the funds
for consultants before today that trying to engage
people who are deeply familiar with be challenging
at this late point in time.

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minority caucus, so if we want to use other
criteria that might be consistent with the ruling
in Harris versus McCrory -- and we would contend
that race can be used; it just cannot be the
predominant factor. I just want to know that that
data will be available if we need to use and rely
upon it in drafting constitutionally correct
districts, because that was not included in your
criteria, but this language in this particular
motion does give us as the minority caucus the
right to use other criteria.
SEN. RUCHO: Hold on. I'll try to get
you an answer. (Pause.) Our understanding -- the
Chairs' understanding is that, you know, in drawing
maps, you can request any data you feel that needs
to be there to help you achieve what you believe is
a -- a map trying to resolve the issue dealing with
the court decision.
SEN. MCKISSICK: Thank you.
SEN. RUCHO: Okay. Senator Blue?
SEN. BLUE: Yes. So that I can follow
that point up, it's my understanding, and correct
me, that the -- that the database will have
information about the 2012, 2014 elections in
addition to the data that was available at the time

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the original maps were drawn. That is, they will
be current in the information that they have. Is
that right?
SEN. RUCHO: Let's ask Mr. Frye if he'll
be kind enough to explain what is in the database,
and of course, it's based on the 2010 Census, but
election results you're asking about.
MR. FRYE: Yes. So -- so what I've got
worked up for this round is there's -- you know, of
course, you know, like we were talking about, all
of the old data is totally in place if it makes
sense to use that for whoever wants it, and for the
2016 database, I've got total population, voting
age population, because that's the only thing
-- just election data, right, and that
that's not --just
is just election data. There's the 2008 general
election, basically all the Council of State
contests. There's the 2010 general election, US
Senate, the 2012 general election, you know,
basically governor and Council of State contests,
and -- and then the 2014 US Senate.
SEN. RUCHO: Does that help you?
SEN. BLUE: You said 2014 US Senate.
2014 Congressional data, elections data?
SEN. RUCHO: Mr. Frye?

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SEN. BLUE: I'm just trying to make sure
that whatever data is used by one is used and
available by all.
-SEN. RUCHO: Well, my -SEN. BLUE: If we're basing it on the
legislative computers and the legislative database.
SEN. RUCHO: If I'm understanding it
correctly, any data that you need to have is going
to be available as long as you give some -- some
request for it. Am I correct?
-MR. FRYE: Well, certainly -SEN. BLUE: Aspirational.
MR. FRYE: Yeah. I'm concerned about
timeline, you know, about preparing things, and
certain things are prepared and ready to go, and
-yeah, those things can be -SEN. RUCHO: Ms. Churchill?
MS. CHURCHILL: (Inaudible.)
SEN. RUCHO: Talking about the data -- I
think that was Mr. Frye's question. Okay, that's
where we are. All right, still on -- did we get
the language?
STAM: Yeah, on a big-picture issue
REP. SIAM:
here, while they're working out the language, I was
minority leader during the Pender County

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MR. FRYE: Well, for the -- no, for the
2014 database, it has just the US Senate.
SEN. BLUE: I can't hear him.
SEN. RUCHO: Could you repeat that again?
We missed you with that.
MR. FRYE: For the 2014 general election,
-I've just got US Senate. There are other -because there's sort -- there's a difference
between like what data is -- has been generally
processed and what data is sort of ready to go in
our redistricting database. There's kind of a fair
gap between those two things, so we do have some
other information relating to other contests from
2014, but --SEN. BLUE: So the database will not have
the location of current incumbents or anything like
that?
SEN. RUCHO: Mr. Frye?
MR. FRYE: What we have is locations of
current incumbents that -- a lot of them were
updated as of the 2011
2011 cycle, so we may want to
double-check. There are a few of them I was
looking at that we may want to double-check on
their addresses and see if they've moved.
SEN. RUCHO: Senator Blue?

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redistricting. Speaker Hackney was the speaker.
If I had been offered a deal like this, I would go
give Representative Lewis and Senator Rucho a big
bear hug and "Thank you."
SEN. RUCHO: Don't hug us.
SEN. BLUE: Certainly no kiss associated
with it.
(Laughter.)
SEN. RUCHO: Representative -- or Senator
Blue?
SEN. BLUE: Yeah. I have a question of
the Chair, but I guess you've got a motion pending,
so
-SO I'll wait -SEN. RUCHO: We've got a motion.
SEN. BLUE: -- until after the motion.
SEN. RUCHO: Yeah, we've got a motion
first. Senator Hise?
SEN. HISE: Question, probably directed
for staff. If -- and under this motion where it
currently is, if the minority caucus is going to
load additional information, including things like
race and others, onto the stat pack for the
operations, do we have a sufficient wall of
separation, say separate computers, separate
databases, separate operating, that the co-chairs

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do not have access to that information, or the
other committees cannot have access to that
information, because it's inconsistent with the
criteria that's established, so can we make sure
that once those are loaded, they are not available
if they are not part of the criteria for the cochairs' drawing?
SEN. RUCHO: Mr. Frye?
MR. FRYE: Yes. I believe for -- if the
co-chairs are working on a plan, they can work on
it and follow the criteria separately, and for any
reports they produce, would just use that
information.
SEN. RUCHO: To follow up on what his
question is, is there a clear wall that we have to
actually request that information before it's
eligible -- eligible for us to use? Am I correct?
I mean, you're talking a firewall?
SEN. HISE: Yeah, making sure that no
-one -- once it's loaded in, anyone could draw -could pull it up. I want to make sure that you
don't have access to that information.
MR. FRYE: Right. No, there is a
firewall.
SEN. RUCHO: Okay.

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SEN. MICHAUX: Okay.
SEN. RUCHO: Okay. Are we close with the
language?
REP. LEWIS: Mr. Chairman?
SEN. RUCHO: Yes, sir, Representative?
REP. LEWIS: Could we deal with another
matter while this is being perfected?
SEN. RUCHO: Yes, sir. Let's just
displace this amendment if we can, Senator Hise,
while we're working on the language, and
Representative Lewis has another issue he'd like to
bring before -- before us.
REP. LEWIS: Mr. Chairman, what I'd like
to do is offer a motion that the committee directs
the ISD to establish a computer and to populate the
database of that computer with only the information
that is consistent with the criteria adopted by the
committee today, and to ensure that the firewalls
that Mr. Frye spoke of are in place during the
entire time that the map for this committee is
drawn.
SEN. RUCHO: We have a motion before us.
Do we have a second on that, David?
SEN. APODACA: Second.
SEN. RUCHO: Second, Senator Apodaca.

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MR. FRYE: It is not a central server
-that would be -SEN. RUCHO: Are you okay, Senator Hise?
Ms. Churchill, you okay?
REP. LEWIS: Mr. Chairman?
SEN. RUCHO: Where am I?
REP. LEWIS: Mr. Chairman?
SEN. RUCHO: Oh, excuse me.
REP. LEWIS: I think perhaps we can -can summarize this by saying that all people will
have access to all of the data. This committee has
directed the chairs not to use some of it, so the
computer on which this committee's map is drawn
will only contain the criteria that was adopted by
the committee, so to kind of get the gist of what
Senator Blue was trying to ask, he can have access
to more stuff than we can, not less.
SEN. RUCHO: Okay. Representative -REP. MICHAUX: Yeah, I just wanted to be
clear on this. It says that you-all must do your
maps according to the criteria that this body has
passed. It also says that our group can use any --this criteria or any other criteria we deem
necessary. Is that correct?
SEN. RUCHO: That's correct.

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Second. Representative Michaux?
REP. MICHAUX: I was trying to get the
gist of what he -- what his motion is.
REP. LEWIS: May I speak on my motion?
SEN. RUCHO: Yes, sir.
REP. LEWIS: Members, the motion would
direct ISD to establish a computer with the
Maptitude software that has only the criteria as
defined and authorized by this committee to use,
and it is on that computer that the chairs would
work, along with any consultant they would hire, to
produce a map to return back to this committee for
review.
What it's doing in essence is limiting
the chairs to only the criteria that this committee
has adopted, while making sure that it does not
limit the minority party to have access to whatever
they deem important to be able to fully participate
in this process.
SEN. RUCHO: Follow-up?
SEN. MICHAUX: Follow-up. What about the
firewall separating the two on that?
REP. LEWIS: Thank you for that -- that
question, Representative Michaux. I was trying to
use the same language that Mr. Frye. What I'm --

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to be absolutely clear, the only data the map

1

SEN. RUCHO: We'll get a copy of that.

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drawers on behalf of this committee can have is the

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All right. We have a motion before us from

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data that the criteria adopted by this committee

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Representative Lewis. It's been explained; it's

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allows. There -- the firewall means that you won't

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been debated. Any additional thoughts or questions

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be able -- the map drawer won't have access to flip
a switch and say, "Well, I really do want to see
what the 2008 presidential race was." That will
not be loaded on the computer that he has access
to.
SEN. RUCHO: Okay. Senator McKissick?
SEN. MCKISSICK: Representative Lewis,
just to get some clarification here, if we as the
minority caucus want to look at the 2008 race, or
we want to look at other variables other than those
that were approved today, in the past, we had our
own computer available that also had Maptitude, or
whatever the appropriate program was at that time,
which we could utilize for crafting maps that
were -- met our criteria, so I'm just wanting to
determine if we will have a separate computer
available to us that we can use that will give us
the additional data that we might seek to use in
preparing maps.
REP. LEWIS: Senator -SEN. RUCHO: Representative Lewis?

5

on that before we move to adopt his motion?

6

(No response.)
SEN. RUCHO: Seeing none, Mr. Clerk, if
you'd be kind enough to call roll?
CLERK: Lewis?
REP. LEWIS: Aye.
CLERK: Lewis, aye. Jones?
REP. JONES: Aye.
CLERK: Jones, aye. Brawley?
REP. BRAWLEY: Aye.
CLERK: Brawley, aye. Cotham?
REP. COTHAM: No.
CLERK: Cotham, no. Davis?
REP. DAVIS: Aye.
CLERK: Davis, aye. Farmer-Butterfield?
(No response.)
CLERK: Hager?
REP. HAGER: Aye.
CLERK: Hager, aye. Hanes?
REP. HANES: No.
CLERK: No? Hanes, no. Hardister?

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REP. LEWIS: Thank you, Mr. Chairman.
Senator McKissick and Mr. Chairman, if my motion is

3

adopted, I will offer the identical motion for the

4

minority party, except that they are able to

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populate the data with whatever they want to
populate it with.
SEN. MCKISSICK: With that being said, I
could support this, but I want to make sure that
the minority party does have their own computer
populated with their own data, separate and apart
from the fields or subcategories which have been
identified as appropriate criteria today.
REP. LEWIS: Yes, sir, we're on the exact
same page on that point.
SEN. MCKISSICK: Thank you.
SEN. RUCHO: Okay. You -- any additional
questions on -REP. MICHAUX: Yeah. Can we get that in
writing?
(Laughter.)
REP. LEWIS: Mr. Chairman?
SEN. RUCHO: Yes, sir?
REP. LEWIS: We do have a court reporter,
so perhaps we could forward that to Representative
Michaux, and he could read it.

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REP. HARDISTER: Aye.
CLERK: Hardister, aye. Hurley?
REP. HURLEY: Aye.
CLERK: Hurley, aye. Jackson?
REP. JACKSON: No.
CLERK: Jackson, no. Johnson?
REP. JOHNSON: Aye.
CLERK: Johnson, aye. Jordan?
REP. JORDAN: Aye.
CLERK: Jordan, aye. McGrady?
REP. MCGRADY: Aye.
CLERK: McGrady, aye. Michaux?
REP. MICHAUX: No.
CLERK: Michaux, no. Moore?
REP. MOORE: Nay.
CLERK: Moore, nay. Stam?
REP. SIAM:
STAM: Aye.
CLERK: Stam, aye. Stevens?
(No response.)
CLERK: Rucho?
SEN. RUCHO: Aye.
CLERK: Rucho, aye. Apodaca?
SEN. APODACA: Aye.
CLERK: Apodaca, aye. Barefoot?
SEN. BAREFOOT: Aye.

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CLERK: Barefoot, aye.
aye. Blue?
CLERK:

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Representative Lewis, seconded by Senator

SEN. BLUE: No.
SEN.

2

McKissick, was that -- for the minority party to

CLERK: Blue, no.
no. Brown?
CLERK:

3

have access to the computer and have all the

SEN. BROWN: Aye.
Aye.
SEN.

4

information they deem necessary for them to

CLERK: Brown, aye.
aye. Clark?
Clark?
CLERK:

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participate in trying to see what was requested as

SEN. CLARK:
CLARK: No.
SEN.

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a remedy for the three-judge panel's decision. Any

CLERK: Clark,
Clark, no.
no. Harrington?
CLERK:

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questions or comments?

SEN. HARRINGTON: Aye.
Aye.
SEN.

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REP. MICHAUX: Yeah. I want to know what

CLERK: Harrington, aye.
aye. Hise?
CLERK:

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the last part of that motion was that he made. It
was sort of sub rosa.

SEN. HISE: Aye.
Aye.
SEN.

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CLERK: Hise, aye.
aye. Jackson?
Jackson?
CLERK:

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SEN. JACKSON:
JACKSON: Aye.
Aye.
SEN.

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Representative Lewis?

REP. MICHAUX: Representative Lewis.
REP. LEWIS: Representative Michaux, what
I said was that the minority members -- the members
of the minority party on this committee may caucus
and elect a member or members to direct the drawing
of these maps on their behalf, and if they're
unable to do so, that the responsibility would be
vested in Senator Blue.
SEN. RUCHO: Do you have a follow-up
question?
REP. MICHAUX: We -- what I -- you are
vesting -- you're telling us what to do? Is that
what I'm hearing?

CLERK: Jackson, aye. Lee?

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SEN.
SEN. LEE: Aye.
Aye.

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CLERK: Lee, aye.
aye. McKissick?
CLERK:

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SEN. MCKISSICK: No.
SEN.

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CLERK: McKissick, no.
no. Randleman?
Randleman?
CLERK:

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SEN. RANDLEMAN: Aye.
Aye.
SEN.

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CLERK: Randleman,
Randleman, aye.
aye. Sanderson?
Sanderson?
CLERK:

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SEN. SANDERSON:
SANDERSON: Aye.
Aye.
SEN.

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CLERK: Sanderson,
Sanderson, aye.
aye. Smith?
Smith?
CLERK:

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SEN. SMITH:
SMITH: No.
SEN.

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CLERK: Smith,
Smith, no.
no. Smith-Ingram?
Smith-Ingram?
CLERK:

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SEN. SMITH-INGRAM:
SMITH-INGRAM: Nay.
SEN.

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CLERK: Smith-Ingram,
Smith-Ingram, nay.
nay. Wells?
CLERK:

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SEN. RUCHO: Is that a question to

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157

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SEN. WELLS: Aye.

1

2

CLERK: Wells, aye.

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time, Representative Michaux, the minority party

3

SEN. RUCHO: All right, members of the

3

members of this committee would caucus and

4

committee, a motion by Representative Lewis
requiring and asking that the computer that will be
used by the majority party will only contain the
criteria that's been established and voted upon
today, and that vote was aye, 21, no, 11, so that
passed.
REP. LEWIS: Mr. Chairman?
SEN. RUCHO: Representative Lewis?
REP. LEWIS: For motion.
SEN. RUCHO: Motion.
REP. LEWIS: Mr. Chairman, I move that
the minority party be given access to a computer
and whatever information they deem necessary to
populate that computer in order to fully
participate in this pro- -- in this process.
Further, I move that the minority party members of
this committee may caucus and designate that
responsibility to one or more members, and if they
are not able to do that, that the responsibility
would fall to Senator Blue.
SEN. MCKISSICK: I'll second that.
SEN. RUCHO: All right. The motion by

4

designate members or members to act on their

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REP. LEWIS: To repeat for the third

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behalf, and if they are unable to do so, that that

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responsibility would fall to Senator Blue.

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REP. MICHAUX: Mr. Chairman?
SEN. RUCHO: Yes, sir?
REP. MICHAUX: Why don't you -SEN. RUCHO: Follow-up?
REP. MICHAUX: Yes. Why don't you let us
make that decision as to who it should fall -- fall
to?
REP. LEWIS: Mr. Chairman?
SEN. RUCHO: Yes, sir?
REP. LEWIS: Could we have maybe staff
clarify what it means that the minority party can
caucus and designate members or members, if that's
not allowing them to make a decision? Could
somebody explain exactly what language I'm not
communicating?
SEN. RUCHO: Okay. Senator Apodaca, you
had a comment?
SEN. APODACA: Mr. Chairman, inquiry of
the Chair.

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SEN. RUCHO: Yes, sir?
SEN. APODACA: I'm somewhat confused. I
thought Representative Jackson asked this question
about how they could nominate somebody. I thought
this is what we were trying to fix.
SEN. RUCHO: All right. Then you're the
one that's going to explain to -- to Senator -Representative Michaux. Okay? All right. A
motion is before us. It's been seconded. Any
additional questions or comments on Representative
Lewis' motion?
(No response.)
SEN. RUCHO: Seeing none -CLERK: Lewis?
SEN. RUCHO: -- Mr. Clerk, roll call,
please?
CLERK: Lewis?
REP. LEWIS: Aye.
CLERK: Lewis, aye. Jones?
REP. JONES: Aye.
CLERK: Jones, aye. Brawley?
REP. BRAWLEY: Aye.
CLERK: Brawley, aye. Cotham?
REP. COTHAM: Aye.
CLERK: Cotham, aye. Davis?

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CLERK: Moore, aye. Stam?
REP. SIAM:
STAM: Aye.
CLERK: Stam, aye. Stevens?
(No response.)
CLERK: Rucho?
SEN. RUCHO: Aye.
CLERK: Rucho, aye. Apodaca?
SEN. APODACA: Aye.
CLERK: Apodaca, aye. Barefoot?
SEN. BAREFOOT: Aye.
CLERK: Barefoot, aye. Blue?
SEN. BLUE: Aye.
CLERK: Blue, aye. Brown?
SEN. BROWN: Aye.
CLERK: Brown, aye. Clark?
SEN. CLARK: Aye.
CLERK: Clark, aye. Harrington?
SEN. HARRINGTON: Aye.
CLERK: Harrington, aye. Hise?
SEN. HISE: Aye.
CLERK: Hise, aye. Jackson?
SEN. JACKSON: Aye.
CLERK: Jackson, aye. Lee?
SEN. LEE: Aye.
CLERK: Lee, aye. McKissick?

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REP. DAVIS: Aye.
CLERK: Davis, aye. Farmer-Butterfield?
REP. FARMER-BUTTERFIELD: Aye.
CLERK: Aye? Farmer-Butterfield, aye.
Hager?
SEN. RUCHO: Please speak loudly, folks.
REP. HAGER: Aye.
CLERK: Hager, aye. Hanes?
REP. HANES: Aye
CLERK: Hanes, aye. Hardister?
REP. HARDISTER: Aye.
CLERK: Hardister, aye. Hurley?
REP. HURLEY: Aye.
CLERK: Hurley, aye. Jackson?
REP. JACKSON: Aye.
CLERK: Jackson, aye. Johnson?
REP. JOHNSON: Aye.
CLERK: Johnson, aye. Jordan?
REP. JORDAN: Aye.
CLERK: Jordan, aye. McGrady?
REP. MCGRADY: Aye.
CLERK: McGrady, aye. Michaux?
REP. MICHAUX: No.
CLERK: Michaux, no. Moore?
REP. MOORE: Aye.

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SEN. MCKISSICK: Aye.
CLERK: McKissick, aye. Randleman?
SEN. RANDLEMAN: Aye.
CLERK: Randleman, aye. Sanderson?
SEN. SANDERSON: Aye.
CLERK: Sanderson, aye. Smith?
SEN. SMITH: Aye.
CLERK: Smith, aye. Smith-Ingram?
SEN. SMITH-INGRAM: Aye.
CLERK: Smith-Ingram, aye. Wells?
SEN. WELLS: Aye.
CLERK: Wells, aye.
SEN. RUCHO: Members of the committee,
after a roll-call vote, 32 aye and 1 no, so
therefore, that has been settled. Senator Hise, do
we have language?
SEN. HISE: I think we have two
amendments.
SEN. RUCHO: Two amendments?
SEN. HISE: Yeah.
SEN. RUCHO: All right. Are you going to
present it, or staff?
SEN. HISE: I can present them. I think
staff's going to read them. The first one is to
staffs
clarify the payments made for work performed.

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SEN. RUCHO: Let's pay attention, here.
I know we're moving forward. Go ahead, please.
SEN. HISE: The first is to add some
clarification for the -- to allow payments for work
performed prior to the stay.
SEN. RUCHO: All right. First -- the
first amendment, Ms. Churchill, would you explain
what that amendment says and what it does?
MS. CHURCHILL: Yes, Mr. Chair. The
amendment would be to the end, to the last sentence
of Paragraph 2 and Paragraph 3 of Senator Hise's
motion. It would remove the period at the end of
that sentence, inset a semicolon, and all of the
following at the end of each sentence: "Provided,
however, this authorization shall permit
compensation to be paid for any work performed

prior to the issuance of such stay."
SEN. RUCHO: Members of the committee,
you have that before you. Is there any questions
on that first amendment that has been put forward
by Senator Hise on trying to provide some clarity

24

in what was brought up by Senator Blue?
Representative Jackson?
REP. JACKSON: Thank you, Mr. Chairman.

25

Would that -- that would amendment allow payment

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CLERK: Hager, yes. Hanes?
REP. HANES: Yes.
CLERK: Hanes, yes. Hardister?
REP. HARDISTER: Aye.
CLERK: Hardister, aye. Hurley?
REP. HURLEY: Aye.
CLERK: Hurley, aye. Jackson?
REP. JACKSON: Yes.
CLERK: Jackson, yes. Johnson?
REP. JOHNSON: Aye.
CLERK: Johnson, aye. Jordan?
REP. JORDAN: Aye.
CLERK: Jordan, aye. McGrady?
REP. MCGRADY: Aye.
CLERK: McGrady, aye. Michaux?
REP. MICHAUX: Aye.
CLERK: Michaux, aye. Moore?
REP. MOORE: Aye.
CLERK: Moore, aye. Stam?
STAM: Aye.
REP. SIAM:
CLERK: Stam, aye. Stevens?
(No response.)
CLERK: Rucho?
SEN. RUCHO: Aye.
CLERK: Rucho, aye. Apodaca?
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for services provided prior to the approval of
this?
SEN. RUCHO: No, sir, I don't believe so.

1
1

REP. JACKSON: Thank you.
SEN. RUCHO: Yeah. Questions? Any
additional?
(No response.)

SEN. RUCHO: All right, we have an
amendment before us that was read by staff, and we
will ask the Clerk to have a roll-call vote on
that, please.
CLERK: Lewis?
REP. LEWIS: Aye.
CLERK: Lewis, aye. Jones?

REP. JONES: Aye.
CLERK: Jones, aye. Brawley?
REP. BRAWLEY: Aye.
CLERK: Brawley, aye. Cotham?
REP. COTHAM: Aye.
CLERK: Cotham, aye. Davis?
REP. DAVIS: Yes.
CLERK: Davis, yes. Farmer-Butterfield?
REP. FARMER-BUTTERFIELD: Yes.

CLERK: Farmer-Butterfield, yes. Hager?
REP. HAGER: Yes.

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SEN. APODACA: Aye.
CLERK: Apodaca, aye. Barefoot?
SEN. BAREFOOT: Aye.
CLERK: Barefoot, aye. Blue?
SEN. BLUE: Aye.
CLERK: Blue, aye. Brown?
SEN. BROWN: Aye.
CLERK: Brown, aye. Clark?
SEN. CLARK: Aye.
CLERK: Clark, aye. Harrington?
SEN. HARRINGTON: Aye.
CLERK: Harrington, aye. Hise?
SEN. HISE: Aye.
CLERK: Hise, aye. Jackson?
SEN. JACKSON: Aye.
CLERK: Jackson, aye. Lee?
SEN. LEE: Aye.
CLERK: Lee, aye. McKissick?
SEN. MCKISSICK: Aye.
CLERK: McKissick, aye. Randleman?
SEN. RANDLEMAN: Aye.
CLERK: Randleman, aye. Sanderson?
SEN. SANDERSON: Aye.
CLERK: Sanderson, aye. Smith?
SEN. SMITH: Aye.

Reporting
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CLERK: Smith, aye. Smith-Ingram?

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SEN. SMITH-INGRAM: Aye.

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CLERK: Smith-Ingram, aye. Wells?

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SEN. WELLS: Aye.

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CLERK: Wells, aye.

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SEN. RUCHO: Members of the committee,

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we -- okay. Members of the committee, Amendment 1,

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which was read by staff, was agreed upon

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unanimously, 33 to zero.

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Senator Hise, Amendment Number 2?

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SEN. HISE: Thank you, Mr. Chairman.

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This was with some further consultation with

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Senator Blue, and clarifies for a legislative

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confidentiality amendment when that applies, and

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applies to once it's submitted to this committee,

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and she has specific language they can read.

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SEN. RUCHO: Ms. Churchill, can you read

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the clarifying language there, please?

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MS. CHURCHILL: Yes, sir. In Paragraph

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2, this new sentence would be inserted at the --

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following the first sentence. "The co-chairs shall

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control legislative confidentiality of any drafting

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requests or maps produced from this authority

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unless and until presented to the committee in the

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co-chairs' discretion."

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CLERK: Farmer-Butterfield, yes. Hager?
REP. HAGER: Yes.
CLERK: Hager, yes. Hanes?
REP. HANES: Yes.
CLERK: Hanes, yes. Hardister?
REP. HARDISTER: Aye.
CLERK: Hardister, aye. Hurley?
REP. HURLEY: Aye.
CLERK: Hurley, aye. Jackson?
REP. JACKSON: Yes.
CLERK: Jackson, yes. Johnson?
REP. JOHNSON: Aye.
CLERK: Johnson, aye. Jordan?
REP. JORDAN: Aye.
CLERK: Jordan, aye. McGrady?
REP. MCGRADY: Aye.
CLERK: McGrady, aye. Michaux?
REP. MICHAUX: Yes.
CLERK: Michaux, yes. Moore?
REP. MOORE: Aye.
CLERK: Moore, aye. Stam?
REP. STAM: Aye.
CLERK: Stam, aye. Rucho?
SEN. RUCHO: Aye.
CLERK: Rucho, aye. Apodaca?

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For Paragraph 3, this sentence would be
inserted after -- following the first sentence:
"The minority caucus' designee, Senator Blue, shall
control legislative confidentiality of any drafting
requests or maps produced from this authority
unless and until presented to the committee in
Senator Blue's discretion."
SEN. RUCHO: Members of the committee,
you have that before you. Any questions or
comments?
(No response.)
SEN. RUCHO: Seeing -- seeing none, Mr.
Clerk, would you do the roll call?
CLERK: Lewis?
REP. LEWIS: Aye.
CLERK: Lewis, aye. Jones?
REP. JONES: Aye.
CLERK: Jones, aye. Brawley?
REP. BRAWLEY: Aye.
CLERK: Brawley, aye. Cotham?
REP. COTHAM: Aye.
CLERK: Cotham, aye. Davis?
REP. DAVIS: Yes.
CLERK: Davis, yes. Farmer-Butterfield?
REP. FARMER-BUTTERFIELD: Yes.

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SEN. APODACA: Aye.
CLERK: Apodaca, aye. Barefoot?
SEN. BAREFOOT: Aye.
CLERK: Barefoot, aye. Blue?
SEN. BLUE: Aye.
CLERK: Blue, aye. Brown?
SEN. BROWN: Aye.
CLERK: Brown, aye. Clark?
SEN. CLARK: Aye.
CLERK: Clark, aye. Harrington?
SEN. HARRINGTON: Aye.
CLERK: Harrington, aye. Hise?
SEN. HISE: Aye.
CLERK: Hise, aye. Jackson?
SEN. JACKSON: Aye.
CLERK: Jackson, aye. Lee?
SEN. LEE: Aye.
CLERK: Lee, aye. McKissick?
SEN. MCKISSICK: Aye.
CLERK: McKissick, aye. Randleman?
SEN. RANDLEMAN: Aye.
CLERK: Randleman, aye. Sanderson?
SEN. SANDERSON: Aye.
CLERK: Sanderson, aye. Smith?
SEN. SMITH: Aye.

Worley Reporting
Reporting

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N.C.
N
.0 . General Assembly Extra Session on Redistricting

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CLERK: Smith, aye. Smith-Ingram?

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SEN. SMITH-INGRAM: Aye.

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CLERK: Smith-Ingram, aye. Wells?

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SEN. WELLS: Aye.

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CLERK: Wells, aye.

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SEN. RUCHO: Members of the committee,

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the roll-call vote was 33 aye, zero nay.
Now, what you have before you is a motion

set forth by Senator Hise which has been amended,
and now it's before you for any further discussion
or questions, and if there are none, then we will
take a vote to adopt Senator Hise's motion.
Thoughts, questions?
(No response.)
SEN. RUCHO: Seeing none, Mr. Clerk, a
vote, please?
CLERK: Lewis?
REP. LEWIS: Aye.
CLERK: Lewis, aye. Jones?
REP. JONES: Aye.
CLERK: Jones, aye. Brawley?
REP. BRAWLEY: Aye.
CLERK: Brawley, aye. Cotham?
REP. COTHAM: No.
CLERK: Cotham, no. Davis?

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CLERK: Stam, aye. Rucho?
SEN. RUCHO: Aye.
CLERK: Rucho, aye. Apodaca?
SEN. APODACA: Aye.
CLERK: Apodaca, aye. Barefoot?
SEN. BAREFOOT: Aye.
CLERK: Barefoot, aye. Blue?
SEN. BLUE: No.
CLERK: Blue, no. Brown?
SEN. BROWN: Aye.
CLERK: Brown, aye. Clark?
SEN. CLARK: No
CLERK: Clark, no. Harrington?
SEN. HARRINGTON: Aye.
CLERK: Harrington, aye. Hise?
SEN. HISE: Aye.
CLERK: Hise, aye. Jackson?
SEN. JACKSON: Aye.
CLERK: Jackson, aye. Lee?
SEN. LEE: Aye.
CLERK: Lee, aye. McKissick?
SEN. MCKISSICK: No.
CLERK: McKissick, no. Randleman?
SEN. RANDLEMAN: Aye.
CLERK: Randleman, aye. Sanderson?

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REP. DAVIS: Yes.
CLERK: Davis, yes. Farmer-Butterfield?
REP. FARMER-BUTTERFIELD: No.
CLERK: Farmer-Butterfield, no. Hager?
REP. HAGER: Aye.
CLERK: Hager, aye. Hanes?
REP. HANES: No.
CLERK: Hanes, no. Hardister?
REP. HARDISTER: Aye.
CLERK: Hardister, aye. Hurley?
REP. HURLEY: Aye.
CLERK: Hurley, aye. Jackson?
REP. JACKSON: No.
CLERK: Jackson, no. Johnson?
REP. JOHNSON: Aye.
CLERK: Johnson, aye. Jordan?
REP. JORDAN: Aye.
CLERK: Jordan, aye. McGrady?
REP. MCGRADY: Aye.
CLERK: McGrady, aye. Michaux?
REP. MICHAUX: No.
CLERK: Michaux, no. Moore?
REP. MOORE: Nay.
CLERK: Moore, nay. Stam?
REP. STAM: Aye.

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SEN. SANDERSON: Aye.
CLERK: Sanderson, aye. Smith?

SEN. SMITH: No.
CLERK: Smith, no. Smith-Ingram?
SEN. SMITH-INGRAM: No.
CLERK: Smith-Ingram, no. Wells?
SEN. WELLS: Aye.
CLERK: Wells, aye.
SEN. RUCHO: Okay, members of the
committee, when that motion was up for adoption as
11 no. I believe that
amended, we have 22 aye and 11
we have concluded our business for today.
SEN. BLUE: Just a request, Mr. Chair.
SEN. RUCHO: Senator Blue?
SEN. BLUE: As I prepare to do this,
could you have the Clerk make available to me his
roll-call votes on these items, since it's all
official now?
SEN. RUCHO: That can be done.
SEN. BLUE: Thank you.
SEN. RUCHO: Okay. Senator Blue requests

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that he gets a copy of the roll-call votes. Thank
you.
Before we finish up, let me just make it

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clear. Now that we have criteria established, and

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Reporting
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Pages 174 to 176
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understanding that there is access to computers and

STATE OF NORTH CAROLINA

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the necessary resources to accomplish that, I'm

COUNTY OF WAKE

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sure that the map drawers will do their job, come

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forward with a map. We will possibly have a

I, Carol M. Smith, a duly commissioned Notary

CERTIFICATE

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meeting tomorrow. The chairs will allow you

Public in and for the State of North Carolina, do hereby

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notice. We're going to need to give the map

certify that on February 16, 2016, this proceeding was held

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writers -- or drawers a chance to do their work.

before me, this proceeding being reported by me verbatim

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We are also waiting for a decision by the Supreme

and then reduced to typewritten form under my direct

Court on the motion for stay to allow that election

supervision; that the foregoing is a true and correct

to take place in an orderly manner, without any

transcript of said proceedings to the best of my ability

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voter dysfunction, so we will let you know at what

and understanding; that I am not related to any of the

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time tomorrow, or whether we will be meeting

parties to this action; that I am not interested in the

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tomorrow.

outcome of this case; that I am not of counsel nor in the

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REP. STAM: Mr. Chair?

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SEN. RUCHO: Sir?

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REP. STAM: What is the earliest we would

employ of any of the parties to this action.
IN WITNESS WHEREOF, I have hereto set my hand, this
the 29th day of February, 2016.

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be -- I mean, can we block out the morning for real

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work, other work?

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___________________________
Notary Public

SEN. RUCHO: I think to give sufficient

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time for map drawers to work, I think we would be

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looking at -- the earliest would be 1:00. Okay?

Notary Number

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Members of the committee, any questions on what was

19943320153

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discussed?

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(No response.)

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SEN. RUCHO: You all know what we've got,

Carol M. Smith

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so stay tuned, and thank you for your quick
response. Meeting adjourned.

(WHEREUPON, THE MEETING WAS CONCLUDED AT 1:43 P.M.)

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Worley Reporting
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NORTH CAROLINA GENERAL ASSEMBLY
JOINT COMMITTEE ON REDISTRICTING

________________________________________________________
TRANSCRIPT OF THE PROCEEDINGS
________________________________________________________
In Raleigh, North Carolina
Wednesday, February 17, 2016
Reported by Jennifer C. Carroll, RMR, CRR

Worley Reporting
P.O. Box 99169
Raleigh, NC 27624

919-870-8070

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Redistricting 2016
N
.0 . General Assembly Extra Session on Redistricting

Pages 2 to 5
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(The proceedings were called to order at
4:08 p.m.)
CHAIRMAN RUCHO: Can we have the Select

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Committee on Congressional Redistricting come to

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order? Would everyone please take their seat.
We've got a few bits of housekeeping to take care
of prior to beginning the -- the map
presentations. Hopefully, we have a number of
different maps that will be available for folks to
take a look at.
And Senator Apodaca asked me if he was
going to be able to have dinner and be able to get
to the Carolina-Duke game. And I said we're going
to ask Senator Blue, Senator McKissick, and
Representative Michaux what -- if they think we've
got a shot at that.
SEN. McKISSICK: I don't have any extra
tickets, I'm sorry.
SEN. APODACA: That's always his answer.
CHAIRMAN RUCHO: Okay.
SEN. McKISSICK: It depends.
CHAIRMAN RUCHO: Okay. Well, we had a
very informative meeting yesterday. We were able
to get some criteria established, and so we're
going to go ahead and begin today with a -- well,

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THE CLERK: Farmer-Butterfield?
REP. FARMER-BUTTERFIELD: Here.
THE CLERK: Hager?
REP. HAGER: Here.
THE CLERK: Hanes?
REP. HANES: Here.
THE CLERK: Hardister?
REP. HARDISTER: Here.
THE CLERK: Hurley?
REP. HURLEY: Here.
THE CLERK: Jackson?
REP. JACKSON: Here.
THE CLERK: Johnson?
REP. JOHNSON: Here.
THE CLERK: Jordan?
REP. JORDAN: Present.
THE CLERK: McGrady?
REP. McGRADY: Here.
THE CLERK: Michaux?
REP. MICHAUX: Here.
THE CLERK: Moore?
REP. MOORE: Present.
THE CLERK: Stam?
REP. STAM: Here.
THE CLERK: Stevens?

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let me, first of all, introduce the

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sergeants-at-arms who help us make this a -- a
successful and efficiently run meeting. From the
House sergeant-at-arms, I have Reggie Sills,
Marvin Lee, David Layton, Terry McGraw; and from
the Senate sergeant-at-arms, I have Dale Huff, Ed
Kessler, and Hal Roach.
Thanks very much for helping us.
Then the next item will be a roll call
for attendance.
And, Mr. Clerk, would you proceed with the
roll call.
And please say it loud enough so we know
you're here or not here.
THE CLERK: Okay. Starting with the
House: Lewis.
REP. LEWIS: Here.
THE CLERK: Jones?
REP. JONES: Here.
THE CLERK: Brawley?
REP. BRAWLEY: Here.
THE CLERK: Cotham?
REP COTHAM: Here.
THE CLERK: Davis?
REP. DAVIS: Here.

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REP. STEVENS: Here.
THE CLERK: Dixon?
REP. DIXON: Here.
CHAIRMAN RUCHO: Okay.
THE CLERK: Now, the Senate.
CHAIRMAN RUCHO: Senate.
THE CLERK: Rucho?
CHAIRMAN RUCHO: Here.
THE CLERK: Apodaca?
SEN. APODACA: Here.
THE CLERK: Barefoot?
SEN. BAREFOOT: Here.
THE CLERK: Blue?
SEN. BLUE: Here.
THE CLERK: Brown?
SEN. BROWN: Here.
THE CLERK: Clark?
SEN. CLARK: Present.
THE CLERK: Ford?
(No response.)
THE CLERK: Harrington?
SEN. HARRINGTON: Here.
THE CLERK: Hise?
SEN. HISE: Here.
THE CLERK: Jackson?

Worley Reporting
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.C. General Assembly Extra Session on Redistricting

Pages 6 to 9
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SEN. JACKSON: Here.
THE CLERK: Lee?
SEN. LEE: Here.
THE CLERK: McKissick?
SEN. McKISSICK: Here.
THE CLERK: Randleman?
SEN. RANDLEMAN: Here.
THE CLERK: Sanderson?
SEN. SANDERSON: Here.
THE CLERK: Smith?
SEN. SMITH: Here.
THE CLERK: Smith-Ingram?
(No response.)
THE CLERK: Wade?
SEN. WADE: Here.
THE CLERK: Wells?
SEN. WELLS: Here.
CHAIRMAN RUCHO: Okay. We are ready to
begin our meeting. And again, there aren't very
many opening remarks. We look forward to moving
forward in an effort to comply with the
three-judge panel's direction as to redrawing some
Congressional district maps and the Congressional
districts.
Again, as you might expect, we still

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And Senator McKissick?
SEN. McKISSICK: Not at this time.
CHAIRMAN RUCHO: Okay. So let me ask:
Are there any members of the committee that have
maps that they would like to offer as far as
having an opportunity to present them today so
that their input can be taken by this committee?
What we plan to do today is submit some
maps -- or a map, take a look at it, debate it,
approve it, so that the General Assembly can move
forward when the special session is called, and we
can go ahead and achieve what is the goal of
complying with the federal court.
Okay. That being said, then let's go
ahead and -- Representative Blue -- excuse me,
Representative Lewis, you'll be ready to explain
the maps, and I think the sergeant-at-arms can
probably start passing them out with the stat
packs that were decided upon yesterday during the
establishment of the criteria that -- upon which
these maps were drawn.
Say it again.
MS. CHURCHILL: They have not arrived
from the print shop yet. They are on their way.
CHAIRMAN RUCHO: Okay. Let's wait a

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believe that the enacted maps are fair, legal, and
constitutional that has -- as been validated by a
number of North Carolina courts. But under that
circumstance, we are following the direction of
the three-judge panel from the Middle District,
and so that's what we're going to do.
The first part that I would like to
request -- and -- and yesterday, if you remember
correctly, we authorized $25,000 for each,
majority and minority, side to draw maps. And I
will -- I will ask -(Cell phone ringing.)
CHAIRMAN RUCHO: I don't ever do to that
my wife. But I did.
I will ask that -- we will first ask
Senator Blue: Do you have any maps that you are
planning to present today?
SEN. BLUE: Not at present.
CHAIRMAN RUCHO: Not at the present.
Okay.
Representative Jackson, I think you
were -Representative Michaux, do you?
REP. MICHAUX: Not yet.
CHAIRMAN RUCHO: Not yet. Okay.

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little bit. They're on their way from the print
shop as we speak. And so if we'll stay at ease
for a few moments, and as soon as they come, then
we will go ahead and distribute them out so that
-you'll have a chance to look at them. And so -Representative Lewis will explain the map. So
stand at ease, please.
(Proceedings are held at ease.)
CHAIRMAN RUCHO: Members of the
Committee, just for your knowledge, you'll be
getting some hard copies now, and at the end of
this meeting we will have them online with the
same documentation that you will be receiving
in -- upon arrival.
SEN. APODACA: Mr. Chairman, housekeeping
matter, if we could.
CHAIRMAN RUCHO: Say that again.
SEN. APODACA: A housekeeping matter, if
we might.
CHAIRMAN RUCHO: Housekeeping, yes.
SEN. APODACA: Yes. When we call the
roll, could we call the Upper Chamber first
instead of the House? It seems like that would be
more appropriate.
REP. MICHAUX: I thought that was already

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being done.
CHAIRMAN RUCHO: Senator Apodaca, I think
you should have learned your lesson when
Representative Michaux already called you a lame
duck. So...
But then again, that's the nicest thing
that anybody has ever called Senator Apodaca.
So...
SEN. APODACA: In 14 years, that's the
nicest thing.
REP. MICHAUX: I called you one, too.
CHAIRMAN RUCHO: I'm honored.
Sergeant-at-arms, will you please let me
know when the maps are passed out so we can move
forward.
Representative Lewis, before he makes his
presentation, wants me to let you know that these
are probably some of the most -- some of the best
maps that's been out in 40 years. So...
At least 40?
REP. LEWIS: Four.
CHAIRMAN RUCHO: Four?
REP. LEWIS: Four.
CHAIRMAN RUCHO: Okay.
Sergeant-at-arms, are we all set?

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districts. Race was not considered and is not
present on these reports.
Partisan advantage: We believe this map
will produce an opportunity to elect ten
Republican members of Congress. But make no
mistake, this is a weaker map than the enacted
plan in that respect.
The 12th District: This map does away
with the serpentine 12th District that dates back
to 1992.
Compactness: Only 13 counties and 13
VTDs were split in this map. Let me repeat that:
Only 13 counties and 13 VTDs were split in this
map. In accordance with the criteria, more whole
counties and more whole precincts, or VTDs, are
the best indicator of compactness we believe we
are able to achieve.
Incumbency: Only two incumbents are
double-bunked in this map; one Republican and one
Democrat. Eleven Republicans [sic] were placed in
a district by themselves.
Mr. Chairman?
CHAIRMAN RUCHO: Yes, sir.
REP. LEWIS: Anticipating some inquiries,
I will suspend my presentation and take questions

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Does everyone in -- on the committee have

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at your direction.

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a copy of the map and the statistics?

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All right. Then let's -- let's quiet

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Committee, you have the proposed map before you.

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And again, I'll just remind you: This is the only

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down so we can get this done.
Representative Lewis, would you be kind
enough to present the maps for us?
REP. LEWIS: Thank you, Mr. Chairman.
Members, good afternoon. Yesterday, this
committee approved seven criteria for the 2016
contingent Congressional redistricting, and a map
was produced in accordance with that criteria.
While I am happy to take questions from the
committee, first I would like to take a moment to
walk through the criteria and discuss how this map
addresses each of the criteria.
First, equal population: All these
districts are drawn with either 7,000 -- pardon
-me. All these districts are drawn with either -with either 733,499 persons or 733,498 total
persons. This is as equal -- this is as equal as
practical and in accordance with federal law.
Contiguity: All the areas in every
district are comprised of contiguous territory.
Political data: The stat report show
which election results were used in building these

CHAIRMAN RUCHO: Okay. Members of the

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one that will be reviewed today because we just --

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you know, there were no other maps submitted by

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either the minority House and/or Senate or any

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individual. So this is the map we're going to be

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discussing today. And after discussion is
completed, this committee will take a vote, and

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we'll either be against or referring this to the

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General Assembly for its special session for

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adoption so we can comply with the three-judge

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panel from the Middle District.
Members of the Committee.
All right. Let's start off with Senator
McKissick.
SEN. McKISSICK: Thank you, Mr. Chair. I
would like to be recognized for a series of
questions, if that's possible.
CHAIRMAN RUCHO: We'll go through the
Chair.
SEN. McKISSICK: Yes, absolutely.
CHAIRMAN RUCHO: And we'll go one after
another.

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SEN. McKISSICK: I was wondering if I
could first get some understanding of the
percentages of Democrats and Republicans in these
various districts. If we can have, perhaps, a
staff person review that with us.
CHAIRMAN RUCHO: So let me -- let me be
clear. Now, you want the --First of all, Representative Lewis,
that's not part of the stat pack, correct?
SEN. McKISSICK: We don't have a stat
pack. The only thing we have are --CHAIRMAN RUCHO: The election results.
All right. What would you request?
SEN. McKISSICK: Well, what I would like
to know is what the breakdown is in terms of
Democrat, Republican, and unaffiliated voters in
each of these particular districts, as a starting
point. It would also be helpful to understand --I know there was -- who exactly is double-bumped.
It would appear that Representative Adams, who
represented the 12th District ---CHAIRMAN RUCHO: Well, hold it. Let's -let's get first -- that first part cleared up.
-First of all, you requested -Senator McKissick requested that we get

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statistics that you have.
CHAIRMAN RUCHO: All right.
SEN. McKISSICK: Thank you. And I wanted
to follow up.
CHAIRMAN RUCHO: Follow-up question, yes,
sir.
SEN. McKISSICK: Precisely look at the
performance characteristics of each district in
terms of whether it's a Democratic performance
district, and if so, by what percentage, a
Republican performance district, so that we have
some idea the extent to which there are
competitive swing districts.
I know Representative Lewis has indicated
that the map may not be quite as favorable as it
was before to Republican majority. But to the
extent to which we could get data that
specifically breaks down the performance
characteristics of each of these Congressional
districts, that would be helpful. Then we can
understand what we're looking at.
REP. LEWIS: Mr. Chairman and Members?
CHAIRMAN RUCHO: Yes. Representative
Lewis.
REP. LEWIS: Members, if I could direct

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some information on party affiliation in each of
the districts. Is that something we can achieve,
-either now or -MS. CHURCHILL: It is something we cannot
achieve while the committee is in meeting.
CHAIRMAN RUCHO: Right. Okay. Just
state that again, please, in the microphone.
MS. CHURCHILL: At this juncture we can't
achieve it while the committee is meeting. But we
can achieve that for Senator McKissick.
SEN. McKISSICK: Okay. And the
committee --REP. LEWIS: Mr. Chairman?
CHAIRMAN RUCHO: Yes, sir.
REP. LEWIS: Could I speak to that one
point?
CHAIRMAN RUCHO: Representative Lewis.
REP. LEWIS: Yes, sir.
Obviously, the staff can provide to the
gentleman whatever statistics he asked for. I did
want to say that the -- in the drawing of this
map, we looked at election results. We think
those are better indicators of voting performance
-than voter registration, which is why you don't -which is why that's not shown in these -- in the

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your attention to the documents that you have
before you -- I probably should have done a better
job of going through that.
If you will, first of all, you should
have a document before you that's entitled "2016
Redistricting Database Field Key." It's an 8-1/2
by 11
11 sheet of -- two sheets of paper.
Does everyone see that or have access to
that document?
If you'll look at that document, it
will -- actually, if you'll look at the right-hand
column, the right-hand column of that document,
this is a computer code. This is the way the
computer generated the election results which we
looked at.
For instance, you'll see under "2008
General Election Attorney General," there's a code
there at the right-hand column. Again, I direct
EL08G_AG_D. You can take and find
your attention, ELO8G_AG_D.
that same code on the stat pack that was
distributed to you. And, in fact, it would be on
what I would consider page 2 of the stat pack. If
you'll look across the top -- I'm referring now to
the big -- to the big set of documents that you
have. You'll see it says, "Election Results 2008,

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general, AG, AD, CA." You should be able to go in

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CHAIRMAN RUCHO: Explain.

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and find "EL08G_AG."
"ELO8G_AG."

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REP. LEWIS: Mr. Chairman, if I may.

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For example, the very first listed item

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on this page I'm referring to, you'll see it says,

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-Lewis, you have --

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District 1 -- excuse me, it says "district," and

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then beside it, "EL08G_AG_D."
"ELO8G_AG_D." That would be the

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results in District 1 for the candidate Roy Cooper

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who was the Democratic nominee for the Attorney

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General's office.

REP. LEWIS: I just want to say that I
completely agree with Senator McKissick, that
would be a whole lot easier way to look at these
reports. I asked for that to be done. And it's
not the way, unfortunately, the system generates
the reports. But if you would indulge me for just
a moment, I'm going to get my notes and we'll go
sheet by sheet, and we'll add those names, if you
would be so kind.
SEN. McKISSICK: I would certainly
indulge you, without a doubt. I think that would
be a helpful exercise for all of us who are not
acquainted with this and haven't seen it before.
CHAIRMAN RUCHO: Representative Lewis,
would you --And, Members of the Committee, please take
note as Representative Lewis explains what each of
the AG, CI, and the like is, based on the year of
the election.
Okay. Representative Lewis, you have the
microphone.

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So to maybe make this easier, perhaps you
could write the word "Cooper" where it says
"EL08G_AG_D."
"ELO8G_AG_D." And using these two documents, you
will be able to see what the election results are.
I believe it would be fair to say -- and,
Mr. Chairman, the staff can certainly correct
me -- that the -- as you look at the code, the
EL08G_AG, that, obviously, is Attorney General.
ELO8G_AG,
And then the "_D" would be Democrat.
So while the field key will explain
exactly who it is referring to, you can probably
get a good feeling for if it's comparing the
Democrat for that office or the Republican for
that office.
CHAIRMAN RUCHO: Okay. And just a
clarity, Senator McKissick, before you go on to

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CHAIRMAN RUCHO: Yes. Representative

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your next question -- and I think Representative

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Lewis mentioned it -- that the criteria that was

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racial demographics in the -- in production of

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these maps. So that's why that information was

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not available. But at any point you can go ahead

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and request from staff what you think you need as

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far as additional documentation. Okay?

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Next question.
SEN. McKISSICK: Sure. If it's
possible -- and I understand these codes are --could probably be figured out and calculated. But
if we could actually put the names of the various
candidates on -- above these various categories.
Considering the amount of time that we have to
review and digest this information, it would save
an awful lot of time rather than going back and
forth between sheets to decipher the codes. There
may be codes that you guys are familiar with from
looking at it, but from someone seeing it upon
first impression, it becomes somewhat challenging
to -- to make certain of precisely what I'm
reviewing at any given point in time. So, I mean,
it would seem to be a simple thing to add in terms
of a category.

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REP. LEWIS: Thank you, Mr. Chairman.
Members, if you will look at the page
that's, of course, labeled at the top "2016
Contingent Congressional Plan," and then if you
will look in the second left-hand column, you will
see the code "EL08G_AG_D."
"ELO8G_AG_D." Okay? Does everybody
see this particular document?
Okay. Then with that, if you'll go with
me, you'll see the first column says "District 1."
The second column is that code that I just gave.
The third column, if you would write the word
"Cooper," write the word "Cooper" at the top of
that column, it might make it easier to -- to
understand. If you would skip the next column,
which currently says "68,474," you'll get to the
following column. If you would write the word
"Crumley."
If you would then skip the following
column and go to the column that says
"EL08G_AD_D."
"ELO8G_AD_D." Does everyone see that? The first
number is 233,665. If you would please write
the -- if you would skip right next -- right over
to the column that says "71.44" and write the word
"Wood," W-O-O-D. Wood.
And then skip the column that says

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"93,433." And then you'll come to "28.56," and
write the word "Merritt," M-E-R-R-I-T-T.
If you'll then skip the next column,
which has "327098." And also skip the column that
has the "220038."
Yes, sir. I'm sorry. 220,038. If I
could pause for just a minute.
CHAIRMAN RUCHO: Yes, sir.
(Representative Lewis and Chairman Rucho
confer.)
REP. LEWIS: So where it says "66.68,"
you would write "Ansley" -- is that correct? And
then you would skip the 109968 and get to the
33.32, and write the word "Troxler,"
T-R-O-X-L-E-R.
If I could pause for only a moment to
make sure the members understand. I chose, in my
notes, to use the percentages of the votes cast.
The numbers that I asked you to skip by are also
relevant. That's number of raw votes cast, on the
report.
-Okay. The next page that I have -CHAIRMAN RUCHO: And this is Election
Results 2008, correct?
REP. LEWIS: Yes, sir.

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a little bit more confusing than it has been.
SEN. BROWN: It should be Odom.
REP. LEWIS: On my notes, I skip over to
where it says "EL08G_CL_D,"
"ELO8G_CL_D," for Commissioner of
Labor. This is towards the right side of the
page.
SEN. BROWN: Mr. Chairman.
(Representative Lewis and Chairman Rucho
confer.)
REP. LEWIS: Members, the Chairman has
noticed me that I used the word "Causey" and
should have used the word "Odom." I apologize.
It's still the Republican nominee versus the
Democratic nominee.
If you'll look over where it says
"EL08G_CL_D,"
"ELO8G_CL_D," that's for Commissioner of Labor.
SEN. McKISSICK: The column beginning
with the "328927"? Are you that far across?
REP. LEWIS: No, sir. I actually skipped
that -SEN. McKISSICK: Skipped that.
REP. LEWIS: -- Senator, only because I
was trying to go by my notes. And I will go back
and refill the gaps in.
SEN. McKISSICK: That's fine.

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The next page that I have begins with the
code ELO8G_CI_D.
EL08G_CI_D. And the number in the first
column is 232,552. If you would, to be
consistent, go to the next column, which says
70.70 percent, and write the word "Goodwin." This
is the race for commissioner of insurance. The
word "Goodwin."
CHAIRMAN RUCHO: Representative Lewis,
everybody has a -- what they call the 2016
Redistrict Database Key, with the codes on it,
too. So that should also be there, just for your
information.
Do you have that there, Senator
McKissick? It's a two-page, front and back, and
it gives you the code, the elections, the
candidates.
SEN. McKISSICK: Yes, sir, I do have it.
CHAIRMAN RUCHO: Okay. So that's the key
to using the database.
REP. LEWIS: If it's all right, I'll just
continue, Mr. Chairman.
And then if you skip the next column at
88227 to get to where it says "26.82," the word
"Causey" should appear. Causey.
And, Members, if you will, this might be

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Thank you, Mr. Chairman.
REP. LEWIS: I apologize for that.
But under the Commissioner of Labor,
where it says "68.42," the name -- and I will
apologize if I mispronounce the nominee's name,
but it was D-O-N-N-A-N, Donnan. And then if you
skip over to where it says "31.58," the nominee's
name was Berry, B-E-R-R-Y.
(Representative Lewis confers with
Chairman Rucho.)
CHAIRMAN RUCHO: Representative Lewis,
"W" is a write-in. Okay.
that "W
REP. LEWIS: All right. Mr. Chairman and
Members, I'll be happy to return to this page, but
my notes are -- my notes are incomplete about that
middle -- that middle section there. I think
that's a write-in. But just to confer with the
Chair, I don't want to state in the microphone
something I'm not absolutely sure of.
But anyway, moving on. The next page
-that I have -STAM: Mr. Chairman. Mr. Chairman.
REP. SIAM:
Mr. Chairman. Woohoo.
CHAIRMAN RUCHO: Yes, sir.
Representative Hager. Oh, Stam. Excuse me.

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that has "USS," for United States Senate. The

maybe some -- some motion or somehow where we

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Democrat would be Hagan, the Republican would be

could relieve Representative Lewis from this
tedious task. Maybe we've all sort of gotten the
idea now and we could just --just
-- just an idea. Just
an idea.
CHAIRMAN RUCHO: Good question.
Senator McKissick, now that we've
identified a key for you, are you comfortable in
as far as being able to relate the specific name
to this, or would you want us to go through it
-and -SEN. McKISSICK: What would be helpful,
-if we don't have the information available now -I mean, it would be great, perhaps, if staff -- I
mean, I understand you can't get it on there
because of, I guess, software limitations in the
way you can categorize this stuff. But it
would -- I think the exercise we're going through
provides very valuable ---CHAIRMAN RUCHO: Fine. Then we will -we will continue.
SEN. McKISSICK: But I don't want to be
laborious.
CHAIRMAN RUCHO: Representative Lewis --

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Dole, the Libertarian would be Cole.

STAM: I'm searching. Is there
REP. SIAM:

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Is everybody kind of getting comfortable
with this?

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Okay. And that would complete that page.

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The others would be write-ins and whatnot. So

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we'll turn the page to the one that begins "2010

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General."

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This race is the race for the U.S. Senate

ii
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in 2010. The column that says "USS_D" would be

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Marshall, M-A-R-S-H-A-L-L. The column that has _R

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would be Burr, B-U-R-R. _L would be Beitler,

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B-E-I-T-L-E-R. Again, I apologize if I

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mispronounce a name.

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Turning to page, Election Results 2012
General, G and LG. Again, where it says

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"EL12G_GV_D," the first column would be Dalton,

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D-A-L-T-O-N. The same -- the corresponding column

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with an "R" on it would be McCrory. Corresponding

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column with an "L" on it, for Libertarian, would

22

be Howe, H-O-W-E. There was a write-in that ---

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that's there. And then a write-in miscellaneous.

24

So that's what those other G's are there.

25

The one that says "LG_D" would be Coleman,

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We'll -- we'll continue.

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C-O-L-E-M-A-N. LG_R would be Forest, F-O-R-E-S-T.

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Representative Lewis, please continue.

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And that will complete that page.

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REP. LEWIS: Okay. The next one in the

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Turning now to the Election Results 2012

4

stat pack, it reads -- starts with "EL08G_GV_D."
"ELO8G_GV_D."

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General. The one that begins "AD," of course, for

5

Let me see if I can speed up a little bit

5

Auditor. The Democrat, the "D," nominee would be

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here. In 2008-GV-D, if you'll look there,

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Wood, and the "R" nominee would be Goldman,

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obviously the "D" is for Democrat. That would be

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G-O-L-D-M-A-N.

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Perdue, P-E-R-D-U-E. If you look over to the

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Then where you see it says "_CA_D" for

column that has "R," that would be McCrory,

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Commissioner of Agriculture, the Commissioner

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M-C-C-R-O-R-Y. And then if you see the column

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with the "L," for Libertarian, that would be
Munger, M-U-N-G-E-R.
Now I know what you want me to look at,
I'll do it faster. I apologize.
CHAIRMAN RUCHO: Okay.
REP. LEWIS: Continuing on. 2008, where
it says "EL08LG"
"ELO8LG" -- does everybody see that? That
would be Dalton. 2008 LG R would be Bittinger.
And the "L," the Libertarian, would be Rhodes,
R -- R-H-O-D-E-S. I believe that completes that
page.
Turn next to the one that begins "EL08G
"ELO8G
-SPI." The "D" there would be Atkinson,
A-T-K-I-N-S-O-N. The "R" would be Morgan,
M-O-R-G-A-N. And then the -- you see the column

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nominee for the Democratic Party is Smith,

Also on that page is "CI,"
"Cl," for

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Commissioner of Insurance. The Commissioner of

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Insurance, the Democratic nominee is Goodwin,

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G-O-O-D-W-I-N, and the Republican is Causey,

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C-O -- C-A-U-S-E-Y. That completes that page.

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Turning over where you see the next kind

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of -- thinking you're getting the feeling of how

20

this works now. The "CL" is Commissioner of

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Labor. CL_D would be the Democratic nominee. The

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last name was Brooks, B-R-O-O-K-S. The _R, the

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Republican nominee, would be Berry, B-E-R-R-Y.

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That will complete that race.

25

Where it says "SS," that's Secretary of

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State. The "SS_D," the nominee would have been

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County whole. And that is the home of

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Marshall, M-A-R-S-H-A-L-L. And the SS_R, the

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Representative Price, based on the records that we

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Republican, would have been Goodwin,

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have in the General Assem -- the General Assembly.

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G-O-O-D-W-I-N.

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And there are whole precincts in Durham that

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Turning to the following page, you see it

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connect to an area in Wake County. That area is

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says "SPI," which is, of course, superintendant of
public instruction. Superintendent of public
instruction, D, Dr. Adkinson was the nominee,
A-D-K-I-N-S-O-N. And _R, the Republican was
Tedesco, T-E-D-E-S-C-O.
Also on that page, you see "Treasurer,"
or TR. The Democratic -- the _D, for the
Democratic nominee, is Cowell, C-O-W-E-L-L. _R,
the Republican, was Royal, R-O-Y-A-L.
And the final page is the 2014 United
States Senate race. This one, please notice the
first category is "USS_R." That would be Tillis.
So the Republican is listed first on this one.
And where it says 'USS_D,' the nominee, of course,
was Hagan. And where it says "_L," it was Haugh.
I apologize if I mispronounce that. It's
H-A-U-G-H.
Mr. Chairman, this -- this concludes this
part of the report.
CHAIRMAN RUCHO: Okay. Senator

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the home of Representative Holding.

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Representative Adams is not bunked with any other

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incumbent member, nor is any other sitting member

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of the delegation.

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But, Mr. Chairman, I would like -CHAIRMAN RUCHO: Yes.
REP. LEWIS: -- to direct staff or ISD as
quickly as possible to provide members with maps
that have the home location of the incumbent.
CHAIRMAN RUCHO: Addresses, locations.
All right.
Ms. Churchill, request that we go ahead
and get maps that will identify the location of
the incumbents, if you'll be kind enough.
Okay.
SEN. McKISSICK: One point of
clarification, Mr. Chairman, if I could. The
incumbent for District 13 would be whom?
REP. LEWIS: Representative Adams.
SEN. McKISSICK: That's what I was

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McKissick, you have everything you've asked for on

1

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that. Next question.

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And for 12, who do we have there?

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SEN. McKISSICK: Yes. I was just looking
at the maps here, and I notice that it looks as if
there is a double-bumping, I think you had it
indicated doubling-bumping of -- of certain
incumbent members of our Congressional delegation.
And it looks as if Representative Alma Adams is
one of those. Okay. I think you said there were
two cases where there were double-bumped. Is that
what you indicated, or did I mistakenly hear what
your remarks were?
Yeah, I'm trying to figure out who the
other is.
REP. LEWIS: Well, Senator, I think
that's a very good question. And the location of
the homes of the incumbents should appear on this
map, so let me apologize for that.
What my remarks said earlier is that
there are two incumbent members of Congress that
were -- unfortunately had to be drawn into the
same district. They are Representative David
Price and Representative George Holding.
If you'll notice, the new 4th District
includes all of Orange County. It keeps Orange

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REP. LEWIS: I do not believe -- there is

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thinking.

no current incumbent in -- in the proposed 12.
SEN. McKISSICK: Okay. So I'm looking
at -- 13 here would be Adams. 12 would be?
REP. LEWIS: Vacant?

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SEN. McKISSICK: Vacant.

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CHAIRMAN RUCHO: No incumbent.

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SEN. McKISSICK: No incumbent?

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CHAIRMAN RUCHO: Correct.

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SEN. McKISSICK: Who would have formerly
been in 12?
-That would have been -REP. LEWIS: Well, just to be clear.
SEN. McKISSICK: -- Adams' district
before.
-REP. LEWIS: Just to be clear -CHAIRMAN RUCHO: Let him answer, please.
SEN. McKISSICK: Sure.
CHAIRMAN RUCHO: Thank you.
REP. LEWIS: One of the instructions
given by this committee was to do away with the
shape of the 12th. The 12th is now contained
entirely inside Mecklenburg County. So from my

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knowledge -- well, the fact that certainly
Representative Adams does not live in Mecklenburg
County; therefore, that's why she's -- her home
does not appear in Mecklenburg County. She lives
in Guilford County, to the best of my knowledge.
SEN. McKISSICK: Exactly. That's what I
was a bit confused about.
Okay. So what we have, we have a
district which Congresswoman Adams can run from,
which is the 13th District. Is that correct?
REP. LEWIS: Yes, sir. But I would
remind you that an individual seeking election to
the U.S. House does not have to reside in the
district which they run.
SEN. McKISSICK: I understand.
And in terms of applying these
performance characteristics to the 13th District,
would this be a Democratic- or Republican-leaning
district?
REP. LEWIS: Senator, I believe you would
need to look race by race. And by "race by race,"
I'm referring, of course, to the political races.
The data that we just went through, I believe the
district would be one of the ten that lean
Republican.

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it is a -- perhaps a very strongly Republican
leaning district, particularly looking at the
counties that are contained within it. And I was
thinking about their historical representation
here in the General Assembly.
And I see the 12th being carved out. But
I guess this all just gives me concern receiving
it all so quickly, trying to digest it quickly,
trying to move forward with this at -- what is
almost like the speed of light. And while I
appreciate the fact that there were some funds
made available to the minority caucus to, perhaps,
get maps drawn, to be candid with you, to get maps
drawn on a short notice and short order, within
24 hours, has proven to be very challenging.
So I will thank you for the information
you provided. It does provide me with some
concerns, which I've articulated. And I'm -- it
would certainly be nice if we did have the
Republican/Democratic breakout in terms of
registrations. And if I'm talking to Erika, she
can get that. Is there any way, perhaps, staff
can also -- I know it wasn't one of the criteria
used in drawing these maps, but they can filter
down a subcategory that would have provided us

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SEN. McKISSICK: That would lean
Republican?
REP. LEWIS: Yes, sir.
SEN. McKISSICK: Okay.
CHAIRMAN RUCHO: Follow-up.
SEN. McKISSICK: Follow-up, if I could.
CHAIRMAN RUCHO: Follow-up.
SEN. McKISSICK: In the three districts
you have identified as being Democratic districts,
I assume what we're looking at is the 1st
District, the 4th District, and the 12th District.
Would that be a logical assumption, or do I stand
to be corrected?
REP. LEWIS: No, sir. You are correct in
your -- in your -- in your analysis.
CHAIRMAN RUCHO: Follow-up.
SEN. McKISSICK: Yeah. And -- and I
guess the follow-up I have is that I -- I do have
concern -- I mean, I see that we have certainly
provided Representative Adams with a district to
run from. I need to drill down deeper to see the
numbers and see how close of a district that is in
terms of her capacity to compete. And I've not
had a chance to drill down those numbers yet, but
I assume, based upon what you've indicated, that

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with the racial breakout of each district? Is
that possible to obtain from staff even though I'm
-aware with respect to the fact it was not a -CHAIRMAN RUCHO: Senator McKissick, let
me get clear now. You're requesting some data
on -- on the registration of the 13 districts, and
you're requesting the data and the demographics on
the -- the racial breakdown on the 13 districts?
SEN. McKISSICK: That is correct,
Mr. Chair.
CHAIRMAN RUCHO: Okay. Now, just as a
bit of a information, you talk about a -- a time
schedule. Well, we're all under a very tight time
schedule since the Court gave us two weeks -- or
-14 days to do it, and it occurred on a Monday -on a Friday night, so it really kind of brought it
down to ten days. And so this is a heroic effort
that we could even get all of this accomplished in
that short of period of time. So we're all under
tight -- tight time schedules, just for your
information. Thank you.
SEN. McKISSICK: I respect that. It's
just that you knew the attributes before
yesterday. And we learned them yesterday.
CHAIRMAN RUCHO: Thank -- thank you.

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-And, Members of the Committee, any --

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Senator Clark.

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SEN. CLARK: Mr. Chair, I have a question

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to talk about the 13th District and its

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competitiveness. The Democrats have won that
district, if you'll look through this, on several
occasions. So it's obviously a competitive
district because they have won some races in that
district.
CHAIRMAN RUCHO: Okay. Representative
Michaux.
REP. MICHAUX: Mr. Chairman, following up
on what Senator McKissick asked for -- and you
might wonder why, even though you have taken out
race as a criteria, we still need to have race
mentioned in here because of the Section 2 Voting
Rights Act. You've got -- we've got to have that
information in there. And there's a determination
of whether or not Section 2 has been violated in
this -- in this map.
CHAIRMAN RUCHO: Representative Lewis,
you have a comment on that, please.
REP. LEWIS: Mr. Chairman,
certainly Representative Michaux is much more
learned in this area than I am.
I just want to state, again, for the

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for staff.

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CHAIRMAN RUCHO: Say it again, please.

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SEN. CLARK: Question for staff.

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CHAIRMAN RUCHO: Yes.

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SEN. CLARK: If we provided a stat pack
based on this 2011
2011 database, would that provide
Senator McKissick everything he's asking for and
then some?
CHAIRMAN RUCHO: Ms. Churchill, do you
have a response to that?
MS. CHURCHILL: I believe Senator Clark
is asking if -- would the 2011
2011 stat pack that was
generally presented to the General Assembly during
that round of redistricting, would that answer
Senator McKissick's questions. I believe Senator
McKissick is shaking his head, no, it would not
answer his questions.
SEN. McKISSICK: It would.
MS. CHURCHILL: The one thing that
definitely was in the stat pack was the party
registration information. So, yes, it would at
least answer that piece of it.

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Brown.
SEN. BROWN: Just a quick comment, just

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CHAIRMAN RUCHO: All right. Follow-up.

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SEN. McKISSICK: What I would like to

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considered in the drawing of this map. Later

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today, we're going to ask this committee to adopt

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have provided is a stat pack based on 2011
2011
database applied to the districts as shown here on
this map.
CHAIRMAN RUCHO: Staff, can we accomplish
that?
It will be accomplished.
SEN. McKISSICK: Thank you.
CHAIRMAN RUCHO: And as Representative
Lewis said, we'll be -- you'll be getting all of
the data you need. It won't be before this
committee today, because it will take time to
achieve it. Had, I'm sure, individual members had
made requests on some of that, we probably could
have gotten it done, but not during this time.
But there are opportunities to, again,
review the maps. There will be redistricting
committee meetings that we'll have another chance
to review it. And then, of course, on the floor,
both in the House and the Senate.
So, Senator McKissick, I want you to rest
up; you're going to have plenty of opportunity.
SEN. McKISSICK: Thank you.
CHAIRMAN RUCHO: Okay. I've got Senator

record on -- for this committee that race was not

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believe the -- Senator McKissick requests, and
perhaps Senator Clark requests, and now that
Representative Michaux requests, would be to take
this map and to populate it with the data that
they have asked for. That can certainly be done
after this committee adopts this map and -- and as
it moves forward.
CHAIRMAN RUCHO: Yes, sir. Follow-up.
REP. MICHAUX: But -- but would not that
information now help us to make a determination as
to how we wanted to vote out of this committee on
these -- on this map?
REP. LEWIS: Thank you for that question,
Representative. The information on race is simply
not available to provide to you at this moment on
this map.
CHAIRMAN RUCHO: Follow-up?
REP. MICHAUX: Then when is it going to
be available and when are we going to have an
opportunity to see it?

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REP. LEWIS: Well, just to be clear,
Representative -- and I want to clearly state
this -- as an individual member of this committee,
you can request whatever information on this map
on this -- on any district, on any county, on
anything that you want, but it will -- but race is
not going to be considered by this committee as we
adopt this map and recommend it to be passed by
the General Assembly.
REP. MICHAUX: Mr. Chairman?
CHAIRMAN RUCHO: Yes, sir.
-REP. MICHAUX: My follow-up to -- to -to Representative Lewis.
Representative Lewis, the three-judge
panel found that these drawings were
unconstitutional and it was based predominantly on
race. There are other factors that you should --that should be considered in terms -- for
instance, as I said before, a violation of
-Section 2 of the Voting Rights Act. We need -I'm not going to vote for another unconstitutional
map if I can't determine whether or not Section 2
is being violated by what you've done.
REP. LEWIS: Well, thank you for
clarifying, Representative Michaux. To the best

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STAM: Would appropriate motion be
REP. SIAM:
in order to give this a favorable report? I would
like to make such a motion at the appropriate
time.
CHAIRMAN RUCHO: All right. Well, thank
you. I think, actually, Representative -- Senator
Hise requested that earlier. So we'll do that.
Senator Blue, question.
SEN. BLUE: No question; just a comment.
CHAIRMAN RUCHO: All right.
SEN. BLUE: Mr. Chairman, I don't think
it takes much imagination to see exactly what
you've done here. In three districts -- that is,
the 1st, the 4th, and the 12th -- you've, again,
managed to stuff about half of the black
population in the state. And all you've got to do
is look -- you can -- you can name it whatever you
want to name it; it still is what it is.
When you just peruse very quickly the
statistics on all of these races, you see exactly
what is going on in each of these three districts.
You've got 66 to 68 percent -- you call it
"Democratic performance." But anybody who looks
at the numbers see that you're at the core of the
cities in this state and that the areas that you

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2011
of my knowledge, you didn't vote for the 2011
plan. The plans that you voted for have, in fact,
been unconstitutional.
But let me continue in my answer. The
criteria that this committee adopted in open
debate yesterday was the following: Equal
population, contiguity, political data, partisan
advantage, the 12th District compactness, and
incumbency. That is the criteria that this
committee debated and adopted over about a
three-and-a-half, four-hour period. Those are the
criteria that were used to draw these maps. Those
are the criterion that these members will be asked
to base their decision on.
CHAIRMAN RUCHO: Representative Lewis.
(Chairman Rucho and Representative Lewis
confer.)
CHAIRMAN RUCHO: Representative Michaux,
you all set?
REP. MICHAUX: Yeah.
CHAIRMAN RUCHO: Very good. Thank you.
All right. Do we have anybody else
presenting a question or --STAM: Mr. Chairman?
REP. SIAM:
CHAIRMAN RUCHO: Yes, Representative Stam.

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extract are the -- are the primarily minority
communities, whether you're in Durham or Wake or
Mecklenburg.
The more important thing is that you
can't use partisanship as a proxy for race. And
that's exactly what you've done here. We know
because we've been unable to draw these maps
overnight. And you didn't draw them overnight
either. And we know that they were imported into
this place, and they weren't originally conceived
or drawn on the legislative computers.
But let me say this: The biggest
challenge that we have is basically the
dismantling of democracy that this map represents,
in that you create three districts that perform at
a 65 to 70 percent level for one party, then ten
districts that perform in the low to mid 50s range
for the other party. Now, you're assaulting
democracy even though you're doing it in the name
of partisanship.
And historically, the courts have said
that they're going to stay out of the political
thicket when it comes to gerrymandering based on
partisanship.
But I will tell you, this is such a bold

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and audacious move that it's probably what the
courts have been waiting for to wade into this
area. And I will assure you of that. And if you
think the people in this state are mad because of
the way you districted the last time, they're
going to be furious because of the way you're
doing this district. This is an abomination. It
is a direct assault on democracy. It is
disingenuous to think that you've now created
districts that don't take race into account just
because you say race hasn't been taken into
account.
When we get the stat -- stat packs on
these districts, I will assure you of two things:
Number 1, the black voting age population in
Districts 1 and District 12 are equal or greater
than it was in the two districts that have been
rejected so far. And Number 2, that -- that in
the other district, District 4, I guess, where you
take Wake County and send it a certain way, you
will find the same kind of phenomenon.
So I say that you might call it
partisanship in districting like this. But here
in the middle of Black History Month, it is as
pernicious as the same kinds of activity that has

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Yes, Representative Butterfield.
REP. FARMER-BUTTERFIELD: Thank you,
Mr. Chair.
I wanted to ask that we look at the
criteria we have that was adopted by this majority
yesterday and apply that to these three districts
for me.
REP. LEWIS: Certainly.
CHAIRMAN RUCHO: Representative Lewis.
And while he's preparing, can I remind
everybody here to please keep your maps so we can
have them and we don't have to cut down some
additional trees, if at all possible. And -- so
thank you. That and the stat packs. So bring
them and make them available for the redistricting
committee meetings, House and Senate, and on the
floor.
Representative Lewis.
REP. LEWIS: Mr. Chairman, could I just
clarify with Representative Farmer-Butterfield?
You wanted to go through three districts
that Senator Blue referred to based on the
criteria that was adopted.
Yes, ma'am. First of all, the first
criteria was equal population. The population of

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given a scar to so many Southern states over the
last 150 years.
You call it what you want. It is still
using race as a basis as to how you elect the
Congresspeople in North Carolina.
CHAIRMAN RUCHO: Representative Lewis.
REP. LEWIS: Mr. Chairman, I just point
out even Senator McKissick's acknowledged that
race was not a factor in drawing this map, Senator
Blue appears to want to try to create something
that does not exist.
So I will point out again: I have
already read the criteria. I will not -- I will
not belabor it. But the criteria that was used to
draw this map was adopted by this committee
yesterday and repeated by me a few minutes earlier
today.
CHAIRMAN RUCHO: Yes, sir. Thank you.
-And -- and Senator Blue, when you use -say that using the partisan, that partisan was
never used. All it was is the political data
coming from elections, and you have that before
you. So for you to tie together race in that just
doesn't make any sense. So that -- that being
said --

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the 1st is 733,499.
The second criteria is contiguity. I
think you can look at the map -- and even this
map, if it's more helpful without county lines,
and be able to see that all the territory is
contiguous. It does touch.
Political data: I've provided that to
you. That shows what the election results were
within inside this district.
The partisan advantage: I've conceded
that Republicans don't have a great partisan
advantage in the 1st.
The 12th: The -- the drawing of the
1st -- the -- one of the criterion yesterday was
do away with the certain serpentine shape of the
12th. So that would not apply to the 1st.
Compactness: I think you will notice
that nearly every county in the 1st is a whole
county. You will see that there are three divided
counties in the 1st, Wilson being one of them.
That was done to take into account the residency
-of the incumbent. Pitt -- Pitt was divided to -again, based on the requirement to have equal
population. And you'll see that Durham is divided
as well, as best I recall, as -- as a combination

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of the need to equalize population, and political
concerns as well.
In the 4th, the criteria for equal
population is met. The population in the 4th is
733,499.
Contiguity: You'll notice that it is all
of Orange County. It connects nicely through
Durham in whole precincts. And you'll see that it
connects into Wake. All of the area is
contiguous.
The area of political data I provided to
you in the stat packs, the partisan advantage,
I've conceded that I think the Republicans are
going to have to work hard to win this seat.
The 12th District: This -- the doing
away with the serpentine 12th does not apply to
the drawing of the 4th.
Compactness: I think you can see that
it's one whole county. It's -- it is, in my
opinion, a very compact district. And in the area
of incumbency, one incumbent member of Congress
resides in Orange County. So it takes that into
account as well.
As far as the 12th goes, an area of equal
population. The population of the 12th is

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Michaux had a question.
REP. MICHAUX: Yeah. Mr. Chairman, I've
just got a short question.
Representative Lewis, do you believe that
what you have done here, that African-American
voters have a reasonable opportunity to elect
candidates of their choice?
REP. LEWIS: Representative Michaux, I've
conceded that you're a brilliant man. I've
conceded that you're a very good attorney. I'm
going to answer that by saying these maps were
adopted by the criteria -- were drawn by the
criteria adopted by this committee. The winks and
the nods are not going to change my answer. Or
the smirks.
CHAIRMAN RUCHO: Follow-up?
REP. MICHAUX: That was the answer I
expected.
CHAIRMAN RUCHO: Okay.
REP. LEWIS: Glad -- glad to oblige.
CHAIRMAN RUCHO: All right.
Representative Hager.
REP. HAGER: Thank you, Mr. Chairman.
Just a quick statement, if it's okay with you.
As I sit here, we listen to the issues

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733,498.
The contiguity: You'll see that it is
all connected territory within Mecklenburg County.
The political data I have provided to you,
partisan advantage, I have conceded that the
Republicans have to work really hard to win this
seat.
The 12th District: You will see it is
certainly not a serpentine district that snakes
all the way up through the state.
Compactness: I think certainly you can
recognize that it is compact.
And incumbency for this particular
district was not a consideration because there is
not an incumbent residing in the 12th at this
time.
REP. FARMER-BUTTERFIELD: Thank you.
CHAIRMAN RUCHO: Follow-up?
REP. FARMER-BUTTERFIELD: Follow-up.
I appreciate that information. It's
certainly helpful, because I live in District 1.
And I was also concerned about how District 12 was
leading as it relates to party. So that's been
real helpful.
CHAIRMAN RUCHO: I've got Representative

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that we've had, and I want to commend Senator
Rucho and Representative Lewis for the good job
you guys have done on this. Thank you guys for
your hard work.
Senator Blue said that the people are
-mad -- or will be mad in North Carolina for -over these maps.
Senator Blue, you know, the last three
elections, we returned more and more Republican
majorities in this House and the Senate. If
they're mad, I think we -- they're mad you -- you
mad -- may be mad at the wrong person.
The Democrats in this case, in the
minority party, have returned no maps. We don't
have anything else to consider. Even though, as
the way I understand it, that unless the
Republicans had colluded with the radio stations
and the TV stations to only deliver the message of
a three-judge panel to Republican areas, that the
minority party had the same amount of time to
bring maps forward. Two weeks, as far as I
understand, that Representative Lewis and Senator
Rucho worked to get this -- get these maps to us.
You know, at the end of the day,
Representative Michaux talks about Section 2 of

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the VRA. What he fails to mention is there's a
three -- let me -- let see if I got it right. A
three-threshold condition to be met. We didn't
talk about those. We can go over those.
I think it's not just as simple as saying
the VRA says -- Section 2 says you've got to do
this. And, you know, what I find strange is a lot
of the -- these three -- three conditions were met
on the Supreme Court decision on Thornburg -Thornburg versus Gingles that was because of
Democrat-drawn maps back in the '80s. So I find
that very ironic that these were pushed forward
because of past Democratic-controlled maps that
were drawn.
So I say all of this to say that, you
know, these guys have worked hard. They've
complied to the three-judge panel, even though I
think all of us on this side of the aisle believe
that the maps were -- drawn originally were
constitutional.
So I think what we ought to do,
Mr. Chairman, is move this map forward and go
ahead and vote on it, and let's vote on it and get
it out so we can all go home.
CHAIRMAN RUCHO: Thank you,

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SEN. McKISSICK: So point of
clarification, Mr. Chair.
CHAIRMAN RUCHO: Follow-up question.
SEN. McKISSICK: If we were to provide a
jump drive or -- will they be like a jump drive or
some device available where we could obtain that?
CHAIRMAN RUCHO: Ms. Churchill, do you
have any answer to that?
MS. CHURCHILL: Senator McKissick, from
the chair's instructions for posting on the Web,
the block assignment file will be on the Web
following the conclusion of this meeting.
SEN. McKISSICK: On the Web it will be
available?
MS. CHURCHILL: Yes, sir.
SEN. McKISSICK: Thank you.
MS. CHURCHILL: Okay.
CHAIRMAN RUCHO: Representative Jones.
REP. JONES: Thank you, Mr. Chairman.
I just want to take the opportunity,
perhaps with Representative Hager, and just
commend the chairs and everyone involved for the
work here under very difficult circumstances and
very difficult time limits to be able to comb back
with something like this.

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Representative Hager.
Representative Lewis, comments?
REP. LEWIS: No, sir.
CHAIRMAN RUCHO: Okay. I've got Senator
McKissick for a question.
Excuse me, I had Representative Jones.
Okay. He -- he offers you to have first
voice.
SEN. McKISSICK: And this is a question
of co-chairs or perhaps of staff. I was wondering
if we could get a copy of the plan in a digital
format that we -- say, on a jump drive or
something like that, that can be downloaded to a
database for further analysis?
REP. LEWIS: Mr. Chairman --SEN. McKISSICK: And if so, when that
might be available.
REP. LEWIS: Mr. Chairman?
CHAIRMAN RUCHO: Yes, sir.
Representative Lewis.
REP. LEWIS: Thank you, Mr. Chairman.
I would like to state for the record that
staff has been instructed as soon as this
committee adopts this plan to make that
information available.

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And I just wanted to kind of reiterate
the fact of the compactness of the districts.
Just for the benefit, perhaps, of the people -people listening in that may not understand or
just to reiterate that with Congressional
districts, it's absolute zero deviation.
People ask sometimes, well, why do you
divide a county? And the answer is, it's
impossible not to.
But for you to draw 13 Congressional
districts and only divide 13 counties, only divide
13 precincts, is quite commendable and goes beyond
what should be expected. And I think you-all have
done an absolute brilliant job in doing that. And
obviously you know that whatever map you came back
with, you were going to be subject to some type of
criticism that we've heard here today, and no
doubt will hear going forward.
But I will say this, and going back,
perhaps, to a few of the comments that were made
yesterday, which we won't repeat. But when the
minority party was in the majority, I think it's
pretty clear that they stopped at no limits when
it came to political gerrymandering to their
advantage.

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When you look at the legislative maps
that were drawn back in the previous decades, with
two-member districts, three-member districts,
four-member districts, however a district had to
be drawn in order to gain that political favor --favoritism for the majority at the time, there was
no stone left unturned. But, yet, you've come
back with a map here that has -- has answered the
critics, has compiled -- complied with the law as
the judge panel suggested. And I -- I think you
really need to be commended.
And briefly, I just wanted to add to
something that Senator Brown mentioned earlier
with the 13th district. But I will take issue
with those that would say that you cannot elect
-Democratic members in these districts. If you --if you look at the data that we've been given -for instance, the very first race on the -- on the
sheet, 2008 Attorney General race, which was a
contested partisan race, I would -- I would point
out that the Democratic candidate won 13 out of
the 13 Congressional districts.
If you look at the next one, which was
the auditor's race, the Democratic candidate won
nine of the 13 districts. If you go to the next

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and weren't offered anything from the majority
party to help us towards that goal. Am I correct
in that? I was -- kind of remembered that.
CHAIRMAN RUCHO: Yes, sir. Those were
unconstitutional districts, if you remember.
SEN. APODACA: Yeah, they were.
But I -- you know, I'm struck -- you
know, I look at this wall and all of these maps.
And I would say, I would submit, that this map is
probably the best map since 1980.
Representative Michaux, I guess that was
your tenth term. I don't remember how long you
were here.
Smile, Mickey.
But, you know, we talk about splitting
districts and we just talked about we have 13
split districts. 2011, we had 32. 2001, we had
27. 1998, we had 21. 1997, we had 20. And 1992,
we had 44. So today, we have 13, with this
proposed map, split districts. So --CHAIRMAN RUCHO: Counties.
SEN. APODACA: Counties, excuse me.
Counties split. Both, yeah.
So this is much better than what we've
had in the past, and I submit it to you.

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page and look at the commissioner of insurance
race, the Democrat won eight of the 13 districts.
So I think -— to give credit to the
people of this state, we're not talking about
robots. They do have an opportunity to vote for
the candidates of your choice. And I think that
they have shown that they will cross party lines
or they will vote for the candidate of their
choice, whether it's a Republican or a Democrat,
which would suggest that if you have the right
candidate, that you have an opportunity to win in
any -- in any district. And I think that should
be pointed out.
Again, Representative Lewis, Senator
Rucho, thank you-all for the hard work and look
forward to supporting your efforts.
CHAIRMAN RUCHO: Thank you.
Senator Apodaca.
SEN. APODACA: Thank you, Mr. Chairman.
I think it might be good if we're talking
about history month and history lessons, we have a
little General Assembly history. I think back
to -- Senator Rucho, what? 2003? When we had a
hearing similar to this and we were told that we
could find our own computer and draw our own maps

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CHAIRMAN RUCHO: Senator Brown.
SEN. BROWN: Thank you, Mr. Chairman.
I'm not sure I can say much more than
Representative Jones and Senator Apodaca just
touched on. I, too, was going to mention that in
the '08 election, that Attorney General Cooper won
every single one of these -- these districts.
SEN. McKISSICK: That's what they're
hoping for.
SEN. BROWN: So I think that tells you
the competitiveness of these districts.
And again, to keep these maps where you
only split 13 counties -- everybody needs to go
home and try it, and I can promise you, it's hard
to do it by splitting any less than that and keep,
you know, the populations the same in each of
these counties.
So again, I -- I think this is a pretty
dang good job, and I would hope that the members
of -- that live in each of these counties
appreciate the fact that we've tried to keep them
as whole as we have. And I think it's a very good
map. Thank you.
CHAIRMAN RUCHO: Representative Michaux.
REP. MICHAUX: Yeah, Mr. Chairman, since

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my name has been used in vain a little bit here.

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just wondering what's been determined and what has

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CHAIRMAN RUCHO: It was just a question

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of whether it was a tenth or the 16th term that

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you were at, at that point, I think.

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been proposed in terms of deadlines for filing
periods in the postponement of the Congressional
district elections? Because we clearly have
situations here which would, in my mind, compel us
to reset the Congressional district elections at a
later date and reopen these final periods.
So I was wondering what has been thought
about or what has been considered in terms of new
date for the Congressional district elections or
proposed opening periods for filing of candidacy.
Because otherwise, we end up with one district
where there won't even be anybody.
REP. LEWIS: Mr. Chairman.
CHAIRMAN RUCHO: Yes, sir.
REP. LEWIS: In an attempt to answer the
Senator's question, it is the intent tomorrow,
provided a stay is not issued, that a bill would
be sourced to create a new redistricting map to
comply with the decision in the Harris case.
There will be a separate bill that would be
sourced that would reestablish when the new
Congressional election would be done. Obviously,
there are factors to take into account, a certain
amount of time it takes to get the ballots

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REP. MICHAUX: Well, at the term that he

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mentioned, I was a United States Attorney for the

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Middle District of North Carolina. So I wanted to

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clear that up. Make sure you understood. Just
like you got your facts wrong on that one, you are
wrong on this, too.
-But irrespective of -- irrespective of -SEN. APODACA: Mr. Chairman, may I ask
Representative Michaux a question?
CHAIRMAN RUCHO: In a moment.
Finish up.
REP. MICHAUX: If he wants to ask me a
question, let him go ahead on.
CHAIRMAN RUCHO: Go ahead.
REP. MICHAUX: Ask him who he voted for
in his first race?
SEN. APODACA: I don't remember. I
believe it was you. But we were all young at one
time.
Did you prosecute these maps when you
were in the U.S. Attorney's Office?

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REP. MICHAUX: I didn't -- I didn't have

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to. I helped draw the ones in '80.

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CHAIRMAN RUCHO: Okay. You have a
follow-up to that?
REP. MICHAUX: Yeah. I just wanted to
say, Mr. Chairman, that what -- what -- what
-Representative Hagar says, he needs to go back -I'm glad he's a student of the law because he
needs to really go back. Section 2 is a valuable
part of the Voting Rights Act. It is a part -- if
you read the decision by the three-judge panel,
Section 2 is mentioned in there. If you read the
decision in the Alabama case, Section 2 is
mentioned in there.
All of these things fall in line. What
you -- what you're basically doing here is trying
to avoid using race, you have already brought race
into the picture.
CHAIRMAN RUCHO: Thank you.
All right. Any other questions, Members
-of the Committee? Any -Yes, sir. Senator McKissick.
SEN. McKISSICK: And it may be premature
to ask this question. But assuming these maps are
approved tomorrow and they go on to the Court, I'm

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prepared and mailed out and whatnot.
But just for planning purposes, I
believe, sir, you could anticipate that the -- the
Senate would deal with the adoption of the maps
first and the House would deal with the adoption
of the new election schedule, and then the two
would cross. And, you know, of course it would
require action by both sides.
I know that there are several members
that have begun to work on this with our staff. I
can't give you the exact dates now; frankly,
because I don't know what they are.
SEN. McKISSICK: Thank you.
CHAIRMAN RUCHO: Follow-up. You all set?
SEN. McKISSICK: I -- I think that
clarifies it. I mean, do we have any proposed
dates? I mean, are we talking about May for the
election or...
REP. LEWIS: Mr. Chairman?
CHAIRMAN RUCHO: Yes, sir.
REP. LEWIS: I'll be happy to try and
share, or perhaps Representative Jones could meet
with the senator after we adjourn.
To my knowledge, the dates have not been
finalized yet. I know that they're both in

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conversations with our central staff. I know
Representative Jones on the behalf of the House
has been in contact with the State Board. I
don't -- to be candid with you, I don't know that
we've set what the dates are just yet.
SEN. McKISSICK: Okay. Thank you.
CHAIRMAN RUCHO: To -- to help out with
that, you know, having worked on the part when we
establish the filing and the like for the March
15th, there are seven days that the boards of
elections, both central and counties, are required
to do certain things. So what you do is you work
back, and that hasn't been done yet. Okay.
All right. Members of the Committee, I
don't see any additional questions or comments.
Senator Hise, for a motion?
SEN. HISE: Thank you, Mr. Chairman.
We've been tasked by the President Pro
Tem for the Senate and the Speaker of the House
with recommending a proposed contingent
Congressional map that complies with the trial
court's order in the matter of Harris versus
McCrory, to the extent that that order is not
stayed by higher authority. To comply with our
directive and after extensive debate today, I move

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THE CLERK:
Rucho, aye.
aye.
THE
CLERK: Rucho,
Apodaca?
Apodaca?
SEN. APODACA:
APODACA: Aye.
Aye.
SEN.
THE CLERK:
Apodaca, aye.
aye.
THE
CLERK: Apodaca,
Barefoot?
Barefoot?
SEN. BAREFOOT:
BAREFOOT: Aye.
Aye.
SEN.
THE CLERK:
Barefoot, aye.
aye.
THE
CLERK: Barefoot,
Blue?
Blue?
SEN.
SEN. BLUE:
BLUE: No.
No.
THE CLERK:
Blue, no.
THE
CLERK: Blue,
no.
Brown.
Brown.
SEN. BROWN:
BROWN: Aye.
Aye.
SEN.
THE CLERK:
Brown, aye.
aye.
THE
CLERK: Brown,
Clark?
Clark?
SEN. CLARK:
No.
SEN.
CLARK: No.
THE CLERK:
Clark, no.
THE
CLERK: Clark,
no.
Harrington?
Harrington?
SEN. HARRINGTON:
HARRINGTON: Aye.
Aye.
SEN.
THE CLERK:
Harrington, aye.
aye.
THE
CLERK: Harrington,
Hise?
Hise?
SEN. HISE:
HISE: Aye.
Aye.
SEN.
THE CLERK:
Hise, aye.
aye.
THE
CLERK: Hise,
Jackson.
Jackson.
SEN. JACKSON:
JACKSON: Aye.
Aye.
SEN.
THE CLERK:
Jackson, aye.
aye.
THE
CLERK: Jackson,

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that the committee recommend favorably to the
General Assembly the contingent Congressional map
presented to the committee today by you and
Co-chairman Lewis, and that committee staff be
given leave to format this recommendation,
recommending contingent map as needed for
submission as a report of recommended legislation
to the General Assembly.
CHAIRMAN RUCHO: Thank you, Senator Hise.
Members of the committee, we have a
motion before us to adopt these maps and be able
to submit them to the General Assembly for the
short -— for the special session.
Any questions or comments?
(No response.)
CHAIRMAN RUCHO: All right. Seeing none,
-Mr. Clerk, may we have a roll --THE CLERK: As per Senator Apodaca -CHAIRMAN RUCHO: -- roll call first. And
Senator Apodaca wants to be called first, if you
will be kind enough.
THE CLERK: We'll begin with the Senate.
CHAIRMAN RUCHO: Thank you.
THE CLERK: Rucho?
CHAIRMAN RUCHO: Aye.

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Lee?
SEN.
SEN. LEE: Aye.
Aye.
THE CLERK:
CLERK: Lee, aye.
aye.
THE
McKissick?
SEN. McKISSICK: No.
SEN.
THE CLERK:
CLERK: McKissick, No.
THE
Randleman?
Randleman?
SEN. RANDLEMAN: Aye.
Aye.
SEN.
THE CLERK:
CLERK: Randleman,
Randleman, aye.
aye.
THE
Sanderson?
Sanderson?
SEN. SANDERSON:
SANDERSON: Aye.
Aye.
SEN.
THE CLERK:
CLERK: Sanderson,
Sanderson, aye.
aye.
THE
Smith?
Smith?
SEN. SMITH:
SMITH: No.
SEN.
THE CLERK:
CLERK: Smith,
Smith, no.
THE
Smith-Ingram?
Smith-Ingram?
SEN. SMITH-INGRAM: No.
THE CLERK:
CLERK: Smith-Ingram,
Smith-Ingram, no.
THE
Wade?
SEN. WADE: Aye.
Aye.
SEN.
THE CLERK:
CLERK: Wade, aye.
aye.
THE
Wells?
SEN. WELLS: Aye.
Aye.
SEN.
THE CLERK:
CLERK: Wells, aye.
aye.
THE
Lewis?

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Redistricting 2016
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.0 . General Assembly Extra Session on Redistricting

Pages 70 to 73
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REP. LEWIS: Aye.
THE CLERK: Lewis, aye.
Jones.
REP. JONES: Aye.
THE CLERK: Jones, aye.
Brawley?
REP. BRAWLEY: Aye.
THE CLERK: Brawley, aye.
Cotham.
REP. COTHAM: No.
THE CLERK: Cotham, no.
Davis?
REP. DAVIS: Yes.
THE CLERK: Davis, yes.
Farmer-Butterfield?
REP. FARMER-BUTTERFIELD: No.
THE CLERK: Farmer-Butterfield, no.
Hager?
REP. HAGER: Aye.
THE CLERK: Hager, aye.
Hardister?
REP. HARDISTER: Aye.
THE CLERK: Hardister, aye.
Haynes?
REP. HAYNES: No.

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Stevens?
REP. STEVENS: Aye.
THE CLERK: Stevens, aye.
CHAIRMAN RUCHO: Members of the
Committee, the roll was taken and you have 24
11 noes.
ayes, in favor of adoption of the maps, 11
That will be submitted to the General Assembly at
its special session.
I'll remind everyone again that please
save the maps that you have and bring them with
you so that we can be able to save staff time
in -- in trying to accomplish that.
The -- I think you need to stay tuned to
the -- to the e-mails for the next meeting, which
I'm assuming will be...
All right. Will be the call of the chair
and specifically on redistricting committee.
Representative Lewis, any additional
comments?
REP. LEWIS: Mr. Chairman, just an
announcement to the members: We've been informed
that the governor has called and has issued a
proclamation for an extra session. The General
Assembly will convene on Thursday, February 18th
at 10 o'clock a.m.

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THE CLERK: Haynes, no.
Hurley?
REP. HURLEY: Aye.
THE CLERK: Hurley, aye.
Jackson?
REP. JACKSON: No.
THE CLERK: Jackson, no.
Johnson?
REP. JOHNSON: Aye.
THE CLERK: Johnson, aye.
Jordan?
REP. JORDAN: Aye.
THE CLERK: Jordan, aye.
McGrady?
REP. McGRADY: Aye.
THE CLERK: Grady, aye.
Michaux?
REP. MICHAUX: No.
THE CLERK: Michaux, no.
Moore?
REP. MOORE: Nay.
THE CLERK: Moore, nay.
Stam?
REP. STAM: Aye.
THE CLERK: Stam, aye.

73
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CHAIRMAN RUCHO: Okay. Members of the

2

Committee, we're about ready to conclude our

3

meeting. But again, I will just let you know,

4

without objection, the chairs will sign this

5

report when it's prepared to be submitted to -- to

6

the General Assembly.

7

Okay.
REP. LEWIS: Mr. Chairman?
CHAIRMAN RUCHO: Yes, sir.
Representative Lewis.
REP. LEWIS: I just also wanted to state
for record that the Chair's acknowledged the
request from Senator McKissick, and perhaps
others, to make this information available and the
Chair's understand that may require additional
information than what's been provided here or what
was considered in drawing of the maps.
CHAIRMAN RUCHO: Okay. Ladies and
gentlemen, thank you for your attention, and this
committee is adjourned.
(The proceedings in this matter adjourned
at 5:37 p.m.)

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Page 74
74
STATE OF NORTH CAROLINA
COUNTY OF WAYNE

CERTIFICATE
I, Jennifer C. Carroll, a Registered Merit
Reporter and Certified Realtime Reporter, do hereby
certify that on February 17, 2016, the proceeding was

held before me at the time and place aforesaid, that all
parties were present as represented, and that the record
as set forth in the preceding pages represents a true and
accurate transcription of the proceedings to the best of
my ability and understanding.
IN WITNESS WHEREOF, I have hereto set my hand,
this the 26th day of February, 2016.

______________________________
Jennifer C. Carroll, RMR, CRR

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 Exhibit 

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1
NORTH CAROLINA GENERAL ASSEMBLY
NORTH CAROLINA HOUSE OF REPRESENTATIVES

TRANSCRIPT OF THE PROCEEDINGS
FLOOR SESSION ONE (11:30 A.M.)

In Raleigh, North Carolina
Friday, February 19, 2016
Reported by Rachel L. Hammond, CVR-M

Worley Reporting
P.O. Box 99169
Raleigh, NC 27624
919-870-8070

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2
1
2

(Reporter's note:

Proceedings in this matter

began at 11:30 a.m. on February 19, 2016.)

3

SPEAKER MOORE:

4

Members will take their seats.

5

from the chamber.

6

doors.

7

all electronic devices.

Visitors will retire

The Sergeant-at-Arms will close the

Members and guests are asked to please silence

8
9

The House will come to order.

This morning's prayer will be offered by
Representative Avila.

We'd ask all members and all

10

guests in the gallery to please stand for the prayer

11

and remain standing for the Pledge of Allegiance.

12

Representative Avila.

13

(Prayer and the Pledge of Allegiance.)

14

SPEAKER MOORE:

15
16

The gentleman from Harnett,

Representative Lewis, is recognized for a motion.
REP. LEWIS:

Mr. Speaker, the journal for

17

February 18, has been examined and found to be correct.

18

I move that it stand approved as written.

19

SPEAKER MOORE:

Representative Lewis moves that

20

the journal for February 18 be approved as written;

21

those in favor will say "aye."

22

(Voice vote.)

23

SPEAKER MOORE:

24

The ayes have it.

25

written.

Those opposed "no."
The journal is approved as

Notices and announcements -- strike that.

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1

Reports of standing committees.

2

Representative Lewis, the Chair on the

3

Committee -- the Redistricting Committee is recognized

4

to send forward the committee report.

5

read.

6

CLERK:

The clerk will

Representative Lewis Redistricting

7

Committee reported Senate Bill 2 2016 Contingent

8

Congressional Plan.

9

SPEAKER MOORE:

Calendar for this morning.

10

Senate Bill 2, the clerk will read.

11

(Bill read by clerk.)

12

SPEAKER MOORE:

The gentleman from Harnett,

13

Representative Lewis, is recognized to debate the bill.

14

The House will come to order.

15

Members, before the gentleman starts, I want to

16

remind the body we do have the court reporter with us

17

again here today.

18

chatter that is occurring makes it very difficult for

19

her to hear.

20

conversations, I would ask members to please step off

21

the floor to do so or to keep that to a very low tone.

22
23
24
25

So all of the extra noise and the

So, again, if you need to have any extra

The gentleman from Harnett has the floor to
debate the bill.
REP. LEWIS:

Thank you, Mr. Speaker.

Members

of the House, we are here today to comply with a court

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1

order issued in the Harris versus McCrory case, which

2

instructed us not to hold the 2016 race for the United

3

States House of Representatives under the current map

4

and instructed us to redraw the districts.

5

know, have appealed and sought a stay of that decision.

6

However, as of this moment, that stay has not been

7

granted.

8

will, in fact, come.

9

rule of law and the court's findings, I will present to

We, as you

We are still hopefully optimistic that it
However, out of respect for the

10

you today a 2016 Contingent Congressional Map.

11

point out that this map was created based on criteria

12

that was adopted by a Joint Select Committee of the

13

House and the Senate appointed by the Speaker and the

14

President Pro Tem; the committee adopted this criteria

15

on February 16.

16

I will

I will point out to you the criteria on which

17

the maps before you were drawn.

18

criteria of equal population.

19

were drawn with either 733,499 total persons or 733,498

20

total persons.

21

in accordance with federal law.

22

contiguity.

23

composed within contiguous territories.

24

criteria was political data.

25

the maps placed on each one of your desk show which

First, was the
All of the districts

This is as equal as practicable and is
Another criteria was

All the areas of every district are
Another

The stat pack attached to

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election results were used in building these districts.

2

Race was not considered and is not present in these

3

reports.

4

We believe that this map will produce an opportunity to

5

elect ten Republican members of Congress, but make no

6

mistake, this is a weaker map than the enacted plan in

7

that respect.

8

to do away with the 12th district, which has been

9

described as serpentine in nature because of the shape,

A further criteria was partisan advantage.

The Committee further adopted criteria

10

the way it appears on a map.

11

corrected -- the drawing of this plan before you

12

corrects that.

13

Only 13 counties and 12 voting districts were split in

14

this map.

15

counties and more whole precincts are the best

16

indicator of compactness that we believe to be

17

available.

18

committee was incumbency.

19

incumbent members of Congress reside in the same

20

congressional district, one Republican and one

21

Democrat.

22

Representative Price, both of whom reside within the

23

geographic territory that makes up the proposed 4th

24

Congressional District.

25

in a congressional district by themselves.

The drawing of this

An additional criteria was compactness.

In accordance with the criteria, more whole

An additional criteria adopted by the
In this map, only two

They are Representative Holding and

Eleven incumbents were placed

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I

want to offer only a bit of historical

2

context that I hope you will consider when you're

3

voting for those maps.

4

split 44 counties; the 1997 plan split 22 counties; the

5

1998 plan split 21 counties; the 2001 plan split 28

6

counties and 22 Voting Tabulation Districts; the 2011

7

Congressional Plan, which I'll refer to henceforth as

8

the enacted plan, split 40 counties and 68 voting

9

districts, or VTDs; and the map that you have before

10
11

The 1992 Congressional Plan

you splits 13 counties and 12 VTDs.
I am very proud and appreciative of all of the

12

work that members of the committee gave, that our

13

central staff dedicated themselves to do.

14

all of the members who brought forward constructive

15

advice on how to design these maps to comply with the

16

court decision.

17

more fully debate and explain these maps as directed by

18

the Speaker.

19

believe that this is a major step forward and should

20

the stay not be granted by the U.S. Supreme Court, I

21

believe that this map, drawn in accordance with the

22

criteria that I have mentioned in my earlier remarks,

23

will help us comply with the court order from the

24

Harris case.

25

conclusion of this debate that you would vote "aye" on

I appreciate

And I look forward to being able to

But I would ask for your support.

I

And I would respectfully ask at the

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this bill.

2
3

Thank you, Mr. Speaker.

SPEAKER MOORE:

gentleman from Durham, Representative Michaux, arise?

4

REP. MICHAUX:

5

SPEAKER MOORE:

6

For what purpose does the

To speak on the bill.
The gentleman has the floor to

debate the bill.

7

REP. MICHAUX:

Mr. Speaker and ladies and

8

gentlemen of the House, I'm not going to ask

9

Representative Lewis any questions on this.

I think

10

that has been thoroughly covered in committee, and the

11

record has been made in committee on this.

12

to do very simply is to caution you about what you're

13

about to do.

14

that -- what I want to say about this, I want to quote

15

a couple of things from the Harris decision that got us

16

where we are today.

17

that decision -- page 3 it says, "This does not mean

18

that race can never play a role in redistricting.

19

Legislatures are almost always cognizant of race when

20

drawing district lines, and simply being aware of race

21

poses no constitutional violation.

22

the 'dominant and controlling' consideration in drawing

23

district lines does strict scrutiny, strict scrutiny

24

apply."

25

is that race can still be used in drawing lines, but if

What I want

And in order to set the framework for

The first is that on page 2 of

Only when race is

What the Court is saying very simply in this

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you use race, "strict scrutiny" applies.

2

mean it can't be applied, but you have to look at it a

3

little bit closer than the way you normally look at.

4

What this body has done in this -- I'm sorry, what the

5

committee has done, is they have taken race out of the

6

equation totally and completely.

7

map that you have before you today was drawn without

8

consideration of race.

9

It doesn't

In other words, this

Now everybody tries to think that we're going

10

to have a colorblind situation and wishes for one,

11

which is the ultimate dream in euphoria.

12

always be there because there will always be

13

differences either race, class, whatever way you want

14

to put it.

15

including race as a part of it.

16

Race will

So you cannot, you cannot do maps without

The second part of that, or other part of that

17

decision says this, "redistricting legislation must,"

18

and I repeat, "redistricting legislation must comply

19

with the Voting Rights Act of 1965."

20

thought that the Shelby case knocked out the Voting

21

Rights Act.

22

from the Voting Rights Act, that section which set up a

23

formula for which preclearance was required.

24

Voting Rights Act of 1965 still stands.

25

that it says that any district lines must comply with

It did not.

Many people have

It only knocked out Section 4

The

And I repeat,

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the Voting Rights Act of 1965.

2

they said that, "the Voting Rights Act prohibits states

3

from adopting plans that would result in vote dilution

4

under section 2."

5

operative clause under which we operate and draw

6

district lines.

7

And in that same vein,

So, Section 2 basically is the

Now, what you have done with this map is you

8

have gone in the complete opposite, and you have made

9

race a predominant factor again because you left it

10

out.

11

that have been drawn on this map create any dilution of

12

minority registrants, minority voting.

13

any clue as to whether or not minorities, African

14

Americans in particular, are able to elect

15

representatives of their choice.

16

cut out race as a factor in determining what these

17

lines are being drawn for.

18

unconstitutionally drawn map, and you're sending back

19

another unconstitutionally drawn map.

20

for me to decide.

21

But just taking a simple look at it you say, well, how

22

do we do this?

23

make it a predominant factor.

24

you can draw lines that fall within parameters that

25

don't make race a predominant factor and still

You don't consider whether or not these districts

You don't have

That's because you

So I say that you set up an

But that is not

That is for the Court to decide.

All you have to do -- you don't have to
You can look at it and

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guarantee that you don't have voter dilution and still

2

guarantee that you have a position where African

3

Americans are able to elect persons of their choosing.

4

Now, there is one other thing I want to call to

5

your attention out of that same decision.

6

there is strong evidence -- and this comes from the

7

Harris decision -- "There is strong evidence that race

8

was the only nonnegotiable criterion and that

9

traditional redistricting principles were subordinated

It says that

10

to race."

11

race was the only nonnegotiable criterion."

12

again, in these maps that are being drawn, race is the

13

only nonnegotiable criterion that has brought these

14

maps about.

15

I say again, "There is strong evidence that
Here

Finally, it says, "A congressional district

16

necessarily is crafted because of race, when a racial

17

quota is the single filter through which all

18

line-drawing decisions are made."

19

doesn't take a rocket scientist or a mathematician to

20

figure that if you're going to draw district lines,

21

you've got to take into account the population of that

22

district.

23

population, but the total, the total population, and

24

that includes members of any ethnic group, any racial

25

group, anything.

Now, folks, it

How it affects not just one part of the

It all has to be considered.

Here,

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1

in this map that was drawn, none of that was

2

considered.

3

going to do.

4

going to probably go lockstep, no question about it.

5

But what you're doing is you're setting up a situation

6

where there is a good possibility of you coming back

7

here again if the courts find that you have not

8

followed their instructions.

9

They could do it themselves, or they could put in a

And I say to you that I know what you're
Everybody is going -- both sides are

They could send it back.

10

Special Master to draw the lines.

11

things here, everybody says, well, it is confusing.

12

Chaos reigns as a result of this.

13

of us on this side did not cause that chaos.

14

never asked to have any input into this.

15

give you an example, this map that you have drawn

16

today, I think the decision was handed down February 5

17

or February 6, and before any criteria was set up, I

18

understand from folks on the other side, that plans

19

were already being drawn and criteria was already being

20

set up -- not having been set up, but maps were being

21

drawn without that.

22

Tuesday of this -- Monday or Tuesday of this week and

23

pass criteria, and on Wednesday we've got a map, then

24

there's a problem.

25

this, and I know this was done in a hurry.

There are other

Well, folks, those
We were

we got -- to

And then to come in on, I think,

There are many things wrong with
But we need

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1

to take the time to make sure that every facet of this

2

thing is covered.

3

about race.

4

good friend Martin Luther King, Jr., Martin told me

5

I never heard him use the word "colorblind" because in

6

his thinking we will never have a colorblind society.

7

And unfortunately, or fortunately, it is here, and it's

8

faced.

9

when you take it out, then that becomes a predominant

A lot of folks don't want to talk

I don't particularly.

One thing about my

And we have to take it into consideration.

And

10

factor in this whole thing.

11

you're going to do, but I don't think you've seen the

12

end of this problem yet.

13

REP. LEWIS:

14

SPEAKER MOORE:

15
16
17
18

So you're going to do what

Mr. Speaker.
For what purpose does the

gentleman from Harnett, Representative Lewis, arise?
REP. LEWIS:

Would the distinguished gentleman

from Durham yield to a question?
SPEAKER MOORE:

Does the gentleman from Durham,

19

Representative Michaux, yield to the gentleman from

20

Harnett?

21
22

REP. MICHAUX:

The gentleman will yield.

I

don't know how distinguished he is.

23

SPEAKER MOORE:

24

REP. MICHAUX:

25

REP. LEWIS:

He yields.
I yield.

Mr. Speaker, I appreciate not only

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the distinguished but the well-dressed gentleman taking

2

time to yield to me.

3

Representative Michaux, you referenced the

4

Harris decision in your remarks.

5

operate under the belief that you have it before you?

6

7

REP. MICHAUX:

Would I be safe to

You -- yes, sir.

Here it is,

yes.

8

REP. LEWIS:

Thank you.

9

question, Mr. Speaker?

10

SPEAKER MOORE:

11

a second question.

12

yield?

May I ask another

The gentleman is recognized for

Does the gentleman from Durham

13

REP. MICHAUX:

14

SPEAKER MOORE:

15

REP. LEWIS:

Yes, I yield.
He yields.

Thank you, Mr. Speaker.

16

Representative, may I ask you to please look at page 57

17

of that opinion?

18

REP. MICHAUX:

19

REP. LEWIS:

20

57?

Page 57, yes, sir.

And, sir, the

particular --

21

REP. MICHAUX:

22

REP. LEWIS:

Yes, sir, I have it.

Right before the number 2 there,

23

there is a sentence that reads in part, "As the

24

defendants," which would have been us, "fail to meet

25

the third tingles factor, the Court concludes that

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1

section 2 did not require the defendants to create a

2

majority-minority district in CD 1."

3

saying that the Court finds that racially polarized

4

voting was not present or proven so that we shouldn't

5

have used it in drawing the map?

Is that not

6

REP. MICHAUX:

7

Representative Lewis.

8

was racially polarized showing in that.

9

meet the requirements, the third requirement of --

That's not what it says to me,
What is says to me is that there
You didn't

10

requirements in the Gingles case.

11

fact that if you have racial polarization, you have got

12

to take into consideration these factors.

13

REP. LEWIS:

14

gentleman another question?

15
16

Which set up the

Mr. Speaker, may I ask the

SPEAKER MOORE:

Does the gentleman from Durham

yield to an additional question?

17

REP. MICHAUX:

18

SPEAKER MOORE:

19

REP. LEWIS:

Yes, I yield.
He yields.

Thank you, Mr. Speaker, and thank

20

you, Representative.

21

page 56 of the same opinion of which we were just

22

looking.

If I may, would you turn to

23

REP. MICHAUX:

24

REP. LEWIS:

25

I have it, yes, sir.

Thank you, sir.

When the Court

writes, "the composition and election results under the

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1

earlier version of CD 1 vividly demonstrate that,

2

though not previously a majority -SWAP district,

3

white majority" --

4

your advice on --

5

bloc to defeat the African-Americans' candidate of

6

choice.

7

these two districts:

8

white voters supported the African-American candidate."

9

Does that

10

precisely

like

the opposite occurred in

significant

not indicate

find racially

is the operative part I'd

"the white majority did not vote as a

In fact,

11

this

the

that

crossover voting by

the Harris court did not

polarized voting?

REP. MICHAUX:

I'm not sure that

it

does,

12

Representative Lewis, because you have to have certain

13

iterations

14

and it

15

Gingles proved it

16

Stevens'

17

basically

18

African-Americans, or whatever ethnic group, out.

19

that has happened -- it

20

personally had it

21

here is actually

stating

22

have to happen.

And of course, you know, you're on

23

that segment.

24
25

in these types of situations.

is a known fact,

case proved it,

of the other cases,

that whites sometimes

vote as a bloc in order to keep

I've

And

has happened in my case.

happen to me.

REP. LEWIS:
additional

known,

has been proved.

and it

and several

It's

So this

iteration

in

what should not or could not

got that

page marked also.

May I ask the gentleman an

question?

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1
2

SPEAKER MOORE:

Does the gentleman from Durham

yield to an additional question?

3

REP. MICHAUX:

4

SPEAKER MOORE:

5

REP. LEWIS:

Yes, sir.
He yields.

Just for the sake of this

6

conversation, Representative Michaux, and I've

7

acknowledged freely in earlier meetings that you are an

8

attorney and I'm not.

9

law.

You're much more versed in the

Would you acknowledge at least with me -- and I

10

apologize to skip around in this opinion, but do --

11

would I be correct to operate under the understanding

12

of this opinion that at least in the opinion issued in

13

the Harris court, that the third Gingles element of

14

establishing racially polarized voting per this court

15

decision was not met?

16

REP. MICHAUX:

17

REP. LEWIS:

Yes, it says that.

Thank you, sir.

Mr. Speaker, may

18

I ask the gentleman another question on another subject

19

matter?

20

SPEAKER MOORE:

Does the gentleman from Durham

21

yield to an additional question from the gentleman from

22

Harnett?

23

REP. MICHAUX:

24

SPEAKER MOORE:

25

REP. LEWIS:

Yes, sir.

I yield.

He yields.

Thank you, Mr. Speaker, and thank

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1

you, Representative.

2

map that is prepared before us and also perhaps the

3

steps that were taken in the preparation of those maps,

4

I was wondering, sir, if you would speak to what -- and

5

of course, I only ask for your personal knowledge, of

6

what steps the Democratic Party took, or the Democratic

7

members of this House took, to comply with the court

8

order that we were all notified about on February 6.

9

REP. MICHAUX:

You mentioned in your remarks the

My answer to you, Representative

10

Lewis, on that is we were not ordered to comply with

11

that decision.

12

decision.

13

maps, so that decision was aimed at you.

14

in court.

15

them that advice.

16

the mistakes that you made.

17

kind of way you see, and it comes back, you say, well,

18

the minority party helped us do this.

19

You were ordered to comply with that

We did not draw the maps.

You drew the
The matter is

If the Court wants our advice, we will give
We tried to give you our advice on
You could take them any

This is a problem that you created.

This is a

20

problem that you have to solve.

21

opinion on it, they will ask us, and we are prepared

22

we will be prepared to answer any questions that the

23

Court raises with us on it.

24

Representative Lewis, let me just -- since you are

25

referring to the opinion, you referred to page 55 on

If the Courts want our

And by the way,

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1

that -- 56 on that.

2

evidence that

3

considered any sort

4

polarized -voting analysis

5

process."

On 54, "Strikingly, there is no

the General Assembly conducted or

So I

of a particularized
during the 2011 redistricting

just wanted to clear

6

REP. LEWIS:

7

gentleman another question?

8
9

that up.

Mr. Speaker, may I ask the

SPEAKER MOORE:

Does the gentleman from Durham

yield to an additional

question?

10

REP. MICHAUX:

11

SPEAKER MOORE:

12

REP. LEWIS:

13

you, Representative.

14

along the lines

15

Would it

16

General Assembly, as a member of the Joint Select

17

Committee, and of the House Committee, while, by your

18

own remarks, had the opportunity to participate

19

offer

20

that and are preparing instead to offer

21

developed to the Court?

22

that

23

in the legislative

24

judicial

25

Anytime.

He yields.

Thank you, Mr. Speaker, and thank
I

just

of the last

be fair

Yes, sir.

to say that

wanted to -- and this
question I asked, if

So it

would be fair

preferring

and

not to do

maps that

to constructively

process,

I may.

you, as a member of the

input to the map, have instead elected

you declined largely

is

you

to say
participate

to focus on the

process?
REP. MICHAUX:

In the joint

meeting of the

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1

committee, several amendments were offered by the

2

minority party.

3

instances in this body when we have tried to

4

participate and offer what we thought were constructive

5

amendments, whether some, even folks on your side have

6

agreed, we have been struck down.

7

refer to my good friend Martin Luther King, Jr.

8

said, Mickey, you have always got to be able to -- if

9

they hit you on one side to turn the other cheek and

They were all killed.

In other

And here again, I
Martin

10

let them hit you on -- you know, don't hit back.

11

I've been hit on both cheeks by you-all, and I am just

12

not going to let you hit me anymore.

13

mean, that's it, Mr. Lewis, why should we, why should

14

we -- when you haven't sought our help in the beginning

15

and you haven't sought our help now.

16

us anything.

17

maps before we even had a committee meeting.

And that's -- I

You haven't asked

You have already gone on and done these

18

REP. LEWIS:

19

gentleman another question?

20

Well,

Mr. Speaker, may I ask the

SPEAKER MOORE:

Does the gentleman from Durham

21

yield to an additional question from the gentleman from

22

Harnett?

23

REP. MICHAUX:

24

SPEAKER MOORE:

25

REP. LEWIS:

Yes, I yield.
He yields.

Thank you, Mr. Speaker, and thank

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20
1

you, Representative.

2

minutes before me, and I am certainly prepared to be

3

corrected.

4

Democratic Party, offer amendments in the form of a map

5

or guidelines to how the map should look, or were those

6

amendments largely unrelated to the drawing of a map?

7
8

I do not have the committee

Did members of the minority party, the

REP. MICHAUX:

The amendments affected the

criteria under which the maps were to be drawn.

9

REP. LEWIS:

10

And thank you, Mr. Speaker.

11
12
13
14
15
16

Thank you, sir, for your time.

SPEAKER MOORE:

For what purpose does the

gentleman from Bladen, Representative Brisson, arise?
REP. BRISSON:

To see if Representative Lewis

will yield for a couple of questions.
SPEAKER MOORE:

Does the gentleman from Harnett

yield to the gentleman from Bladen?

17

REP. LEWIS:

18

SPEAKER MOORE:

19

REP. BRISSON:

I do, Mr. Speaker.
He yields.
Thank you, Mr. Speaker.

Thank

20

you, Representative Lewis.

21

here to get through my questions, but in the beginning

22

when the Courts made the decision, it was certainly

23

on -- obviously it was on district 1 and 12, which was

24

two out of the 13 districts.

25

certainly not speaking for any of the other members,

It may take me a minute

And, I guess, I'm

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1

but I kind of assumed that should we -- evidently,

2

we've got a problem there.

3

thought, I assumed, that maybe the problem could be

4

worked out in the general consensus of that district.

5

Do you understand what I'm saying?

6

didn't involve the whole state.

7

how much time did the committee spend on concentrating

8

on trying to get in compliance in that general area

9

versus -- and when was the decision made to do it

When we started off I

That maybe it

One of my questions,

10

statewide because it changed?

11

committee was kind of -- I saw the members.

12

like that it was maybe not intentionally set up, but

13

basically a lot of -- it was close by neighbors

14

involved in that general vicinity of the state on the

15

committee, maybe one or two scattered out away from,

16

kind of, more distant away.

17

questions that I'm trying to ask, and I'll them both is

18

how much time, or if any time was spent on just the

19

general consensus and vicinity of the question -- the

20

two districts in question?

21

committee decide to expand and redo the whole state?

22

And did the committee look at maybe taking a look at

23

the committee then when they went to the full state to

24

maybe justify expanding the committee or make sure we

25

have broader input from throughout the state?

In the original
It looked

And after the two

And at what time did the

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1

REP. LEWIS:

Thank you for that question,

2

Representative.

3

First of all, you are right when you say the case that

4

was brought and adjudicated by the three-judge panel

5

involved the 1st Congressional District and the 12th,

6

not all 13.

7

what you're talking about is assigning geographic areas

8

where 733,498 or 499 people can elect a member to the

9

U.S. House.

Let me do my very best to answer.

However, when you're drawing districts,

So, when you change lines in one part of

10

the state, you are essentially moving people.

11

you move people that a cause in one district almost

12

certainly causes a change in those around it.

13

you'll notice when you look at the proposed map is that

14

some districts seem to have changed very little.

15

11th, for instance, the mountain district, really I

16

think the only change that was made there had to do

17

with trying to equalize some population because

18

additional population had been pushed west, if you

19

will, from the 10th and from the 5th.

20

the time spent, what the committee did was debate the

21

criteria that we felt would help us comply with the

22

Harris court decision.

23

to honor both the written law and the spirit in which

24

they issued the opinion.

25

a great deal of curative language in the opinion that

And as

So what

The

So, as far as

We respect the judges and want

But in candor, there was not

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1

said had you done X, Y and Z, we would not have found

2

the way we found.

3

it went through in a full and open session in which

4

amendments were, in fact, considered, and it adopted

5

criteria that it felt would help us be able to comply

6

with the court order.

7

equal population, the contiguity, the political data,

8

partisan advantage, doing away with the serpentine

9

nature of the 12th, compactness, and incumbency.

So what the committee did instead is

Those, as I have said, were the

So

10

once the committee adopted those criteria, we set about

11

and have been able to produce a map which is based on

12

those criteria.

13

I think what you're asking about in particular

14

is there are some counties that seem to be

15

geographically far away from either the 1st or the 12th

16

that their district lines have changed.

17

openly concede that you are right in the observation

18

that you have made.

19

analogy, if you picture a child playing with a balloon,

20

when the child will squeeze the balloon in one part,

21

another part will change its shape.

22

largely why districts all across the state changed.

23

But, again, I would point out, even though certain

24

counties may have changed the district they were in or

25

certain counties may be divided that weren't divided

And I will

But, again, for lack of a better

And that is

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1

before, this map divides only 13 counties and only 12

2

VTDs.

3

used because a stay is not granted, at least based on

4

the criteria adopted by the committee, is a superior

5

map and we believe complies with what we were ordered

6

to do by the Court.

So this map, to the extent that it has to be

7

REP. BRISSON:

8

SPEAKER MOORE:

9

REP. BRISSON:

11

SPEAKER MOORE:

13
14
15
16

Does the gentleman from Bladen

wish to ask an additional question?

10

12

Thank you.

I just -Or does the gentleman wish to

debate the bill?
REP. BRISSON:

I just wanted to ask to make

sure that I got my question, both questions answered.
SPEAKER MOORE:

Does the gentleman from Harnett

yield to an additional question?

17

REP. LEWIS:

18

SPEAKER MOORE:

I yield.
He yields.

The gentleman is

19

recognized -- and Representative Brisson, I am trying

20

to do this orderly because the court reporter is trying

21

to make a record, so bear with me on that.

22

gentleman has the floor for a question.

23

REP. BRISSON:

The

Thank you, Mr. Speaker.

Thank

24

you, Representative Lewis.

25

committee ever look at expanding when we decided to

What -- so did the

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1

go -- that was one of my questions, expanding the

2

committee to make sure that we had a pretty much

3

representation statewide on the committee?

4

REP. LEWIS:

Thank you for that question,

5

Representative.

6

time you asked it, I apologize.

7

President Pro Tem made these appointments about a week

8

ago today.

9

even those opposed to the maps, would acknowledge that

And I did fail to answer it the first
The Speaker and the

We have been operating under -- I think

10

we have been operating under a very compressed

11

timetable.

12

ask the Speaker and the President Pro Tem to expand the

13

membership of the committees.

14

authority to do that.

15

that it was contemplated to expand the committee.

16

did make clear though, in every effort that we could,

17

that all members of the General Assembly, regardless if

18

they were voting members of the committee or not, were

19

encouraged to attend the committee and were certainly

20

given a chance to speak.

21

several did actually ask questions or take part in the

22

debate that were not actually seated members of the

23

committee.

24

pretty much a expected tradition of the General

25

Assembly that a member of the General Assembly that

And when the decisions were made, I did not

They certainly have the

I don't even know, in candor,
We

I think, in fact, I think

And I would point out that while it is

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26
1

wants to address a standing committee can certainly do

2

so, I think we actually went above and beyond trying to

3

reassure members that their input or their questions

4

were welcomed whether or not they were a seated member

5

of the committee.

6
7

REP. BRISSON:

Mr. Speaker, can I speak on the bill?

8
9

Thank you, Representative Lewis.

SPEAKER MOORE:

The gentleman has the floor to

debate the bill.

10

REP. BRISSON:

Thank you, Mr. Speaker.

Ladies

11

and gentlemen, I just -- and I know that we have ended

12

up with less split counties, divided counties, which is

13

great.

14

small populated counties, and I represent -- two out of

15

three that I represent are kind of considered small

16

population -- any time that the smaller counties have

17

to be divided, it does make a big difference to the

18

people.

19

general -- people in general in small populations, they

20

feel like divided, when you divide them, they are not

21

whole.

22

with the small population to begin with.

23

that maybe our word is not heard.

24

heard quite as well as the larger counties populated.

25

But when you divide us in half or take a third of our

But I just want to remind this body that with

Maybe not statewide concerns, but the

And we don't get a whole lot of recognition
We don't feel

Our message is not

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27
1

folks, it does have the people concerned that maybe we

2

don't end up with the representation in Congress or

3

wherever it be.

4

about the small populated.

5

anything to help those situations, I hope that we will

6

certainly consider that.

7

Speaker.

8
9
10
11
12

And that is my concern and it is all

SPEAKER MOORE:

Anytime that we can do

Thank you so much, Mr.

For what purpose does the

gentleman from Wake, Rep. Martin, arise?
REP. MARTIN:

To see if the gentleman from

Harnett would yield to a few questions.
SPEAKER MOORE:

Does the gentleman from

13

Harnett, Representative Lewis, yield to the gentleman

14

from Wake?

15

REP. LEWIS:

16

SPEAKER MOORE:

17

REP. MARTIN:

I yield, Mr. Speaker.
He yields.
Thank you, Mr. Speaker, and thank

18

you, Representative Lewis.

19

committees and tried to pay attention to the questions

20

that were asked.

21

the sitting next to Representative Torbett, and we were

22

cutting up in class a little bit.

23

Lewis, I may repeat some of the questions that you have

24

already attempted to answer and for that I apologize,

25

but blame Representative Torbett for that.

I was in attendance in the

Unfortunately, I made the mistake of

So, Representative

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1

Mr. Speaker, the first question I would ask the

2

gentleman from Harnett is regarding Dr. Hofeller who I

3

believe he said was the map drawer.

4

is, was Dr. Hofeller paid for his services with public

5

funds?

6

money?

7

And my question

And if so, how much did he receive in public

REP. LEWIS:

Thank you for that question,

8

Representative.

9

invoiced the state yet.

Dr. Hofeller has not, to my knowledge,
I do anticipate that he will.

10

I don't have access to that at the moment.

11

certainly would not exceed the 25,000 that was

12

authorized to Chairman Rucho and myself on behalf of

13

the Republicans and the 25,000 that was authorized to

14

the Democrats to be able to produce the maps.

15

don't have an exact figure.

16

REP. MARTIN:

17

It

But I

I'm sorry.

Thank you, sir.

Mr. Speaker, to

ask another question of the gentleman.

18

SPEAKER MOORE:

Does the gentleman from Harnett

19

yield to an additional question from the gentleman from

20

Wake?

21

REP. LEWIS:

22

SPEAKER MOORE:

23

REP. MARTIN:

I yield.
He yields.
Thank you, Mr. Speaker.

Thank

24

you, Representative Lewis.

25

been quite up front that this is an attempt to get ten

Representative Lewis has

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29
1

seats for Republicans and three for Democrats and that

2

this has partisan purposes.

3

gentleman from Harnett is, is this essentially a

4

partisan gerrymander?

5

REP. LEWIS:

So my question to the

Well, thank you for that question,

6

Representative.

7

before you was drawn using criteria that was openly

8

debated and adopted by the Joint Redistricting

9

Committee.

To be clear, the map that you have

Those factors that went into this were of

10

course the requirement to have equal population,

11

contiguity.

12

the map.

13

map.

14

Congressional District.

15

a lot to what Representative Brisson was just referring

16

to, trying not to split the smaller rural counties if

17

we could.

18

earlier in the committee, when a partisan such as you

19

or I look at a political map, some of us see an evil

20

sinister gerrymander if it doesn't meet the objectives

21

that we would like for it to meet.

22

a work of art or a work of good public policy.

23

would submit to you that the map was drawn based on the

24

criteria adopted by the committee, and is, in fact,

25

good public policy.

Political data did play a part in drawing

We did seek partisan advantage in drawing the

We did seek to eliminate the shape of the 12th
We did strive for compactness,

And we considered incumbency.

So, as I said

And some see it as
So I

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30
1

REP. MARTIN:

Thank you, Representative Lewis.

2

And, Mr. Speaker, to see if the gentleman would yield

3

to another question.

4

SPEAKER MOORE:

Does the gentleman from Harnett

5

yield to an additional question from the gentleman from

6

Wake?

7

REP. LEWIS:

8

SPEAKER MOORE:

9

REP. MARTIN:

I yield.
He yields.
And I apologize, Mr. Speaker, you

10

can rule me out of order pretty quickly, but a slight

11

editorial comment.

12

fathers, and I will note that when our babies made

13

their first production in their diaper, we think it is

14

beautiful also.

15

an apology.

16

Representative Lewis and I are both

And I will withdraw that, and with it,

Representative Lewis, the next question I would

17

have for you is do you believe that a partisan

18

gerrymander -- that -- I will restate that.

19

plan that would elect ten Republicans and three

20

Democrats in a state that is much more evenly divided

21

in electorates would violate the U.S. Constitution or

22

our State Constitution?

23

REP. LEWIS:

That a

Thank you for that question,

24

Representative.

25

criteria earlier, we did not look at political

To be clear, when I went through the

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1

registration because we believe that election results,

2

election outcome are much better predictors of how the

3

people actually vote than partisan registration is.

4

mean, you and I have had conversations in the past

5

about the continued growth of the total percentage of

6

voters that choose to list themselves as unaffiliated.

7

We have talked about that in the past.

8

that we looked at the political results of past

9

elections and have been able to produce a map that will

I

So we believe

10

still require the political parties or the individual

11

seeking to be elected within those districts to offer a

12

good solid candidate who can appeal to their base, be

13

it Democrat or Republican, but also be able to appeal

14

to the ever-growing unaffiliated.

15

while -- and I freely acknowledge that I sought

16

partisan advantage as based on the criteria in drawing

17

this map.

18

a fair and open attempt to comply with the court

19

ruling.

20
21

So, we believe that

We do believe that the map has been drawn in

REP. MARTIN:

Mr. Speaker, to see if the

gentleman would yield to another question.

22

SPEAKER MOORE:

Does the gentleman from Harnett

23

yield to an additional question from the gentleman from

24

Wake?

25

REP. LEWIS:

I yield.

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1

SPEAKER MOORE:

2

REP. MARTIN:

He yields.
Thank you, sir.

Representative

3

Lewis, my question actually is intended to get more at

4

the issue not of partisan registration but actual

5

election results, and more specifically, election

6

results in congressional elections since we are talking

7

about congressional districts here.

8

do you believe that it is constitutional under the

9

federal and the state constitutions to draw a plan, to

So my question is,

10

have a plan that elects ten Republicans and three

11

Democrats where election results of the past several

12

cycles are much more -- would suggest a much more --

13

are much closer than a ten to three margin?

14

REP. LEWIS:

Thank you for that question,

15

Representative.

16

different way.

17

committee which instructed the map drawers to do

18

certain things like try to maintain compactness, try to

19

make,

20

make the districts look more compact, be more compact,

21

keep more counties compact, we could have been much

22

more aggressive partisan-wise

23

that would elect 11 Republicans.

24

do that if you simply consider partisanship as a part

25

of the criteria adopted by the committee, which is what

you

And let me try to answer it a
But for the criteria adopted by the

know -- take incumbency into account, try to

trying

to obtain a map

But you can't really

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1

we did.

2
3

REP. MARTIN:

gentleman would yield to another question.

4
5

Mr. Speaker, to see if the

SPEAKER MOORE:

Does the gentleman from Harnett

yield to an additional question from the gentleman from
Wake?

7

Actually before the gentleman does -- before

8

these students leave, the students up on the right, the

9

Chair wanted to recognize a group of elementary

10

students from Easley Elementary School in Durham.

11

Would you all please stand so that we can welcome you

12

and thank you for being with us today.

13

your representatives are Representative Hall,

14

Representative Michaux, I believe Representative Meyer

15

has part of Durham.

Am I missing anybody?

16

REP. MICHAUX:

17

SPEAKER MOORE:

18

here, I don't think.

19

also.

20

From Durham

Luebke.
Representative Luebke is not

So those are your representatives

Thanks for being with us today.
Sorry for the interruption.

I believe the

21

gentleman from Wake was stating a question at this

22

point.

23

continue propounding the question to the gentleman from

24

Harnett.

25

The gentleman from Wake has the floor to

REP. MARTIN:

Thank you very much, Mr. Speaker.

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1

Representative Lewis, the question I'm going to ask is

2

an attempt to restate the question I've previously

3

asked, and the fault is all with me for not stating it

4

clearly.

5

Republicans, likely to elect ten Republicans and three

6

Democrats.

7

could have even done 11 Republicans and two Democrats,

8

and I am trying to understand and get an answer from

9

you as to whether or not you think that the plan you

You've produced a district with ten

You stated, I think, just stated that you

10

have now with the partisan result it has, in light of

11

congressional election results of North Carolina, is

12

constitutional?

13

REP. LEWIS:

Representative, thank you for that

14

question.

15

broken record.

16

not.

17

criteria, one of which was to seek partisan advantage

18

for the Republicans.

19

I think that is a good thing, I will tell you I do.

20

think you are a great man.

21

public servant.

22

than electing Democrats.

23

to help foster what I think is better for the country.

24
25

As -- and I'm not trying to sound like a
I know that you're an attorney.

I'm

I will tell you that the committee adopted

Now, if you ask me personally if
/

I think you are a fine

I think electing Republicans is better

REP. MARTIN:

So I drew this map in a way

Mr. Speaker, to see if the

gentleman would yield to another question.

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SPEAKER MOORE:

Does the gentleman from Harnett

2

yield to an additional question from the gentleman from

3

Wake?

4

REP. LEWIS:

5

SPEAKER MOORE:

6

REP. MARTIN:

7

me add for the record that I

8

Harnett is a fine public servant also with the interest

9

in the public at heart, and to boot, he has wonderful

10

I

yield.
He yields.
Thank you, Mr. Speaker.

And let

think the gentleman from

hair also.

11

Mr. Speaker and members, I

do feel that we have

12

a tendency to treat questioning on the floor of the

13

General Assembly like

14

the adage, physician heal thyself.

15

case lawyer heal thyself is appropriate.

16

want to turn this into a cross-examination, but I've

17

tried

18

constitutionality

19

think it

20

turning into cross-examination, I

21

to another question.

22

Hofeller and anyone else involved in the map drawing,

23

what data did they use to meet your stated criteria

24

attempting to get a ten to three Republican advantage?

25

a cross-examination.
I

We've heard

think in this
So I

don't

to answer the question about his opinion on the
of a partisan gerrymander.

I

don't

has been answered, but to avoid this from

REP. LEWIS:

would like

And that question is,

to move on
Dr.

of

Well, thank you for that question,

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1

Representative.

2

every member in the committee, the Joint Committee, the

3

Committee in the Senate, and the Committee in the

4

House, is a stat pack, if you will, that lists a

5

variety of races that over 2008, 2010, and 2014, we

6

list out all of the political contests that were used.

7

I'll be happy, if you would like me to, to let you know

8

which ones they were, but I think it's pretty clear to

9

the members and on the record which political contests

On every member's desk and also before

10

we used.

11

Commissioner of Agriculture 2008, you know, in fact --

12

yeah, I mean, we used a variety of political contests

13

from 2008 through 2014, all of which we provided to the

14

members on their desk.

15
16

Just real quick, Attorney General 2008,

REP. MARTIN:

Mr. Speaker, to see if the

gentleman would yield to another question.

17

SPEAKER MOORE:

Does the gentleman from Harnett

18

yield to an additional question from the gentleman from

19

Wake?

20

REP. LEWIS:

21

SPEAKER MOORE:

22

REP. MARTIN:

Yes, sir, I yield.
He yields.
Thank you, Mr. Speaker.

And Mr.

23

Speaker, the gentleman from Harnett has been most

24

gracious with his time in committee, in several

25

committee meetings over going through the lists and

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1

explaining what the races are and what the codes meant.

2

But I do want to ask just a couple of clarifying

3

questions on that if I could.

4

would it be accurate to say that the mapmakers

5

considered every one of the races that's listed in the

6

charts that were presented at committee several times.

7

REP. LEWIS:

8

REP. MARTIN:

9
10
11

Yes, sir.
And another question, Mr.

Speaker.
SPEAKER MOORE:

Does the gentleman wish to ask

an additional question?

12

REP. MARTIN:

13

SPEAKER MOORE:

14

Representative Lewis,

Yes, sir.
And does the gentleman from

Harnett yield to an additional question?

15

REP. LEWIS:

16

SPEAKER MOORE:

17

REP. MARTIN:

Yes, sir.
He yields.
Thank you, Mr. Speaker.

And,

18

Representative Lewis, are there any races that are not

19

listed on these charts that the mapmakers considered?

20

REP. LEWIS:

21

REP. MARTIN:

22
23
24
25

No, sir.
Mr. Speaker, to see if the

gentleman would yield to another question
SPEAKER MOORE:

Does the gentleman yield to an

additional question?
REP. LEWIS:

I yield.

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1

SPEAKER MOORE:

2

REP. MARTIN:

He yields.
Thank you, Mr. Speaker.

Thank

3

you, Representative Lewis.

4

different races, did you weigh, for example, the

5

results in lieutenant gubernatorial elections equally

6

with those of say a gubernatorial election?

7

REP. LEWIS:

In looking at those

Thank you for that question,

8

Representative.

9

the races that we used were statewide.

I think it is important to understand,
We were trying

10

to get, you know, the broadest swath of data that would

11

apply equally in every district.

12

members say, well, why didn't you look at the race for

13

Congress and whatnot, and it was just too hard to

14

figure out how the data -- you know, for districts that

15

have changed over time would work.

16

we weigh them equally, to be candid with

17

that those of us that spend way too much time in

18

politics know that certain races, maybe weren't as

19

equal as they should be because one party or the other

20

either had a nonincumbent candidate that was trying to

21

seek the office, which we believe -- you know, I'm sure

22

you would agree, that most of the time, most the time

23

incumbency is an advantage.

24

been an underfunded campaign.

25

them, but, no, my gut would tell me that I would gain

I've had a couple of

So in terms of did
you,

I think

Sometimes it might have
So we looked at all of

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1

more or garner more by looking at the Governor's

2

results than I would the Lieutenant Governor's results

3

and so on.

4

blend the results.

5

don't always come up like we want them to.

6

Attorney General, the Democratic nominee for AG has won

7

in all 13 of these.

8

candidate, if that is what you're trying to ask,

9

certainly that matters.

10
11

But we looked at all of them and tried to
I mean, you know, frankly they
The

So certainly the strength of the

REP. MARTIN:

Mr. Speaker, to see if the

gentleman would yield to another question.

12

SPEAKER MOORE:

Does the gentleman from Harnett

13

yield to an additional question from the gentleman from

14

Wake?

15

REP. LEWIS:

16

SPEAKER MOORE:

17

REP. MARTIN:

I yield.

Yes, sir.

He yields.
Thank you, Mr. Speaker.

I would

18

like to thank the gentleman from Harnett for his

19

patience also.

20

SPEAKER MOORE:

Representative Martin, I

21

apologize, the gentleman's time has expired.

22

will, however, at the Chair's discretion will allow the

23

gentleman to ask one additional question.

24
25

REP. MARTIN:

The Chair

I would be happy to yield in my

time if that is permissible under the rules because

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1

this is my fault.

2

SPEAKER MOORE:

It is actually the gentleman's

3

time spending to ask the question.

4

give the gentleman one additional question.

5

REP. MARTIN:

But the Chair will

Thank you, Mr. Speaker.

6

Representative Lewis, the question I would ask is, do

7

you believe under these maps that African American

8

voters have a reasonable opportunity to elect a

9

candidate of their choice in any of the districts

10

you've drawn?

11

they have such an opportunity?

12

determine that?

13

And if so, which of those districts do

REP. LEWIS:

And if so, how did you

Thank you for that question,

14

Representative.

15

we used in drawing these maps has been spelled out.

16

One of those criteria was not race.

17

considered in the drawing of these maps.

18

what the racial composition of the voters that reside

19

in these districts is.

20

question that I can give a direct answer to as race was

21

not among the criteria considered when we drew these

22

maps, based on our understanding of the Harris case,

23

which said that racially polarized voting did not

24

exist.

25

As I've said before, the criteria that

Race was not
I do not know

So I don't feel that is a

Thank you.
SPEAKER MOORE:

And, Representative Martin,

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1

should the gentleman wish additional questions, the

2

gentleman will be recognized a second time for that in

3

just a bit if the gentleman so desires.

4
5

For what purpose does the lady from Buncombe,
Representative Fisher, arise?

6
7

REP. FISHER:
sponsor, please.

8
9

To ask a question of the bill

SPEAKER MOORE:

Does the gentleman from Harnett

yield to the lady from Buncombe?

10

REP. LEWIS:

11

SPEAKER MOORE:

12

REP. FISHER:

Yes, sir.

I yield.

He yields.
Take a breath, Representative.

I

13

know you've been on the spot for a little while, but I

14

appreciate your taking a moment to answer.

15

concern passed along to me and because it happens to

16

deal with my district, which I thought was kind of

17

unusual because I thought that this was only going to

18

deal with a couple of congressional districts, but it

19

seems like it is stretching even further west.

20

tell

21

on Haywood Road in West Asheville might have been moved

22

from the 10th to the 11th district?

23

I had a

Can you

me why, for example, Calvary Baptist Church area

REP. LEWIS:

Thank you for the question,

24

Representative.

25

one of the most beautiful parts of our state, I am not

And sadly, while I know you represent

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1

immediately familiar with the church that you

2

referenced.

3

made in Buncombe County were to equalize population

4

that had been moved around because other districts were

5

redrawn.

I will tell you that the changes that were

6

REP. FISHER:

7

SPEAKER MOORE:

A follow-up.
Does the gentleman from Harnett

8

yield to an additional question from the lady from

9

Buncombe?

10

REP. LEWIS:

11

SPEAKER MOORE:

12

REP. FISHER:

Yes, sir.

I yield.

He yields.
And I think then from your

13

answer -- from your previous answer, that I can assume

14

that the same would be true for having moved part of

15

Biltmore Forest in Asheville to the 11th, east of

16

Sweeten Creek Road, from the 11th to the 10th.

17

then an area of North Asheville in Woodfin from the

18

10th to the 11th; am I assuming correctly?

19

REP. LEWIS:

And

Thank you for the question,

20

Representative.

21

counties would have been one of the criteria that was

22

listed earlier and considered by the committee.

23

a map on my desk that shows only whole VTDs of Buncombe

24

County.

25

actually fussed at me because I've been gone for two

The reason that we would have divided

I have

I'm afraid I just don't know -- my wife

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1

weeks doing this.

2

this weekend.

3

when I'm there, but I don't that we're going to be able

4

to make it.

5

She would like to go to Grove Park

So maybe I could visit Biltmore Forest

REP. FISHER:

Well, I hope you'll be able to.

6

There's a great Arts and Crafts Mission Furniture

7

Conference going on there right now that my daughter

8

helped plan.

9

But I think --

SPEAKER MOORE:

10

additional question?

11

REP. FISHER:

Does the lady wish to ask an

I would like to speak on the bill

12

for just briefly, Mr. Speaker.

13

SPEAKER MOORE:

The lady is recognized to

14

debate the bill and to do a public service announcement

15

for Asheville as well.

16

REP. FISHER:

Sure, I can do an advertisement

17

anytime.

18

representative taking the time to try to address my

19

questions.

20

make in having asked the questions in the first place

21

is that we are, again, embarking on an exercise that

22

will further confuse the voters.

23

listened to the four or so hours of the public hearing

24

that we had several examples of people who have gone to

25

their polling places, filled out their ballot, only to

I'm very proud of my town.

I appreciate the

But the point, I guess, I would like to

I know from having

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1

find out that they didn't know who their congressperson

2

was.

3

another on their ballot.

4

was their Congressperson, but it turns out it was

5

somebody else.

6

we're going to have to do this, there needs to be some

7

way, some efficient way, to educate the voters about

8

the changes that are being made.

9

easier for them to do what is their right to do, which

So they were surprised to see either one name or
They thought that this person

And I would just caution us that if

And try to make it

10

is exercise their vote.

11

to make the body aware, or again aware, of how

12

difficult this whole thing is making it for the voters

13

in North Carolina.

14

So, I just felt it important

Thank you, Mr. Speaker.

SPEAKER MOORE:

Members, I hope you'll join me

15

in welcoming, we have another school group with us

16

today.

17

the Arts here in Raleigh with us.

18

please stand and let us welcome you.

19

being with us today.

20
21

We have students from the Longleaf School of

Representative Farmer-Butterfield, arise?
REP. FARMER-BUTTERFIELD:

23

SPEAKER MOORE:

25

Thank you for

For what purpose does the lady from Wilson,

22

24

If you all would

To speak on the bill.

The lady has the floor to

debate the bill.
REP. FARMER-BUTTERF/ELD:

Thank you,

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1

Mr. Speaker.

2

African American.

3

me in my district, I went from Wilson and Edgecombe to

4

Wilson and Pitt.

5

Wilson were reluctant about the change in terms of

6

redistricting as it related to my having Pitt County.

7

But if I look back, I am happy with Pitt County and I

8

consider it a blessing that I was able to move from

9

Wilson, Edgecombe with experience and represent the

10
11

I feel compelled to speak on this as an
If I think about redistricting for

My constituents from Edgecombe and

economic engine of the East in Pitt County.
So today in looking at the congressional

12

districts, I want to talk about the process.

13

hearings were convened before the release of draft maps

14

for the public to view.

15

and necessary?

16

respond to.

17

moving from one extreme to the other.

18

initial maps, we went from African Americans exceeding

19

50 percent in those districts, the two key districts

20

that we're talking about that have been changed.

21

we are looking at no consideration at all for race.

22

It's overreaching in that the maps guarantee election

23

of ten Republicans and three Democrats so is said.

24

Democrats are 43 percent of the voters in this state

25

and only given an opportunity for three districts for

Public

Was that really cost efficient

Nothing was available for the public to

Why would we do that?

Let's talk about
In drawing the

Now,

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1

Congress doesn't seem balanced at all.

2

the districts that was recently drawn, we were told

3

that it was leaning Republican.

4

legislators, are they required to protect minority

5

communities from racially polarized voting patterns?

6

Yes, they are.

7

indeed, public hearings mattered and the input of

8

African Americans had been taken into consideration,

9

perhaps we would not be in this position we are in

What about

Voter discrimination matters.

10

today.

11

we are in today.

12

In fact, one of

If,

In fact, I know we would not be in the position

Finally, when the leadership was asked in

13

committee this morning if the map was drawn prior to

14

the public hearings held on Monday and prior to the

15

criterion being decided on Tuesday the response was, I

16

can't say.

17

you, I ask that you vote against these maps that have

18

been redrawn.

19
20
21
22
23
24
25

So given all of these factors I share with

Thank you.

SPEAKER MOORE:

For what purpose does the

gentleman from Forsyth, Representative Hanes, arise?
REP. HANES:

To ask the bill sponsor a question

and to speak on the bill.
SPEAKER MOORE:

Does the gentleman from Harnett

yield to the gentleman from Forsyth?
REP. LEWIS:

I yield.

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1

SPEAKER MOORE:

2

REP. HANES:

He yields.

Representative Lewis, let's talk

3

about race for just a second, and some of the

4

representatives here know that I like this

5

conversation.

6

do it -- talk about race without getting racial.

7

want to ask you a question, and it is a little nuanced

8

from the questions that have been asked to you

9

regarding race this morning.

And I fashion myself as a person who can
So I

Representative Lewis,

10

does race impact the maps that have been drawn?

11

question is not did you consider race, but does race

12

impact the maps that have been drawn?

13

REP. LEWIS:

The

Thank you for the question,

14

Representative.

15

not a consideration when the maps were drawn.

16

not, to be candid with you, sure I truly understand the

17

nature of the nuanced question.

18
19
20
21
22

All I can tell you is that race was

REP. HANES:

Okay.

Okay.

I am

Thank you.

Mr. Speaker, to speak on the bill, please.
SPEAKER MOORE:

The gentleman from Forsyth has

the floor to debate the bill.
REP. HANES:

So, ladies and gentlemen, let's

23

have a brief conversation about race, and it goes all

24

of the way back to the beginning.

25

the beginning God created heaven and earth.

So as you know, in
He created

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1

man and woman and said, this is good.

2

created America, and he said, I like that too.

3

then black folk and white folk got together in a most

4

disagreeable one-sided contract negotiation.

5

assure you that both black folk and white folk got to

6

America on a boat.

7

folk, my folks, continued to have disagreement about

8

this contract that we got brought into here.

9

the years we got our freedom.

Okay?

And then he
And

And I can

And over the years black

And over

Representative Michaux

10

was elected to the House of Representatives, and here

11

we are today talking about race and elections.

12

The question I asked was, does race impact this

13

map?

14

answer is, of course it does; of course it does.

15

we have here is we have Democrats submerged in majority

16

Republican districts, ten of them, and Republicans

17

submerged in majority Democratic districts, three of

18

them.

19

numbers for the state, there are 1.9 million

20

Republicans; 95 percent of them are white.

21

2.6 million Democrats; 41 percent of them are black.

22

So saying in some way that we did not use race is

23

frankly just simple subterfuge toward achieving a

24

broader goal.

25

during our committee, and that goal was the maintenance

That is either directly or indirectly.

Of course, it matters.

And the
What

If you look at the

The

And that is a goal that was admitted

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1

of districts that disenfranchise Democrats.

2

many ways, whether that is intentional or not, those

3

districts silenced the voices of people who look like

4

me.

5

And in

Two of the largest minority populations in this

6

state, Forsyth and Guilford County, have been silenced

7

with regard to congressional politics.

8

gone nine to four, with a district there in the Triad

9

maintained Representative Alma Adams, and we could have

We could have

10

achieved this goal of eliminating the serpentine

11

districts, as we've called them, of the 12th district.

12

And we could have been gone away from here hours ago.

13

We chose not to do that, and we continue to think about

14

these maps as not impacting race.

15

Let me just make one more statement, and it is

16

from a op-ed I wrote in the Winston-Salem Chronicle

17

this week.

18

paragraph of that statement as it regards to how we

19

need to think about and how race actually does matter,

20

you know, for us.

21

people and should be counted in the whole!

22

our voices, and our votes matter from Murphy to Manteo.

23

We are part of the fabric of North Carolina and have

24

earned our right to representation through

25

constitutionally consistent districts in every corner

And I want to read for you the last

I said, "Black people are, in fact,
Our lives,

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1

of this state.

2

blood, by protest, and through eventual freedom.

3

never the wrong time to do the right thing."

4

you.

5
6

We paid for that right by whip, through

SPEAKER MOORE:

REP. JONES:

8

SPEAKER MOORE:

10

Thank

For what purpose does the

gentleman from Rockingham, Representative Jones, arise?

7

9

It is

To debate the bill.
The gentleman has the floor to

debate the bill.
REP. JONES:

Thank you, Mr. Speaker.

Ladies

11

and gentlemen of the House, I have to say that I have

12

been quite fascinated with so many aspects of this

13

debate, and discussion throughout the committee process

14

and today on the floor, and I just want to speak to

15

that a little bit.

16

in the state of North Carolina for all of my life and

17

has been kind of a student of election history over the

18

past few decades in particular, I continue to be quite

19

fascinated and have really enjoyed this conversation,

20

particularly when we have heard about gerrymandering.

21

And I think it behooves us a little bit to consider

22

maybe a little trip down memory lane when we think

23

about gerrymandering.

24

sure that a lot of people knew that the word was

25

invented until Republicans took the majority in 2010.

You know, as someone who has lived

Because, quite frankly, I'm not

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I never really heard it reported on very much through

2

the media.

3

General Assembly.

4

were in committee this week as we saw the maps up on

5

the wall that went all the way back to 1992 at least.

6

I also happen to recall a time that the state

7

legislature looked very different than it does today.

I never heard it spoken about in the
I thought it was fascinating as we

And, you know, there was no stone unturned.
9

We

remember a time of single-member districts and

10

two-member districts and three-member districts and

11

four-member districts.

12

keep the majority in the time at the majority that

13

seemed to be fine.

14

hear today representing the minority party that used to

15

be in the majority, I have to wonder, you know, where

16

were those voices in the Democratic Party for decades

17

and decades and decades?

You know, whatever it took to

And so a lot of the voices that I

18

You know, I've heard it also a lot of

19

complaining about the fact that there are ten

20

Republican congressman and three Democrats.

21

currently are and that these maps as, Representative

22

Lewis has been very candid and transparent and honest,

23

something that I for one greatly appreciate, and

24

would've greatly appreciated that conversation over the

25

decades.

That there

So thank you, Representative Lewis, for your

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honesty and integrity and transparency in coming right

2

out and saying that, yes, I do believe as we adopted in

3

the committee that there was an attempt made at that

4

partisan advantage.

5

from the other side that enjoyed that partisan

6

advantage because of gerrymandering for so many

7

decades.

8
9

And I keep hearing the complaints

I would just remind the members of this body
that if you look over the last 40 years and see how

10

North Carolinians have voted consistently in federal

11

races, I would remind you that in eight of the last

12

nine presidential elections, they have voted

13

Republican.

14

would remind you that you may not know that in the last

15

16 United States Senate races in North Carolina, 13 of

16

those races went Republican.

17

the time.

18

that if you have ten Republicans and three Democrats,

19

which is 77 percent, you might could make the argument

20

that Republicans are underrepresented.

21

of the matter is these maps are not your problem.

22

problem is that your national party has left the values

23

of the majority of the people in North Carolina.

24

would take you back to the 2010 election of the

25

legislature when this Republican majority gained its

That is 89 percent of the time.

And I

That was 81 percent of

So to me, I don't see a problem in thinking

But the point
The

And I

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1

majority by 16 votes.

2

Democrats drew.

3

over the years that eliminated the two and three and

4

four-member districts, and we have the pod system now

5

where you can't just divide counties wherever.

6

would just remind the listeners and the voters and the

7

students from North Carolina to study your history and

8

to understand when you hear all these comments and all

9

these complaints about gerrymandering, well, we sat at

Those were under maps that the

And fortunately, we had court cases

But I

10

the master's feet for decades and perhaps some people

11

learned something.

12

fair.

13

The Republicans didn't like the map for decades, but

14

they are fair, they are legal, and they are by the

15

rules.

16

Okay?

But I would suggest that they are

I understand the Democrats don't like it.

And finally, ladies and gentlemen, I would not

17

accept that Democrats cannot be elected in these

18

districts.

19

for instance, we mentioned this in committee, the 2008

20

election for the Attorney General, the Democrat won 13

21

out of 13 of these congressional districts.

22

down the line, the State Auditor, the Democrat won 9 of

23

13 of these districts.

24

Insurance won a majority of these districts.

25

ladies and gentlemen, I would submit that the people of

If you look at the voting data before you,

You go

I believe the Commissioner of
And so,

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North Carolina are not robots.

2

opportunity to elect the candidate of their choice, and

3

they can and they do cross party lines whenever they

4

feel it necessary.

5

so I would suggest that we trust the voters of North

6

Carolina to go out there and make their choice.

7

Recognize that we are putting forward fair and legal

8

maps based on what the courts have directed us to do,

They have the perfect

They look at the candidates.

And

and I commend, for one, the people who have worked
10

very, very hard.

11

staff that has worked hard, the people that have worked

12

hard to put this forward.

13

difficult task in a very short period of time, and I

14

think we should be proud of the process and the

15

results.

16
17

I want to mention once again the

Thank you, Mr. Speaker.

SPEAKER MOORE:

REP. FLOYD:

19

SPEAKER MOORE:

Inquiry, with the Chair.
The gentleman may state his

inquiry.

21
22

For what purpose does the

gentleman from Cumberland, Representative Floyd, arise?

18

20

We have been given a very

REP. FLOYD:
Chair.

It is a very simple inquiry, Mr.

Are we going to meet the 5:00 deadline?

23

SPEAKER MOORE:

24

For what purpose does the gentleman from

25

One way or another.

Haywood, Representative Queen, arise?

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REP. QUEEN:

2

SPEAKER MOORE:

3

TO speak on the bill.
The gentleman has the floor to

debate the bill.

4

REP. QUEEN:

You know, we have heard a lot of

5

good points being made, but whenever your criteria is

6

for political advantage, this General Assembly is

7

disenfranchising voters.

8

select their voters versus voters selecting their

9

politicians, something is awry.

10

Where politicians get to

Now, Representative Jones was talking about

11

history and the 2010 election was a historic one

12

because it was the first election since Citizens United

13

was passed, and there was about $20 million that was

14

never in our elections that swung a lot of them.

15

in that election, and I experienced that tsunami of

16

outside money.

17

races, but for this body to work on a bill that

18

basically empowers the politicians, not the citizens,

19

for the vote when the absolute foundation of our system

20

is one vote per citizen and every vote is equal.

21

think if there was a -- or I will just -- I'll say, how

22

does

23

in a manner that we are speaking and in the manner it

24

was done after the last census by this body, how does

25

that affect the voters' trust in the system?

I was

So things have historically affected

I

whenever you do that, whenever you gerrymander

Will

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1

their vote count equally or have they been

2

disenfranchised by the drawing of the district that

3

they live in where their vote really won't count in

4

that particular district?

5

I'll use as a data point on that is registered voters

6

self-identify themselves in this state, over

7

2.76 million Democrats and 2.01 million Republicans.

8

The democrats self-identify, but they are

9

disenfranchised in many of their districts by the

And one of the things that

10

gerrymandering that has gone on.

11

voting a truthful one vote per person, we need to

12

recognize every vote should count equally.

13

think we're doing that here.

14

criteria that has been stated, been stated quite

15

clearly that that's not what we're doing, but that is

16

what we should be doing.

17

second one is, in my region I would contend the

18

criteria that should be in addition to one vote per

19

citizen and every vote counts equally, that should be

20

certainly the criteria, the first one.

21

is communities of interest should be contained in this

22

compactness.

23

know, and we have one urban core, one city, Asheville,

24

a wonderful city, that has been the center of our

25

mountain region since our state was founded.

If we want to make

I don't

I think it is clearly the

So that's that point.

The

The second one

And I live in the mountains, as you all

It has

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1

grown to be a fabulous center.

2

gerrymandering last time that the courts have thrown

3

out -- or -- has taken our urban core away from our

4

region.

5

his region in his district.

6

Taylor or Heath Shuler, he's Democrat or Republican,

7

because you know the 11th district has flipped back and

8

forth for decades, but we always had a unified district

9

with our urban core in it.

Well, the

So our congressman does not have the city of
So whether he's a Charles

But for complete political

10

advantage, our congressional district has been neutered

11

from its urban core, and we all know that the urban

12

cores drive the economics of regions.

13

reasons I think this is a very unfortunate bill because

14

neither of these important issues, communities of

15

interest and one vote per citizen, are embodied in the

16

criteria that have been used to draw it.

17

REP. STAM:

18

SPEAKER MOORE:

19
20
21
22
23

So for these two

Thank you.

Mr. Speaker.
For what purpose does the

gentleman from Wake, Representative Stam, arise?
REP. STAM:

Would Representative Queen yield

for one question?
SPEAKER MOORE:

Does the gentleman from Haywood

yield to the gentleman from Wake?

24

REP. QUEEN:

25

SPEAKER MOORE:

I will.
He yields.

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REP. STAM:

Representative Queen, I chaired our

2

State Platform Committee for a few years; it's

3

available.

4

policies and platform of your party so that you would

5

attract voters?

6
7

REP. QUEEN:

SPEAKER MOORE:

REP. MARTIN:

Mr. Speaker, I think to speak a

second time.

12
13

For what purpose does the

gentleman from Wake, Representative Martin, arise?

10
11

I try to speak to the needs of the

citizens in this state every day, Representative Stam.

8
9

Have you ever thought of maybe changing the

SPEAKER MOORE:

The gentleman is recognized to

speak on the bill a second time.

14

REP. MARTIN:

Thank you very much, Mr. Speaker.

15

Members, I'll leave the gentleman from Harnett alone

16

now.

17

questions.

18

statements that were made both in the course of this

19

debate and throughout the committee debate and also to

20

the press.

He was good to indulge me in a long series of
But I do want to respond to a couple of

21

There has been a contention made somehow that

22

Democrats failed to participate in this process, that

23

we offered no alternatives, and nothing could be

24

further from the truth.

25

amendments -- which I think I'm correct in saying that

We offered several

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1

the record will show were opposed by every single

2

Republican member of the committees.

3

committees the Democratic members of the committee told

4

you that you needed to draw districts that gave

5

minority voters the opportunity to elect candidates of

6

their choice, that you have said that you refuse to

7

even consider that data.

8

these committees told you that they thought it was

9

important to keep Representative Alma Adams, a highly

In those

The Democratic members of

10

capable minority member of the North Carolina

11

Congressional Delegation, a district in which she has a

12

hope of getting reelected, but you declined to

13

incorporate that request.

14

important to consider one of the basic principles of

15

redistricting, communities of interest, which you heard

16

the gentleman from Bladen, Representative Brisson, I

17

think elude to in his comments and also the gentleman

18

from Forsyth, Representative Hanes, talk about also.

19

But you declined to incorporate that input.

20

without a doubt, we told you that we did not want to

21

see a partisan gerrymander.

22

proudly got up and proclaimed that that was exactly

23

what you were going to do.

24

you just chose to ignore our participation.

25

says differently is selling something.

We told you that it is

And

Yet you shamelessly and

We participated in full;
Anyone who

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The gentleman from Rockingham, Representative

2

Jones, also talked about the importance of history, and

3

any Democrat that gets up and tells you that Democrats

4

have not participated in partisan gerrymandering

5

doesn't know what they're talking about and is paying

6

no attention to history.

7

Century way of looking at things, and it is not what

8

the public in North Carolina in the 21st Century wants

9

to hear.

10
11

But that's a very 20th

Folks, people are turning away from your

party and mine.
Representative Stam's comment about platforms

12

and so forth was from out of nowhere.

13

had success in elections as much as Republicans.

14

think the statistics show and the consensus is we are a

15

purple state now, but in the end, we are a state that

16

is losing a partisan flavor because voters are turning

17

away in droves from you and us.

18

right now for your presidential nomination is a guy who

19

gave significant amounts of money to Hillary Clinton,

20

the leading candidate for my party's nomination.

21

other leading candidate for my party's nomination is a

22

senator who was unaffiliated until 2015.

23

tell both of our parties something.

We ignore what the

24

voters are telling us at our peril.

They do not want

25

to see partisan gerrymanderers like what the Democrats

Democrats have
I

The leading candidate

The

That should

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1

used to do and what the Republicans are doing now.

2

Now, I was not here the last time Democrats

3

drew statewide districts, but I was here and

4

participated significantly in drawing the Pender and

5

New Hanover districts, which were ordered by the

6

courts.

7

two to one Republican advantage, and it left with a two

8

to one Republican advantage.

9

for us to screw with the partisan mixture of that, but

That district came into my committee with a

There was probably no way

10

we didn't.

11

with the two Republican members from those counties

12

very satisfied with the result.

13

the guilt of the Democratic party's past on me.

14

say that I never have and never will support partisan

15

gerrymandering, and I think it is safe to say that a

16

good number of my colleagues on the other side of the

17

aisle joined me in that also.

18

And it left -- I think it is safe to say,

So don't try to lay
I can

So folks, let's join together and at least

19

acknowledge that the public does not think that the

20

definition of fair is the childish statement, you did

21

it first.

22

the gerrymandered districts that Democrats did in the

23

past passed also.

24

the ability to stop it.

25

chance to do this, let's find a better way.

These districts are going to pass just like

I'm under no illusions that we have
But next time we have the

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1
2
3
4
5
6

SPEAKER MOORE:

For what purpose does the

gentleman from Durham, Representative Michaux, arise?
REP. MICHAUX:

To ask Representative Lewis a

question.
SPEAKER MOORE:

Does the gentleman from Harnett

yield to the gentleman from Durham?

7

REP. LEWIS:

8

SPEAKER MOORE:

9

REP. MICHAUX:

I yield.
He yields.
And, David, honestly, this will

10

be my last question to you.

11

anything made or said or asked to what extent we must

12

preserve the existing minority percentages in order to

13

maintain the minority's present ability to elect its

14

candidate of choice?

15

REP. LEWIS:

In drawing the maps, was

Representative, thank you for the

16

question.

17

decision that they did not find the tests were met that

18

racially polarized voting existed and, as such, we did

19

not consider race in any way when we drew these

20

districts.

It is my understanding of the Harris

21

REP. MICHAUX:

22

SPEAKER MOORE:

23

Thank you.
For what purpose does the

gentleman from Cumberland, Representative Lucas, arise?

24

REP. LUCAS:

25

SPEAKER MOORE:

To speak briefly on the bill.
The gentleman has the floor to

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1

debate the bill.

2

REP. LUCAS:

Thank you, Mr. Speaker.

Ladies

3

and gentlemen, I have sat here very attentively as I

4

have contemplated what we are about to do.

5

is, we are about to sanction maps that will identify

6

folk who will represent us in the United States

7

Congress.

8

in a democracy.

9

you live in a democracy, our personal feelings and

And that

And I would have to say that we should live
We do live in a democracy.

And when

10

doubts ought to be superseded by what is best for our

11

people.

12

I've heard some snide snickering.

13

snide remarks about, well, you all gerrymandered, so

14

therefore, we're going to do it.

15

then, it is wrong now.

16

people of this great state of North Carolina.

17

deserve better than this.

18

bickering.

I am saddened to see that we're turning it

19

into that.

It should be about who can best do the job

20

for the people of this great state.

21

live in this state, many of them are now saying I don't

22

care whether you are identified as a Democrat or as a

23

Republican.

24

an independent.

And they want to have good

25

representation.

And that model is trending more and

And I'm not so sure that I'm getting that.
I've heard some

Well, if it was wrong

Let's do what's right by the
They

It is not about partisan

And people who

They want to be identified as a citizen,

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1

more, and the more we sit here and bicker, the more

2

we're going to see that trend grow.

3

We, last session, I thought were on the right

4

track here in the House when we voted to have an

5

independent commission draw boundary lines, and I

6

thought that was great.

7

Senate on board to do the very same thing.

8

most honest and the fairest way to get what we want to

9

have done accomplished.

I wish that we could get the
That is the

Let's get serious about this;

10

let's stop this partisan bickering; let's move on for

11

the state of North Carolina.

12
13

SPEAKER MOORE:

REP. L. HALL:

15

SPEAKER MOORE:

17

For what purpose does the

gentleman from Durham, Representative Hall, arise?

14

16

Thank you.

To speak on the bill.
The gentleman has the floor to

debate the bill.
REP. L. HALL:

Thank you, Mr. Speaker.

And I

18

want to certainly give thanks to all of those who

19

worked on these maps and have made what I will take to

20

be an effort to satisfy some different interests.

21

I referenced it yesterday when we talked about

22

what we were going to do for voting, and I want to

23

reference it again today because I think we may be

24

missing the boat on this.

25

occupy this leadership position and the Court has told

And I think because you

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you to back and draw these districts, they really

2

weren't saying come back and draw the districts for

3

yourself or to perpetuate your party's power.

4

were under the impression, and if they didn't

5

explicitly say it, I think they meant to say it, and

6

thought you understood it, that these districts should

7

be drawn for the people of the state of North Carolina.

8

Now we've already heard people talk about the

9

statistics and whether or not there is a certain number

They

10

of Democrats, a certain number of Republicans and

11

almost a equal number of unaffiliated as there are

12

Republicans, certainly a much larger number of

13

registered Democrats.

14

statistically that is the case.

15

turned on the head by the 10-3 districts that we've

16

drawn here now.

17

it.

18

intention, so that has been achieved.

19

advantage has been maintained, but not really in

20

compliance with the registered voters of North

21

Carolina.

22

So we know factually,

That is a fact.

Now that would be

We can't get around

And Representative Lewis did say that was his
So the partisan

I heard in response to the question about

23

expert map drawers that there was some confusion that

24

maybe the Democrats had authorized or entered into a

25

contract for the person who drew these maps to be paid

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from the $25,000 that the committee indicated could be

2

used by Democrats.

3

is no accounting problem, that someone gets confused

4

and thinks that the $25,000 that was supposed to be

5

authorized by the committee to Democrats had been

6

waived and authorized to be paid to the person who drew

7

these maps who we don't know how much he charged for

8

them.

9

of the committee, I think it says they have to be

We did not do that.

I hope there

But we certainly did not -- and under the terms

10

authorized and released by us.

11

I just want to make sure that is clear on the record

12

because I heard it stated otherwise.

13

We did not do that, and

Now, we've ended up with a difference without a

14

distinction here, 10-3, that was our intent to keep it

15

the way it was, and so we understand that.

16

for the citizens, maps to keep the partisan advantage.

17

And much has been made and I understand it, that the

18

intent was to maintain this partisan advantage.

19

appreciate those who in this House, and that is one

20

thing we did agree on, at least the majority of us,

21

that we need a Redistricting Committee.

22

people signed onto that bill that went out of here and

23

voted for it because we recognized we need a

24

Redistricting Committee.

25

Not maps

I

A lot of

We could have tried to do work in the spirit of

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a redistricting committee, try to draw fair districts

2

for the citizens of North Carolina, try to have

3

communities of interest together so they can be

4

represented effectively and efficiently, and not make a

5

partisan advantage or make an incumbency advantage the

6

priority.

7

We didn't do that.

I want to make sure that it is clear on the

8

record as well, and there has been some reference to

9

it, I think Representative Martin who was at the

10

committee meetings when the criteria was adopted.

11

Representative Hagar said that they were working on the

12

maps for two weeks before we came to Raleigh, and that

13

was his statement in the committee.

14

the maps were even issued.

15

question of someone saying we can't comment as to

16

whether these maps were drawn before the criteria was

17

established, go back and check the record.

18

statement from Representative Hager, and I believe him

19

to be an honest Representative.

20

Now,

That was before

So if there was some

That was a

The question now is, what happened in the

21

committee?

22

that were already being drawn or worked on for two

23

weeks.

24

do the maps come first?

25

timeline when we went to adopt the criteria, I think

When we adopted the criteria for the maps

So you wonder, does the criteria come first, or
But at any rate, on the

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Representative Martin already referenced it, and you

2

can go back and check the record.

3

Democratic criteria that was put forward was voted down

4

along party lines, every one.

5

two-thirds one-third majority on the committee, and

6

every one was voted down.

7

note that one of those criteria specifically stated

8

division of counties shall only be made for reasons of

9

equalizing population, preserving communities defined

That every

Certainly you had a

I think it is important to

10

by actual shared interests.

11

been addressed by people already, and some of you I'm

12

sure have districts but are not satisfied because

13

communities of shared interest were not respected.

14

Representative Brisson was certainly right to bring

15

that forward and ask that question, how did you violate

16

that principle?

17

that request was put forward in committee, it was voted

18

down.

19

they're saying, but we also can't live in an alternate

20

reality.

21

That shared interest has

And

Well, the answer, again, was, when

And so I take people at their word in what

Race is on the ground in North Carolina based

22

on where we live, based on hundreds of years of

23

history, and Jim Crow laws and slavery and

24

discrimination and redlining.

25

every day when we drive through communities on our way

It's there.

We see it

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to Raleigh.

2

and it is still there.

3

university system and other places when we do

4

budgeting.

5

this plan and say we don't recognize race in North

6

Carolina, and we recognize the racial impact of the

7

plan.

8

enough in theory to get by the court order, but we're

9

not going to do enough to do good service to the

We live it every day when we're back home,
We talk about it in our

So we see it, and we know it.

But we won't say the word.

So to draw

We're going to do

10

citizens of North Carolina and respect them I think is

11

a short coming that we could do better.

12

someone has already said, that we'll make sure we get a

13

redistricting commission.

14

this discussion.

15

the composition of the voters of North Carolina is,

16

what they would express, and not hold them back from

17

being able to work together and be effectively

18

represented.

19

So I hope, as

We shouldn't have to have

We should be able to recognize what

I heard, finally, a lot of times throughout the

20

committee discussions sitting there -- and one of the

21

responses continued to be, well, when you were in

22

charge, you did it.

23

you remember Sherman and Mr. Peabody when they used to

24

get in the time machine, and they would go back in

25

history and visit all of these different places.

Now, I don't remember how many of

Well,

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the people of North Carolina are trying to go forward,

2

and we continue to talk about rebranding this state and

3

looking at the future.

4

Jones said, you learn not what to do going forward by

5

the failings of Democratic redistricting efforts.

6

should have learned what not to do going forward in

7

redistricting.

8

well you did it so I can do it, and there should not be

9

any response is not enough.

Hopefully, as Representative

You

And so, the canority (ph) of saying,

We should be trying to get

10

better.

11

about.

12

behind, leave it behind with the Model T, leave it

13

behind with the horse and buggy, leave it behind with

14

the flip phone.

15

voters are about to eclipse registered Republican

16

voters in North Carolina.

17

continue to use the mistakes of the past as

18

justification for making mistakes now that will affect

19

our future.

20

Put us to the test to do better.

21

from the mistakes of the past.

22

future for the citizens of North Carolina.

23

a map that lets them be full participants in their

24

government.

25

That is what redistricting commission is
And so again, I hope that we will leave that

We're not going back.

Unaffiliated

Let's go forward.

Let's not

So I hope you'll vote against this bill.
Let's free ourselves

Let's pursue a better
Let's draw

Thank you.

SPEAKER MOORE:

For what purpose does the

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gentleman from Rutherford, Representative Hager, arise?

2

REP. HAGER:

3

SPEAKER MOORE:

4

To speak on the bill.
The gentleman has the floor to

debate the bill.

5

REP. HAGER:

Thank you, Mr. Speaker.

You know,

6

we've said this several times.

7

committee and to everyone that would listen,

8

Representative Stam accused me of practicing law

9

without a license, but I think I'm okay on the floor

10

I've said it in

just as long as I don't do it outside of here.

11

Representative Michaux and I have talked about

12

this, you know, page 53 of the statement from the

13

three-judge court says, "A failure to establish any

14

(one) of the Gingles factors is fatal to the

15

defendants' claim."

16

talked about to meet, and I'm going to go over them

17

real quick because I've got other stuff we need to talk

18

about.

19

thresholds.

20

has to -- as a failure of it has shown because there is

21

no voting prioritization in there.

22

and time again in this.

23

that we are in violation of the Voter Rights Act of

24

Section 2, and he made the statement that sometimes

25

whites vote as a bloc.

Now, there is three thresholds we

Vote dilution must meet all three of these
This report said that the vote dilution

It shows it time

Representative Jones contends

Well, that's not one of the

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1

criteria.

2

bloc, not sometimes.

3

It's regularly.

4

The criteria says they regularly vote as a
Sometimes is not the requirement.

Now, again, and I would like to talk a little

5

bit of what Representative Hall talked about.

6

not say in committee that we had been working on the

7

those for two -- I said, you guys had the same

8

opportunity as we did to work on those.

9

said.

You can check the record.

I did

That is what I

And you would think

10

that most folks in this body would say, well, my

11

district is a gerrymandered district because I won by

12

32 percent my first election.

13

statistics from the first election I had.

14

Rutherford County, there's 22,000 Democrats, 12,000

15

Republicans, and 8,000 Independents.

16

Representative Jones says.

17

They're going to vote where their philosophy is.

18

They're going to vote where their values are; 22,000

19

Democrats, 12,000 Republicans, and I won by 32 percent.

20

The voters know what is going on.

21

their values.

22

leave the party; the party left them.

23
24
25

Let me read you a little
In

I agree with what

People aren't dumb.

They will vote with

The voters of the Democrats did not

SPEAKER MOORE:

For what purpose does the

gentleman from Rockingham, Representative Jones, arise?
REP. JONES:

To debate the bill a second time.

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SPEAKER MOORE:

2

debate the bill a second time.

3

REP. JONES:

The gentleman is recognized to

Thank you, Mr. Speaker.

I realize

4

the hour is late, and I will try to make a few brief

5

points.

6

has used the vast majority of the time in debate today.

7

So there are a few points that I think deserve to be

8

made just simply for the record.

9

I would just suggest that the minority side

First of all, briefly I would just humbly

10

suggest that we do not live in a democracy.

11

a constitutional republic.

12

about that, you know, democracy is like two lions and a

13

lamb deciding what to have for dinner.

14

that things would look very different in our country

15

and if we were really a democracy.

16

workings of a system -- of a constitutional republic,

17

and that is why we are here today as representatives of

18

the people to do the work of the people.

19

we live in

And there is quite a change

And I would say

But this

is

the out

Secondly, I would just say that with all due

20

respect, there is a degree of hypocrisy to stand up and

21

just suggest that this is no more than partisan

22

bickering.

23

is just great that one side is doing it because the

24

other side used to do it.

25

everyone in this room, every representative in this

Nobody is saying that, well, you know, it

But I would suggest that

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1

room, benefited from the system whether you are in the

2

General Assembly or not, and I was not in the general

3

assembly in the past decade.

4

and some of you in the decades before that benefited

5

from this

6

complaint.

7

change the process.

8

differently.

9

system quite well,

But in the past decade

and I never heard a

I never heard a suggestion that we need to

Thirdly,

I

We need to do something

just want to reiterate,

just

10

remember these three numbers, 89 percent in the last

11

years,

12

Republican candidate for president

13

time; 81 percent in the last

14

the last

15

voted for the Republican candidate 81 percent of the

16

time.

17

Republicans out of 13 congressional districts.

18

would suggest that all

19

today that,

20

that

21

of North Carolina have clearly

22

federal

23

Republican Party and that

24

statewide election,

25

40

the people of North Carolina have voted for the
89 percent of the

16 U.S. Senate races in

40 years the people of North Carolina have

And then 77 percent,

in fact,

77 percent is ten

of the stuff

that

that we've heard

is not overrepresentation,

these maps are not overrepresenting.

level,

stated

they are identifying

okay?

REP. HAMILTON:

So I

--

The people

that on the

more with the

you can't

gerrymander a

So when you

Mr. Speaker.

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1
2

3
4

5
6
7

8
9

SPEAKER MOORE:

For what purpose does the lady

from New Hanover, Representative Hamilton, arise?
REP. HAMILTON:

To see if the gentleman would

yield for a question.
SPEAKER MOORE:

Does the gentleman from

Rockingham yield to the lady from New Hanover?
REP. JONES:

I will gladly yield when I

conclude my remarks.
SPEAKER MOORE:

He doesn't yield at this time.

10

The lady will be recognized if she would like to ask a

11

question later.

12

The gentleman from Rockingham has the floor to

13

continue debating the bill.

14

REP. JONES:

Thank you, Mr. Speaker.

So, the

15

point that I'm making is that I believe it is wrong to

16

suggest that a split of the three Democrats and ten

17

Republicans is somehow very unfairly wrong.

18

federal election, and when you look at the federal

19

elections that we have conducted over the past 40 years

20

for the U.S. Senate and for the President of the United

21

States, it is very clear that even in a greater

22

percentage of the time, the people have voted for the

23

Republican nominee.

24
25

This is a

Finally, I would like to also talk about voter
registration.

We keep hearing voter registration, and

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I think Representative Lewis has very aptly said that

2

we believe that voting history, voting result is a

3

better indicator than voter registration.

4

other side continues to point out that we have more

5

registered Democrats than we do registered Republicans

6

in this state, and that is true.

7

that we have a rising number of unaffiliated voters.

8

And quite frankly, we incentivize that with the laws in

9

this state because we allow unaffiliated voters to vote

And the

And it is also true

10

in the primary of their choice.

11

people to go back and forth or whatever.

12

incentivize people often times to be unaffiliated.

13

would simply suggest to you that if every registered

14

Democrat goes out and votes Democrat and the registered

15

Republicans vote Republican, and you can split

16

unaffiliateds down the middle, I think Democrats would

17

do very well under these maps.

18

Democratic candidates can win in these districts as

19

we've pointed out.

20

before.

21

It is very easy for
But we
I

It is very clear that

It has been done in other races

And, finally, my last point, we keep hearing

22

this call for a somehow independent redistricting

23

committee and this idea that maybe we will put on two

24

Democrats and two Republicans, and then we're going to

25

have this one individual that has the great wisdom of

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King Solomon that has absolutely no partisan

2

affiliation, has no bias whatsoever.

3

this one perfect individual out there that is going to

4

have no bias and is going to have the wisdom of Solomon

5

and we're going to have these perfect maps.

6

ladies and gentlemen, I would conclude that that is not

7

going to happen because it is not possible to find that

8

individual.

9
10

Somehow there's

And,

So, again, we thank you for the debate.

And, Mr. Speaker, if the lady has her question,
I would be happy to yield.

11

SPEAKER MOORE:

Does the lady from New Hanover

12

wish to propound a question to the gentleman from

13

Rockingham?

14

REP. HAMILTON:

I do, sir.

15

SPEAKER MOORE:

She is recognized, and the

16

gentleman has indicated he would yield.

17

the floor to state her question.

18

REP. HAMILTON:

The lady has

Thank you, Representative

19

Jones.

20

state elections that are also run statewide, for

21

instance Governor, Attorney General, et cetera, how

22

many of those positions have elected Republican versus

23

Democrat?

24
25

Just curious, over the last 40 years how many

REP. JONES:

Thank you to the lady for that

question; I appreciate that.

The point I was making is

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that this is a federal election.

2

statistics in front of me; perhaps you do.

3

that I think it's irrelevant because we're talking

4

about a federal election, and we all know that there

5

are people in this state that might vote one way on the

6

local election or even the state election but they see

7

the national parties in a very different way.

8

minority here can respectfully disagree, but there are

9

many people that feel that on the national level that

10

your party has moved quite a bit to the left and away

11

from the majority of the voters in this state.

12

that is reflected in the fact that they have voted

13

89 percent of the time for the Republican candidate for

14

president, 81 percent of the time for the Republican

15

candidate for the U.S. Senate.

16

and they might still vote Democrat on a local or state

17

level.

And I don't have the
My point is

And the

And

And they might do that,

18

REP. HAMILTON:

Thank you.

19

SPEAKER MOORE:

For what purpose does the

20
21

gentleman from Harnett, Representative Lewis, arise?
REP. LEWIS:

I wanted to ask a series of

22

questions to Representative Michaux.

23

I would like to speak a second time.

24
25

SPEAKER MOORE:

No, Mr. Speaker,

The gentleman is recognized to

debate the bill a final and second time.

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REP. LEWIS:

Thank you, Mr. Speaker.

Mr.

2

Speaker and members, I want to thank all of you for

3

your patience today, for the dignity that has been

4

shown in this

5

that all of us care very much about in our attempt to

6

best comply with the court ruling.

7

a couple of last

8

the vote if I could.

9

First

chamber.

Obviously, this

is an issue

I did want to state

thoughts for the record and prior

of, with all

to

due respect, the Harris

10

opinion does not find racially polarized voting, nor

11

has any member of the body submitted any kind of

12

document showing that

there is racially

13

voting in the state.

Further,

14

been short,

15

stand up and speak about possible ways that districts

16

could have been drawn.

17

central

18

to them, nobody has submitted a map showing how they

19

think the districts

20

staff

polarized

I realize the time has

but we've even had members of the minority

Yet despite the fact that

and even special

staff

was made available

should be drawn.

I also want to say that these plans in no way

21

guarantee the election

22

look at -- I know the lady from New Hanover asked about

23

statewide election

24

them are on our desk.

25

of these districts,

of ten Republicans.

results;

they're

actually

If you will

-- most of

And you will see that in all

for instance,

13

Attorney General

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1

Cooper won them.

2

what some has been said before, but I think it has a

3

great deal to do with the quality of the candidate and

4

the message that they have in trying to elect -- or

5

trying to offer themselves.

6

I think -- I'm not going to go into

The final thing that I would like to say is

7

while it has been talked about much throughout the

8

committee and through today's hearing, we did adopt in

9

an open forum what the criteria for these maps would

10

be.

11

considered together, and we would make every effort to

12

harmonize them.

13

you addresses the concerns of the Harris opinion.

14

believe it provides a way for us to move forward and to

15

move on and comply with the order of the Court, and I

16

would respectively ask for your support in voting "aye"

17

on adopting these maps.

18

thank you, members of the House.

We did say that all of the criteria would be

19

I believe the map that you have before

SPEAKER MOORE:

I

Thank you, Mr. Speaker, and

Further discussion, further

20

debate.

21

passage of Senate Bill 2 on its second reading.

22

in favor will vote "aye;" those opposed will vote "no."

23

The clerk will open the vote.

If not, the question before the House is the
Those

24

The clerk will lock the machine and record the

25

vote; 65 having voted in the affirmative and 43 in the

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negative.

2

will be read a third time.

Senate Bill 2 passes its second reading and

3

Further discussion, further debate?

4

For what purpose does the gentleman from

5

Cumberland, Representative Floyd, arise?

6

Further discussion, further debate?

If not the

7

question before the House is the passage of Senate Bill

8

2 on it's third reading.

9

"aye."

10

(Voice vote.)

11

SPEAKER MOORE:

12

(Voice vote.)

13

SPEAKER MOORE:

Those in favor will say

Those opposed "no."

In the opinion of the Chair,

14

the ayes have it.

15

2 passes its third reading.

16

enrolled.

17
18
19

The ayes do have it.

Senate Bill

The bill is ordered

Special message from the Senate, the clerk will
read.
CLERK:

House Bill 2, Senate Committee

20

Substitute, third edition.

21

Act to Revise Procedures for the Conduct of the 2016

22

Primary Election to Comply with the Court Order in

23

Harris v. McCrory.

24
25

SPEAKER MOORE:

A bill to be entitled An

The bill is ordered calendared

for immediate consideration.

The clerk will read.

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REP. FLOYD:

2

SPEAKER MOORE:

3

Mr. Speaker.
Just a moment.

The clerk will

read the bill.

4

CLERK:

Representative Jones and Hardister,

5

House Bill

6

Procedures for

7

to Comply with the Court Order in Harris v. McCrory.

8

The General Assembly of North Carolina enacts.

9
10

2.

A bill

to be entitled

the Conduct of the 2016 Primary Election

SPEAKER MOORE:

REP. FLOYD:

12

SPEAKER MOORE:

Inquiry,

Mr. Speaker.

The gentleman may state his

inquiry.

14
15

For what purpose does the

gentleman from Cumberland, Representative Floyd, arise?

11

13

An Act to Revise

REP. FLOYD:
thought I

16

I

know my light

pushed the red button for

SPEAKER MOORE:

came on but I
the last

vote.

How does the gentleman wish to

17

be recorded on the passage of the previous bill

18

vote?

19

REP. FLOYD:

20

SPEAKER MOORE:
"no" vote on the prior

22

like

23

that.

24
25

on the

No.

21

to change it

also

The gentleman was recorded as a
bill.

If

the gentleman would

to a yes the Chair will

be glad to do

For what purpose does the gentleman from
Rockingham, Representative Jones, arise?

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REP. JONES:

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SPEAKER MOORE:

3

To debate the bill.
The gentleman has the floor to

debate the bill.

4

And again, members, we would ask that the

5

conversations could be held down.

6

court reporter here recording the proceedings.

We still have our

7

The gentleman has the floor.

8

REP. JONES:

Thank you, Mr. Speaker.

Ladies

9

and gentlemen of the House, House Bill 2 that we passed

10

yesterday the Senate has amended and we are in support

11

of the Senate Committee Substitute.

12

that section 3 of that bill is taken out.

13

yesterday that section 3 has to do with the

14

presidential election, the electors to the electoral

15

college.

16

adopt the old or existing congressional primary -- I'm

17

sorry.

18

submit their presidential electors.

19

request with both political parties.

20

changed their mind on that, they would rather go with

21

the new districts if there are new districts and so

22

this section has been taken out.

23

simply means is that if this plan goes forth and there

24

is a congressional primary on June 7 and we adopt these

25

congressional maps or any congressional maps, whatever

The difference is
We discussed

And what we voted to do yesterday was to

Congressional maps for the parties to use to
That was done by
However, they've

And so what that

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congressional districts we end up using to elect our

2

congressmen, we will use those same districts to select

3

the presidential electors.

4

I would ask for a green vote that we support the Senate

5

Committee Substitute to House Bill 2.

6

SPEAKER MOORE:

So that is the change, and

So, does the gentleman wish to

7

make a motion to concur with the Senate Committee

8

Substitute for House Bill 2?

9
10

REP. JONES:

Yes, sir.

I make a motion to

concur.

11

SPEAKER MOORE:

The gentleman has made that

12

motion and has debated the motion.

13

further debate on the motion to concur?

14

question before the House is the motion to concur with

15

the Senate Committee Substitute to House Bill 2.

16

in favor will vote "aye" those opposed will vote "no."

17

The clerk will open the vote.

18

Further discussion,
If not, the

Those

Do the following members wish to record on this

19

vote:

20

and Blust?

21

Representatives Cleveland, Steinburg, Whitmire,

The clerk will lock the machine and record the

22

vote;

23

negative.

24

Committee Substitute to House Bill 2 is adopted.

25

bill is ordered enrolled and sent to the Governor by a

75 having voted in the affirmative and 30 in the
The motion to concur with the Senate
The

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special messenger.

2

The House will be at ease.

3

(At ease.)

4

SPEAKER MOORE:

The House will come back to

5

order.

6

until 3:00.

7

3:00 there will be no votes.

8

3:00 session is for ratification. We are going to wait

9

on ratification for awhile until we hear some news

Members, the House is about to go into recess
However, I want the members to know at
The only purpose for the

10

perhaps from Washington.

11

would like to be back at 3:00, you're welcome to do so,

12

but the Chair does not anticipate any votes at that

13

time.

So for those members who

14

Notices and announcements?

15

For what purpose does the lady from Yancey,

16
17
18
19
20

Representative Presnell, arise?
REP. PRESNELL:

For a moment of personal

privilege.
SPEAKER MOORE:

The lady has the floor to speak

to a point of personal privilege.

21

The house will come to order.

22

REP. PRESNELL:

23
24
25

I just wanted to wish my seat

mate, Representative Turner, a Happy Birthday.
SPEAKER MOORE:
announcements?

Further notices and

If not, the House will stand in recess

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1
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until 3:00 p.m.
(THE PROCEEDINGS IN THIS MATTER ADJOURNED AT 1:34 P.M.)

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1016-86
1016.88

 STATE OF NORTH CAROLINA
COUNTY OF WAKE
CERTIFICATE
I, Rachel L. Hammond, a Notary Public in and for the State
of North Carolina duly commissioned and authorized to
administer oaths and to take and certify hearings, do hereby
certify that on February 19, 2016, this hearing was held before
me at the time and place aforesaid, that all parties were
present as represented, and that the record as set forth in the
preceding 86 pages represents a true and accurate transcript of
the proceedings to the best of my ability and understanding.
IN WITNESS WHEREOF, I have hereto set my hand, this the
25th day of February, 2016.

Anot,044-1
otary Public
Rachel L. Hammond
Notary Number
201126500152

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 468 of 662

1016-87
1016-87

 1
NORTH CAROLINA GENERAL ASSEMBLY
NORTH CAROLINA HOUSE OF REPRESENTATIVES

TRANSCRIPT OF THE PROCEEDINGS
FLOOR SESSION TWO (3:00 P.M.)

In Raleigh, North Carolina
Friday, February 19, 2016
Reported by Rachel L. Hammond, CVR-M

Worley Reporting
P.O. Box 99169
Raleigh, NC 27624
919-870-8070

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1
2

(Reporter's note:

Proceedings in this matter

began at 3:00 p.m. on February 19, 2016.)

3

SPEAKER MOORE:

4

order.

5

clerk will read.

6

The House will come back to

Ratification of bills and resolutions.

CLERK:

The

The Enrolling Clerk reports the

7

following:

8

prepared for presentation to the office of the

9

Secretary of State:

Bills duly ratified, properly enrolled, and

Senate Bill

2, An Act to Realign

10

the Congressional Districts,

11

Joint Select Committee on Congressional Redistricting,

12

and Comply to the Court Order in Harris v. McCrory.

13

The enrolling

clerk

As Recommended by the

reports

the following bills

14

duly ratified

15

Bill

16

the 2016 Primary Election to Comply with the Court

17

Order in Harris v. McCrory.

18

for presentation

to the Governor:

House

2, An Act to Revise Procedures for the Conduct of

The enrolling

clerk

reports

the following

19

resolution

20

prepared for the presentation

21

Secretary of State:

22

Resolution Providing for Adjournment Sine Die of the

23

2016 Extra Session.

duly ratified,

properly enrolled,
to the office

and
of the

House Joint Resolution 3, A Joint

24

SPEAKER MOORE:

25

The gentleman from Gaston, Representative

Notices and announcements?

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Torbett, is recognized for a motion.
REP. TORBETT:

Thank you, Mr. Speaker.

Mr.

3

Speaker, I move that the 2016 Extra House of

4

Representatives Session do now adjourn sine die.

5

SPEAKER MOORE:

Representative Torbett moves

6

seconded by Representative Langdon, that the 2016

7

Special Session of the House of Representatives do now

8

adjourn sine die.

9

Those in favor will say "aye."

10

(Voice vote.)

11

SPEAKER MOORE:

12
13

Those opposed "no."

The ayes

have it.
It is ordered that a message be sent to the

14

Senate informing that honorable body that the House has

15

concluded the public business and now stands ready to

16

adjourn.

17

Message from the Senate.

18

CLERK:

Mr. Speaker:

The clerk will read.

The Senate has concluded

19

the business of the 2016 Extra Session of the 2015

20

General Assembly and is adjourning sine die, pursuant

21

to House Joint Resolution 3, A Joint Resolution

22

Providing for Adjournment Sine Die of the 2016 Extra

23

Session.

24
25

Respectfully, Sarah Lang, Principal Clerk.

SPEAKER MOORE:

Noted.

I now declare this

House of the 2016 General Assembly Extra Session

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adjourned sine die.
(THE PROCEEDINGS IN THIS MATTER ADJOURNED AT 3:11 P.M.)

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101601
1016-91

 STATE OF NORTH CAROLINA
COUNTY OF WAKE
CERTIFICATE
I, Rachel L. Hammond, a Notary Public in and for the State
of North Carolina duly commissioned and authorized to
administer oaths and to take and certify hearings, do hereby
certify that on February 19, 2016, this hearing was held before
me at the time and place aforesaid, that all parties were
present as represented, and that the record as set forth in the
preceding 4 pages represents a true and accurate transcript of
the proceedings to the best of my ability and understanding.
IN WITNESS WHEREOF, I have hereto set my hand, this the
25th day of February, 2016.

Rachel L. Hammond
Notary Number
201126500152

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 473 of 662

1016-92
1016412

 Exhibit 

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 474 of 662

FORMULA

(100*(G08G_RV+ GOSS_RV+
GlOS_RV+ G14S_RV))/(G08G_RV+
G14S_RV))/(GO8G_RV+
(100*(GO8G_RV+
GO8S_RV+ G08K_RV+ G12G_RV+ G120_RV+ G10S_RV+
G08G_DV+
GO8G_DV+ GOSS_DV+
GOSS_RV+ GO8K_DV+
GOSK_DV+ GO8K_RV+
GOSK_RV+ G12G_DV+ G12G_RV+ G120_DV+ G120_RV+
Gl20_RV+
GO8S_DV+ GO8S_RV+
G10S_RV+ G14S_DV+ Gl4S_RV)
GlOS_DV+ GlOS_RV+
G10S_DV+
G14S_RV)

SEVEN FACTORS
1. 08 Governor ·
2. 08 U. S. Senate
3. 08 Commissioner of Insurance
4. 12 Governor
labor
S. 12 Commissioner of Labor
5.
6. 10 U.
S. Senate
U.S.
7. 14 U. S. Senate

\

EXHIBIT

)/-2

ZJ. AI~~IW.
DATE:
DATE: z_/L; /t"].

WIT:
vim

ECYRD
D ENISE MYERS SYRD
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 475 ofDENISE
662

 Exhibit 

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 476 of 662

THOMAS B. HOFELLER

VOLUME II

IN THE UNITED STATES DISTRICT COURT

1

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

2

COMMON CAUSE, et
et al.,
al.,
COMMON

)
)
Plaintiffs,
)
vs.
) Civil Action No.
No.
VS.
) 1:16-CV-2016-WO-JEP
ROBERT A. RUCHO, in his official
)
capacity as
as Chairman
Chairman of the North
)
capacity
Carolina Senate
Senate Redistricting
)
Carolina
Committee for
for the
the 2016 Extra
)
Committee
Session and
and Co-Chairman
Co-Chairman of
of the
)
Session
Joint Select
Select Committee on
on
)
Joint
Congressional Redistricting,
)
Congressional
et al.,
)
et
)
Defendants.
)
)
LEAGUE OF WOMEN VOTERS OF NORTH
)
CAROLINA, et
et al.,
al.,
)
)
Plaintiffs,
)
vs.
) Civil Action No. 1:16-CV-1164
VS.
)
ROBERT A. RUCHO, in his official
)
capacity as
as Chairman
Chairman of the North
)
capacity
Carolina Senate
Senate Redistricting
)
Carolina
Committee for
for the
the 2016 Extra
)
Committee
Session and
and Co-Chairman
Co-Chairman of
of the
)
Session
2016 Joint Select
Select Committee
Committee on
on
)
2016
Congressional Redistricting,
)
Congressional
et al,
)
et
)
Defendants.
)
Defendants.
)
)
VIDEOTAPED DEPOSITION OF
THOMAS B. HOFELLER -- VOLUME II
_______________________________________________________________
2:02 P.M.
P.M.
FRIDAY, FEBRUARY 10, 2017
_______________________________________________________________
POYNER SPRUILL
301 FAYETTEVILLE STREET, SUITE 1900
RALEIGH, NORTH CAROLINA

February 10, 2017

Also Present: Dalton Oldham, Esq.
Alesha Brown, SCSJ

3
4
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6
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8

The Reporter: Discovery Court Reporters
and Legal Videographers, LLC
BY: DENISE MYERS BYRD, CSR 8340
BRENT TROUBLEFIELD,
VIDEOGRAPHER
4208 Six Forks Road, Suite 1000
Raleigh, NC 27609
(919) 424-8242
(919) 649-9998 Direct
Denise@DiscoveryDepo.com

9
10
11
11
12

13
14

--o0o---oOo-INDEX OF EXAMINATION
Page

Earls...............................
By Ms. Earls
260
300

15

By Mr. Speas...............................
Speas
16
17
18
19
20
21
21
22
23
24
25

275

--o0o---oOo--

255
1

257
1

APPEARANCES
APPEARANCES

INDEX OF EXHIBITS

2

2

For the Plaintiffs: Common Cause, et al.
3
3
4

5
5

6

7

8
9
10

11
11
12

13

3

POYNER SPRUILL
BY: EDWIN M. SPEAS, JR., ESQ.
CAROLINA P. MACKIE, ESQ.
301 Fayetteville Street
Suite 1900
Raleigh, NC 27601
(919) 783-1140
ESpeas@poynerspruill.com
CMackie@poynerspruill.com

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17

18

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19

22

23

4

43

Document prepared by Eddie Speas

5

44

Maps created by plaintiffs' counsel

7

282
301

--o0o--

8
9

For the Plaintiffs: League of Women Voters, et al.
SOUTHERN COALITION FOR.
FOR
SOCIAL JUSTICE
BY: ANITA S. EARLS, ESQ.
1415 Highway 54
Suite 101
Durham, NC 27707
(919) 323-3380 x 115
AnitaEarls@southerncoalition.org
AnitaEarls@southemcoalition.org

10
11
11

12
13

14
15

For the Defendants:
OGLETREE DEAKINS NASH SMOAK
BY: THOMAS A. FARR, ESQ.
4208 Six Fork Road
Suite 1100
Raleigh, NC 27609
(919) 787-9700
Thomas.Farr@ogletreedeakins.com
Thomas.Farr@ogletreedealcins.com
Phil.Strach@Ogletreedeakins.com

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17
18
19
20

20

21

Page
260

6

14
15

EXHIBIT NO. DESCRIPTION
42 Formula - Seven Factors

NC DEPARTMENT OF JUSTICE
BY: JAMES BERNIER, JR., ESQ.
PO Box 629
Raleigh, NC 27602
(919) 716-6400
APeters@ncdoj.gov
JBernier@ncdog.gov
JHemier@ncdog.gov

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21
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24

24

25

25

256

258

1 (Pages
(Pages 255 to 258)
258)
Case
5:19-cv-00452-BO
Documentwww.discoverydepo.com
5-1 Filed 10/14/19 Page 477 of 662
DISCOVERY
COURT REPORTERS
1-919-424-8242

 THOMAS B. HOFELLER
1
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VOLUME II

THE VIDEOGRAPHER: On record at
2:02 p.m. Today's date is February 10, 2017.
This is Volume II of the deposition of
Thomas Hofeller.
Could the court reporter now please
swear in the witness.
THOMAS B. HOFELLER,
having been first duly sworn or affirmed by the
Certified Shorthand Reporter and Notary Public
to tell the truth, the whole truth and nothing
but the truth, testified as follows:
--o0o--000-MR. FARR: Are we going to identify
ourselves.
MS. EARLS: Sure. So this is Anita
Earls for the League of Women Voters plaintiffs.
MR. SPEAS: Eddie Speas for the Common
Cause plaintiffs.
MS. MACKIE: Caroline Mackie, Common
Cause plaintiffs.
MR. BERNIER: Assistant Attorney
General James Bernier for defendants.
MR. FARR: Tom Farr, Ogletree Deakins,
representing the defendants.
And before we start, I want to point

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out that the defendants have agreed, as an
accommodation to the plaintiffs, to make
Dr. Hofeller available to answer questions that
were posed to me by plaintiffs' counsel about
his formula. That is our understanding of what
the purpose of this deposition is about or any
questions reasonably related to the questions I
Hofeller's formula.
was asked about Dr. Hotelier's
And I would also point out that I added
up the minutes in the previous deposition, and I
think there's 55 or less minutes left.
MS. EARLS: Okay. Thank you, Tom. I'd
like to mark this as Exhibit 42.
(WHEREUPON, Plaintiffs' Exhibit 42 was
marked for identification.)
EXAMINATION
BY MS. EARLS:
Q. Dr. Hofeller, can you identify what has been
marked as Exhibit 42, please.
A. It's a one-sheet piece of paper which has the
formula which I entered into Maptitude to have a
feature displayed on VTDs on the system. A
thematic, I guess, would probably be the better
word.
Q. And I also want to ask you to take a look at

260

February 10, 2017
Exhibit 28, what was previously marked as
Exhibit 28.
A. Do you want to see this, Tom?
MR. FARR: No. We've got a copy.
BY MS. EARLS:
Q. And my question is: The seven factors on
Exhibit 42, do those all come from the elections
that are identified in this Database Field Key
that's Exhibit 28?
A. I believe so, yes.
Q. And can you tell me what the shorthand code is
in the formula? So what do each of those codes
stand for?
A. The first letter in the field identifier which
you describe as the code is the -- stands for
general election, "08" is the general election
of '08 and "G" would be governor.
of'08
Q. And then --A. Then the dash RV is Republican vote.
Q. And the same is true for the remaining elements
of the formula, that is to say --A. Well, the key code is the "K" which -- "GO8K,"
that would be the third factor there. That
of '08. "K" is
would be the general election of'08.
commissioner of insurance.

261
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3
4
5
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7
8
9
10

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Then you go on to G12, "G" which is
governor in 2012.
G10S is Senate in 2010.
And G1OS
And I think I skipped some over here.
I'm sorry. Let's start at the beginning again
after the 100.
Q. Okay.
A. The first one is for governor. The next one is
for senate. The next one is for commissioner of
insurance. Then you go into the 12 general.
You have governor. You have commissioner of
labor. And in G10 you have U.S. Senate. And in
14 you have U.S. Senate.
Q. And then what does the -- so that's in the
numerator of the formula?
A. The numerator of those same races that you have
both the Democratic and Republican vote.
Q. You mean the denominator?
A. The denominator.
Q. Right
Right.
A. Okay. So the numerator, just to make it clear,
is the sum of the Republican votes. The
denominator is the sum of the Republican plus
the Democratic votes.
Q. And this formula, then, does not include any

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-votes that were for independent candidates or -A. You're correct.
Q. When did you device this formula?
A. When I started on the -- actually, I devised it
first during the Harris case. I was trying to
prove that no matter what you used, you'd get
the same district if you maximized for
Democratic vote in the 12th, but I had this on
my computer from the very beginning of the '16
process for the new congressional districts.
Q. And who did you -- did you talk to anyone about
the election returns that you would include in
this formula?
A. Not that I remember, no.
Q. So you made the decision to include these seven
factors?
A. I did.
Q. And Exhibit 28, which has the Database Field
Key, is just -- am I right that that's just a
listing of all the election returns that were
available that are reflected in Exhibit 27?
A. Well, there are more results in your Exhibit 28
than there are in 42.
Right.
Q. Right
A. As I remember the process correctly, this was

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the sheet that helped the members of the
committee decode the headers on the election
results that were produced when the bill came to
committee.
Q. And my question is just so if you look at
Q.
-Exhibit 27 in the notebook in front of you -A. 27?
Q. Yes. Am I correct this is the data that was
available to the committee when they were
considering the districts?
A. You know, I can't testify to that as a matter of
my personal knowledge because I wasn't there
when the committee received the bill, but it's
my understanding that it was the sheet that was
produced.
Q. Right. But I'm just wanting to ask about the
Q.
election returns contained in Exhibit 27 that 28
is the key for.
-These 20 elections, did you have -when you were devising this formula, did you
have access to the data for all 20 elections
contained in Exhibit 27?
A. I didn't -- just to be clear on my answer, I
didn't have Exhibit 27. I looked up the
elections on the website, the General Assembly's

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website, but -- I'm sorry, probably the
Secretary of State's website for those
elections, and they had the statewide total of
those elections.
Q. And they also had the returns by precinct for
those elections?
A. Well, they had them, yes.
Q. And what I'm trying to understand, when you
devised this formula -A. Yes.
Q. -- you picked seven elections?
A. I did.
Q. And you had at least available to you the 20
elections that are represented in Exhibit 27.
A. I had all the elections that the State Board of
Elections has available publicly on their
website.
Q. Okay.
A. Which I assume would include all of these.
Q. Okay. So how did you decide to include these
seven elections in your -- in the formula?
A. I just thought they were good indicator
elections. Some of them were better for
Republicans than others, and I wanted to get a
good variety of elections.

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Q. And what made these particular seven good
indicators?
A. I just felt in my own mind that they would be
good elections to have. I don't know how else
to explain it. I -- never mind.
Q. Well, I guess I'm asking what about these
particular elections made them good to predict
-the -A. Well, since I haven't reexamined it since I did
that, and that was almost a year ago, I don't
really remember exactly what my thinking was at
that time. All I can say to you is that I
thought at that time those were good elections
to have and that they would suit the purposes
that I needed for data to have available to me
while these districts were being formulated.
MR. FARR: Excuse me for a second.
Tom, would you make sure you let Anita
finish your question.
THE WITNESS: I'm sorry. I apologize.
MS. EARLS: Sometimes my questions are
awkward, so I understand the challenge.
BY MS. EARLS:
Q. You had just said that you -- at the time these
were the seven elections that you thought would

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suit your purpose and that's why you included
them in the formula.
What was the purpose that the formula
was designed to achieve?
A. To give me an indication of the two-party
partisan characteristics of VTDs.
Q. Okay. So how did you -- then can you describe
to us how you used this formula in drawing the
congressional districts.
A. When I was looking -- when it was necessary,
actually, to divide a county, I put the result
of this formula -- well, it was actually in
the -- on the screen -- and indicated that I
wanted to see the precinct or VTD level and used
it as a partial guide to where I would put the
lines for the districts, but it was not -- it
was one of many factors.
Q. Right. In devising the thematic based on this
formula, do you remember how many intervals you
had up on the screen?
A. Well, I think I had some different intervals at
different times, but my usual method is to use
5 percent intervals usually centered around
50 percent.
Q. So can you describe, then, how that would work.

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How many -- like what would be the lowest bound
and the upper bound with the 5 percent
intervals?
A. I usually use eight factors. So maybe it would
be three above 50 and five below or maybe it
would be the other way around, but it's centered
on 50.
Unfortunately, Maptitude doesn't have
an option that allows you to pick that right off
the bat, so you have to enter them in manually.
Q. You have to enter in what manually?
A. The percentage breaks on the intervals.
MS. EARLS: John, are you ready to try
to --- I want to -- for you to be able to
to
describe how you did that in Maptitude and we
can then print out a screen shot and you can
tell us if that's what it looked like when you
were using this formula to create a thematic.
THE WITNESS: It might be difficult for
me to do it without seeing the screen that he's
using.
MS. EARLS: John, are you able to -- I
don't think -- well, first, can we break and let
me confer.
THE VIDEOGRAPHER: Off record at

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February 10, 2017
2:16 p.m.
(Brief Recess.)
THE VIDEOGRAPHER: On record at
2:17 p.m.
MS. EARLS: So I'm asking John
O'Hale -- John, do you want to identify -- well,
I guess you don't have a mic.
John O'Hale, who is assisting us for
the purpose -- assisting the plaintiffs for the
purposes of this deposition, and he's an
attorney with Poyner Spruill.
BY MS. EARLS:
Q. Dr. Hofeller, can you describe how you -- how
you divided up the data to create your thematic
when you were using this formula so that John
can replicate that?
A. Okay. Well, I can give you an example of one
way I might have divided it up rather than the
way.
Q. Okay.
A. I already stated already that I might have used
different breaks at different times.
Q. Okay.
A. I just don't really remember.
Q. Okay. What is one way that you might have done

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it?
A. Let's see. 50 to 55, 55 to 60, 65 to 100. And
below would have been 50 to 45, 45 to 40, 40 to
35, 35 to 30, 30 to 25 and 25 and below. If
that's eight intervals. I don't have a scratch
-pad here so I don't -Q. And is there any particular color scheme that
you used to create the thematic?
A. Yes. I used the rainbow theme.
Q. Okay. So I'm going to give John a minute to
pull that up and print it out and then we'll
make it an exhibit and see if that helps us
understand what you were looking at when you
-were -A. Sure.
Q. It won't have data because we don't have the
same data set, but at least the thematic -- we
can look at that.
A. Well, if it isn't the same data, it won't be the
-same. Okay, we'll just -MR. FARR: He'll look at what you
produce.
THE WITNESS: I'll look and then
comment.
MS. EARLS: Okay. Thank you.

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Okay, John, just let me know.
(Discussion held off the written
record.)
BY MS. EARLS:
Q. Did you use this formula in any other analysis
other than the thematic for -- as you were
drawing the districts?
I'm not -- Pm
I'm not clear on the precision
A. Okay, Pm
of your question there. Could you try it again,
please.
I'm trying to understand in addition to
Q. Yes. Pm
using this formula to create a thematic to show
a percentage of Republican vote -- am I correct
that that's what it showed you, the percentage
of Republican vote in a VTD?
A. The percentage of the Republican vote was of the
two-party vote.
Q. Right. The percentage of the Republican vote of
the two-party vote?
A. Yes.
Q. At the VTD level?
A. At the VTD level.
Q. Did you use this formula for any other
evaluation of the districts?
A. Okay. When I was -- at the county level?

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February 10, 2017
A. The characteristics, once again, at the risk of
being redundant here, the Republican two-party
vote of the VTD.
Q.
Q. Did you -- did anyone else look at this formula
or the thematic that was based on it while you
were drawing the districts?
A. I believe I said in the first part of this
deposition the other day that there were people
who came in to see the work and I would show
them the same thematic display.
Q. And you developed this formula and used it as
Q.
the thematic display because you thought it
-accurately reflected the underlying partisan -the likely partisan outcome at the VTD level?
MR. FARR: Objection to the form.
You can answer.
THE WITNESS: Which word are you using,
"likely" or "underlying"?
BY MS. EARLS:
Q. Likely. Let's start with likely.
A. Okay. I don't -- I don't -- that is not a
predicate that I think I can answer the question
to. I don't know how -- exactly how precincts
are going to vote in the future. It varies from
election to election.

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Q. At any level.
A. I did not use it. When I was at the block
level, I did not use it. And those were the
only three levels.
Q. And so you're saying that when you would -- as
you were drawing the districts, when you were
looking at data at the county level, you didn't
use this formula?
A. No.
Q. And so the only -- as you were drawing
districts, the only time you looked at the
-results of this formula was when you were -when you were looking at the VTD level?
A. Yes. Because keeping counties whole was a
higher priority, and I didn't really need the
data to do that.
Q. So how did the data help you as you were using
at the VTD level?
A. Well, it gave me an idea of the characteristics
of the VTDs that were on the screen.
Q. And what characteristics?
A. Well, the formula.
Q. Right. But I'm just asking you to tell us what
the characteristics -- what characteristics
using the formula gave you for the VTDs.

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Q.
Q.

But you thought this formula would give you some
useful information regarding the partisan makeup
of the VTD?
A. Partisan characteristics, yes.
Q. And did you think that knowing the partisan
Q.
characteristics of the VTD based on this formula
would be of assistance in predicting future
elections?
A. I think I explained before, I think, that
individual VTDs tend to carry -- all things
being equal, tend to carry the same
characteristics through a string of elections.
They may not have the same exact result, but
they may, absent some unusual feature, line up
from one end of the spectrum -- political
spectrum to the other in roughly the same order.
MS. EARLS: I would request
permission -- at this point, I want to give John
a little more time to get the intervals and the
thematic right, but I'm
Pm finished otherwise with
the questions I have. I want to give Mr. Speas
an opportunity. Can we do that?
MR. FARR: Sure.
///
///

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EXAMINATION
BY MR. SPEAS:
Q. Can you hear me, Dr. Hofeller?
A. Yes, I can.
Q. How are you today?
A. All right.
Q. Good. Let me make sure I understand. You used
this formula set out in Exhibit 42 to give you
some indication of the partisan character of
VTDs; is that right?
A. That's correct.
MR. FARR: Let him finish,
fmish, too, Tom.
THE WITNESS: I'm sorry, I thought he
finished.
was fmished.
MR. SPEAS: I was.
THE WITNESS: I heard a question mark.
MR. FARR: I just want to make sure.
BY MR. SPEAS:
Q. You did not use this formula to give you some
indication of the partisan character of
counties, correct?
A. I'm sorry, I didn't hear all that question.
Q. You did not use this formula to give you some
indication of a partisan character of a county?
A. Of a what?

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Q. County.
MR. FARR: County.
THE WITNESS: Of a county as a whole?
BY MR. SPEAS:
Q. Yes.
A. No.
Q. What did you use to determine the -- to give you
a partisan indication of a county as a whole?
A. I didn't use anything.
Q. You simply randomly grouped counties together to
form these districts without regard to their
partisan performance; is that correct?
A. No, that's not correct.
Q. Then how did you use -- what did you use to
determine the partisan character of a county as
a whole?
A. I already said to you I didn't determine the
partisan character of a county as a whole.
Q. How did you determine to assign a county to a
particular district to carry out the direction
to create a plan that would likely produce a
10-3 Republican split?
MR. FARR: Objection to the form.
You can answer.
THE WITNESS: I don't agree with the

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February 10, 2017
predicate of your question. I'm sorry. There
were a lot of factors that were involved in
choosing the locations of the districts.
BY MR. SPEAS:
Q. And one of those was the partisan character of
the county, correct?
A. Yes, but it was not the main characteristic.
Q. And my question is: What did you use to
determine the partisan character of a county?
What elections? What other information did you
use to determine the partisan character of a
county?
A. My answer is the same as when you asked the
question before. I did not use any data to
determine that.
Q. Did you simply know what the partisan character
of counties was?
A. I wish my mind was that good -- my memory was
that good.
Q. Is it entirely an accident that the result of
the 2016 election was 10 Republicans and 3
Democrats?
MR. FARR: Objection.
You may answer.
THE WITNESS: Well, again, I don't

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understand your -- you mean like random?
BY MR. SPEAS:
Q. Yes.
A. No.
Q. How did you -A. But it wasn't -- that wasn't the prime factor
that I was using in the creation of the plan, as
I stated before.
I'm not asking you what your view of your prime
Q. Pm
factor was.
I'm asking you what information you
Pm
used to assign a county to a district with
regard to partisan performance.
A. May I see, please, the criteria sheet from the
committee that I saw in the last deposition.
Q. Sure. Exhibit 24.
MR. OLDHAM: Eddie, do you mind if we
hand him a copy of that?
MR. FARR: He's got it.
BY MR. SPEAS:
Q. Do you have Exhibit 24 in front of you?
A. Yes.
Q. And with Exhibit 24 in front of you, can you
answer the question how you decided to assign a
county to a district in order to carry out the

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partisan advantage criteria?
A. Again, I don't agree with the premise of your
question.
Q. Can you answer my question?
-A. I can answer your question by saying I don't -1I don't agree with the premise of your question.
If you ask it a different way, I may be able to
answer it.
Q. How did you decide to assign a county to a
district?
A. The first criteria which governed the makeup of
the plan was to create a plan which would
satisfy the requirements of the Court to draw a
plan and it would conform with what we felt
would be the view of the Court of the plan, to
get a plan that was acceptable to the Court.
And in order to do that, whole counties
would be used. Of course, the -- the federal
factors of equal population and compactness in
criteria; to some extent, of course, previous
districts, to the extent it was possible given
the limitations of the decision.
So except for the fact that two
districts were broken up that were in the plan
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almost to complete extent, my first goal was to
draw a map that was whole -- had as few county
splits as possible, therefore as many counties
whole as possible and that was compact,
contiguous and, to the extent possible, retained
incumbents.
Q. Okay. Was one of your directions to draw a plan
that would likely produce a 10-3 partisan
Republican -- partisan -- a 10-3 Republican
advantage?
MR. FARR: Objection to the form.
You can answer.
THE WITNESS: Okay. Just say that
again.
BY MR. SPEAS:
Q. Was one of your directions to draw a plan that
would produce a 10-3 Republican advantage?
MR. FARR: Objection to the form.
THE WITNESS: Actually, not to my
recollection, no. That was not the prime
criteria, the instructions that I was given.
BY MR. SPEAS:
Q. Was one of the criteria adopted by the General
Assembly entitled partisan advantage?
A. Yes.

280

February 10, 2017
-Q. And what partisan advantage was -- did the -did the legislature seek, a 10-3 advantage?
A. Well, my understanding of the way it was to work
was within the bounds of satisfying the other
criteria that there could -- that partisan
advantage would be considered, yes.
Q. And how did you satisfy the legislature's desire
to obtain a partisan advantage in drawing the
plan?
A. When I was particularly looking at split
counties, I looked at the VTD thematic.
Q. And what about -- when you were assigning a
whole county to a district, what did you look at
in deciding which district to assign that whole
county to?
A. That was primarily a function of compactness,
keeping counties whole and keeping districts, to
the extent possible, in the areas that they were
before.
Q. What partisan information did you look at in
Q
deciding whether to assign a county to one
district or another?
A. I believe I already told you that I didn't have
the partisan characteristics of the counties
displayed.

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Q. Did you use the formula set out in Exhibit 42 to
determine the partisan character of the plan as
a whole?
A. I did after the plan was finished.
Q. So after the plan was finished, did you apply
the formula to the plan as a whole?
A. Yes.
Q. And what was the results of that application of
the formula to the plan as a whole?
A. I believe that the plan was a 3-D -- 2 or 3
split, 7 Republican plan, or it could be 8-2, 3.
Does that add up? No -- yes.
Q. Let me ask the court reporter to mark this
document as Exhibit 43.
(WHEREUPON, Plaintiffs' Exhibit 43 was
marked for identification.)
BY MR. SPEAS:
Q. Dr. Hofeller, Exhibit 43 is a document that I
prepared. It reflects my effort to apply your
formula using the results of the seven
elections. And as you can see in the left
column there are elections listed.
Is it accurate that the seven elections
listed there are the seven elections listed in
Exhibit 42?

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A. I believe so, yes.
Q. And is it correct that the numerator in your
formula is the Republican vote for each of those
elections in the year -- in the particular year?
I'm sorry, repeat that again.
A. Pm
Q. Is it true that the numerator in your formula is
the Republican vote in those seven elections?
A. If you apply the formula that I used for
thematic coloring of VTDs to your data, that
would be your use of the formula.
Q. Is that the way you used the formula to
determine the partisan impact of the plan as a
whole?
A. No.
Q. How did you determine -- use your formula to
determine the partisan impact of the plan as a
whole?
A. I would look at the formula as regards to each
district, not to the state as a whole.
Q. Okay. And how did you determine the number of
votes cast in each district from each of those
seven elections?
A. If you look at Maptitude, there is usually
sitting behind the map another box that has the
data in it which shows the data for each -- each

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election. And sometimes percentages are also
displayed for those. You can extract manually
pretty much -- not manually, but you can extract
that from Maptitude into an Excel spreadsheet
and you can use the Excel spreadsheet to add up
these factors and do the division that you did
on this -- according to the same formula that's
on the sheet that's in Exhibit 42.
Q. And are those Excel spreadsheets still on your
computer?
A. I have an Excel spreadsheet, yes, for that, for
the final
fmal plan.
MR. SPEAS: And, Mr. Farr, would you
produce that Excel spreadsheet -- or those Excel
spreadsheets for us, please.
THE WITNESS: It would just be one
sheet. Actually, I don't know that I have the
result.
whole sheet. I just have the result
BY MR. SPEAS:
Q. So you used the information on this Excel
spreadsheet to make some prediction with regard
to the partisan -- likely partisan performance
of each district; is that correct?
MR. FARR: Objection.
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February 10, 2017
you define partisan performance, but I produced
the percentages and looked at the percentages
and made my -- my own determination of how I
thought the plan had turned out, yes.
BY MR. SPEAS:
Q. And what were those percentages? How did you
calculate those percentages?
A. According to the formula.
Q. Okay. And this formula produces a percentage,
correct?
A. Yes.
-Q. And if the formula produced the percent -50 percent for a particular district, how would
you classify that district?
A. 50 percent exactly?
Q. Uh-huh.
I'd classify that as a swing district.
A. Pd
Q. And if it produced a 55 percent Republican vote,
how would you characterize the district?
-A. I would -- I would -MR. FARR: Objection to the form, but
go ahead and answer it.
THE WITNESS: A district over 55 would
be at least leaning -- leaning or Republican.
So it depends what -- what you ascribe to each

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description.
BY MR. SPEAS:
Q. And how would you classify a district where the
percent was 60 percent Republican?
A. I think I would look at that district which
would be one that Republicans would most likely
win all the time.
Of course, you know, you have things
that go on in campaigns that surprise everybody,
so nothing is a sure bet. A lot of it depends
on candidates, the general political climate,
funding, opponents. Lots of factors go into
elections.
Q. Okay. And how would you -- how did you classify
a district for which the percentage was 45
percent?
A. Exactly 45 percent?
Q. Yes.
A. That's kind of on the line between a swing
district and a Democratic district.
Q. Is it accurate in your evaluation that for
districts between 50 and 45 percent you
classified them as leaning Democratic districts?
A. I'm sorry. Between -Q. 50 and 45. 45 and 50.

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VOLUME II

A. Between 50 and 45, I think they're in the swing
district range, yes.
Q. And less than 45, how did you classify?
A. Well, they're going from leaning Democratic
districts, highly leaning Democratic districts
to pretty much safe Democratic districts.
Q. And was there a percent at which you would
classify a district as a safe Democratic
district?
A. I would say that in my view, if it were under
40 percent, it would certainly be safe.
-Q. Okay. And by the same token, if it were more -if it were 60 percent or more, it would be, in
your evaluation, a safe Republican district?
A. All other things being equal, with the same
clarification that anything can happen in any
election.
Q. And you testified earlier, I believe, that you
typically used a 5 percent interval in making
the various judgments you were making, including
the judgments about which colors to use to
identify VTDs, correct?
A. I wouldn't say generally all the time. I think
we were just talking specific to the drawing of
this map.

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Q. Okay.
A. I use those percentages sometimes. Sometimes I
use percentage ranges that are small, closer
together, sometimes farther apart, sometimes
less breaks. It really depends what I'm trying
to -- what information I'm seeing displayed on
the screen.
Q. And when the information you wanted to see
displayed on the screen was a likely partisan
result for the district, which interval did you
use?
A. Pm
I'm sorry. Let's try that again.
MR. SPEAS: Could you read that back,
please.
(Record Read.)
THE WITNESS: Can I ask you to clarify
district as in complete congressional district
or district as in voting district.
BY MR. SPEAS:
Q. I mean complete congressional district.
A. Well, I think I already told you that I felt
that those were the ranges to classify the
districts, again, all other things being equal.
Q. Okay. What about district as in terms of a VTD
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interval?
A. Well, of course, depending on the election and
who's running and what year it is, I think that
VTDs can be more volatile than the -- a district
as a whole be it a legislative district or a
congressional district.
Q. And at some point in this process -- well, let
Q.
me rephrase that
that.
After you had completed the plan and
presented it to Senator Rucho and Representative
that.
Lewis, did you meet with -- well, strike that
Did you meet with Representative Lewis
and Senator Rucho and explain to them your
assessment of the likely partisan results of the
plan as a whole?
A. I don't remember the exact conversations with
it, but I know that I did express my view about
the nature of the plan, yes.
Q. And in that conversation did you review your
view as to the likely partisan result in each
district?
A. The likely partisan results in each district, of
course, are very much determined on which
incumbents are in the district and, again, the
nature of the election. So if I were advising

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somebody on how I thought a district would
perform, I would say this district is probably
more than likely to elect the incumbent, this
district the incumbent may now or in the future
have difficulty getting reelected.
Of course, some incumbents don't run
again, so you always have to look at that.
Q. Did you at any point ever prepare a map shading
Q.
districts by your view of their likely partisan
result?
A. Not that I can remember.
Q. Pm
I'm sorry?
Q.
A. I said not that I can remember.
Q. Might you have done that?
Q.
A. I might have. I just don't remember. That's
been nine months. Actually, more than that.
Q. And did you ever meet with Representative Lewis
Q.
and explain to him what you believe the likely
result of each district would be, partisan
result would be?
A. Well, casting aside the fact that some districts
were pretty much obvious what they would be, I
did give him my views on the -- some of the
districts in the plan, the ones that weren't
really obvious.

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VOLUME II

Q. And did you give that same information to
Senator Rucho?
A. I don't really remember whether I gave it
directly to Rucho or not.
Q. Did you at any point meet with Speaker Moore to
discuss about your plan?
A. I think as I said before, Speaker Moore -- I did
meet with Speaker Moore once, but I think that
was before the plan was finalized. It wasn't
after -- in the final phase of it.
Q. After the plan was finalized, did you meet with
Speaker Moore to explain to him your view of the
partisan results of the plan?
A. No.
Q. Did you meet with Senator Berger at any point to
explain to him the likely partisan results of
the plan?
A. I don't believe so, no.
-Q. Even after -A. I just don't really remember. I don't -- I
don't -- I don't think I met with him after the
plan was completed at all. At that point it was
into the committee process. My job was done.
Q. Did you at any point meet with members of -- any
member of Congress --

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A. No.
Q. -- to explain your view of the partisan results
of the plan?
A. I apologize. No, I didn't. I had no contact
with any members of Congress.
Q. Did you meet with anyone from the RNC to explain
to them your view of the likely results of the
plan?
A. No.
Q. Did you meet with any legislative staff
members -- North Carolina legislative staff
members to explain to them your view about the
likely result of the plan?
A. At what time period?
Q. From -- in February 2016.
A. At any time in February?
Q. Yes.
A. Yes.
Q. And who did you meet with?
MR
MR. FARR: I think this was covered in
the other deposition.
MR
MR. SPEAS: If it was -THE WITNESS: It was covered in the
other deposition.
BY MR. SPEAS:

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Q. Did you meet with any legislative staff member
in February of 2016 to discuss the formula set
out in Exhibit 42?
A. No.
Q. Did you meet with any legislative staff member
in February of 2016 to discuss your views about
the likely partisan impact of the plan?
I'm sorry, I didn't catch all that.
A. Pm
(Record Read.)
THE WITNESS: Yes, I think I already
answered that question.
BY MR. SPEAS:
Q. And if you could remind me, who did you -- who
do you recall meeting with?
A. Jim Blaine.
Q. Did you look at alternative formulas,
alternative to the formula in Exhibit 42, in the
process of developing the 2016 plan?
A. No.
Q. Did -- and Ms. Earls may have asked this. I'm
not sure. Let me ask it.
Did you consider using any other
elections other than the seven you used when you
were putting this formula together?
A. I did not use the presidential election results

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because of the problem that was raised by the
plaintiffs in the Harris case with the use of
presidential election results, and I wanted to
avoid that -- that area of their objection even
though I don't think it was valid.
Q. You used two council state races in your
formula, labor and insurance, correct?
A. Yes.
Q. Did you consider using other council state
election results in this formula?
A. I may have looked at them, but I didn't choose
them. That's all I can really say. I didn't
want to get too many elections in the formula
anyway. It's hard enough to type into the
system without getting too many in there.
Q. And when you were deciding on the elections to
use in this formula, I notice that you use
U.S. Senate elections more than any other
election, correct?
A. That would be correct.
correct
Q. And why was that?
A. Well, I believe there were probably more senate
elections in that time period than there were
gubernatorial elections or presidential
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Q. And I notice that you used elections from four
presidential election years and two from
non-presidential years; is that correct?
A. Yes.
Q. And was that a deliberate choice on your part?
A. I think there's more meaningful data in the
presidential election years than there were in
the non-presidential election years. You have
the governor's race -- I guess you would call it
the Council of State races in the presidential
election years. There are many less races that
are statewide in the non-presidential years. So
senate is pretty much the only one there.
MR. SPEAS: I think those are the
question I have for the moment
moment.
Could we take just a short break and
see where we are with this other set of
questions.
THE WITNESS: Are we taking a break?
MR. SPEAS: Yes.
THE VIDEOGRAPHER: Off record at
2:56 p.m.
(Brief Recess.)
THE VIDEOGRAPHER: On record at
3:19 p.m.

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BY MR. SPEAS:
Q. Dr. Hofeller, two or three other questions.
First, you indicated that you have on
your computer an Excel spreadsheet that is
related to the estimation of partisan
performance.
Do you have any other documents on your
computer related to that question?
A. I can't recall there would be anything else I
would have.
MR. SPEAS: Tom, we would -- Tom Farr,
we would ask Dr. Hofeller to provide us that
Excel spreadsheet and to search his computer to
determine whether there are any other documents
that are related to Exhibit 42 or responsive to
the document request and subpoenas we previously
filed.
MR. FARR: Okay. Thanks.
BY MR. SPEAS:
Q. Dr. Hofeller, the formula in Exhibit 42 that you
used in preparing the congressional plan in
2016, could it be used to estimate the partisan
performance of other elections other than
congressional elections?
A. Sure.

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February 10, 2017
Q. And I am correct, I believe, that Exhibit 42
reflects your best estimate using all your years
experience generally and in North Carolina in
particular for identifying the elections that
best predict -- would best predict future
election results, correct?
MR. FARR: Objection to the form.
You can answer.
THE WITNESS: Are you talking about
North Carolina?
BY MR. SPEAS:
Q. Yes.
A. Or in general.
Q. Yes, North Carolina.
A. Actually, no, I don't think it's the best that
could be used.
Q. It's the one you used?
A. It is the one I used.
Q. And you thought it was good enough to advise
your clients, correct?
A. It wasn't -- the formula wasn't actually used to
advise my clients. The formula was used to
assist me in drafting the plan.
Q. To assist you in drafting the plan to make sure
it carried out your clients' directions,

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correct?
A. Yes, all of them.
Q. One -- I want to just ask you finally
fmally a couple
of quick questions about Exhibit 28. You might
want to put it in there. This is the exhibit
listing the election results that were on the
legislative database, as I understand it, in
2016.
You chose not to use the 2008
commissioner of labor election results and
instead use the 2008 commissioner of insurance
election results. Do you know why you chose one
over the other?
A. I don't recall.
Q. You chose not to use the 2012 lieutenant
governor election results as a part of your
formula. Do you recall why you did not use that
election?
A. I can answer that two ways. I can say I thought
I had enough -- enough contests in there
already, and you kind of put your -- your finger
fmger
on it when you produced Exhibit 43 for me
because it ended up with about a 50/50 result,
which is kind of where you want it to be. So
you don't want to skew one way or another way.

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VOLUME II

So this produced the kind of 50/50 split that
was good for determining this.
Q. Okay. Is it fair to say the seven elections in
Exhibit 42 reflect your best professional
judgment as to the elections that should be used
for this particular purpose?
MR. FARR: Objection.
You can answer.
I'm not here to
THE WITNESS: You know, Pm
say that I have all the answers on this.
Somebody else may come up with a different set
of elections that they might want to use and
they might have equally valid reasons for
wanting to use them. It's kind of a subjective
idea.
What you're really looking for is
something that will come up with the kind of
result, again, that you came to the conclusion
on on 43 which is a 50/50 result.
result
The reason you use more than one
election is because you don't want to pick up
the characteristics of that election as it may
pertain to one part of the state or the other
part of the state because of the candidates or
whatever was happening.

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And you don't want to get too many
elections because, I guess as I said before, if
you look at that formula, Exhibit 42, it's hard
enough to get that into the computer without
having the computer reject it because it doesn't
have a parentheses or something or a plus sign
where it should be.
MR. SPEAS: Thank you, Dr. Hofeller.
THE WITNESS: You're welcome.
MR. SPEAS: Ms. Earls.
FURTHER EXAMINATION
BY MS. EARLS:
Q. You just testified that these seven elections
Q.
did not -- was not the best set of elections
that you could have used. Why is that?
A. Well, normally when I'm drawing districts in a
state, I'll use presidential elections, but as I
said before, the plaintiffs in the Harris
case -- I believe you were in that case -- seem
to raise an objection to using the presidential
election because Obama was in it.
Q. Actually, I wasn't in the Harris case, but -Q.
MR. FARR: We missed you.
THE WITNESS: I'm
Pm sorry.
MS. EARLS: That's quite all right. I

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February 10, 2017

didn't want to claim something that I -MR. FARR: We'll stipulate that Anita
was not in the Harris case.
MS. EARLS: I didn't want to claim
credit for something I did not deserve.
THE WITNESS: Have I got my cases
right.
MR. FARR: Harris is right.
THE WITNESS: I'm sorry. I apologize.
MS. EARLS: No worries.
Can I mark this as Plaintiffs'
Exhibit 44.
(WHEREUPON, Plaintiffs' Exhibit 44 was
marked for identification.)
BY MS. EARLS:
I've handed you what's been marked as
Q. So rye
Plaintiffs' Exhibit 44, and it's a three-page
exhibit.
The second page is the key. We
couldn't print it out so that it came out with
the map, but that's the -- shows you the
intervals for the colors on the thematic.
The third page shows you the elections
that were used in the formula.
I believe I misspoke earlier. We

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actually did ultimately have the seven elections
that we could put into the formula. And I
realize that your testimony was that you used
-different intervals at different times, but -but this is one that you might have used.
And so looking at this first page of
Exhibit 44, is this roughly what the screen
would have looked like if you were looking at
the entire state using the formula that is in
Exhibit 42?
A. Of course, without being able to verify it all,
if this came out right -- I would never testify
to the coloring on any map that I couldn't
verify myself independently. I'd be remiss as
an expert if I didn't do that
that.
It's the type of map -- it's the type
of map, if you shaded the precincts according to
the way you did, that you might -- might see.
Q.
Q. So I understand that you're not testifying here
as an expert but actually testifying as a fact
witness to what you actually did as you were
drawing the maps, and I'm wondering, then, if
you could produce for us a screen shot that
would show what you were looking at when you
were using this formula.

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VOLUME II

MR. FARR: No. That's a question for
me to answer, not for Dr. Hofeller.
MS. EARLS: Well, I can ask him if he
can -- if he's capable of doing that.
THE WITNESS: Well, first of all, when
I'm drawing, I wouldn't have the whole state up
because, as I said before, I didn't use this
when I was putting in counties. And of course,
just because when you're seeking only to split a
small number of counties, there's just so many
ways you can combine these counties to make them
not work at all.
So when I was placing the counties
among the districts, I wouldn't have this map up
at all. Too much information.
BY MS. EARLS:
Q. Right. So we did request -- just for the
record, we did request that you come with your
computer so that we could see how this formula
translates into what you were looking at when
you were drawing the districts, and that was
objected to and you have not done that.
So my question is whether -- all we're
trying to get is a visual of what you were
looking at when you used this formula as you

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February 10, 2017
A C K N O W L E D G E M E N T OF
O F DEPONENT
DEPONENT
ACKNOWLEDGEMENT

2
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I, THOMAS B. HOFELLER, Ph.D., declare under the

4

penalties of perjury under the State of North Carolina that

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I have read the foregoing pages, which contain a correct

6

transcription of answers made by me to the questions therein

7

recorded, with the exception(s) and/or addition(s) reflected

8

on the correction sheet attached hereto, if any.

9

Signed this the

day of

, 2017.

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were drawing the districts. And my question
right now is just is it possible, not will you
because that's an answer -- a question that your
counsel will answer, but is it possible for you
to produce a screen shot of what you were
looking at when you used this formula.
A. Yes, of course.
MR. FARR: And I would just state,
then, objection, which is already clear from the
record that he's testified several times he
didn't use this formula to create a map that
shaded the entire state.
MS. EARLS: I understand. Well, I just
actually want to see what the screen actually
looked like, so whether it's a single V'M
VTD or a
piece of a county, just an example of what it
looked like.
MR. FARR: Okay.
MS. EARLS: That's all I have.
MR. SPEAS: Thank you.
MR. FARR: We have no questions.
THE VIDEOGRAPHER: This concludes the
deposition. The time is 3:29 p.m.
[SIGNATURE RESERVED]
[DEPOSITION CONCLUDED AT 3:29 P.M.]

304

305
11

E R R A T A SHEET
SHEET
ERRATA

2

Case Name: Common Cause v Rucho / LWV NC v Rucho

3
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VOL II
Witness Name: THOMAS B. HOFELLER, Ph.D. - VOLE

4

Deposition Date: Friday, February 10, 2017

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Reads

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Signature

Date

306

13 (Pages
(Pages 303 to 306)
306)
Case
5:19-cv-00452-BO
Documentwww.discoverydepo.com
5-1 Filed 10/14/19 Page 489 of 662
DISCOVERY
COURT REPORTERS
1-919-424-8242

 THOMAS B.
B. HOFELLER
HOFELLER
THOMAS
1

VOLUME II
II
VOLUME

STATE OF NORTH CAROLINA

February 10,
10, 2017
2017
February

)

CERTIFICATE
) CERTIFICATE
2

COUNTY OF WAKE

)

3
4
5
6

I, DENISE MYERS BYRD, Court Reporter and Notary
Public, the officer before whom the foregoing proceeding was

7

conducted, do hereby certify that the witness(es) whose

8

testimony appears in the foregoing proceeding were duly

9

sworn by me; that the testimony of said witness(es) were

10

taken by me to the best of my ability and thereafter

11
11

transcribed under my supervision; and that the foregoing

12

pages, inclusive, constitute a true and accurate

13

transcription of the testimony of the witness(es).

14
15

I do further certify that I am neither counsel for,
related to, nor employed by any of the parties to this

16

action, and further, that I am not a relative or employee of

17

any attorney or counsel employed by the parties thereof, nor

18

financially or otherwise interested in the outcome of said

19

action.

20

This the 17th day of February 2017.

21
21
22
23

Denise Myers Byrd
24

CSR 8340, RPR, CLR 102409-02

25

307
307

14 (Page
(Page 307)
307)
Case
5:19-cv-00452-BO
Documentwww.discoverydepo.com
5-1 Filed 10/14/19 Page 490 of 662
DISCOVERY
COURT REPORTERS
REPORTERS
www.discoverydepo.com
1-919-424-8242
DISCOVERY
COURT
1-919-424-8242

 Exhibit I

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 491 of 662

IN THE UNTED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
COMMON CAUSE, et al.,

)
)
Plaintiffs,
)
)
)
v.
)
ROBERT A. RUCHO in his official
)
)
Capacity as Chairman of the North
Carolina Senate Redistricting Committee )
For the 2016 Extra Session and Co)
Committee
)
Chairman of the Joint Select
)
on Congressional Redistricting, et al.
)
Defendants.
)
)

CIVIL ACTION
No. 1:16-CV-1026-WO-JEP
THREE JUDGE PANEL

League of Women Voters of North
Carolina, et al.

)
)
)
Plaintiffs
)
)
)
v.
)
)
ROBERT A. RUCHO in his official
Capacity as Chairman of the North
)
Committee
)
Carolina Senate Redistricting
For the 2016 Extra Session and Co)
Chairman of the Joint Select Committee )
)
on Congressional Redistricting, et al.
)
)
Defendants.
)
)

CIVIL ACTION
No. 1:16-CV-1164-WO-JEP
THREE JUDGE COURT

SECOND DECLARATION OF THOMAS B. HOFELLER, PH.D.

DEFENDANT'S EXHIBIT
DEFENDANTS

Page 1 of 9

Case No. 16cv1026
16cv1164
Exhibit No. 5116
Exhibit

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 492 of 662

Case 1:16-cv-01026-WO-JEP Document 109-3
10
Filed 10/26/17

 I, Thomas Brooks Hofeller, under penalty of perjury, declare the following:
The source data for the figures, maps, and tables contained in this

1.

declaration is information received from the staff of the North Carolina General
Assembly and the 2010 Decennial Census Redistricting Data File and the 2010 TIGER
File received from the Unites States Bureau of the Census. The maps referenced were
created using a GIS software package called Maptitude for Redistricting developed by
Caliper Corporation located in Newton, Massachusetts.
Response to the 2016 Plan Screenshots Referenced in the Declaration of Timothy
Stallmann (Exhibits 4007 — 4015)
The exhibits referenced in the Declaration of Timothy Stallmann

2.

("Stallmann Declaration") are screenshots from the Maptitude software he used to
display both a statewide map (Plaintiffs' Exhibit 4007) and eight detailed maps
(Plaintiffs' Exhibits 4008 through 4015) focusing in on some of the individual counties
divided in North Carolina's 2016 Contingent Congressional Plan (the "2016 Plan").
Mr. Stallmann's screenshots are not an accurate reflection of the screens I

3.

used in the mapdrawing process for the 2016 Plan for several reasons.

First, Mr.

Stallmann's screenshot maps do not have a total population label inside each census
voting tabulation district ("VTD"). It would also be impossible to draft plans without this
information on the map.
4.

Second, the screenshots Mr. Stallmann has presented could not have been

used in the actual line-drawing process because he does not have a "pending changes"
panel.

The "pending changes" panel summarizes the characteristics of the geographic
Page 2 of 9
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 493 of 662

Case 1:16-cv-01026-WO-JEP Document 109-3 Filed 10/26/17 Paae
Page 2 of 10

 units which have been selected by the mapdrawer as well as the revised characteristics of
the source district and the target district with the changes incorporated. If the plan drafter
then wants to accept the change, the drafter must return to the toolbox to "approve" the
change.
5.

Third, I did not display the VTDs when working with whole counties in the

initial development of the 2016 Plan. The initial county configuration of the 2016 Plan
was developed without any political data displayed on the screen. This is too much data
for this part of the line-thawing process
6.

Fourth, I did not display the legend panel as I would also have known the

thematic color if I were displaying VTDs and it would have interfered with a full display
of the map. I did, however, display it on my demonstrative screenshots referenced below
for the convenience of the Court.
7.

Fifth, I did not use Mr. Stallmann's thematic colors to display election data

at the VTD level when splitting counties. Plaintiffs are well aware that the thematic color
display I used contained a rainbow spectrum as we discussed that fact in my deposition.
The demonstrative maps I provided, which are labeled as Exhibits 5104 through 5115,
show these thematic display colors. I color my maps using the rainbow spectrum which
is a continuum. In contrast, Mr. Stallmann presents his data in a bi-chromatic scale,
using varying tones on red and blue, which is not my practice.

Mr. Stallmann's

presentation is a more polarized display method, with every VTD being either
Republican (shades of red) or Democratic (shades of blue). Similarly, Plaintiffs' Exhibits
4066-4077 which are described as the "Hofeller . . . Maptitude Screenshots" with "Red
Page 3 of 9
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 494 of 662

1:16-cv-01026-WO-JEP Document 109-3
Case 1:16-cv-01026-WO-JEP
10
Filed 10/26/17

of 10

 and Blue Shading" are not accurate because I never viewed any maps on my screen using
red and blue thematic shading while working on the 2016 Plan.

Presumably, these

screenshots were also created by Mr Stallman for Plaintiffs as I did not create them.
8.

To illustrate my testimony above, I have included a screenshot such as the

one I would have used for splitting counties as a demonstrative. (See attached Figure 1).
For this demonstrative, I did not use a county that was actually split in the 2016 Plan. For
the counties that were split in the 2016 Plan, I created Exhibits 5104 through 5115
showing only the map portion of the screen. This allows the map to be large enough to
read and is about the same size as the maps were on my monitor.
9.

Finally, I note that Mr. Stallmann has produced spilt-counties maps for only

8 of the 13 split counties (Buncombe, Cumberland, Guilford, Johnston, Mecklenburg,
Pitt, Wake and Wilson). He did not produce maps for Bladen, Catawba, Durham, Iredell
and Rowan Counties, which were also split. The split-county exhibits I created, Exhibits
5104 through 5115, show all 13 split counties.
Response to Discussion of Exhibit 4023 (Map 17A) and Exhibit 4024 (Map ST-B) in
Stallman Declaration
10.

Mr. Stallmann also discusses Exhibit 4023 (Map 17A) and Exhibit 4024

(Map ST-B) introduced by Plaintiffs as trial exhibits. These are discarded maps I made
that were never shown to the Chairmen of the Redistricting Committees responsible for
adopting the 2016 Plan.

Instead, these were my trial maps for examining possible

configurations which might have been included in the 2016 Plan.

Page 4 of 9
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 495 of 662

1:16-cv-01026-WO-JEP Document 109-3
Case 1:16-cv-01026-WO-JEP
10
Filed 10/26/17

of 10

 11.

Exhibit 4024, identified as Map ST-B, utilizes a version of a district that

runs across the southern border of the state stretching from Mecklenburg County to
Cumberland County.

The same potential district configuration was considered but

discarded in the drafting of the 2011 Plan. Map ST-B divides Buncombe, Catawba,
Durham, Forsyth, Granville, Guilford, Iredell, Jones, Mecklenburg, Nash, Orange,
Rowan, Union, and Wake between two districts. It divides Cumberland County between
three districts. While only dividing Mecklenburg County between two districts, District 8
is not contiguous within that county because it contains a double traversal which crosses
from Cabarrus County to Mecklenburg County in two separate places.
12.

Exhibit 4023, identified as Map 17A, is also a map I prepared but

discarded. It has 14 county fractures. Alexander, Burke, Durham, Guilford, Jones, Nash,
and Orange Counties are each split between two districts.

It fractures Wake and

Cumberland County between three districts and Mecklenburg County between 4 districts.
In the 2016 Plan, no county is divided between more than two districts.
13.

Since the Redistricting Committee Chairmen also expressed a preference

against unnecessarily division of counties with small populations (under 100,000), the
division of Jones County between Districts 2 and 3 in both Plans 17A and ST-B should
have been moved to Pitt County.
14.

Both Maps 17A and ST-B have excessive district population deviations.

Map ST-B has a top-to-bottom range deviation of 5,685 persons and Map 17A's top-tobottom range deviation is 3,533 persons.

The top-to-bottom range is the difference

between the highest-populated district and the lowest-populated district. In congressional
Page 5 of 9
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 496 of 662

Case 1:16-cv-01026-WO-JEP Document 109-3 Filed 10/26/17 Paae
Page 5 of 10

 maps, that figure should be no more than one. These plans were not "zeroed out" which
is further indication that they would not have been presented as viable maps to the
Redistricting Committee Chairmen. A table comparing the population deviations for
these plans with the population deviation of the 2011 and 2016 plans follows:
District Population Deviations From Ideal District Population
2016
Plan
Dist.
Dev.
01
0
02
0
03
-1
04
0
0
05
-1
06
07
0
0
08
-1
09
10
0
0
11
12
-1
13
0

2011 Enacted
Plan
Dev.
Dist.
01
02
03
04
05
06
07
08
09
10
11
12
13

0
0
-1
0
0
-1
-1
0
0
-1
0
0
0

2016 Plan 17A
Dist.
Dev.
01
6
02
1516
03
-958
04
-2
05
464
06
-525
07
-2017
08
1001
09
-311
10
438
11
-558
12
-291
13
1233

2016 Plan STB
Dist.
Dev.
01
-260
02
1477
03
1023
04
-1861
05
550
06
224
07
-2017
08
-905
09
4208
10
621
11
-1699
12
-1285
13
-80

Source: 2010 Decennial Census Redistricting Data File (U. S Census Bureau).

15.

Copies of these maps which more clearly show the boundaries of the

districts in relation to county lines are contained in Exhibits 2004-17 and 2004-18. Mr.
Stallmann's maps of these two plans do not clearly allow an examination of the district
borders in relation to the county boundaries.

Page 6 of 9

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 497 of 662

1:16-cv-01026-WO-JEP Document 109-3
Case 1:16-cv-01026-WO-JEP
10
Filed 10/26/17

of 10

 Incumbent Placement in the 17A and ST-B Maps
16.

Map 17A would have triple-bunked Congressmen Butterfield, Jones, and

Rouser in District 2.

It would have double-bunked Congresswoman Foxx and

Congressman Walker in District 5. This would have left Districts 3, 7, and 9 vacant.
17.

Map ST-B would have triple-bunked Congressmen Butterfield, Jones, and

Rouser in District 2. It would have double-bunked Congressmen Hudson and Pittenger in
District 9. It would have left Districts 3, 7, and 12 vacant.
Response to 20-election contest set used by Mr. Stallmann to Analyze 17A and ST-B
Maps
18.

Mr. Stallmann's analyses of the 17A and ST-B Maps uses 20 past statewide

election contests to compute the political characteristics while I used only seven
statewide contests. Only this seven statewide contest analysis was used to analyze the
2016 Plan. While the development of the 2016 Plan was underway, the North Carolina
General Assembly's Information Service staff prepared a statistical package (called a
"stat-pack") which would be used to present the information on the 2016 Plan to the
redistricting committees and the full membership of both chambers of the General
Assembly.

I worked with the legislative staff and the Redistricting Chairmen to

determine what political election statistics would be presented.
19.

Both the 20-election and seven-election analyses used an extremely simple

algebraic formal to develop a single percentage which show the political characteristics
of individual VTDs or whole plans.

Formulae such as these have been used in

Page 7 of 9
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 498 of 662

Case 1:16-cv-01026-WO-JEP Document 109-3 Filed 10/26/17 Paae
Page 7 of 10

 redistricting since the 1970s and do not require a large portion of the resources of today's
high-powered computers to generate.
20.

The 20-contest formula explained in Mr. Stallmann's declaration is, in

reality, quite simple. The votes for the Republicans running in the 20 statewide contests
are summed. This is the Aggregate Republican vote. Then, the votes for both the
Republicans and Democrats running for in the 20 statewide contests are summed and
averaged. This is the Aggregate Two-Party Vote. Then, the Aggregate Republican Vote
is divided by the Aggregate Two-Party Vote yielding a decimal value, which is
multiplied by 100 to convert it into a percentage called the Average Aggregate
Republican Vote.

I used the same process using only the seven election contests I

selected to construct and analyze the 2016 Plan.
21.

I compared the aggregate statewide average vote for the 20 election

contests used by Mr. Stallmann with the aggregate statewide average for the seven
election contest that I used. The average aggregate statewide vote for the 20 election
contests used by Mr. Stallmann is 51.42% for the Democrats and 48.58% Republicans.
The average aggregate statewide vote for the seven election contests I used is 49.28% for
the Democrats and 50.72% Republicans. This means that, on a statewide basis, the 20contest index used by Mr. Stallmann is 2.14% more favorable for the Democrats. The
seven-contest statewide average I used is closer to a 50-50 split for the two parties.
22.

Each district in the maps in Exhibit 4023 (Map 17A) and Exhibit 4024

(Map ST-B) is labeled with a district number and the corresponding 20-contest score.
Using the more balanced seven-contest analysis I used, I prepared the table below which
Page 8 of 9
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 499 of 662

Case 1:16-cv-01026-WO-JEP
1:16-cv-01026-WO-JEP Document 109-3
1
Filed 10/26/17

S

 contains the Republican percentages for 2011 and 2016 Plans along with the Republican
percentages for Maps 17A and ST-B:
2011 and 2016 Congressional Plans Compared to 17A and ST-B Maps
Using Seven Statewide Election Contests (Hofe ler)

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

2011 Enacted
Plan
Dist. % Rep.
1
27.59%
55.74%
13
3
54.91%
4
29.59%
5
58.58%
56.76%
6
7
56.14%
56.93%
8
60.53%
9
10
57.50%
58.23%
11
12
23.62%
56.50%
2

2016 Plan 17A
Dist.
% Rep.
27.90%
01
49.50%
02
50.50%
03
51.90%
04
54.50%
05
51.60%
06
50.50%
07
53.90%
08
57.20%
09
54.10%
10
52.60%
11
53.90%
12
50.50%
13

2016 Plan STB
Dist.
% Rep.
01
28.00%
49.50%
02
50.40%
03
04
54.30%
55.60%
05
06
55.70%
07
50.50%
08
56.70%
57.40%
09
56.80%
10
11
58.30%
30.30%
12
13
50.70%

DECLARATION
I declare under penalty of perjury under the laws of the United States that the
foregoing is true and correct to the best of my knowledge.
This 26th day of October, 2017.

homas B. Hofell1r,oPh.D.
31754670.1

Page 9 of 9

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 500 of 662
Case 1:16-cv-01026-WO-JEP Document 109-3 Filed 10/26/17 Paae
Page 9 of 10

 FIGURE 1
TYPICAL MAPTITUDE SCREEN (HOFELLER)

Tc s!:

P.cdi tricting

v

Help

Redistricting Toolbox

.r13 0 !!! •
al 0 0

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Target 113
2
1

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.

W t9 fa D

!1'7•1.;

2 Source Jell
St•ees

0

a)

Case 1:16-cv-01026-WO-JEP Docume

Selection
iVoting District

Selection Layer 'Census Eilock

0 0 0
93 0 0 0

Districts

1

al 0
e3 0
0

ap

C,"

41e .fr 0 0 I

411.

County
1

111

Theme !None

2,
=
elock- anti strict
v TeriqeTc
Formula Fleid:3;1
30.0000
1E] ammo to
n130.0000 to 35.0000
=35.000D to 40.0000
n40.0000 to 45,0000
n145.0000 to 50,0000
50.0000 la 00.0000
n 00.0000 to 05.0000
7165.0000 to 100.0000

District Status
czt Locked
=I
0

Completed
3
Mlles

1„4
44

• Fending Changes (None)
GO9K DV
[Change - 608K DV]
608K RV
(Change • 608K RV]
6126_DV
[Change • 6126_DV)
6126_8V
[Change • 6126_8V]
6120_13V
[Change - 6120_DV]
6120_RV
[Change • 6120_811]
610S_DV

4

RAAE:10000A, /t44(- *.t
Dataview: Records 1 - 1 of 1

21 X

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 501 of 662

13
150,946
0
175,959
0
141,233 45
0
204,863 62
0
164,152.21
0
176,046 96
0
77.157

 Exhibit 

Case Document 5-1 Filed 10/14/19 Page 502 of 662

SENATOR ROBERT A. RUCHO

January 25,
25, 2017

IN THE UNITED STATES DISTRICT COURT

11

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

al.,
COMMON CAUSE, et al.,

2

NC DEPARTMENT OF JUSTICE
BY: ALEC PETERS, ESQ.
JAMES BERNIER, JR., ESQ.
PO Box 629
Raleigh, NC 27602
(919) 716-6400
APeters@ncdoj.gov
JBernier@ncdog.gov
JBemier@ncdog.gov

)

3
3

)
Plaintiffs,

vs.
VS.

)
) Civil Action
Action No.
No.
)

4
4

) 1:16-CV-2016-WO-JEP
)
ROBERT A. RUCHO, in his official

)
)

capacity as Chairman of the North

)
)

Carolina Senate
Senate Redistricting
Carolina

)
)

Committee for the 2016 Extra

)
)

Session and
and Co-Chairman
Co-Chairman of
of the
Session

)
)

Joint Select Committee on

)
)

Congressional Redistricting,

)
)

et al.,

)
)

5
6
7

)
)
Defendants.

9

)
)
)
)

LEAGUE OF WOMEN VOTERS OF NORTH

)
)

et al.,
al.,
CAROLINA, et

)
)

10
10

)
)
Plaintiffs,

vs.
VS
•

11
11

)
)
) Civil Action No. 1:16-CV-1164
)

12
12

)
)
ROBERT A. RUCHO, in his official

capacity as
as Chairman
Chairman of the North
capacity

)
)
)

13
13

Carolina Senate Redistricting

)

Committee for
for the
the 2016
2016 Extra
Committee

)
)

Session and Co-Chairman of the

)
)

14
14

2016 Joint Select
Select Committee
Committee on
on
2016

)
)

15
15

Congressional Redistricting,

)
)

et al,
et

)
)

The Reporter: Discovery Court Reporters
and Legal Videographers, LLC
BY: DENISE MYERS BYRD, CSR 8340
BRENT TROUBLEFIELD,
VIDEOGRAPHER
4208 Six Forks Road, Suite 1000
Raleigh, NC 27609
(919) 424-8242
(919) 649-9998 Direct
Denise@DiscoveryDepo.com

--o0o---000--

16
16
17
17

)
)
Defendants.
Defendants.

Also Present: Representative David Lewis
Alesha Brown, SCSJ

8

INDEX OF EXAMINATION
Page

)
)
)
)

18
18

)
)

19
19

VIDEOTAPED DEPOSITION OF
SENATOR ROBERT A.

20

RUCHO

_______________________________________________________________

21

9:40 A.M.
WEDNESDAY, JANUARY 25, 2017

22

_______________________________________________________________

By Ms. Mackie
Mackie..............................
By Ms. Riggs
Riggs...............................

23

6
156

--o0o--

24

POYNER SPRUILL

25

1900
301 FAYETTEVILLE STREET, SUITE 1900
RALEIGH, NORTH CAROLINA

1
1

11

APPEARANCES
APPEARANCES

2

2

For the Plaintiffs: Common Cause, et al.
aL

3
3

3

4

5
5
6

7

BONDURANT MIXSON & ELMORE
BY: EMMET J. BONDURANT, ESQ.
BENJAMIN W. THORPE, ESQ.
1201 W. Peachtree Street, NW
Suite 3900
Atlanta, GA 30309
(404) 881-4100
Bondurant@bmelaw.com
BThorpe@bmelaw.com

10

11

12

INDEX OF EXHIBITS
EXHIBIT NO. DESCRIPTION
32 Plaintiffs' Notice of Rescheduled
Deposition of Robert A. Rucho

33

Binder: Public Hearing Transcripts

34

Binder: Committee Transcripts

35
7

POYNER SPRUILL
BY: CAROLINE P. MACKIE, ESQ.
301 Fayetteville Street
Suite 1900
Raleigh, NC 27601
(919) 783-1140
ESpeas@poynerspruill.com
ESpeas@poynerspruilLcom
CMackie@poynerspruill.com
CMackie@poynerspruilcom

18

21

22

23
23
24

25

Defendants' Responses to Plaintiffs'
First Set of Interrogatories and
Requests for Production of Documents

74

36

Binder: Senate Floor Transcripts

143

9

37
10
10

General Assembly of NC, Fourth Extra
Session 2016, Session Law 2016-125
Senate Bill 4
146

11
11

SOUTHERN COALITION FOR
SOCIAL JUSTICE
BY: ALLISON RIGGS, ESQ.
Highway 54
1415 Ilighway
Suite 101
Durham, NC 27707
(919) 323-3380 x 115
AnitaEarls@southerncoalition.org
AnitaEarls@southenicoalition.org
AllisonRiggs@southemcoalition.org
AllisonRiggs@southerncoalition.org

38

Letter from Robin Hayes, RSLC

152

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--o0o---000--

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70

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For the Plaintiffs: League of Women Voters, et al.
aL

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50

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5

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Page

4

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For the Defendants:
OGLETREE DEAKINS NASH SMOAK
BY: THOMAS A
A. FARR, ESQ.
PHILLIP J. STRACH, ESQ.
4208 Six Fork Road
Suite 1100
Raleigh, NC 27609
(919) 787-9700
Thomas.Farr@ogletreedeakins.com
Phil.Strach@Ogletreedeakins.com
Strach@Ogletreedeakins.com

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DISCOVERY COURT REPORTERS
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www.discoverydepo.com

 SENATOR ROBERT A. RUCHO

1
1
2

3

January 25,
25, 2017

THE VIDEOGRAPHER: On record at
9:40 a.m.
am. Today's date is January 25, 2017.
This is the videotaped deposition of

11

Q. How are you employed?

2

A. Presently retired.

3

Q. Congratulations. When did your term as senator

4
4

Robert Rucho taken in the matter of Common

4
4

5

Cause, et al., plaintiffs, versus Robert A.

5

A. The 31st of December '16.

6

Q. And you are not engaged in any other employment

Rucho, et al., defendants, in the United States

6

7

District Court for the Middle District of

7

8
8

North Carolina, Civil Action 116-cv-1026-WOJ-EP.

8
8

9

9

Also in the matter of League of Women

end?

right now?
A. You mean presently?
Q. Right.

10

Voters of North Carolina, et al., plaintiffs,

10

11
11

versus Robert A. Rucho, et al., defendants, in

11
11

Q. No longer practicing orthodontics?

12

the United States District Court for the Middle

12

A. No. Dentistry. No.

13

District of North Carolina, Civil Action

13

Q. Dentistry. I'm sorry.
Q.

14

116-CV-1164.

14

Senator, are you waiving your

15

legislative privilege today for the matters

16

we're going to discuss?

15
16
17

18

Would counsel please now introduce
themselves.

A. Just retired.

17

MS. MACKIE: Caroline Mackie on behalf

18

of Common Cause.

MR. FARR
FARR: He's waiving his legislative
privilege for matters related to the 2016

19

MS. RIGGS: Allison Riggs from the

19

Congressional Plan or the 2011 Congressional

20

Southern Coalition for Social Justice on behalf

20

Plan.

21
21

of the League of Women Voters, plaintiffs.

21
21

22

22

MR. BONDURANT: Mr. Bondurant. I

MS. MACKIE: Thank you.
THE WITNESS: That's what I'm doing.

23

represent Common Cause and the Common Cause

23

BY MS. MACKIE:

24

plaintiffs.
plaintiff's.

24

Q. Thank you.

25

25

MR. THORPE: Ben Thorpe representing

I'm going to hand you a document which

5
11

7
1
1

Common Cause plaintiffs.

2

MR. PETERS: Alec Peters with the

2

3

Attorney General's Office on behalf of the

3

4
4

defendants.

4

5

MR. BERNIER: Assistant Attorney

we will mark as Exhibit 32.
(WHEREUPON, Plaintiffs' Exhibit 32 was
marked for identification.)
BY MS. MACKIE:

5

Q. Have you seen this document before?
A. I can't recall it. In speaking with our

6

General James Bernier, Jr., on behalf of the

6

7

defendants.

7

attorneys, I knew that I was to attend this

8

deposition, but I don't remember receiving this
specifically.

8
8
9
10

11
11
12

MR. OLDHAM: Dalton Oldham on behalf of

11
11

Deakins on behalf of the defendants.

12

MR. FARR
FARR: Tom Farr with the Raleigh
office of Ogletree Deakins, and I'm here on

14

behalf of the defendants and Senator Rucho.

16

10

MR. STRACH: Phil Strach with Ogletree

13

15

9

the General Assembly.

ROBERT A. RUCHO,
having been first duly sworn or affirmed by the

14

Q. Okay. And if you will turn to the last page

15

under that heading that says "List of Documents

16

and Things to be Produced."

17

18

to tell the truth, the whole truth and nothing

18

but the truth, testified as follows:
EXAMINATION

A. Again, I don't recall.

20

Q. Did anyone tell you that you should produce

BY MS. MACKIE:

21
21

22

Q. Good morning, Senator. Can you state your name

22

24
25

23

and address for the record.
A. Robert Anthony Rucho, 305 Trafalger Place in
Matthews, North Carolina.

6

And same question: Have you seen that

list before?

19

21
21

23

this part of the document before?
A. I don't recall that.

Certified Shorthand Reporter and Notary Public

20

page, the top says Exhibit A. Have you seen

13

17

19

Q. Okay. If you will turn to the second to last

documents for today's deposition?
A. I believe that Andrew Tripp, who is the attorney

for Senator Berger, responded through my staff

24

for this, any request that was there.

25

Q. When do you -- when did he do that?

8

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2
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January 25,
25, 2017

A. When -- I assume when it all came about. That's

11

adjusted. I know that we made some minor

my recollection. I could be in error, but

2

changes because of address changes and things of

that's all I recall.

3

that sort, but the things that he did, he have

4

I'm sorry. Do you know if he re-sent it to you?
Q. Pm

4

Pm
worked on the state computer at that time, I'm

5

A. I do not.

5

sure.
sure.

6

Q. Do you know --

6

Q. Okay. How do you keep a calendar?

7

A. It would have been -- if they were looking for

7

A. At that time it would have been on my iPhone.

8

e-mails or calendar, it would have probably gone

8
8

9

to my legislative assistant who would have tried

9

It would have been on the computer in my

legislative office at that time, but I was just

10

to identify it if it was at all possible.

10

trying to -- if I could get it lined up, I would

11

Q. And who is your legislative assistant?

11
11

try to be at the right place when I was supposed

12

A. Let me try to remember now. They left me a few

12

to be.

13

I'm not sure I
months ago. Oh, gracious. Pm

14

recall directly, but I can get that for you if

14

15

you give me a chance to remember.

15

A. When I was a senator, yes, ma'am.
Q. Okay. Was your iPhone a personal iPhone or was

13

16

Q. Is it male or female?

16

17

A. Male.

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18

Q. And is he still employed by the General

18

19

20
21
21
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Assembly?

A. Yes.
MR. FARR
FARR: Caroline, can I clarify

Q. Do you still have that phone?
A. I do.

21
21

Q. Okay. And what about after your term ended as a

MS. MACKIE: Sure.

23

24

FARR: There was a search conducted
MR. FARR

24
25

for Items 1 and 2, and any versions of the

it a legislative --A. My personal.

20

23

25

February 25, 2016, through January 10, 2017?

19

22

something?

Q. And when you say "that time," do mean

senator?
A. I would work -- I'd be doing my own scheduling
so it would be on my iPhone.
Q. Okay. So if we would need you to search your

9

11

11

congressional plan would have been produced by

11

calendar for any meetings that satisfy this

2

Dr. Hofeller.

2

request, you could do that?

3
4
5
6

And the search was unable to uncover

3

FARR: And it has been done.
MR. FARR

any calendars for Senator Rucho showing when he

4

THE WITNESS: We would have looked at

met with the people listed in Item Number 2.

5
6

MS. MACKIE: Okay.

it, yes, ma'am, and --BY MS. MACKIE:

7

BY MS. MACKIE:

7

Q. Did you personally search your iPhone calendar?

8
8

Q. Senator, let me point you to Number 1 on that

8

A. Looking back, the -- and I don't know very much

9
10
11

9

list. Are you aware of any congressional plans

about iPhones, nor do I know much about

that were drawn on the legislative computer?

10

computers, unfortunately, but after a period of

A. The one that I'm
Pm aware of was submitted by

11
11

time it just erases off the -- off the iPhone,

12

Dr. Hofeller at the request of Representative

12

you know, going back six, eight months, I think,

13

Lewis and myself in time for us to bring it

13

at least that's what it appears because I can't

14

before the General Assembly for passage and then

14

15

be able to send the enacted or the passed plan

15

-Q. So you did search --

16

on to the Court as requested or required.

16

A. Yes.

17

Q. So you are not aware of versions of the

17

Q. -- for meetings with Phil Berger, Tim Moore or

congressional plan in 2016 that were drawn on a

18

any member of the Ogletree law firm on your

19

legislative computer? Am I understanding ---

19

20

A. Just the ones that would have been done by

20

18

21
21

Dr. Hofeller.

find anything on there.

calendar?
A. Yes.

21
21

Q. Did anybody assist you with that search?
A. Again, it would have been handled -- and I think

22

Q. So only on his computer?

22

23

A. Well, he might have made some changes on the

23

24

state employee -- the state computer after the

24

assisted us with this, trying to make sure that

25

time he submitted the plan as it was being

25

we complied with your request.

10

I'm correct that Andrew Tripp would have
Pm

12

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DISCOVERY COURT REPORTERS
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January 25,
25, 2017

Q. So did you turn over your cell phone to Andrew
Tripp?

11

A. No. It would have been my job to do that.
Q. So did you personally search?

3

5

A. I did look through it, yes, ma'am, to try to

5

6

identify if there were meetings that were

6

described for, let's say, Senator Berger or, who
else, Tim Moore and Ogletree Deakins.

7

Q. And is it your testimony that nobody assisted
you on that search of your iPhone calendar?

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2

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io

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A. On my iPhone, it would have been just me.

12

Q. Senator, what did you do to prepare for your

12

deposition today?
A. I read back on a number of -- let's say the 2011

13

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15
16
17

18
19

11
ii

14

redistricting map for the Congressional
districts, read -- I just basically tried to

15

refresh as much as I could.
It's -- going back to 2011, it's kind

17

16

18

of hard to remember all the things that went on
at that time, especially congressional,

19

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21

legislative and all of the things in addition to

21
21

22

doing legislative work, but just tried to get

22

23

-briefed up as to the, let's say, senate -joint -- joint House and Senate Committee

23

meeting, read the minutes of it, of course, the

25

20

24
25

20

24

A. -- and describe it.

But, yes, we went there through
there -- I went through there trying to
remember -- along with the minutes remember what
and why we added all of those into place and
just refresh my memory as to how I prepared at
that time to enact or to pass the contingent

map.
Q. My question is: Did you review a document that
says on its face that your goal was to comply
with the court order?
A. No. That was the goal. The criteria is what
1I -- is what 1I reviewed. The goal was always to
comply with the order. We had no alternative
there. So that was the goal, and the criteria
was how we tried to achieve it.
Q. Did you meet with Dr. Hofeller to prepare for
your deposition?
A. He was present when -- when 1I had a chance to go
over these documents or talking about them, if I
had any questions about it or the like.

Q. And when was that meeting?
A. I think -- I think it was last Wednesday.
Q. Who else was present?
A. The attorneys, Representative Lewis, again, the

13

15

11

floor debate in the senate, the Redistricting

1
1

2

Committee meeting, trying to refresh my memory
where I could.

2

3
4
5
6
7
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10

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12
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3

Q. Did you review the 2016 map?

4

A. I did look back at it to try to identify it, and

5

I did look at the material that we distributed
to the committee members dealing with the

6

criteria that was established.
And what our goal was is to, in a very

8

7

9

short period of time, comply with the court
order on redrawing the congressional maps even

10
11
11

12

though we believed, and I believe today, that
the original 2011 enacted maps were

13
14

constitutional, and I anticipate the courts
responding to that appropriately, but just
Q. Did you review documents that stated your

17

criteria as you just described it, that your
goal was to comply with the court order in a

18

23
24
25

19

short period of time?
A. Yes ma'am. I went ahead and went through the

20

criteria. I'm not going to sit and try to
repeat it to you. If you want me to, just give

22

me one of those ---

24

21
21

23

25

Q. We'll get there.

14
14

Q. In 2011?
A. '11 and '16.
Q. And you were here all day yesterday for
Dr. Hofeller's deposition?
A. Yes, ma'am.
Q. I think we'll be shorter today.

17

22

A. Yes, ma'am. He helped us with the
redistricting.

A. Thank God.
Q. Senator, when were you first elected to the

18

21
21

Q. Was he previously your attorney, or did he work
in your office previously?

16

refreshing my memory on the '16 events.

20

the Redistricting Committee and also an attorney
for the General Assembly.

15

16

19

other attorney would also be Brent Woodcox.
Q. Who is Brent Woodcox?
A. He is the legislative -- the legal counsel for

legislature?
A. I think it was in 1997.
Q. Was that to the Senate?
A. In the Senate, yes, ma'am. I was there from

1997 until 2004, took a three-and-a-half to
four-year sabbatical and then returned back in
the Senate again.
Q. So you returned in 20 -- elected -16

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January 25,
25, 2017
11

A. 1I think it was June of '06 I took Senator

A. Yes, ma'am. The Dixon v Rucho and -- and then

2

Pittenger's unexpired term, and then when I was

2

3

reelected in the primary, so and then I finished

3

Q. Harris v McCrory.

up, as I said to you, 2016 December 31st.

the ---

4

A. The Harris case.

Q. How many terms did you serve?

5

Q. And did you testify in both of those cases

6

A. I believe it's
its eight -- an eight and a plus.

6

7

Q. And that 2006 year would be the plus?

7

8
8

A. (Witness nodding head up and down.)

8

in affidavit and also before Judge Ridgeway's

9

Q. Yes?

9

-- I think it was
three-judge panel. And also --1

4
5

10

11
mm

A. Yes, ma'am.

10

Q. Thank you.

11
mm

12
13

12

In 2011 were you appointed chair of the

13

Senate Redistricting Committee?

through affidavits and depositions?
A. I did in the Dixon-Rucho case. 1I testified both

just an affidavit in the Harris case. I don't
think I ever testified in court.
Q. Did you have your deposition taken in the Harris

case?

14

A. Yes, ma'am.

14

A. All I can say is I believe that's accurate.

15

Q. Okay. To the best of your recollection, was

Q. Who appointed you?

15

16

A. Senator Berger.

16

17

Q. How many times were you reappointed as chair of

17

A. Yes.

18

Q. And are you -- sitting here today, are you aware

19

of any testimony that you gave in those cases

20

that is not accurate?

18
19

20

that committee?
A. Just the one time. We -- it was 2011, and I've

been the chair of it ever since.

your testimony in both of those cases accurate?

Q. So it was continuous?

21
21

A. No.

A. No one else would take the job.

22

Q. You testified in those cases that Dr. Hofeller

23

Q. And Representative Lewis was appointed chair of

23

24

the House Redistricting Committee at the same

24

25

time?

25

21
21
22

was the architect of the congressional plan?
A. "The architect" has been misused, should I say.
In reality -- and I tried to explain this I

19

17
1
1

A. Yes, ma'am.

1
1

think in another deposition, but clearly stating

2

Q. And who appointed him?

2

that my idea of an architect is someone -- if

3

A. I believe Speaker Tillis at that time.

3

I'm building a house and I am hiring someone
Pm

4

Q. In 2011. Okay.

4

I'm the
with knowledge in a certain area and Pm

5

owner, Pm
I'm going to tell them what they need to
do and then they put it on paper to get it done.

5

I want to talk about the 2011

6

Congressional Plan. Were you and Representative

6

7

Lewis responsible for the enactment of that

7

8
8

plan?

8

someone that will assist us -- at this time

9

Representative Lewis and myself -- in pretty

9
10

MR. FARR: Objection to the form.
THE WITNESS: Representative Lewis and

So the term "architect" clearly is

10

much following our guidelines and what we told
them to do and what we wanted, and that was the

11

I by being chairs of the committee were

11
11

12

responsible to bring a plan before the General

12

role of Dr. Hofeller in, quote, unquote, being

13

Assembly through the process -- the formal

13

"the architect."

14

process of committees and debate and the like

14

15

and then pass it with the principal goal of

15

16

getting the 2011 plan pre-cleared by the Justice

16

A. I believe you're right.

17

Department so that it can be ready for the next

17

Q. And he was not hired to work with the

18

election, and I believe it was 2012.

18

Q. Dr. Hofeller was hired by Ogletree Deakins for
Q.
the 2011 plan; is that right?

redistricting committee in 2011?

19

BY MS. MACKIE:

19

20

Q. You were a defendant in two lawsuits over that

20

Lewis and myself as far as putting together a

21
21

plan that would be presented to the

22

Pm accurate
redistricting committee. I think I'm

23

in that statement.

21
21

22
23
24
25

plan, right?
A. I may have lost count as to the number of

lawsuits, but at least two.
Q. Over the congressional plan, do you recall the
Dixon case?
18

A. I think he was hired to work with Representative

24

Q. Did he appear before the committee?

25

A. No.

20

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2

January 25,
25, 2017

Q. Were you in attendance at the Harris trial in
Greensboro in October of 2015?

1

question, but that's fine.

2

THE WITNESS: I don't recall that. I
don't recall whether he did. I don't think so,

3

A. Yes, ma'am.

3

4

Q. Were you there for the entire trial?

4
4

5

A. Four days' worth.
Q. Was Representative Lewis there?

5

A. He was present at periods during that -- during
the court hearing.

7

Q. Was Dr. Hofeller there?

9

6
7
8
9
10
11
12
13
14
15
16
17

6

8
8

A. Yes.

10
o

Q. Was Mr. Oldham there?
A. I believe he was.

11

Q. At the end of that trial, did you form an
opinion about what the court was likely to do?

13

A. Can you explain what you mean by that. I'm not
sure I understand the question.

15

12

14

16
17

Did I form an opinion?

18

Q. Yes. Did you have any suspicion or guess as to

18

19

what the court might decide on Congressional
Districts 1 and 12?

19

A. Well, yes, I did, and I'll clarify why. I sat
through that case and, of course, I was -- I sat

21
21

20
21
21
22
23
24
25

20

22

through all of the Dixon versus Rucho in the
state level court, and the evidence was clear

23

that there was never a negative comment about

25

24

-but -BY MS. MACKIE:
Q. But at the end of the trial you felt the court
would affirm the constitutionality of

Congressional Districts 1 and 12?
A. Yes, ma'am, because we followed the law.
Q. Did you have any discussions with Senator Berger
about the trial?
A. As a committee chairman, I would report back to
Senator Berger as to what was going on. And, of
course, I would have explained to him what I
experienced there as representing the General
Assembly as chairman of the Senate Redistricting
Committee, explaining to him what I thought
occurred.
I'm sure with the media
Of course, Pm
coverage and the like Senator Berger was well
aware of what transpired, but I did explain what

1I thought went on.
Q. Did you have conversations with other
legislators about the Harris trial?
A. Only when people would have asked me, but

21

23

1

the fact that racially polarized voting existed

1
1

2

in North Carolina. Both plaintiff and
defendants had expert testimony. I remember
during the public hearing the attorney for the
NAACP said that, Ms. Earls said that as part of
all the evidence and testimony that was set
forth, and I was very surprised that the court
ignored that.
Actually, there was one other thing
that kind of added to that, and actually
Representative Butterfield, who was the
congressman from the CD 1, actually testified
that, you know, with his experience having been
the congressman there that there is indeed
racially polarized voting in CD 1, and to have
the court totally ignore that and make a
decision that contradicted the constitution,
contradicted the legal precedent was a
tremendous surprise to me. So I was extremely
surprised at their decision to ignore the
evidence as it was presented.
Q. And you did not testify in that trial?
A. No.
Q. Did Representative Lewis testify?
MR. FARR: Object to the form of the

2

3
4
5
6
7
8
8
9
10

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12
13
14
14
15
16

17
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19

20
21
21
22
23
24
25

22

that's -- I can't remember specifics.
Q. Following the trial, the end of the trial and

3

the decision of the court in February of 2016,

4

did you have any conversations with Senator
Berger about redrawing the 2011 Congressional

5
6
7
8
9
10
11
11

12
13
14
15
16
17
18
19

20
21
21

22
23
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25

Plan?
A. Okay. Say that one more time with your

question.
Q. Sure. Between the end of the Harris trial in
October of 2015 and the date that the decision
came out from the Harris court in February of
2016, did you and senator Berger have
conversations about redrawing the 2011
Congressional Plan?
MR. FARR: And I'm going to just

instruct you on something, Senator Rucho, and
this is based upon a position taken by the
Attorney General in other cases that I've read.
You've waived your legislative privilege so you

can answer her question as to what you may have
said, but Senator Berger and other legislators
have not waived their legislative privilege.
You have no right to waive their legislative
privilege for them.
Therefore, I instruct you not to answer

24

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January 25,
25, 2017

1

any questions about what Senator Berger or any

11

2

other legislator said to you.

2

Q. Yes.
A. Well, I had interest in it.

3

BY MS. MACKIE:

3

4

Q. To be clear, the question was just did you have

A. Harris and McCrory, right?

4

Q. What did you do after you got that phone call?

5

conversations. So that was the first ---

5

A. Probably tried to contact our counsel to try to

6

A. Repeat that question one more time.

6

get an understanding as to what indeed it meant
and, more importantly, what would be required of

7

MR. FARR
FARR: I heard it. I just wanted

7

8

everyone to know where we were going with this.

8

us to comply with what they -- what the opinion

9

said.

9
10

BY MS. MACKIE:
Q. The question is: Did you and Senator Berger

10

Q. You said you probably called your counsel. Do

11
11

have any discussion between October of 2015 and

11
11

12

February of 2016 about redrawing the 2011

12

13

Congressional Plan?

13

needed to understand what the responsibilities

14

would be for the redistricting effort to comply

with the Harris court order.

14
15

A. I don't recall having any discussions about

redrawing it because I never anticipated losing

15

16

and having the court consider the maps

16

17

unconstitutional on CD 1 and CD 12.

17

18

Q. So you did not plan to be redrawing the

18

19

20

congressional plan?
A. I followed the law and that is -- I saw no

you have recollection?
A. As best I can recollect, because I would have

Q. Did you make that phone call that evening on
Friday?
A. As soon as I found out about the decision, so

19

sometime during that evening. It was -- my

20

recollection it was somewhere after 5:00 or 6:00

21
21

reason why that would ever be challenged by the

21
21

22

court, especially after the fact that the

22

23

Ridgeway court in the district court in

23

24

North Carolina unanimously found them all to be

24

25

constitutional. So I could never understand why

25

on Friday.
Q. What did you do after that, after you'd spoke
with your counsel?
A. I believe we tried to find a time to meet. Now,
that would have been the 5th, 6th either by

25
11
2
3
4
5
6

27

the federal court would have even had a question

1

about it.

2

exactly if I made the trip into Raleigh or I was

3

on a phone call, but trying to understand what

4
4

we needed to do to comply with the order.

Q. Let's talk about the day that the decision came
out, February 5, 2016. Does that sound right?

meeting in person or phone. I couldn't remember

A. Late in the afternoon.

5

Q. When did you meet either by phone or by person?

Q. On a Friday afternoon?

6

A. As best I can recollect, it might have been the

7

A. Yes, ma'am.

7

Saturday following Friday, and I think Pm
I'm

8

Q. When did you find out about the opinion?

8

accurate in that.

9

A. I think I got a phone call or a reporter or

9

Q. Who was present?

10

somebody might have called me and said, "Well,

10

11
11

what do you think about this," and I said at

11
11

remember exactly who might have been there other

12

that point "I don't know yet because I

12

than the attorneys and potentially

13

haven't" -- this is the first I had heard of it,

13

Representative Lewis. So I would have been

but I think that's probably when I might have

14

there just listening, and that's the best I can

got notified of it.

15

remember on that because I don't remember coming

16

to Raleigh on that Saturday.

14
15
16
17

Q. So you first learned about the decision from a
reporter?

A. I believe I was on the phone call, so I can't

17

Q. Was Dr. Hofeller there?

18

A. Yes, ma'am.

18

A. I don't remember that.

19

Q. Who was that reporter?

19

Q. Were the others, as best you remember, together

20

A. They're very quick. Oh, I can't remember. They

20

in person in Raleigh and you called in from
Charlotte?

21
21

asked a question whenever, something like that,

21
21

22

I'm the senate
and they always call me because Pm

22

A. It would have been from Matthews.

23

redistricting chair.

23

Q. Matthews. I'm sorry?

24

A. It's different than Charlotte. And I can't

24
25

Q. And you were a party to that decision or to that

25

case, right?

26

speak to that because there could have been some

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January 25,
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use traditional redistricting criteria to abide

But it was put together since our time

2

by what the court asked us to do. Under the

was already running from Friday because we had

3

circumstances, it was clear to both

to get this completed by the 19th. There was a

4

Representative Lewis, myself and counsel that

lot of work ahead of us to do so if we were

5

the court, despite mountains of evidence, found
that there was no racially polarized voting in

other people on a phone call also.

going to comply with the order. And the first

6

7

goal would have been to determine what needed to

7

the State of North Carolina, and in that sense

8
8

be done to comply with that order.

8
8

we were not able to use race in any manner.

6

9
10

Q. Who were the attorneys who were on that call?
A. I know for sure Mr. Fan•.
Farr. I can't recollect who

9

It was also clear from the order that

10

the 12th district was not something that many

11

else might have been in the room at that time

11
11

it's something that we
people liked, even though its

12

because I wasn't in there.

12

inherited, it had been litigated on many

13

Q. So that was -- as best you remember, that was on

13

occasions, the Supreme Court validated it and we

14

Saturday, the day after the decision came out;

14
14

used it in our 2011 plan to get pre-clearance

15

is that right?

15

and follow the law as it was understood by us.

16

A. That is correct the best I can remember.

16

17

Q. Did you come to Raleigh at some point?

17

Tuesday, did you discuss criteria at that

18

A. It probably was the first of the next week. We

18

meeting?

19

-weren't in session at that time. So my best --

19

A. Yes, ma'am, I think we were discussing that so

20

either Monday or Tuesday of that week trying to

20

that we would have the opportunity to clearly

21
21

get in and try to begin the process of redrawing

21
21

state to Dr. Hofeller what we felt was the key

22

a map that would have met the requirements and

22

criteria in doing so.

23

complied with the Harris order.

23

24
25

And so best I can recollect, it was

either Monday or Tuesday that I was in Raleigh

Q. When you met with Dr. Hofeller on that Monday or

Again, you know better than I that

24
24

equal population is one that is mandated and you

25

know we could go through that whole list of

29

31

11

to be in the process and get ready to set up the

1
1

contiguity, talking about the issue of changing

2

public hearing on the 15th and get all the other

2

the 12th and consolidating it, which I thought

parts of it in order.

3

was a great idea, especially in lieu of the

4

court's decision and all of the other criteria

5

that were there.

3
4
5
6
7
8
8
9
10
11

Q. Did you meet with Dr. Hofeller at some point
that week of February 8th?

6

A. Yes, ma'am. I believe it was either on -- could

We had a chance to go through that, and

have been Monday or Tuesday or Wednesday of that

7

then Dr. Hofeller would being trying to

week speaking with Dr. Hofeller.

8

implement that on the map so we could get a map

9

that would meet the requirements of the court

Q. So that was one of the first things that you did

after you spoke with your counsel about the

10

and have no misunderstanding as to what we were

decision when it came out?

11
11

trying to do. And it was clearly that we did

12

A. Was to ---

12

not include race anywhere in the drawing of that

13

Q. To meet with Dr. Hofeller.

13

map.

14
14

A. Well, once we were able to establish what was

14

Q. Did Dr. Hofeller provide input on the criteria?

necessary to comply with the order, it was our

15

A. I can't believe -- think that -- you know, if he

16

responsibility, both Representative Lewis and

16

told us, input would be more like, well, this is

17

myself, to let Dr. Hofeller know indeed what we

17

what I would need to do in order to achieve what

18

needed to do to establish the criteria that

18

you want to achieve, just letting us -- you

we've already gotten.

19

know, informing us what he would do.

15

19
20

20

You know, we tried to establish

But he was the person with the

criteria and have it implemented on the map so

21
21

knowledge, and we basically told him these are

22

that -- to the best of our ability to comply

22

the things that we needed to achieve because

23

with the court order.

23

this is what we believed was required of us to
comply with the Harris decision.

21
21

24
24

Q. When did you establish the criteria?

24

25

A. It was on -- during the entire process trying to

25

30

And in building the criteria, I think

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January 25,
25, 2017

we had about eight points on there, recognizing

11

2

that not one of those is a -- takes priority

2

3

over any other and it was a harmonization of all

3

4

of those criteria that allowed us to find
fmd a map

4

together what would have been traditional

5

that finally was approved by the court.

5

redistricting criteria which, again, equal
population, contiguity, the political data,
partisan advantage.

1

6

Q. Did you tell Dr. Hofeller in that meeting on

6

7

Monday or Tuesday that you wanted to give

7

8
8

Republicans a 10-3 advantage in the new

8
8

9
10
11
11
12

13
14
14
15
16
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18
19

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21

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24
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congressional plan?
A. I believe that what we wanted to do in
explaining the criteria that we wanted to --similarly do what was in the original enacted
map that was a 10-3, we would like to see
whether it was possible to achieve the same mix
and -- and what that really means is to give
Republicans an opportunity in competitive
districts that would have been drawn by
following and harmonizing all of the criteria
necessary to achieve our goal of getting the
Harris court satisfied with our map.
-Q. So did you tell Dr. Hofeller that day that -A. That was one of the list that we would have
wanted him to include in his efforts.
MR. FARR: Senator Rucho --THE WITNESS: Sir.

9
10

you when you met with Dr. Hofeller on
February 8th or 9th?
A. Not this document. It would have been putting

Of course, the 12th district was
something that the court had requested or
suggested that would be remedied. Of course

11
11

compactness and how we felt it was to be

12

achieved by having all counties and, of course,

13

a traditional redistricting criteria including

14

incumbency when possible. This explains what we

15

explained to him.

16
17

Q. Did you look at a document with criteria on it
when you met with Dr. Hofeller?

18

A. Not that I recollect.

19

Q. So there was no one document with the criteria

20
21
21

that you discussed?
A. Not at the time we discussed with Dr. Hofeller.

22

Q. When was Exhibit 24 created, first created?

23

A. Goodness gracious. It was sometime during that

24

week prior to submitting the plans because

25

Dr. Hofeller needed to have some -- the criteria

33
11
2
3
4

35
1

so that he could produce a map that complied

finish her question so it's
its easier for the

2

with those in a harmonized fashion. I don't

court reporter.

3

MR. FARR: -- would you let Caroline

THE WITNESS: That's fine.

Q. Do you know who drafted Exhibit 24?
A. Not specifically. I don't know the individual.

5

BY MS. MACKIE:

5

6

Q. Thank you.

6

7

Senator, you mentioned a list with

remember exactly the date.

4
4

I don't remember who it was.

7

Q. Did you have a part in drafting Exhibit 24?

8
8

about eight points. Is there a document that

8

A. My part of it would have been at the time we sat

9

reflects the criteria that you discussed that

9

down and talked with Dr. Hofeller, as we told

10
11

day with Dr. Hofeller?
A. The document was I think one of the -- one of

10

him the areas that we felt were important, I

11
11

would have just put my opinion in as to when and

12

the pieces of evidence that was submitted

12

how they would work and what they were trying to

13

yesterday. I think it was number 28.

13

do, asking questions, making sure that

Q. Let me hand you what was marked as Exhibit 24.

14

everything was as best we could make it.

15

A. 24. Okay. Sorry.

15

Q. Did you take any notes at that meeting?

16

Q. Is that the document that you discussed with

16

A. No, ma'am.

17

Q. And who was present when you met on Monday or

14

17

Dr. Hofeller?
A. That reflects the criteria that was established

18

19

to have us achieve our goal of getting the map

19

20

drawn that would have been acceptable to the

20

21
21

Harris court.

21
21

18

22
23
24
25

Tuesday?
A. I remember it was Dr. Hofeller, myself,
Representative Lewis, Attorney Goodson, Brent
Woodcox and probably Jim Blaine.

22

Q. Who is Attorney Goodson?

answer. I may not have phrased my question

23

A. He works with the Speaker's office.

correctly.

24

Q. And who is Jim Blaine?

25

A. Jim Blaine is -- works with the legislature.

Q. I'm sorry, I may not have understood your

Did you have this document in front of

34

36

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January 25,
25, 2017

Q. What does he do with the legislature?

11

A. He's, I think, Senator Berger's -- I think his

2

there is no -- that's just mandatory.
Q. At this point you were still currently Senate

3

title is chief of staff with the pro tem's

3

4
4

office.

4

A. Yes, ma'am.

Redistricting Committee chair?

5

Q. Was Senator Berger at that meeting?

5

Q. So you didn't have to be reappointed that week?

6

A. No, ma'am.

6

A. Once they gave me the job, it was mine. So, no,

7

Q. And where did you meet?

7

I don't believe we had to get reappointed.

8
8

A. I believe it was at Dr. Hofeller's home.

8
8

Q. Did you schedule committee meetings?

99

I'm sure at that point we were trying to be sure
A. Pm

9
10
10

Q. Did Dr. Hofeller show you any maps that day?
A. Some initial maps. As you know, the map drawing

10

that we had a map ready to bring before.

11

is a process of iterations, and at that point he

11

12

would have done some basics well beyond my level

12

13

of how Maptitude work, not only my level of

13

other. You get your concept, you sit down with

14

knowledge but looking at some preliminary maps

14

people that are helping you put it together and

15

that he may have been working on as far as the

15

then you bring it forward to the committee for

basics.

16

debate, discussion, amendments or whatever might

17

be done.

16
17

And then after we refined what we were

It's like any other piece of
its redistricting or any
legislation, whether it's

18
18

looking for as far as specific criteria, then he

18

19

would have finalized it and then got it to the

19

when we did the 2011 map, we had criteria

20

point where it was ready to be submitted to the

20

established as to how to draw those maps, fair

committee.

21

and legal at that time.

21
22

And in conjunction with that, as we did

22

Well, in this case, even though we

with Dr. Hofeller were drawn by him without any

23

really believed our map was constitutional, the

24

input from you and Representative Lewis?

24

court required us to come up with an alternative

25

A. It would have been -- it would have been a --

25

map in a very short period of time. We had to

23

Q. So the maps that you reviewed that day meeting

39

37
11

the cursory or the preliminary requirements of

11

have the map -- finished map, passed map in the

2

getting the map on there and all that stuff and

2

hands of the court by the 19th is my best guess,

3

then some preliminary designs or ideas as to

3

4

what might be done in regard to drawing the map.

4

5

5

It is a long process in a short period

my best recollection, so...

Q. My question is: Did you schedule committee
meetings?

6

of time, so it would have been some cursory

6

A. We were -- first of all, we needed to get a map

7

designs. And then as we refined the criteria

7

close so that we can have something to bring

8

that was necessary for us to comply with the

8

forward. But, yes, we actually set up a public

9

court order, he would have refined the map to

9

hearing on the 15th and then committee hearings

10

the -- to one that would be able to be presented

10

11

to the committee, to the General Assembly.

11

Q. When did you set up that public hearing?
Q.
A. It was the latter part of -- what was the week

to follow.

12

Q. Did you have any discussion about the partisan
Q.

12

13

breakdown of the maps that Dr. Hofeller showed

13

you?

14

Q. The week of the 8th.

15

A. Right. It was somewhere in there talking with

14
15

A. Not that I recollect. All I can say is that

prior to the 15th?

16

we -- by that time we had come to the conclusion

16

Ms. Churchill and the other staff members who

17

that, of course, race was totally to be not

17

helped us with the -- the IT department who

18

included and also partisan registration was not

18

helped us with the original redistricting,

19

to be included in there and that the 12th

19

setting up public hearings and the like. So we

20

district was not to be -- or was to be

20

did set up the public hearing. I think it was

21

consolidated, however it would have been put

21

22

together. And it took, I'm sure, some time to

22

23

figure out how to best do that.

23

with Dr. Hofeller on Monday or Tuesday and then

24

setting up the public hearing, which I believe

25

you said was you set that up at the end of the

24
25

And then again, after that, equal
population would have been a requirement that

38

in about five or six locations on that Monday.
Q. What did you do between that initial meeting
Q.

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January 25,
25, 2017

week. What else did you do that week?
A. Well, I'm sure getting all of the -- working

11

Q. What about the next three on the first page of
Q

2

Exhibit 24?
A. The political data, it was designed for us to be

with staff to get the documentation ready for
the committee meetings, that included the list

3

of criteria listed and being able to explain.
And then we also had to set up the

5

Joint House and Senate Redistricting Committee
to adopt the criteria.

7

And then, of course, we had additional
committee meetings on redistricting, additional

9

4

6

8

io
10

committee meetings with the possibility that we
would have to establish a new election schedule

11

so that it would have had to comply with what
the Harris court wanted us to do different than

13

what was the normal primary time.
Q. When -- you said earlier that the court gave you

15

two weeks to draw new plans.
A. 14 days, but that -- that also included

17

12

14

16

18

able to use election results as a way of
determining how those districts would have been
put into place, you know, what VTDs were there
with the -- part of the criteria of making sure
that we did whole counties wherever we could.
And actually, 13 split counties and 12
split VTDs is the best it's ever been. I don't
believe any other map has ever achieved that
kind of what you would call compactness because
keeping whole counties whole together is what we
considered important in regard to compactness.
Q. Did you just orally tell that information to

Dr. Hofeller or did you e-mail it to him? How
did you convey --A. It was just a discussion as to what we felt. I
mean, a lot of what we did in the 2016

weekends. That also included the fact that we
didn't learn of it until Friday late. So we

19

lost a lot of time in what is -- it took us
months to do the original map, the 2011 map, and

21
21

were all things that were done at the time of

22

we had to really -- and I think the staff worked
very hard to try to help us get this

23

2011 so it was a repeat but with the fact that
we totally eliminated race completely and in

24

doing political data as far as how we drew the

accomplished in a timely manner.

25

maps and put counties together. And I believe

20

contingent were similar in the sense that these

41

43

1

Q. Is it your understanding that the two-week

11

Dr. Hofeller's testimony was there, but we

2

timeframe came from a general statute?
A. That should be revisited at some point, but,

2

wanted to eliminate any possibility that race
was included in any of the design of the

yes, my understanding was that's what the 14
days were, but it's still not enough time -- or
let's just say to you not without having to put
a lot of pressure on a lot of people to try to
meet that schedule.
Q. But you did it in 2016?
A. Magically.
Q. When you met with Dr. Hofeller on Monday or
Tuesday of that week, did Dr. Hofeller take any
notes about the criteria that you discussed?
A. Not that I know of.
Q. How did you convey the criteria that he should
use in drawing the maps to him?
A. Well, the criteria, as you can see before us, a
lot of it is evident. I mean, we recognize that
any congressional district there is zero
deviation, so that's an automatic. That
automatically is a criteria.
The issue of contiguity is a
requirement in redistricting. The counties have
to be adjacent to one another, connected. Of
course --

4

3
4
5
6
7
8
8
9
10

11
11
12
13
14
15
16
17
18
19

20
21
21
22
23
24
25

3

42

5
6
7
8
8
9
10

11
11
12
13
14
15
16
17
18
19

20
21
21
22
23
24
25

districts.
Q. Was partisan advantage a goal of the 2011
Congressional Plan?
A. What partisan advantage in my judgment really
says is that it's important to be able to have
congressional districts that even Republicans
have a chance of winning and try to be
competitive in.
If you look at the maps and you look at
the stat packs in the '11 and in the 2016 maps,
not one -- out of the 13, 10 of them that are
there in, quote, won by Republicans, not one of
them has a Republican majority in it. So any of
those districts require a candidate to come
forward and garner Republican votes,
unaffiliated votes and even potentially some
Democrat votes to win that election so they're
competitive.
Q. I'm sorry. You're talking registration numbers?
A. I'm talking, in essence, the people that
comprise the district. It would have required
in our state -- we have about 22 to 25 percent

44

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41 to 44)
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Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
513
of
662
DISCOVERY COURT REPORTERS
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www.discoverydepo.com

 SENATOR ROBERT A. RUCHO

January 25,
25, 2017

unaffiliated voters, and I believe that reflects

11

2

pretty closely as to the breakdown in most of

2

I'm explaining to people
misunderstanding when Pm

3

the districts. None of those districts were

3

what I would expect from them.

4

ever a slam dunk majority for the Republicans.

4
4

1

5
6
7

Q. In terms of registered Republicans?

5

A. People that would have participated there, yes.

6
7

Registered, yes.

rarely do. Especially I don't want any

Q. Did you communicate with Dr. Hofeller in writing
through counsel?

MR. FARR
FARR: Well, I'll
Pll object to that.
Instruct you not to answer.

8
8

Q. Based on their voter registration?

8
8

MS. MACKIE: The question is just

9

A. (Witness nodding head up and down.)

9

whether that happened, not the subject of any of

10

11
11

Q. Yes? Is that a "yes"?

10

A. Yes. Even though when we drew the maps,

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11

those communications.
THE WITNESS: I can't recall that that

12

registration was not one of the criteria that we

12

13

actually used. It was strictly election

13

BY MS. MACKIE:

14

I'm basically going now as to what the
results. Pm

14

Q. You don't recall e-mailing Dr. Hofeller and

final results were having looked at it

15

subsequently.

16

A. I don't recall doing that.

17

Q. Pin
I'm going to get into some notebooks which we

15
16
17

Q. So you looked at it after the fact and noticed

18

that Republicans were not a majority of the

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registered voters in any of the districts

19

enacted?

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A. That's correct. And that is also similar to the

21
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2011 plan.

Hofeller with the criteria
Q. Did you e-mail Dr. Hotelier

23
24

that you discussed at that meeting?

25

A. I don't recollect doing that, no, ma'am.

was done through counsel.

copying Mr. Farr on the e-mails?

will mark as exhibits.
MR. FARR
FARR: Caroline, before we do this,

can we take a break.
THE VIDEOGRAPHER: Off record at
10:37 a.m.
(Brief Recess.)
THE VIDEOGRAPHER: On record at

10:52 a.m.

45
11
2

3
4
4

Q. Did you communicate with him by e-mail in
February of 2016?
A. I don't remember communicating with Dr. Hofeller
by e-mail.

47
1
1

BY MS. MACKIE:

2

Q. Senator Rucho, I want to follow up on a couple

3

of things that we discussed before the break.

4

One of the things is that Saturday
meeting where you called in from Matthews,

5

Q. Did he advise you not to e-mail him?

5

6

A. He never told me that.

6

7

Q. You were here yesterday in his deposition.

7

A. That's what I recollect, yes.

8
8

A. Yes, ma'am.

8

Q. Did you discuss goals for the new map at that

9

Q. You saw the PowerPoints or heard testimony about

9

10

the PowerPoint where he warned against putting

10

11
11

things in writing during redistricting.

11
11

12
13

Hofeller's
Do you agree with Dr. Hofellees
concerns?

right?

meeting?
MR. FARR: Objection. Instruct you not
to answer. Attorney-client privilege.

12

BY MS. MACKIE:

13

Q. So that was a conversation with your counsel on

14

MR. FARR
FARR: Objection to the form.

14

15

THE WITNESS: I'm not sure that I can

15

A. Yes, ma'am.

that day?

16

communicate clearly -- as clearly as I would

16

Q. So you are not going to answer any questions

17

verbally when I'm
Pin communicating issues or what

17

about the substance of that conversation based

18

I'm asking Dr. Hofeller or any
requirements that Pm

18

on attorney-client privilege?

19

of my staff people on an e-mail versus verbally.

19

20

I probably comply to the Roy Cooper

20

21
21

philosophy of never putting -- never doing

21
21

22

e-mails, so...

22

BY MS. MACKIE:

23

Q. Thank you.

BY MS. MACKIE:

23

24

Q. So would that be a yes that you ---

24

25

A. Well, similarly, I just don't do e-mails or

25

46

MR. FARR: Because I've told him to not
answer.
THE WITNESS: Advice of my counsel.

You said earlier that you -- at some
point that following week, the week of

48

12 (Pages
(Pages 45 to 48)
48)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
514
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 SENATOR ROBERT A. RUCHO

January 25,
25, 2017

-February 8th, 9th -A. Whatever the Monday -- the 8th.

11

2
3

Q. Yes, I'm having trouble remembering that date.

3

4

-- that Hofeller needed the criteria
that week so it was put into writing at some
point that week.
Is that an accurate assessment of your
testimony?
A. I would say to you that once we established the
criteria, it was a document that was being
presented to the Joint House and Senate
Committee on Redistricting would have had a
written document explaining the criteria so that
it would have been able to be discussed and
voted on for approval.
Q. And my question is when was the criteria put
into a document.
A. Sometime during that week.
Q. The week of February 8th?
A. Right. Prior to -- prior to the committee
meetings.
Q. And what was the purpose of putting it in
writing?
A. To present it to the committee.
Q. Was another purpose to present it to

4

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2

--

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A. Whatever they chose to talk about. There was no
requirement anyway.

Q. But what was your goal?
A. To hear what they had to say. There were no
specifics. Whatever they thought they needed to
tell us prior to moving forward would have been
open for their -- for their comments.

8
8

Q. How did you select the locations for this

9

hearing?
A. We allowed staff to do so, similar to picking

10

11
11
12
13
14
15
16
17
18
19

where we had locations suitable for -- what is
the proper term -- videoconferencing at
different community colleges that had that
ability, actually. When there was possibilities
of accommodating some of the senators or House
members to a location they wanted to, staff was

able to identify suitable sites and we were able
to put together, I think as I mentioned to you,
about five or six sites.

20

Q. Did you advise staff on the counties where

21
21

these -- the hearing should take place?
A. Other than Raleigh, of course, where we had it,

22
23
24
25

but we allowed them to use the location that
they found they could have a suitable
audio/visual capabilities.

49
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51
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Q. So you didn't suggest to staff that they should

A. No, ma'am. We had already had that discussion.
Q. And he had already started drawing maps?

2

look for a location around Fayetteville?
A. Not that I remember.

A. With our guidance.
(WHEREUPON, Plaintiffs' Exhibit 33 was

4

marked for identification.)
BY MS. MACKIE:

6

Q. You have in front of you what we have marked as
Exhibit 33 which is a notebook containing the

8
8

Dr. Hofeller?

9
10
lc)
11
11

A. Yes, ma'am.
Q. Who planned this hearing?

12
13

A. The meeting was asked -- Representative Lewis
and I requested Ms. Churchill and IT from the
General Assembly to put it together.

Q. And what was the purpose of it?

5

7

public hearing transcript.
Have you seen this before?

17

3

14
14
15
16

17
17

Q. You left that completely up to staff?
A. (Witness nodding head up and down.)
Q. Did you tell staff how many locations you
wanted?
A. We told them five or six, where possible. And
there was a very short timeframe, actually. So
we didn't have the luxury of putting -- they had
to do it very quickly.
Q. When did you announce that the public hearing
would take place?
A. As best I can remember, I thought it was on the
Friday prior to the county -- prior to the
hearing on the 15th.
Q. Okay. So Friday, February 12th?

18

A. To get public input.

18

19

Q. Public input into what exactly?

19

Q. Okay. And how did you announce it?

20

A. What would have been the -- as we did in the
original maps, 2011 maps, we wanted to hear from

20

A. I allowed Ms. Churchill to do what normally is

21
21

22
23
24
25

the public any comments they may have in regard
to congressional redistricting.
Q. Did you want to hear from the public on the
criteria used to draw the maps?

21
21
22
23
24
25

50

A. I believe that's correct.

done as far as public announcement.
Q. Through the --A. Media.
Q. Was it through the redistricting committee
website or how?

52

13 (Pages
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52)
Case
5:19-cv-00452-BO
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Filed
10/14/19
Page
515
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662
DISCOVERY COURT REPORTERS
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 SENATOR ROBERT A. RUCHO

1
1
2
3
4

January 25,
25, 2017
11

Q. Did you draw straws?

did it through media contact, similar to what

2

A. Is that the long or the short straw?

they did the first time.

3

Q. I don't know. You tell me.

A. Well, that was part of it, but I think they also

Q. Did you give Ms. Churchill any instruction on

4

Did Hofeller attend this public

5

how she should announce it or avenues of the

5

hearing?

6

media she should use or anything like that?

6

A. No, ma'am.
Q. Did you send him transcripts of the public

7

A. Just like she did the first time.

7

8

Q. Did you preside at this hearing?

8
8

9

A. I was -- I presided at the Raleigh location, and

9

10

11
11

then there were House and Senate members that

10
10

presided at the satellite location.

11
ii

hearing?
A. I don't recall that.
Q. Did members of the public have the opportunity
to submit written comments?

12

Q. And were the satellite locations linked into the

12

A. Yes, ma'am.

13

Raleigh location through videoconference or

13

Q. And was that in addition to attending a public

14

through teleconference?

14

hearing or was that separate from attending the

A. I'm not sure I know the difference.

15

public hearing?

16

Q. Could you see the people in the other locations?

16

17

A. Yes.

17

even if they attended, they still had the

18

Q. And you could also hear them?

18

ability to submit a public comment too, and if

19

A. Yes, ma'am. And we rotated through the -- each

19

they didn't attend it, they could do it. So it

20

was pretty broad based.

15

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21
21
22

of the sites.
Q. Okay. Could the people in the other location

21
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see you?

-A. They could go on to the website and submit --

Q. Did you send -- did you receive written comments
through the website?

23

A. Yes.

23

A. Yes.

24

Q. Could they see each other?

24

Q. Do you have a recollection of how many you

A. Could they see --

25

25

received?

53
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55
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Q. So could the individuals who showed up in

A. I don't recall.

2

Fayetteville see the people who were in

2

Q. Okay. Did you send those to Dr. Hofeller?

3

New Hanover county?

3

A. No, ma'am.
Q. Did you in any way convey the comments from the

A. I think the person who was speaking at the time

4

5

when they came to the podium or came to the

5

6

microphone. Is that what you mean?

6

4

public to Dr. Hofeller?
A. No. I mean, other than the fact that in the

7

Q. Sure.

7

criteria -- I mean, there was no specifics in

8

A. If they came to the microphone, the camera is on

8
8

the sense of Representative Lewis and I

9

independently read the reports. You know, we

9

them, and so when they saw the people that were

10

in the other locations listening could see that

10

11
11

individual.

11
11

the written, and if there was anything pertinent
we would have related it to Dr. Hofeller that

12

Q. Okay. So everybody who attended this public

12

13

hearing, wherever they were, they could see the

13

person speaking?

14
14

14
15

A. Yes, ma'am.

15

16

Q. And Pm
I'm sony,
sorry, did you say whether you presided

16

17

17

at this hearing?

were present there for most of it, but any of

was needed.
Q. So you and Representative Lewis read this

transcript?
A. I did, and I'm assuming he did also, and then
also the written comments that would have come.

18

A. I did.

18

Q. When did you read those?

19

sorry, that was not a
Pm sony,
Q. And you did preside. I'm

19

A. Probably late -- that was a very long meeting on

20

20

clear question.

the 15th, but we read it to see if there was

21
21

A. I presided.

21
21

anything specifically on the written comments

22

Q. Thank you.

22

because we were present for most of the -- or I

23

I'm sure he was too -- present for most
was and Pm

23
24
25

How did you decide that you would be

24
24

the one to preside at this hearing?

25

A. I spoke with Representative Lewis and --

54

of the public hearing.
Q. And then you conveyed some of those comments to

56

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5-1
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Page
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662
DISCOVERY COURT REPORTERS
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 SENATOR ROBERT A. RUCHO
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January 25,
25, 2017
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Dr. Hofeller?
A. I don't recollect directly. I mean, if it was
necessary we would have been, but that would

2

have been our -- based on our judgment.
Q. So yes or no? Did you convey any of the

4

3

5

comments from ---

6

7

A. No.

7

8
8

Q. Okay. Did members of the public make comments
either at the public hearing or through written

8
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10
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12
13
14
15
16

submissions showing concern about a potential
partisan gerrymander?
A. Not that I can recall.
Q. You have no recollection of members concerned
about an unequal balance of political power in
the congressional plans?

14

19

Q. Do you have a recollection of members of the

20

21
21

public asking the legislature to leave politics

21
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24
25

reduced. And nowadays, the safe district
effect is compounded by an incumbent's
reasonable concern that he or she may
face a primary challenger.

15

20

23

represent districts drawn to be safe, the
incentive for compromise is greatly

13

18

22

A. 59. Okay. Starting on page -- okay.
But when too many officeholders
"But

11
11
12

THE WITNESS: I can't
cant recall that.
BY MS. MACKIE:

19

redistricting" --Q. Pm
I'm sorry. Page 59.

9

16

17

A. Okay. Starting at Line 3:
"We need to create a non-partisan

10

MR. FARR: Objection to the form.
You can answer.

18

-A. Just read them -Q. You can read them out loud.

"It seems fair to assume that we can
all agree that at present, gridlock at

17

the Congressional level is a serious
problem. It's not an easy problem to
resolve, but reducing the number of safe
districts would surely have some
favorable impact by increasing the
incentive to compromise."

out of the map-drawing process?
A. I cant
can't recall.

22
23

Q. And if you will read on Page 58 beginning at

Q. Do you have a recollection of members of the
public requesting a non-partisan commission to

24

Line 16, the sentence that starts with "When,"

25

and just read through the end of that paragraph.

57
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4
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draw the maps?
A. That -- some people chose to use their time to

59
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discuss that, but that wasn't pertinent to what
we were there for public hearing-wise.

3
4

Q. Why wasn't that pertinent?
A. Because we were concerned about getting the map

5

drawn. That had nothing to do with what our
goal was, and that was to comply with the Harris

7

order.

9

Q. Did you convey any comments to Dr. Hofeller

6

8
8

10

about public comments relating to the partisan
makeup of the map that he was drawing?

11
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can't -- I don't
A. I cant
dont believe I did.
Q. Okay. If you will turn to Page 58 -- actually,

13
14
14

if you'll turn to Page 57 first. You see about,
oh, at Line 10 there's a speaker Mr. Tom Byers?

15
16

17

A. Yes, ma'am.

17
17

18

Q. Do you recall Mr. Byers speaking from Asheville?

18

19

A. Gracious, we must have had probably maybe close
to 200 speakers. So I don't
dont remember Mr. Byers.

19

Q. Fair enough. Not a memory test. Luckily we
have a transcript here to help us.

21
21

20
21
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22
23

20

22

If you will look at Page 59 and

23

24

starting at Line 3 just read the next two

24

25

paragraphs.

25

58

A.

"When the party in power manipulates
boundaries to give itself an edge, the
end result is elected officials who don't

necessarily represent the true preference
of the majority. That is not good."
Q. Does that refresh your recollection about
whether since citizens spoke out about the
potential partisan impact of the plan?
A. It's just a concern raised by an individual.
You know, whether it's accurate or not is -- you
know, each person would make up their own

choice.
But, you know, our goal was to create
districts that were competitive and that would
give an opportunity for Republicans and
Democrats to win districts. So, you know, we
appreciate his advice, but I don't know if I
necessarily agree with his comment completely.
Q. You did not convey that to Dr. Hofeller?
A. No, ma'am.
Q. And so you did not take his comment into
consideration in drawing the 2016 plan?
A. I don't recall that, no, ma'am.
Q. Okay. If you will turn to Page 114.
A. Again what, please.

60

15 (Pages
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Case
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 SENATOR ROBERT A. RUCHO
11

January 25,
25, 2017

Q. 114. And once you get there, you can look at

2

page 113 see who the speaker is.

11

A. Mr. McCollum, again, another 1 of 200, has an

2

opinion that he presented. I don't agree with

3

A. Okay. I have 113 before me.

3

the -- with his analysis of saying then there

4

its a Mr. Brian
Q. Do you see at the bottom where it's

4

should be similar results based on what partisan

5

McCollum? He's a student at UNC Charlotte.

5

registration is because it's a different type of
an election.

6

A. I see that.

6

7

Q. And then on the next page, Page 114, is some of

7

8

Mr. McCollum's statements, and if you will read

9

10
10

beginning at Line 17 and read through --

Pm not sure what he's
It's not statewide. So I'm

9

saying -- it's not part of the electoral system

A. Beginning on 17 on Page 114.

10
io

11
11

Q. 114 and then read through Line 1 on 115.

11

12

A. On page 17 -- excuse me. On Line 17:

12

13

13

"You know, we have 13 congressional

It's an election based on geography.

8
8

14

districts in the state, and only three of

14

15

that we presently have in America.
Q. But you had a goal of drawing a plan that would
make reasonable efforts to construct districts
that would elect 10 Republicans and 3 Democrats?
A. It would have reflected what was on the enacted

them are Democratic -- or held by

15

16

Democrats. So there's 10 held by

16

of the criteria that were established to produce

17

Republicans, 3 by Democrats."

17

a map that passed and was accepted by the Harris

18

18

-Continue or --

19

Q. Continue.

19

20

A.

20

"That just does not really add up

plan in 2011. And if we were able to follow all

court, then, you know, 10-3 be what it be.
Q. My question is: That was one of your criteria,
right, the 10-3?

21
21

when you consider we're in a 50/50 split,

21
21

22

you know, liberal/conservative. We went

22

all of the criteria into place, not strictly

23

to Obama in 2008. We went for Mitt

23

partisan. So that's what is very important.

24

Romney in 2012. It's pretty even split.

24

It's a harmonization of all the criteria, not

So you would think the congressional

25

not just dealing with partisanship.

25
25

A. It was one of the criteria. As long as you took

61
11
2
3
4

63
1
1

districts would match that."
Q. Did you convey Mr. McCollum's comments to
Mr. Hofeller?

Q. Exhibit 24, the adopted criteria, this -- had

2

this document been drafted as of February 15,

3

2016?

A. No. And I would probably say to you, even in

4

5

lieu of something that was discussed yesterday,

5

6

-the congressional districts and the redrawing --

6

committee, but we pretty much understood what

7

and the drawing of districts is -- it's

7

would have been involved in it.

8
8

recognized that these are not statewide

8
8

Q. And you had already met with Dr. Hofeller and

9

elections. These are congressional districts

9

conveyed the criteria that you wanted him to use

A. I can't remember if it was in its final
ready-for-delivery type to be presented to

10

I'm not sure that
based on geography, and Pm

10

11

there's a reflection with the partisan makeup

11
11

12

and the results because each of the districts

12

what we would have expected in there, and the

13

choose their own elected individual. So I

13

purpose of the criteria was to meet the

14

chose ---

14

requirements of the Harris court.

to draw the maps?
A. We had an opportunity to explain to Dr. Hofeller

15

Q. What do you mean?

15

16

A. So in essence, I chose not to include that

16

17

because these are not statewide elections.

17

A. I don't know if he was doing it that day or not.

18

Q. Was it your understanding after you met with him

Q. As far as you know, was Dr. Hofeller working on
maps on February 15, 2016?

These are district elections and each district

18

19

is -- the people from that district elect their

19

20

representative. It isn't a necessary reflection

20

21
21

of the -- of the -- of what would be statewide

21
21

A. Try it again.

population and partisan numbers.

22

Q. Let me clarify.

22
23
24
25

Q. Would you agree that Mr. McCollum's comments

23

the prior Monday or Tuesday he would start

immediately working on maps?

When you met with him on that Monday or

contradict the criteria of partisan advantage

24

Tuesday, you looked at some maps that he had

that's listed on Exhibit 24?

25

already drawn.

62

64

16 (Pages
(Pages 61
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64)
Case
5:19-cv-00452-BO
Document
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10/14/19
Page
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662
DISCOVERY COURT REPORTERS
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 SENATOR ROBERT A. RUCHO
11

January 25,
25, 2017

A. We looked at some beginning maps, you know,

11

Q. Okay. Will you look at Page 43 and beginning at

2

knowing that there would have had to have

2

3

been -- one of the criteria would have been

3

4

trying to keep counties whole, trying to -- you

4

Q. Page 43.

5

know, that's some of the original stuff you had

5

A. 17.

6

Line 17 read that paragraph out loud.

-A. Line 43 --

before we even refined it down to some of the

6

Q. Line 17.

7

specifics dealing with trying to get to

7

A.

8
8

resolution of the Harris order.

8
8

9

Q. So after you met on that Monday or Tuesday, was

9

"You have produced no maps for
alternatives that we would have the

opportunity to see, so how do we know

10

Dr. Hofeller drawing the map that he would

10

that you won't come back with something

11
11

present to you and Representative Lewis?

11

just as crazy as what you've done
already? How can citizens make

12

A. It was in the process.

12

13

Q. Okay. Did members of the public convey any

13

intelligent comments on something that

14

concern about the lack of transparency in the

14

we have not seen? How do we know that

15

process?

15

you won't produce the same kind of crazy

16

16

A. One that I recollect was that -- I guess
gums it was

17

snowing on that Monday so some of them felt that

17

18

the turnout wouldn't be quite as robust as it

18

19

could have been, even though we did have

19

20

maps again?"
Q. And again, you didn't convey any of these

comments to Dr. Hofeller?
A. We had 200 people plus presenting their

significant participation. That was one comment

20

21
21

that I remembered, but there wasn't anything we

21
21

22

could do about the snow and especially with our

22

conversations about producing maps for members

23

timeline.

23

of the public to see?

24
25

Q. Right. Did members of the public express

concern about not knowing the criteria that you

thoughts, and they were all welcome to speak.
Q. Did you and Representative Lewis have any

24

A. The -- I don't recall having a discussion with

25

senator -- Representative Lewis about that

65
11

67
1
1

would use to draw the maps?

specific issue.

2

A. To my recollection it wasn't mentioned.

2

3

Q. Did anyone express concern about not having

3

FARR: What page, Caroline?
MR. FARR

4

MS. MACKIE: 239, second to last page.

4
4

draft maps available to look at?

Q. If you will turn to Page 239.

A. I don't recall anyone asking for draft maps,

5

BY MS. MACKIE:

but, again, we were on a very tight schedule

6

Q. And beginning on Line 6, these are your closing

7

trying to get everything done in about eight

7

8
8

days, so I can't remember if anyone specifically

8

A. Yes.

9

had requested that.

9

Q. -- to the public and members of the Select

5
6

10

Q. And the announcement for this public hearing was

comments --

10

Committee on Redistricting who were helping run
this public hearing; is that correct?

11

made you think about one week after the decision

11
11

12

came out in Harris?

12

A. All the members of the Joint Select Committee

13

were invited to participate and appreciate the

13

A. As best I can remember, it was on the Friday

14

prior to the Monday to get notice out to as many

14

fact that some of them were able to be at the

15

people as we could to let them be informed.

15

satellite locations to help it be smoothly run

16

Q. So you were halfway through the two-week period

17

when you announced that there would be a public

18

hearing?

19

20
21
21

16
17
18

A. I would -- yeah, that probably would be
accurate.
Q. Okay. If you'll turn to Page 43. And if you

and to listen to the comments.

Q. Okay. And you say that:
"...we will have a chance to digest

19

all the information we received today

20

and try to establish some criteria upon

21
21

which we would like to draw these maps

22

look at the bottom of Page 42, you can identify

22

that would coincide with what the court

23

the speaker as a Mr. Gary Grant who appeared to

23

decision was read."

be in Halifax county.

24

24
25

25

A. I can see where Mr. Grant begins.

66

My question is: What did you do with
the criteria after this public hearing?

68

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(Pages 65 to 68)
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Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
519
of
662
DISCOVERY COURT REPORTERS
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 SENATOR ROBERT A. RUCHO
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January 25,
25, 2017
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A. If there was anything that we felt was

2

necessary, we would have refined it prior to

2

3

submitting it to the full Select Committee on

3

4

Tuesday the 10th -- excuse me, at 10:00.

4
4

5

But the basic criteria are traditional

5

6

redistricting principles. So we felt they were

6

7

pretty consistent with what we felt needed to be

7
7

8

done to achieve what the Harris court and to

8
8

9

110o
11
11
12
13
14
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16
17
18
19

20
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9

comply with the Harris court.
Q. The criteria were drafted as of February 15,
2016, right?

changes prior to submitting it to the Joint
Select Committee for approval, I mean, we would

determine the size of that committee?
A. Yes.

14
14

Q. Did they also determine
deterrnine the political makeup of

A. I can't recall if we did. It's basic

17
17
18
19

20
21
21

22

A. I don't.

23

24

Q. Okay. You can set this notebook to the side. I

24
25

don't think we'll come back to it.

Q. Who appointed the members of that committee?

13

23

25
25

Committee on Redistricting?
A. Yes.

Q. And did Senator Berger and Speaker Moore also

16

changes to the criteria following this public
hearing?

on Redistricting, yes.
Q. Was this the first meeting of the Joint

11
11

15

consistent.
Q. You have no recollection of whether you made

should be the Joint House and Senate Committee

A. Senator Berger and Speaker Moore.

have refined it if need be.
Q. Did you make changes to the criteria?
redistricting principles that we followed,

identify this transcript for us?
A. Yes. It appears to be a transcript of the ---

10

12

A. Well, if there was any need of making final

Q. Okay. If you will turn to Tab 1,
I, can you

that committee?
A. They chose the members of the committee, yes,
ma'am.
Q. Did you have any input into who would be members
of that committee?
A. I don't recall if I did comment about that or
not to Senator Berger. I can't remember.
Q. Do you know if Representative Lewis had input on
the makeup of the Select Committee on
Redistricting?
A. I don't know the answer to that.

69
11
2
3
4
5

71
1
1

I'm going to hand you what we will mark

2

as Exhibit 34.
(WHEREUPON, Plaintiffs' Exhibit 34 was
marked for identification.)
FARR: Thank you, Caroline. Thank
MR. FARR

Q. But for yourself, you may have, you just don't
remember?

3

A. Correct.

4

Q. Do you remember having conversations with

5

Senator Berger about the committee just in

6

you for doing this. I know it's a pain.

6

7

MS. MACKIE: Do you have it.

7

general?
I'm sure at some
A. Once we established a schedule, Pm

8
8

BY MS. MACKIE:

8
8

point we had a chance to discuss time scheduling

9

Q. And, Senator Rucho, just to make things a little

9

and things of that sort --

io
10
11

bit easier, there is a table of contents in the

10

Q. Okay.

front.

11
11

A. -- to meet the 19th deadline.
Q. Right. In this first meeting, you testified

12

A. Yes, ma'am.

12

13

Q. And what Exhibit 34 has in it are the Joint

13

this was the first meeting and then met on the

Committee meetings, the House Committee meetings

14

16th?

15

and the Senate Committee meetings. And also,

15

16

just for the record, there is a typo on Number 5

16

Q. What was the role of the committee?

17

on the table of contents. That should be

17

A. Well, the committee was going to have an

18

February 19, not 17.

14
14

19
20

21
21

18

A. Yes, ma'am. Sorry.

opportunity to take up the criteria that

FARR: Which one is that?
MR. FARR

19

Representative Lewis and I were able to put

MS. MACICIE:
MACKIE: Number 5, the House

20

together in establishing how the map or how the

21
21

maps -- the map would be drawn to meet the needs

Committee meeting is February 19th.

22

BY MS. MACKIE:

22

23

Q. Senator Rucho, have you seen these transcripts

23

Q. Did Dr. Hofeller attend this committee meeting?

24

A. No, ma'am.

25

Q. Did you send the transcript to him?

24
24
25

before?
I've had a chance to review most of them.
A. Pve

70

or the requirements of the Harris court.

72

18 (Pages
(Pages 69 to 72)
72)
Case
5:19-cv-00452-BO
Document
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Filed
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Page
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662
DISCOVERY COURT REPORTERS
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 SENATOR ROBERT A. RUCHO

January 25,
25, 2017

1

A. No, ma'am.

11

2

Q. Did you and Representative Lewis meet to prepare

2

A. That's what it says.

3

Q. Okay. Did you help provide answers for the

3

for this meeting?

Common Cause lawsuit?

A. I don't know if it was a specific time, but, of

4

5

course, we discussed it, what we wanted to

5

A. I don't recall.

6

achieve and how we were going to do it.

6

Q. Do you know if your -- well, if you'll look at

4
4

7
8
8
9
10
11
11

Q. Would you have had that discussion in person or
by telephone or by e-mail?
A. Either in person or by phone, yes, ma'am.

7

Question Number 3 on Page 5. Question 3 asked

8

for identification of all persons who assisted

9

in responding, and the response says:

Q. Do you remember one or the other?

10

A. I can't be specific. I know we communicated to

11

assisted in responding to all

interrogatories."

12

make sure that we were prepared to present the

12

13

criteria.

13

14
15

15

this meeting?

FARR: For the committee hearing?
MR. FARR

16

17

MS. MACKIE: The committee hearing,

17

19

"Counsel for legislative defendants

Do you know who that means by counsel
for legislative defendants?

14

Q. Did you look at any documents to prepare for

16

18

questions on this document?

yes.
THE WITNESS: Other than making sure

A. I don't -- I don't know who that would be
specifically.
Q. So you have no knowledge of who responded or

18

assisted in responding to these discovery

19

requests?

20

that we knew exactly what we wanted presented,

20

A. No, ma'am.

21
21

the agenda and the -- who was going to present

21
21

Q. Okay. If you'll look at sort of the second half

22

the criteria and who would chair, that kind of

22

of this document, there are some documents

23

thing, and that was discussed between myself and

23

attached to it that have what lawyers call a

Representative Lewis.

24

Bate stamp at the bottom. It's DEF 0001 and so

25

on. Do you see those documents?

24
25

BY MS. MACKIE:

73

75

11

Q. Other than the agenda, did you look at any

1
1

2

documents?
A. Not that I can recall. Well, I mean, of course

2

Q. From 1 to 41.

3

A. Okay. Yes.

4

Q. Are these materials from the February 16th Joint

3
4

the criteria that we submitted.

5

Q. Okay. That was going to be my question.

5

6

A. Yeah.

6

7

Q. So you did look at Exhibit 24 which was the

7

8
9
10
11

criteria or some version -- was it some version
of Exhibit 24?

A. Yes, DEF and then going from --

Committee meeting?
A. The 1 and 2 looks like they're off of the
website. I don't think I looked at them other

8
9

than what they do is list the committee members.

Q. And DEF 0000 -- several 0's and then a 3, is

A. I -- it was -- yes.

10

that the meeting notice that you sent out for

Q. Okay. I'm sorry to do this to you, we're going

11
11

the February 16th hearing for the Joint Select

12

to sort of move back and forth between some

12

13

exhibits. Keep this one out because we will

13

A. That appears to be the meeting notice.

14

come back to it.
I'm going to hand you what we will mark

14

Q. And it's sent from a William -- you'll have to

15
16
17
18

15
16

as Exhibit 35.
(WHEREUPON, Plaintiffs' Exhibit 35 was
marked for identification.)

Committee on Redistricting?

help me with the pronunciation of his last name.
A. Verbiest.

17

Q.
Q.

18

A. That was the -- my legislative assistant.

Verbiest.

19

BY MS. MACKIE:

19

Q.
Q.

20

Q. Senator Rucho, have you seen this document

20

A. Right.

21
21

before?

21
21

Q. Okay, glad we cleared that up.
A. And he was the -- he ran the committee for us as

22

A. No, ma'am, I don't recall seeing it.

22

23

Q. Can you identify it as Defendant's Responses to

23

24
25

Whose name you could not recall earlier.

far as staffing.

Plaintiffs' First Set of Interrogatories and

24

Q. Okay.

Request for Production of Documents in the

25

A. Thank you. I must be getting old.

74

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19 (Pages
(Pages 73 to 76)
76)
Case
5:19-cv-00452-BO
Document
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Filed
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Page
521
of
662
DISCOVERY COURT REPORTERS
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 SENATOR ROBERT A. RUCHO
11
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January 25,
25, 2017
11

Q. We all are.

2

If you will turn
tunt to Page 9. And can
you tell me what this is.
A. And that is -- you're talking about DEF and the

last number is 9?

3

And I believe the number 733,498 and/or 99, but

4

there is zero deviation in the population of

5

each of the congressional districts.

6

Q. Yes.

6

7

A. It's titled 2016 Contingent Congressional Plan

7

8

Proposed Criteria, Submitted by David Lewis, and

9

that looks like one of the criteria that we were

10
11
11
12

8
9
10

up for discussion.
Q. Okay. And the first one up for discussion was

equal population; is that right?

page DEF 9?
A. Who -Q. Who?
A. -- wrote it?
Q. Uh-huh. Yes.

12

A. I don't know.
Q. Did you and Representative Lewis both support

A. That's the one-person, one-vote, yes, ma'am.

13

14

Q. And that was the first criteria submitted to the

14

committee on February 16th?

Q. Who wrote the language that's on this -- the

11
11

13

15

population criterion?
A. That is a requirement of one-person, one-vote.

this criterion?

15

A. Yes.
Q. Did Dr. Hofeller provide input on this

16

A. I don't know if it was the first, if there's an

16

17

order or something of that sort, but that was

17

18

one of the criteria that was included in the

18

A. Not that I can recall.

criteria.

19

Q. Did he review the language that's on page DEF 9

19

20
21
21
22
23
24
25

Q. The transcript would reflect the order that the

20
21
21

criteria were presented, right?
A. Then I would say to you that that was the first
one that was discussed.
Q. Okay. When you presented the criteria to the

Select Committee, why did you present them one

criterion?

before you submitted it to the committee?
A. Did who?

22

Q. Dr. Hofeller.

23

A. Not that I can recall. We didn't submit it to

24
25

him, so...
Q. And the next page, Page 10, does that show the

77
11
2

79
1
1

by one?
A. Primarily to be able to have discussion on each

A. Yes, ma'am.
Q. Okay. If you will turn to the next page,

3

of the criteria and to -- and I believe we

3

4

recorded vote on every one
actually voted on and reconled

4
4

of the criteria.

5

5
6

Q. And so you handed out what is on page DEF 00009

committee vote on the first criterion?

2

6

DEF 11, what is this one?
A. Again, one of the criteria that was submitted,
and this one deals with contiguity and it talks

7

by itself to the committee; is that right?

7

about the fact that congressional districts

8
8

A. I don't recall if it was done completely and

8

should be comprised of counties that are

9

adjacent and contiguous with one another, no

9
10

11
11
12
13

specifically, whichever way it was handed out so

that it could be discussed one point at a time.

10

kind of point contact which has been done in the

Q. Why didn't you give out all of the criteria at

11
11

past. And then, of course, parts of the coast

12

we have the islands, the water would have been

one time?
A. Probably would have confused the issue. What we

13

14
14

were trying to do was establish the criteria

14

15

that we believed was necessary for us to comply

15

16

with the Harris case order.
onler.

16

17

Q. Did you think it was important that members of

sufficient for the contiguity.
Q. Explain what is meant by contiguity by water is
sufficient.
A. At best I can, not being an attorney, there are

17

islands that are off the coast and they have

18

the committee be able to see the full criteria

18

water between them or you have a river running

19

at one time when they were debating and voting

19

between two parts of a city and the water would

20

on the criteria?

20

its not contiguous with one part
not show that it's

21
21

A. Never thought about that. Just wanted to make

21
21

and the other, meaning adjacent to each other in

22

sure we had a complete discussion on each of

22

part of it.

23

them, each of the eight that were -- that were

23

part of the criteria.

24

connected Wilmington to Nags Head be contiguous

25

by water?

24
24
25

Q. Okay. What is your understanding of the equal

78

Q. So under this criterion, would a district that

80

20 (Pages
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80)
Case
5:19-cv-00452-BO
Document
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Filed
10/14/19
Page
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662
DISCOVERY COURT REPORTERS
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 SENATOR ROBERT A. RUCHO
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January 25,
25, 2017

A. Between Wilmington and Nags Head?
Q. Yes.

11

A. I can't see that being a contiguous.
In essence, I'm not talking about the

3

2

4
5

next to where you have the lion's share of the
district and all the counties are involved in

7
8

are the things that we believed would have been

it. So I would be surprised if that would be a
contiguous district.

9

required for us to have a legal map that was
ready to be presented to the court and would

6

10

Q. Did you have conversations with Dr. Hofeller
about contiguity by water?

11
11

A. No, but somewhere, either something passed by
the General Assembly to clarify this issue, and

13

12

14

I don't think it's in the Constitution, but this

15

was how the language was so that there wouldn't

16

17

be any abuses of what you described going from
Wilmington to Nags Head.

18
19

20
21
21
22
23
24
25

A. I don't -- I tell you I don't know if
Dr. Hofeller was there that day.

ocean. We're talking about bodies of water or
water, you know, between islands off or right

16

15

criterion in the Saturday meeting with
Dr. Hofeller or that ---

17
18

Q. Okay. So a district that connected Wilmington
to Nags Head would be an abuse?

19

A. Would be?
Q. Would be an abuse.

21
21

A. I would just say to you that I don't think it
would -- I don't believe that that's what the

23

20

22

24

term "contiguity" would mean going outside the

25

Q. That's right.
-Did you discuss it at that -- well -A. I mean, it's if traditional criteria, then these

find no resistance to approval, and so this is
part of the traditional redistricting
principles.
Q. Did you and Representative Lewis both support

this criterion?
A. Yes.
Q. And did you discuss this specific criterion of
contiguity with Dr. Hofeller on that Monday or

Tuesday, February 8th or 9th?
A. Those were part of the traditional redistricting
principles that should have been included in our
discussion, and I'm assuming we did.
Q. So, yes, you did?
A. I would say as part of this, you know,

establishing the guidelines for him to know what

81

83

ocean.
I'm talking about rivers and islands

11

3

that would be off -- still part of the same

3

4

county but off the -- you know, off the
mainland.

4

1
1

2

5
6
7
8
9
10
11
11

12
13
14
15
16
17
18

2

5
6

Q. And do you know when it was written?
A. It was written when the criteria were prepared

8

Q. So he did not review any of these written -Q.

9

A. No, ma'am.

7

for the Joint Committee.
Q. Which was sometime the week of February 8th?
A. When it was being put together. I'm assuming
that would be the timeframe.
Q. And when was this criterion actually developed?
A. This specific one or --

10
11
11

Q. If you will turn to the next page, DEF 13. What

14

is this criterion?
A. This is the political data, talking about the

15

17
18

A. You mean as part of ours?

20

Q. Yes.
A. My understanding is it has been part of the

20

traditional redistricting principles and
therefore that's why it was included in the

22

24
25

21
21

23
24

criteria.
Q. Did you discuss contiguity as one of the

25

82

committee vote on this criterion?

13

19

23

Q. The next page, DEF 12, does that show the
Q.
A. Yes, ma'am.

16

Q. Yes.
A. -- contiguity?

Q. Was that for this one?
Q.
A. For all of them.

12

Q. This specific contiguity?

22

this written criterion?
A. I think I've already answered that question.

Q. Who wrote this language on Page DEF 11?
A. I don't recall.

19

21
21

was to be drawn, yes.
Q. Okay. Thank you.
Let's see. Did Dr. Hofeller review

elections that would have been included in the
election results that would have been included
in the statewide elections.
As a matter of fact, I can read it and
probably explain it a lot clearer for you. And
that is:
"The only data other than population
data to be used to construct congressional

districts shall be election results in
statewide contests since 2008, not

84

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 SENATOR ROBERT A. RUCHO

January 25,
25, 2017

11

including the last two presidential

11

2

contests.

2

3

"Data

3

"Data identifying the race of

4

individuals or voters shall not be used

4

5

how many others it might have included.
Q. At least based on this language, those are the
only two excluded, right?
A. I would assume that would be correct. I can't

in the construction or consideration of

5

6

districts in the 2016 Contingent

6

7

Congressional. Voting districts (VTDs)

7

8
8

should be split only when necessary to

8

A. The written does not exclude it.

9

Q. Did you have discussions with anyone about the

9
10

11
11

comply with zero deviation population
requirements set forth above in order to

10

ensure integrity of political data."

11
11

speak clearly on it.
Q. The written criterion does not exclude the 2012

lieutenant governor race?

relative weight that should be given to the

elections that were included in this criterion?

12

Q. When was this criterion established?

12

A. Okay, repeat that again.

13

A. Same time as we were putting and defining the

13

Q. Let me back up.

14

14

rest of them.

15

Q. And when was this actual language written?

15

16

A. Specifically this language in preparation for

16

17
18

17

the handout to the committee.
Q. So this was criteria that you discussed in the

Did you and Representative Lewis have

any conversations about how to use these
election results?
A. Did we -- Pm
I'm not sure I understand how we used

18

them. I used them in helping -- getting the

19

Monday or Tuesday meeting with Dr. Hofeller and

19

political data for us to -- the election result

20

then sometime later that week it was put into

20

data for Dr. Hofeller and ourselves to draw

written form?

21
21

districts that would have complied with the

22

Harris case.

21
21
22

A. It was discussed with Dr. Hofeller so he had the

23

guidelines to be able to draw the map that would

23

24

have complied with the Harris order, and this is

24

Dr. Hofeller used these races when he was

how and what we would have expected to be.

25

drawing the maps?

25

Q. Let me ask it a different way. Do you know how

85
11
2
3

87
1
1

A. No, ma'am.

not be included in the election results

2

Q. Did you give him any instructions on how to use

considered?

3

Q. Who decided that the presidential contest should

the election results?

4

A. Representative Lewis and myself, along with

4

A. No, ma'am.

5

contact advice with our counsel reflected what

5

Q. Who provided the election results to

6

the Harris court said in regard to not wanting

6

7

to or not feeling comfortable with the

7

8
8

Obama-McCain election in 2008, and therefore the

8

9

McCain -- excuse me -- the Romney and Obama

9

Dr. Hofeller?

I'm assuming it came from the state computer,
A. Pm
Mr. Frye.

Q. Did you instruct Mr. Frye to send these results

election in 2012, that the court was not

10

11
11

comfortable with those elections, and so we

11
11

12

chose not to include them in the political data.

12

think Dr. Hofeller reported or testified

13

yesterday that the state computer, all that was

10

13
14
15
16
17
18
19

Q. Did you include the 2012 lieutenant governor

race?
A. I don't have that before me. I can't
cant remember

14

inputted and then he received that information,

15

at least that's my best recollection.

16

-specifically which ones were included, but -Q. But based on this definition, that would be a
statewide contest since 2008, right?

Q. So you -- when this criteria was presented to

17

the committee, did you have an understanding of

18

how Dr. Hofeller was going to use these election

19

A. It was, but specifically the court said that

to Mr. Hofeller?
A. I didn't, no, ma'am. It would have been -- I

results in drawing the maps?

20

they were not comfortable with including the

20

A. No, ma'am.

21
21

presidential race.

21
21

Q. Was it your understanding that he would give

22
23
24
25

Q. So was the 2008 and 2012 the only statewide

contest that you excluded within that timeframe?

22

each race -- and by race, I mean election

23

contest -- the same amount of weight?

A. I don't recall. I mean, I don't remember the

24

A. I never discussed that with him.

ones that we included in there specifically or

25

Q. Okay. Did the committee provide any input on

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the weight that should be given to these

11

election results?
A. That was not discussed in the committee.

2

Q. Did Dr. Hofeller provide any input on this

4

3

5

criterion?

6

A. No.

6

7

Q. And the next page, DEF 14, does that show the

7

8
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committee vote on the political data criterion?
A. Yes, it appears to.

8
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13
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15
16
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18

9

Q. And you and Representative Lewis both supported
this criteria?

10
11
12

A. Yes.
Q. If you will turn to the next page, DEF 15. And

13

can you explain what this criterion is?
A. This is the one dealing with partisan advantage

14
15
16

and the -- it's probably easier for me just to
read it.

17

"The partisan makeup of the

18

19

congressional delegation under the

19

20

enacted plan is 10 Republican and

20

21
21

3 Democrats. The Committee shall make

21
21

22

reasonable efforts to construct districts
in 2016 Contingent Congressional Plan to

22

maintain the current partisan makeup of
North Carolina's congressional

24

23
24
25

"The

23

25

Q. Are you saying that the 10-3 is a result of
applying the other adopted criteria?

A. All the criteria together was the result you can
come up with a 10-3 partisan makeup.
Q. So by having contiguous districts and districts
made up of whole counties and equal population
and all of the other seven criteria, it's your
testimony that the result of applying those is a
10-3 partisan makeup congressional plan?
A. By harmonizing all of these together, all of the
criteria that a 10-3 plan can be achieved.
Q. Did you have conversations with Dr. Hofeller

about numbers other than 10-3?
A. I can't recall specifically other than the fact
that I guess until Dr. Hofeller could work
through the criteria what kind of result could

be developed.
1I mean, at that point there may have
been discussion as to what's available, what can
be done, what can't
cant be done, which one gives the
map that most closely fits the criteria,
especially dealing with split counties and split
VTDs. That was important to us because that was
one of the issues raised by the Harris court.
Q. But you instructed him that he should draw a map

89
11
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3
4
5

91
1
1

that will elect 10 Republicans and 3 Democrats?

Q. And what is your understanding of what this
means?

2

MR. FARR: Objection to the form.
THE WITNESS: I think where it says the

A. My understanding of it is in the enacted plan
there was a 10-3 partisan makeup. And by

4

delegation."

3

5

committee shall make every reasonable effort to
construct districts in 2016 similar to what the

6

following all of the criteria in the -- all

6

7

eight criteria and harmonizing them together, we

7

8

asked if -- at the time if the map could be
drawn with the same 10-3 opportunity for

8

MACKIE:
BY MS. MACIUE:

9

Q. And by applying the other criteria, it's your

9
10
11

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15
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25

10

Republicans to have a chance to win in
districts.

11
11

Q. Why 10-3?
A. It was probably a combination of meeting all of

12
13
14

the criteria were there, harmonizing them
together, making sure that -- other than the

15

equal population that each of them were met
where they could be and how they fitted together
and then working hard to fulfill that as far as
compact or districts, which meant whole counties

16
17
18
19

when possible, reducing the number of split
counties, which we reduced to 13, and reducing

20

the number of split VTDs.
In essence, this is the result that if

22

it could be achieved it was there and that's why
it was chosen.

24

21
21

23

90

25

10-3 was in the enacted plan. That's what the
criteria says.

testimony that 10-3 is the result?
MR. FARR: Objection to form.
THE WITNESS: All I'll say to you is
that by complying with all of the criteria and
blending them together, a 10-3 map could be
delivered.
Now, I think Representative Lewis
during the discussion clearly stated that the

districts aren't as strong as they were, but
that was something that could be achieved in
being able to get what was the most compact map
in regards to whole counties and the most

compact map in dealing with VTDs being whole.
So that was the result coming back as the
criteria were achieved and harmonized.
BY MS. MACKIE:

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DISCOVERY COURT REPORTERS
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January 25,
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Q. And you did in fact achieve this goal?
A. It's not a goal because, in reality, it was

2

achieving one of the criteria. Not one of them
is a priority over another. They were blended

3

together.

5

4

on the reality of whether people were happy with
the economy or nationally or statewide and the

like, so...
BY MS. MACKIE:
Q. If you would go back to Page DEF 13, the
political data criterion.

6

Q. But the 2016 congressional election did elect 10

6

7

Republicans and 3 Democrats?
A. It did in this last election, but in other

7

A. Yes.

8

Q. Why did you use election results instead of

9

registration numbers?
A. The -- our understanding is, and I believe the

8
8
9

elections -- and if you look back in future

10

elections or you look back in the past, I

10

11

believe Roy Cooper as Attorney General was able
to get elected in -- if I'm not mistaken in all

11
11

of them, so in all 13 districts.
So any Democrat candidate that chose to

13

run that could convince the Democrats,
unaffiliated voters and any crossover

15

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14
15
16
17
18
19

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21
21
22
23
24
25

12

14

16
17

Republicans could have won the election as is
evidenced by -- in the data pack that we had,

18
19

the stat pack that we had.
Q. Looking at the second sentence of this criteria,

20

the committee succeeded in its efforts to
construct districts to maintain the current

21
21

partisan makeup in the 2016 election, right?
MR. FARR: Objection.

23

22

24

THE WITNESS: The committee was able to

25

courts have even agreed to it, choosing election
results is a better predictor of, I think,
election results going into the future. I mean,
if I remember the right term.
Choosing election results is the best
predictor of what result you might see. There's
no guarantee that it will happen, but that is a
predictor of it.
Q. So understanding election results instead of
registration numbers would help you achieve a

10-3 partisan split?
A. It would help us identify in drawing the
districts how it was -- you know, how you would
put the district together. You didn't have
race. You didn't have any other specifics. You

93

95

1
1

harmonize all of the criteria. Not one of

1
1

had whole counties. And then you were able to

2

them -- this is not given the priority. As you
blend them altogether, this is what was able to

2

identify, as Dr. Hofeller talked about
yesterday, identifying VTDs that you would put

be achieved in regards to the map. The next
election it could be totally different. This

4

in or out.

5

Q. But using --

6

7

doesn't guarantee anybody winning the other
seats.

8
8

And especially if you look at the

8

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6

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3

7

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makeup in the stat pack after the map was
approved, which we got a chance because, in
reality, Senator McKissick requested it. And it
wasn't in the original stat pack because it was
never considered. Race -- he asked that race be
included in the final stat pack and also
partisan registration be considered. We didn't
include that in our original stat pack because
we never used that in drawing the maps.

10
11
11

12
13

anyway.
THE VIDEOGRAPHER: Off record at

11:59 a.m.
(Discussion held off the record.)
THE VIDEOGRAPHER: On record at

11:59 a.m.

14

MACKIE:
BY MS. MACIUE:

15

Q. Senator Rucho, my question is: Did using

16
17
18

But if you look back, not one of those
districts outs of the 13 have a majority

MACKIE: We can take -- do we need
MS. MACIUE:
to take a break. It's probably about time

election results instead of registration numbers
help you achieve the partisan advantage goal of
10 Republicans and 3 Democrats?

19

MR. FARR: Objection to form.

Republican. It requires a combination of
Republican, unaffiliated and Democrat votes to

20

You may answer.
THE WITNESS: I don't know if it helped

win an election, to be the winning candidate.
So there's no guarantee that anyone

22

would -- would have the same 10-3 going into
future elections based on the candidate, based

24

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23

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achieve the partisan results.
What it did is it allowed those

districts to be competitive to allow -- give
Republicans an opportunity to win those

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 SENATOR ROBERT A. RUCHO

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January 25,
25, 2017
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elections.

it is something that I would have liked to have

2

BY MS. MACKIE:

2

done in the original but found a lot of

3

Q. Did it allow you to better predict that

3

resistance from then Congressman Watt. So it

4

was something that was put together as we read

5

the Harris opinion.

4
5
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7

Republicans would win in 10 districts?
A. Our understanding is that the election results

does give you that ability to do so.
Q. Thank you.

8
9
10

6

If you'll -- we were actually talking
about the page DEF 15, partisan advantage. Just

11
11

criteria on that Monday or Tuesday when you met

8

with Dr. Hofeller?

9
10

a couple more questions on that.
On Page DEF 16, does that reflect the

Q. Did you decide to include this as a part of the

7

A. Well, it originated with reading the opinion,
but the decision between Representative Lewis

11

and myself and our counsel occurred about that
time.

12

committee vote on the partisan advantage

12

13

criterion?

13

Q. And the next page, DEF 18, does that reflect the

14

A. Yes.

14

15

Q. And was that vote on party lines?

15

A. Yes, ma'am.

16

A. It appears to be.

16

Q. Okay. If you will turn to the next page,

17

Q. And did you and Representative Lewis both

17

18
19

19

A. Yes.

20
21
21

MS. MACKIE: Now may be a good time to

DEF 19, what is this page talking about?
A. This one is dealing with compactness. And I'll
Pll
read it so that it will be self-evident.

"In light of the Harris court's
criticism of compactness of the First and

22

Twelfth Districts, the Committee shall

23

make reasonable efforts to construct

(Lunch Recess.)

24

districts in the 2016 Contingent

THE VIDEOGRAPHER: On record at

25

Congressional Plan that improves the

THE VIDEOGRAPHER: Off record at

12:01 p.m.

24

20
21
21

break for lunch.

22
23

18

support that criterion?

vote on this fifth criteria?

25

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99
1
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compactness of the current districts and

BY MS. MACKIE:

2

keep more counties and VTDs whole as

Q. Senator, before the lunch break we were working

1:08 p.m.

3

compared to the current enacted plan.

through Exhibit 35. Do you still have that in

4

"Division of counties shall only be

front of you?

5

made for reasons of equalization of
population, consideration of incumbency

6

A. Yes, ma'am, I do. Thank you.

6

7

Q. If you will turn to the page with the Bates

7

and political impact. Reasonable efforts

8

shall be made not to divide a county into

9

more than two districts."

8
9

stamp DEF 17.

A. Yes.

10

Q. What is this criterion?

10

11

A. This is one of the eight criterion that you

11
11

And we felt in doing so, also
conforming with what the Harris order was, we

12

discussed, that in order to address a concern

12

also were able to -- by consolidating senate

13

raised by the Harris court as far as the

13

district -- excuse me -- Congressional

14

configuration of the 12th district, and I'm
Pm just

14

District 12, it went a large way in producing

15

citing some comments that was the serpentine

15

compact districts and keeping many, many

16

nature, Representative Lewis and I decided that

16

17

it would be a good thing in trying to comply

17

Q. How did you measure compactness?

18

counties whole.

fully with the Harris order to consolidate the

18

A. I didn't.

19

Congressional District Number 12 within

19

Q. Okay. Did you consider keeping counties and

20

Mecklenburg county, and that really is all that

20

21
21

that talks about.

21
21

A. Well, we were responding to comments in the

VTDs whole as a way to make compact districts?

22

Q. When did you develop this criterion?

22

Harris decision. By consolidating the 12th

23

A. This specific one?

23

district as we did, it opened up a number of

24

Q. Yes.

24

opportunities for us to keep whole counties, and

25

A. It was a result of -- actually, if you go back,

25

we felt that that was one of the cornerstones as

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Case
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DISCOVERY COURT REPORTERS
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January 25,
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how to establish compact districts. And of
course, along with that is you do that -- if you

11
2

it was described as being serpentine, it divided

keep the VTDs from being split, that also helps.
Q. Did you have conversations with Dr. Hofeller

3

many counties as it was following the pathway
along its route, and so we felt that by doing

about how to measure compactness?
A. No.

5

Q. How did you evaluate the compactness of the plan
that he submitted to you and Representative

7

4

6

8
9

Lewis?
A. Other than looking at it, there was no -- no

10

test taken.
Q. So no mathematical measures?

11

A. That is correct.
Q. Okay. When was this criterion adopted -- or
Q

13

12

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15

developed?

16

A. During the same period of time we talked about.

16

17

Q. So around that Monday, Tuesday meeting?
A. Yes.

17

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23
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25

18

Q. Did Dr. Hofeller provide input on this specific

19

20

language?

A. Had -- provided no input. As to this language,
-his expertise was helpful in achieving our --

21
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23

getting this criteria implemented.

24

Q. What was his -- what did he say about
Q

25

compactness?

is if you look at the original enacted map, as

that, consolidating it would also give us the
ability to allow for whole counties all along
that stretch and that would help us in achieving
the goal of compactness.
Q. What about districts on the eastern side of the
state?
A. And what?
Q. Did you consider compactness for those

districts?
A. As we worked on CD 1, I think you -- well, first
of all, the Court had already -- the Supreme
Court had already made a decision that the way
CD 1 was originally put together prior to us was
what would be considered compact, and that was
why we tended to follow that same -- similar
design in the enacted map.
But there were some modifications on
CD 1 and kept counties whole around it, and by

doing that it allowed -- allowed a lot of other
its -- on one
counties to be kept whole because it's
side, if it follows the county line, on the

101
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103

A. Didn't.
Q. You didn't discuss compactness when you met
Q

1

other side it doesn't it doesn't break the

2

-with -A. We -- on this compactness issue dealing with 12

3

counties. So therefore we had the ability to
have whole counties.

being consolidated?
Q. Well, just the compactness criterion that we're
Q

5

4

6
7

looking at right now.

8
8

A. Well, I mean, if what our -- this criteria, if
implemented along with the other eight -- the

9

10

other seven, achieving that allowed us to have a

10
10

11

map that would be approved by and accepted by
the Harris Court. And we felt that going to

11
11

13

13 -- keeping all the counties whole except for

13

14

13 and 12 VTDs was a major step in achieving

14
14

that effort.
Q. So my question is what -- what did you talk with

15

12

15
16
17
18

Dr. Hofeller about with regard to compactness?
A. That we wanted to consolidate the 12th district

12

16

17
17
18

19

down to -- and at that point the decision was

19

20

made that Mecklenburg county was the best

20

21
21

location to accomplish that.

21
21

22

22

Q. So by putting the 12th district just into

23

Mecklenburg county you would achieve this

23

24

criterion of compactness?

24

25

A. By doing the 12th, yes. But the other advantage

102
102

25

Q. So is it your testimony that by making the 1st
Q.
and the 12th districts compact, the other

districts around those districts were also
compact?
MR. FARR: Objection to form, but you
MR
can answer.
THE WITNESS: I don't think that's
properly -- I don't agree with your premise
because our other districts were compact as was
originally, and we felt confident that it was in
the proper design of it.
But by keeping whole counties as we
could following the criteria of the eight
criteria, we were able to, in essence, in the
interocular test, have the map look better than
it did prior to that even though we still
believed that the original map is constitutional
and will ultimately be judged by that by the
Supreme Court.
BY MS. MACKIE:
Q. The second to last sentence says:
"Division of counties shall only be

104
104

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Case
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Page
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662
DISCOVERY COURT REPORTERS
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 SENATOR ROBERT A. RUCHO
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January 25,
25, 2017

made for reasons of equalizing population,
consideration of incumbency and political

1
1

impact."
Can you explain what that means?

3

2

4

A. Well, as you know, one of the criteria was equal
population, which we have as mandatory, and
therefore, whenever a county were to be divided,
that would be one of the reasons why we did it
because of trying to get the equalization of
733,498, and so that would be a requirement in

5
6
7
8
9
10

the criteria.
Secondly, in trying to not double bunk

11
11

incumbents, there were times that we had to
modify the compactness to allow us to achieve

13

that criteria.
And then as far as the political

15

impact, and that would be to kind of try to
follow the political data. In helping to draw

17

12

14

16

18
19

those districts, there had to be some
modification in the compactness rule.

20

Q. What do you mean when you say follow the
political data?

21
21

A. Well, in essence, as we were drawing the
districts in the -- I say when Dr. Hofeller was

23

drawing the districts, as he was using the

25

22

24

the political impact is to what VTDs would be
included and not included in that district.
Q. So Dr. Hofeller could use election results from
2008 to 2012 to decide which VTDs should be

included or excluded from a district?
A. As long as he conformed with all of the other
criteria. That was the key part. It wasn't one
being -- overriding any other. They all had to
be melded or harmonized together to be able to
put together a district -- or excuse me -district maps that the Harris group -- excuse
Harris court would feel competent in
me -- the Han-is
supporting and that's something that they did,
so...
Q. So the population has to be equal -A. I'm sorry. Say it again.
Q. The population has to be equal in all of the
districts?
A. As close as reasonably possible.
Q. But in terms of deciding who should go into
those districts and where the line should be
drawn to make that determination, Dr. Hofeller
would use the election results?
A. In being able to draw the district lines, he
does have that capability of using the election

105
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10

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election data that was used in trying to
determine where the district line would be when
a -- when a county was being split, he would be
using the political data that would be there.
Q. So he could use the political data that was the
other criteria that we addressed, the third one
on Page DEF 13?
A. That was another one of the criteria that we
established and that was the election results,
and he was using election results to try to
achieve the goal of drawing a district to meet
the equalization population, one-person,
-one-vote. It's just a matter of how --Q. How did he use election results to -A. Well, let me rephrase that. In having the
ability to keep it so that you get one-person,
one-vote, you can go ahead and be able to use
the data in deciding what part you put in and
what part you don't. I think I'm correct in how
I say that.
Q. Okay. And my question is the term "political
impact" in this criteria, how -- what does that
mean?
A. I would be speculating because I didn't write
this, but I'm assuming that we would be called
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results in deciding what VTD should be or
shouldn't be included.
Q. And he had that authority?

A. Yes. But now you understand it is minimally
used because you have 87 counties that are
whole. So you're talking about very minuscule
changes that would be made to adjust a VTD
because there were only 12 VTDs that had to be
split, so it isn't rampant.
But, again, the key point was all of
the eight criteria had to be harmonized for
Dr. Hofeller to continue to do what we had asked
him to do.
Q. And you said that you did not write this
language on -A. You asked me earlier who wrote it. I didn't
know who wrote it, but it wasn't me as far as
what, you know, the word political impact would
be or political data. So I'm giving you my best

estimate.
Q. Thank you.
Did you and Representative Lewis direct
that this should be the criteria?
A. We actually said that we agreed upon the
compactness issue as being one of the criteria
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January 25,
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and -- but we weren't necessarily the person

11

that wrote part of the explanation.
Q. Did you agree that counties could be split for

2

reasons of political impact?
A. Yes.

4
4

Q. If you'll turn to the next page, DEF 20, does
that reflect the vote on the compactness

6

3

5

7
8
8

criterion?

9

A. Yes.
Q. And if you will turn to the next page, 21, what
is this criterion?

10

ii
11

A. This is part of the redistricting principles

12

13

that allowed for incumbency to be used in

13

14

deciding the district lines. And that is a

14

15

consistent principle that we abided by in the

15

16

original maps, and we tried as best we could to
achieve that same criteria with incumbency.

16

17
18
19

20
21
21
22
23
24
25

17
18

Q. Did you achieve that in the enacted plan in
2016?

19

you presented the criteria to the committee?
-A. They're of equal importance. So there was no -there was no -- you could have used any one

first and any one second. There was no -- it
was not set up on points. It was all equally
important.
Q. And that's true even though the first criterion

that was debated and presented to the committee
was equal population which is -- I believe you
said is mandatory?
A. Under the Constitution, it is absolutely
mandatory, but it still is as important as
anything else. We had to modify when the
population existed by one vote, one other
district had that extra vote, like 733,499 would
have been that. So you always have a way of
achieving it. Sometimes it isn't ideal, but
that's as ideal as we could make it.
Q. If you would turn to Exhibit DEF 23 in the same

A. To the best of our ability.
Q. But in fact there were incumbents who were

20

bunked together?
A. Yes.

22
23

Q. Sure.

Q. Representative Price and Representative Holding
were placed in the same district?

24

A. It was an amendment on the criteria in Number 13
put forth by Representative Stam, a member of

21
21

25

exhibit, Exhibit 35. Can you tell me what this
is?
A. Let me read it, please.

109

111

11

A. Are we talking '16?

1
1

the committee, and it's probably just as easy

2

Q. 2016, yes.
A. Yes, they were.

2

for me to read it to you, and that is:
"The first sentence of Political

Q. So you did not actually achieve this goal?
A. You have to understand one of the criteria does

4

3
4
5
6
7
8
9
10

11
11
12
13
14
15
16
17
18
19

20
21
21

22
23
24
25

3

5

not supersede any of the others. They're all
blended together. You cannot just pick one and

6

say we're doing this exclusively. This is a
blending process. So we tried to take all of

8

7

9

them into consideration as the map was drawn.
Q. Did you achieve the equal population goal?
A. As reasonably as it can be. We were within
one -- one point.

10
11
11

12
13
14

Q. Is that a "yes"?
A. Yes.

15

Q. Were these criteria discussed and debated at the
committee hearing on February 16th?
A. Let me make sure we're talking about the right
date here.

16
17
18

Data Criteria should read as written:
"The only data other than population
data to be used to construct congressional
districts shall be election results in
statewide contests since January 2008,
not including the last two presidential

contests," which is consistent.
I'll be honest, I don't remember
exactly why that date was put in there, but
there must have been an important reason to
include that change because it was evident that
the vote was bipartisan.
Q. And just so we're clear, the change was to add
January 1st to the year 2008?
A. That really is the change.

19

Q. Okay. And that's the extent of that amendment?

Yes.
Q. And let me just ask you to look at Page DEF 22.

20

A. Yes, ma'am.

21
21

Q. And that amendment passed?

Does that reflect the vote on incumbency as a
part of the criteria?

22

A. Yes, ma'am.

23

Q. If you will turn to the next page, DEF 25, and

24

if you'll read it and then let me know what this
proposed criteria is.

A. Yes. Good vote. 31 to 1 basically.
Q. Was there any significance to the order in which
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 SENATOR ROBERT A. RUCHO

January 25,
25, 2017

11

A. That was an amendment put forward by Senator

1
1

the decision was to reject this amendment and

2

Blue, a member of the committee, and just as

2

stay consistent with our eight criteria so that

3

easy if I read it.
"The second sentence of Compact

3

we would stay in line with what we believed was

4

the -- what the court would support in regard to

5

the maps we drew.

4
5
6

Criteria 6 should read as written:

6

"Division of counties shall only be

7

made for reasons of equalizing population

7

8

and for reasons of complying with the

8

9

federal law."
That eliminated the issue of incumbency

10

9
10

11

which we felt was part of the traditional -- and

11
11

12

the political impact was also eliminated in

12

13

that, but, in essence, we felt that it was

13

14

important to remain consistent with the

14

15

traditional redistricting principles.

15

16
17

18
19

20
21
21
22

16

And the vote -- I can't tell -- 23-11,
I think. I can't make that one out.
Q. I think that's right.

communities of interest?
A. We instructed Dr. Hofeller to follow the

criteria.
Q. Did you instruct Dr. Hofeller to preserve

communities of interest?
MR. FARR: Object to the form, but you
can answer.
THE WITNESS: That's not in one of the
criteria; so therefore that was not one of the
guidelines that Dr. Hofeller had to follow.

17

MACKIE:
BY MS. MACIUE:

18

Q. Did you talk to Dr. Hofeller after this

So you felt it was important to keep --to allow Dr. Hofeller to divide counties for

19

reasons of political impact?

21
21

20

A. I would say to you that the striking incumbency

Q. Did you instruct Dr. Hofeller to preserve

22

committee hearing? And let me -- let me
rephrase that.
Did you convey any information that you
learned from the committee hearing to

23

and the political impact was part of the total

23

24

criteria that we established and felt that that

24

A. Specifically about the committee hearing?

25

was how we had to achieve getting the Harris

25

Q. Yes.

Dr. Hofeller following the committee hearing?

113

115

11

court to approve our map and to comply with what

1

A. No.

2

they had requested of us. So we felt that

2

Q. Did you convey any information about proposed

3

changing that criteria at that point would ---

3

4

could have been counterproductive possibly.

4

A. No.

5

Q. And did you convey any information about adopted

5

Q. And my question is: You wanted Dr. Hofeller to

amendments to the criteria to Dr. Hofeller?

6

have the ability to divide counties for reasons

6

amendments to the criteria to Dr. Hofeller?

7

of political impact?

7

A. I don't remember speaking with Dr. Hofeller

8
8
9
10
11
11

12
13
14
15

A. That was in the original criteria and that's

what we felt was important to continue to have.

8

directly about the dealings of the committee.

9

Q. And Page DEF 28, does that reflect the vote on

10

Q. And if you will turn to DEF 27, the same

question: What is this proposed criteria?
A. The -- and I'll read it.

A. Yes.

12

Q. And was that amendment rejected by the

13

"The second sentence of Compact

"The

the amendment submitted by Senator Smith-Ingram?

11
11

committee?

Criteria Number 6 should read as written:

14
14

A. Yes.

"Division of counties shall only be

15

Q. If you'll turn to the next page, DEF 29, is this

"Division

16

made for reasons of equalizing population,"

16

a proposed criterion to add communities of

17

adding "preserving communities defined by

17

interest?

18

actual shared interests, consideration of

18

A. Yes.

incumbency and political impact."

19

won't belabor the same questions we just
Q. And I wont

19

20

There was a discussion during the

20

21
21

meeting about what and how do you define, in

21
21

communities of interest, but you did not convey

22

essence, communities of interest, and we spoke

22

any information to Dr. Hofeller about this

23

proposed criteria, did you?

with staff and they reported to the committee

23

24

that there is no clear definition of what

24
24

25

communities of interest actually were, and so

25

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114

went through since we just talked about

A. Based on my last answer, we asked staff to give
us a clear definition of what communities of
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 SENATOR ROBERT A. RUCHO
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January 25,
25, 2017

interest; there was not one. So it would make

11

2

no sense to put in something into a criteria

2

Q. Do you agree with his statement?

3

that we couldn't have defined.

3

A. Based on what we understood the law required of

4
5

Q. And was this amendment rejected by the committee
on Page DEF 30?

A. I see it.

4

-us and especially after having to follow the --

5

what was required of us by the Harris court, it

6

A. Yes.

6

was -- in achieving our criteria, the term

7

Q. If you will go back to the notebook which is

7

political gerrymandering was something that
Representative Lewis uses.

8
8

Exhibit 34, and we're going to look at some

8
8

9

specific things within Tab 1, which is the

9

I don't know -- I see nothing wrong

10

transcript of that committee hearing on

10

11
11

February 16th.

11

Q. Would you agree that the 2016 congressional --Q.

with that comment.

12

If you'll turn to Page 8. And if you

12

Contingent Congressional Plan was a political

13

need to read it, you can, but what I would like

13

gerrymander?

14
14

to know is the statement that Representative

14

MR. FARR: Objection to the form.

15

Lewis makes beginning at the bottom of Page 8

15

THE WITNESS: No, because of the fact

that continues on to Page 12.

16

that it followed all of the -- it wasn't just

16
17

A. I would like to read it.

17

politics. It followed all of the criteria that

18

Q. Okay.

18

were established, traditional criteria,

19

A. Up to the end of Chairman Lewis's comment,

19

redistricting criteria that would be expected of

right?

20

us and in addition to which the other requests

21
21

Q. Yes.

21
21

that were made by the Harris court in

22

A. Okay.

22

outlining -- in how we interpreted and had to

23

Q. Did someone write the language of this

23

abide by their order.

20

24
24

statement?

24

BY MS. MACKIE:

25

A. I don't know.

25

Q. Did you tell Representative Lewis that you

117
11
2

3

Q. Why did Representative Lewis make this statement
before the committee?

119
1

disagreed with his characterization?

2

A. I don't.

3

Q. You don't disagree?

4
4

was going to chair it and he was going to

4

A. I said that is how he defined it, and I'm

5

present the criteria.

5

6
7
8
8
9

A. The way we were handling the Joint Committee, I

Q. So you were running the meeting but he would be
the one actually making presentations?

Q. So would you agree, then, that a map that is

7

likely to elect 10 Republicans and 3 Democrats
is a political gerrymander?
MR
MR. FARR: Objection to the form.
THE WITNESS: No, because of the fact
that it followed the criteria that were
established. Not one -- the politics didn't
take precedent, not one of them took precedent,
and they were all treated equally. It was a
harmonization of all of those criteria which
allowed us to achieve what the court had
expected of us.
BY MS. MACKIE:
Q. So what part of his sentence here that we're
looking at on Lines 4 through 6 do you agree
with?
A. I'm comfortable with his statement.
Q. Okay. And you're comfortable that it's not
against the law to draw a political gerrymander?
MR
MR. FARR: Objection to the form.

8
8

A. Well, if you've seen legislative meetings, the

chairman is there and then you have a person, a

9

10

representative or senator in this case because

10

11

it was a joint, that would present what was to

11

12

be taken up by and debated and voted on by the

12

13

committee.

13

14
15
16

17

Q. And on Page 12, Line 8, it says: "Mr. Chairman,
at your direction."

14
14
15

Did Representative Lewis say that

16

because you were chairing the committee?

17
17

18

A. That's proper protocol.

18

19

Q. Okay. Thank you.

19

20
21
21
22

If you'll turn to Page 48, and on

20

Line 4 through 6, Representative Lewis says:

21
21

"I acknowledge freely that this

22

23

would be a political gerrymander, which

23

24

is not against the law."

24

25

Do you see that?

25

118

comfortable with how he did.

6

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DISCOVERY COURT REPORTERS
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 SENATOR ROBERT A. RUCHO
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January 25,
25, 2017
1
1

the criteria and in addition to -- for which we

the Supreme Court of the -- the United States

2

were to follow so we could comply with the

3

Supreme Court has never called political

3

Harris case.

4

gerrymander unconstitutional. So therefore we

4

And it also authorizes the co-chairs

5

followed the law and did so in producing the

5

and the minority party -- and I know that was at

6

criteria -- the list of criteria that we used in

6

that time Senator McKissick was the contact that

7

meeting the needs and what was expected of us by

7

we had directly -- to spend upwards of $25,000,

8

the Harris court.

8

each group, to be able to hire a map drawer to

9

BY MS. MACKIE:

9

2

10

11
11

THE WITNESS: Our understanding is that

Q. If you will turn to Page 50 and look at Line 7
through 10. Representative Lewis says:

12

"I propose that we draw the maps to
"1

come up with a map that they believe would be

10

able to meet the criteria and be able to be

11

submitted as an example to, of course, the full

12

Senate and full House and ultimately, if it

13

passes, to the Harris Court, but it just

13

give a partisan advantage to 10 Republicans

14

and 3 Democrats because I do not believe

14

authorized those resources to be utilized by

15

it's possible to draw a map with 11

15

both the majority and the minority party to have

Republicans and 2 Democrats."

16

access to the computer and offer each group an

16
17
18
19

20

Do you agree with Representative
Lewis's statement that I just read?
A. I will say yes, and I will explain it even

opportunity to submit maps for committee -- the

18

Redistricting Committee debate and ultimately to

19

the floor.

20

further.

21
21

17

21
21

In following the criteria that -- and

We did something very similar to this,
I believe it was either 50 or $60,000 that were

22

meeting all of the criteria as we blend them

22

offered for minority members to -- in the Senate

23

together, the 10-3 map that Representative Lewis

23

and in the House to draw maps back in 2011.

24

was describing was doable, something that we

24

Unfortunately, they didn't take advantage of the

explained -- we talked about earlier, and

25

opportunity to submit maps in any timely manner,

25

121

123

11

apparently the 11-2 that he commented about is

11

and similarly this time they chose not to submit

2

not.

2

a map so we had something to compare and

3
4

So as we had whole counties, as we had

3

contrast.

the limited VTDs, as we met all the other
criteria, a 10-3 map is something that could be

4

6

achieved but also recognizing the partisan

6

MR. FARR: Objection to the form.

7

advantage only gives Republicans an opportunity

7

You can answer.

8

to win an election in what is a competitive

8
8

district.

9

5

9
10
11

12
13
14

5

10

And he did go on to say later on that

Q. Had Dr. Hofeller been engaged before
February 16, 2016?

THE WITNESS: I'd probably say no. To

the best of my recollection, no.
BY MS. MACKIE:

those districts are actually more competitive

11
11

Q. He had not been engaged to draw --

than they were in the 2011 plan.

12

A. To draw a map, a contingency map?

13

Q. Yes.

A. We never anticipated having to draw one up until

Q. If you will go back to Exhibit 35, which is this
packet that we were just looking at and turn to

14

15

Page DEF 31. And it may also help if you want

15

16

to look in Exhibit 34, Page 130 of the

16

17

transcript.

17

9th and talked about what the map would look

18

Senator Rucho, on Page DEF 31 of
Exhibit 35, there's a motion for -- three

18

like and looked at maps that he had drawn. And

19

19

February 5th at 5:00 or 6:00.
Q. But you met with Dr. Hofeller on February 8th or

I believe you --

20

motions that were made to the committee. Can

20

21
21

you explain what those are?

21
21

Q. When did you hire Dr. Hofeller to draw maps?

22

A. You know, I can't recollect that. I did not

22
23
24
25

A. I need an opportunity to read it for
foraa few

23

minutes. Okay.

A. You're saying engaged, like hired him to --

hire him and --

Q. Sure.

24

Q. Who hired him?

A. It appears to be an adoption by Senator Hise of

25

A. I think it was done very similar manner through

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122

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124

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Page
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DISCOVERY COURT REPORTERS
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January 25,
25, 2017

our legal office.
Q. Was an engagement letter sent to Dr. Hofeller?

11

Q. If you will turn to -- it's DEF 34 and there's

2

some handwriting on top of the Bates stamp.

A. I don't know the answer to that question.
Q. Did Hofeller submit invoices to you?
Q.

3

It's the page that looks just like the page we
were looking at with some handwritten additions.

A. Not to me.
Q. Did he submit invoices to Ogletree Deakins?

5

A. To the legal office.
Q. When did he submit those invoices?

7

4

6

8
9

A. I don't know.

Q. Did you see them?
Q.

10

A. No, ma'am.
Q. How much did Dr. Hofeller charge to draw the

11
12
13

2016 Congressional Plan?

14

A. I have no way of knowing.

14

15

Q. But it presumably would be less than $25,000
based on this motion?

15

16
17

18
19

20
21
21
22
23
24
25

A. I don't know what it was, so I can't comment on
that.

16
17
18

Q. So you don't know how much Dr. Hofeller was
paid?

19

A. No, ma'am.
Q. And you don't know whether he submitted

21
21

invoices?
A. I'm assuming he did. I don't know how much he

23

20

22

24
25

got paid and how much he charged.

Do you have a recollection of what
these handwritten additions meant?
MR. FARR: I'm sorry. What page are
you on?
MS. MACKIE: DEF 34.
THE WITNESS: I don't -- I'm not sure I

can read it very easily either. The writing is
small.
My recollection is that there was some
discussion by the Democrat representative from

Wake county when they asked for some
clarification as to when the -- when it could
have started as far as payment is concerned, and
it's the best I can remember as to what this

did, but it arose from a question from
Representative Darren -- and I can't remember
his last name.
BY MS. MACIUE:
MACKIE:
Q. Jackson?
A. Jackson. Thank you.
Q. So did this amendment just clarify that any

125

127

1

Q. And you never saw any invoices?

1
1

2

A. Not that I remember.

2

3

Q. Why not?
A. Why not?

3

Q. Yes.
A. I didn't hire him. It was done through the

5

4
4

5
6
7
7
8
8
9
10

4

6
7

legal firm. So I wouldn't be the one to do that
directly.

8
9

Hofeller?
Q. Who paid Dr. Hotelier?
I'm assuming it was done through the legal firm.
A. Pm

10

11
11

Q. Where did the money come from to pay --

11
11

12

A. I assume that's when they billed the General

12

13
14
14
15
16

17
18

Assembly. So I don't remember seeing any bills
that Dr. Hofeller submitted.

13
14
15

Q. Public funds were used to pay Dr. Hofeller,

16

right?

17

A. As part of our legal expenses in defending a

18

case.

19

Q. Do you know how many hours Dr. Hofeller worked?

19

20

A. No, ma'am.

20

21
21

Q. Did you have any written communications with

21
21

22
23
24
25

22

Hofeller about his fees?
Hotelier

A. Not that I remember.
Q. Do you know what his hourly rate was?

23

A. No, ma'am.

25

24

126

experts engaged to draw maps could be paid for
work completed prior to February 16, 2016?
A. I'm assuming that's what it says, yes. It

helped clarify the language on it because he
raised that question.
Q. If you will look at the next two pages, DEF 35
and 36, did these pages reflect the vote on the
payment motion?
A. It appears that both of them passed, bipartisan
support.
Q. And if you will look at Page DEF 37 and there's
other handwritten additions to that page, if
you'll read through those and tell me what those
mean.
A. Yeah. I'm not sure I can read them very well.
I would probably say to you there was some
additional clarification, but I can't make heads
or tails out of this.
Q. Let me try to help you out.
A. Go ahead.
Q. In Paragraph 2, the addition says:
"The co-chairs shall control
legislative confidentiality of any

drafting request or maps produced..."
And I think you move up:
128

32 (Pages
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 SENATOR ROBERT A. RUCHO
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January 25,
25, 2017
11

"...from this authority unless and
until presented to the committee in the

2

co-chair's discretion."
A. I don't recollect what specifically this issue

3

was addressing. I just don't remember that.
Q. Is it your understanding that you were able to

5

control legislative confidentiality of drafting
requests for maps produced?
A. I can't remember exactly what this specific
amendment dealt with.

4

6
7
8
8
9
10

Q. Certainly.
A. Yes. Apparently a map was being presented to

the committee. We -- as chairman I asked if
there were any additional maps that would like
to be submitted with the hope that we would get
the minority party to engage in the process.
They were aware, as we were, as of February 5th
that maps would need to be redrawn or now maps

would need to be redrawn. So we would have
hoped that they would have recognized that and

Q. Do you remember if you supported it or not?
A. I did.

11
11

Q. And are you looking at Page DEF 38?
A. Yes.

13

Q. Is that the vote on this amendment?
A. It appears to be.

15
16

end of this as to when the next committee

Q. Okay. Senator, if you'll look at Page 135 of
the transcript, and I want to ask you about

17

meeting would be.
1I don't remember.

12

14

18

Senator Blue's question that begins on Line 11
and your response to that.

19

What did you mean when you said "I
think we're probably going to use the one that

21
21

you're presently using now"?
A. I was responding to Senator Blue, and my
understanding was that we would be using at that

20

22

prepared maps to move forward with.
Q. When the Joint Committee met the day before, on
February 16th, did you tell the committee that a
map would be presented the following day?
A. I -- let me see if I said anything in the back

Q. Okay.
A. Apparently there was a notice put out for the
next committee meeting and it was scheduled for
whatever time that was. I don't have that here.

23

Q. Did you tell members of the minority party that

24

they should submit a map by February 17th?

25

A. We -- and I can't remember how that was done. I

129
1
2
3
4
5
6
7
8
8
9
10

11
11
12
13
14
14
15
16

17
17
18
19

20
21
21
22
23
24
25

131
1
1

know we clarified the language as to the 25,000.

Q. So did you think that Senator Blue was also
going to be using Dr. Hofeller?

2

I know following the same procedure we did when

3

I spoke with Senator McKissick and Senator Blue

A. I don't know if he was really looking for
assistance from us as who to hire to draw the
maps. I think he was just trying to identify
Dr. Hofeller as a map drawer that we would use.
Q. Okay. At this point you had already started
working with Dr. Hofeller?
A. Yes.
Q. And he had already drawn maps?
A. He was working on the process.
Q. Okay. If you'll turn to Tab 2 in this notebook.
And what is this transcript?
A. It looks like the second meeting of the Joint
Committee on Redistricting.
Q. Did you present a map at this meeting?
A. I think I mentioned that in there, so I'm trying
to remember. I don't remember exactly the
-sequence of the time, but -Q. I may be able to refresh your recollection.
If you'll turn to Page 8 and there's a
statement by you. Does that refresh your
-recollection whether you presented a map -A. Let me read it, if I may.

4

when we did the 2011 map that we would have
hoped them to participate in a similar manner.

point to do map drawing Dr. Hofeller.

130

5
6
7
8
8
9
10
11
11

12
13
14
15
16
17
18
19

20
21
21

22
23
24
25

Resources were provided to help them achieve and
submit their version of the map.
I can only speak to the Senate side.
Representative Lewis could explain to you
exactly what he may have done to speak to the
House members.

Q. When did you receive the map from Dr. Hofeller
that you presented at this committee hearing?
A. I don't remember exactly when Dr. Hofeller had
the map inputted onto the legislative computer.

I don't know the answer to that question.
Q. Would it have been sometime between the
committee meeting on February 16th and this
committee meeting on the 17th?

A. I don't know the answer to that. I don't know
when it was inputted on there.
Pm sorry,
Q. If you will turn to Tab 3. Actually, I'm
Tab 6.
A. Six.
Q. I'm sorry, let's actually go back to that Joint

132
132

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DISCOVERY COURT REPORTERS
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 SENATOR ROBERT A. RUCHO
11
2

Committee meeting on February 17th. You may not

11

have to go back to the transcript.

2

it's the start of your statement that continues
its

3

on to Page 8.

3
4
4
5
6
7
8
8
9
10

January 25,
25, 2017

Was the map approved by the committee
that day?
A. For the Joint Committee, I would assume yes.

No, I don't know. I don't remember.

4
4

A. The Senate Redistricting Committee was taking up

5

the map and Representative Lewis was presenting

6

that map to the Senate Redistricting Committee.

7

Q. Okay. Let's go back just to get that straight

8
8

for the record.

9

A. That is what, Tab 2?

Q. Yes, is the start. It says "Senator Rucho" and

Q. Okay. Thank you.
Q.
On Lines 4 through 6 -A. Of page?

Q. That is Tab 2. And if you'll turn to Page 72.

10

11
11

A. 72?

11
11

12

Q. Yes.

12

forward have to include the entire state

13

A. The -- the maps were -- there was a motion for

13

map."

14

adoption of the maps and there was a vote ---

14

15

-role call vote to adopt the maps, and we were --

15

16

I think that was the 18th. Am I not correct?

16

17

What was the date of that one?

17

rippling effect on others. And so if you don't

Q. Of Page 8 you say:
Q.
"And any amendments that come

"And

Why was that?
A. It is usually redistricting process where if you
make adjustments on one district, it has a

18

Q. The date is at the very top of the page.

18

its impossible to
have a map in its entirety, it's

19

A. 17th. Okay. That was Wednesday the 17th that

19

be sure that what change was made in not

20

that was done, and we needed to have everything

20

achieving any of the eight criteria would have

21
21

completed by the 19th. So time was of the

21
21

been impacted. So it was important for that

22

essence for us to comply with the Harris court,

22

23

and this was the next step before it went into

23

24

Senate and House redistricting committees.

24

25

Q. So the map that you presented to the Joint

25

full map to be your amendment.
Q. When you say "any amendments," do you mean
alternative maps?
A. Alternate maps, change in the maps, someone says

133

135

11

Committee on February 17th was approved by the

1
1

I want to change the number in District 4,

2

Joint Committee on February 17th?

2

that's the kind of thing that would need to be

3
4
4

5
6

A. Actually, Representative Lewis presented that

3
4

map.
Q. Okay. Thank you for that correction.
The map that Representative Lewis

5

change to District 4, they need to present a map

6

of the entire --

7

presented to the Joint Committee on

7

8
8

February 17th was approved by the Joint

8

9

Committee on that same day?

9

10

11
11

A. On the 17th.

10

Q. And was the vote 24 in favor and 11 against?

11
11

12

And it may help to look at Page 72, Lines 12

12

13

through 6.

13

14

done.
Q. So you're saying if someone wants to make a

A. Reflecting that change and how it impacts the

entire map.
Q. Okay. Why did you redraw the entire
congressional plan?
FARR: Objection to form.
MR. FARR
THE WITNESS: Well, that goes back to
what we originally were charged in doing. If

A. 24 and 11, that's accurate.

14

you remember, we had to -- under advice of the

15

Q. Was that based on party lines?

15

Harris court, they weren't happy with the 12th

16

A. Yes.

16

district. So when you consolidated that, you

17

Q. Now we can go back to Tab 6.

17

impacted all of the counties that were involved

Is this a transcript of the Senate

18

in that part.

Redistricting Committee on February 18th?

19

18
19

So that in itself was, you know, one

20

A. Yes.

20

major portion, and that goes to the ripple

21
21

Q. If you will turn to Page 8.

21
21

effect. Once you change one district, you

22

A. Okay. Page 8.

22

change many, and if you changed the 12th, which

23

Q. And the bottom of Page 6 shows that you were the

23

crisscrossed many of the counties, then it

24
25

24

speaker.

25

A. The bottom of Page 6.

134
134

requires you to make major changes everywhere.
BY MS. MACKIE:
136

34 (Pages
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(Pages 133 to 136)
Case
5:19-cv-00452-BO
Document
5-1
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Page
536
of
662
DISCOVERY COURT REPORTERS
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 SENATOR ROBERT A. RUCHO

1

January 25,
25, 2017

Q. Did you have any discussions about only changing

11

2

Congressional Districts 1 and 12 and the

2

3

districts close to those districts?

3

justify that claim and Representative Lewis
responds.
A. May I read it?

4
4

A. It's not possible to do that because once you

4
4

Q. Please.

5

change one and trying to meet all the criteria

5

A. My best estimate of what was done is that

6

that has been established, you can't just try to

6

7

make those changes and conform to the criteria

7

to how Representative Lewis had made the

8
8

that we established which we believed was

8
8

statement that he did about weaker maps, and I

9

think Representative Lewis did not have the

9
10

critical for the Harris court to accept and to
approve our maps.

Senator Ford wanted to get some clarification as

10

material in front of him but said you look at
the stat packs, you can look at every district

11
11

Q. So you had to change the entire map?

11

12

A. In essence, to achieve what the Harris court

12

and determine if there was changes in what was

13

the 2011 stat pack versus the 2016 stat pack.

13
14
15
16
17

would have expected for us, at least that's what
we interpreted the Harris court needed us to do.

14
15

Q. If you'll turn to Page 10, and on Lines 13 to
15, Representative Lewis says:
"But make no mistake in that regard,

A. No.

17

Q. So again, you don't know whether the 2016 map is

this is a weaker map than the enacted

18

19

plan."

19

21
21

20

What is meant by that?
A. I mentioned earlier to you that in drawing these

comparison?

16

18

20

Q. Did you look at the stat pack to make that

weaker?
A. My responsibility was -- and the responsibility

of Representative Lewis was to get the map to

21
21

comply with all of the criteria, harmonize them

22

maps following these criteria that were

22

and get it passed and on to the Harris Court

23

established to conform with what the Harris

23

before the end of the 19th. So that's what we

24

Court wanted us to do, I mentioned earlier that

24

25

Representative Lewis in describing the maps that

25

were in the process of doing.
Q. If you will turn to Page 22. And at the bottom,

137

139

11

they were less -- let's just say it was not as

1
1

Senator McKissick asked if you can identify any

2

easy for Republicans to win that seat or to

2

3

Democrats, for that matter, but it changed -- it

3

consultants or persons that provided assistance
in drawing these districts, and if you will read

4

weakened any type of partisan changes that might

4

5

have been there or political.

5

6

Q. How did you determine that?

6

therefore unnecessary to say.

7

A. That is a statement that probably needs to be

7

Q. Why was that not relevant?
A. It wasn't relevant because, in essence, the

8
8

answered by Representative Lewis, to be honest

8

9

with you.

9

your response.
A. Yes. I said that it wasn't relevant and

criteria were established. The orders -- the

10

Q. But you agreed with his statement, right?

10

rule -- the guidelines were there, and whether

11

A. I believe -- I agreed with his premise.

11
11

Dr. Hofeller or anybody else was doing that, in

12

Q. Did you have a way to determine that the 2016

12

this case it was Dr. Hofeller, as you know, it

13

wasn't relevant to this map moving forward.

13
14
15
16
17
18
19

20

map was weaker than the 2011 map?

A. Pm
I'm not familiar with one.

14

Q. Okay. So you don't actually know whether it was

15
16

weaker?
A. I went on his statement, and I had no reason to

doubt it.
Q. If you will turn to Pages 12 and 13. And I'll

17

deserved to know who drew the maps?
MR. FARR: Objection to the form.
THE WITNESS: No.

18

MACKIE:
BY MS. MACIUE:

19

Q. And if you will turn to the next page, Page 24,

20

let you read this.

Q. You didn't think that your fellow senators

your statement at the top says:

21
21

A. Okay.

21
21

22

Q. My question is going to be about Senator Ford's
Fords

22

Representative Lewis has submitted is

23

questions which are similar to the questions I

23

the criteria that was used to draw the

was just asking you.

24

maps, and probably that's as much as we

25

need to know."

24
25

On Page 12 you asked about the data to
138

"I'll be clear, the criteria that

140

35 (Pages
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(Pages 137 to 140)
Case
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Page
537
of
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DISCOVERY COURT REPORTERS
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 SENATOR ROBERT A. RUCHO
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A. The maps were based on the criteria. What else

2
3

January 25,
25, 2017
11
2

needs to be known?
Q. If you'll turn to Page 28 and you'll see at the

3

4

bottom of Page 27 that -- this is you speaking.

4

5

You say:

5

6

8
9
10

11
11

BY MS. MACKIE:

7

Q. Senator Rucho, does Exhibit 36 have transcripts

8

of the Senate floor sessions on February 18th

and, therefore, we needed to be sure

9

and February 19th?

that whatever they were we understood

10

A. Yes.

them to be.

11
11

Q. And was Senate Bill 2 introduced on the floor of

12

the Senate in the February 18th session, which

"And then any time that a future

14
15

legislator or a future court needed to
know that we know specifically what we

13

is behind Tab 1. And to help you out, you may

14

want to look at Page 25.

were trying to achieve."

15

A. Yes.
Q. And if you will turn to Page 107. And you may

16

Was your purpose in having written

16

17

criteria so that a future court would know what
your goals were?

17

18

MS. MACKIE: I think so.

established, we wanted to be clear what
each of the goals -- stated goals were,

12
13

THE WITNESS: Are we finished with this
book?

6

"...when the criteria were

7

(WHEREUPON, Plaintiffs' Exhibit 36 was
marked for identification.)

18

want to look at Page 104 to see who the speaker

is.

19

A. The -- it goes back to the original when we drew

19

A. I assume you're alluding to Senator Berger.

20

2011. We had criteria when we were drawing

20

Q. Yes.

those maps.

21
21

A. Okay.

22

Q. Had Senator Berger seen the map before

21
21
22

Redistricting is very complex and you

23

need a recipe or you need a roadmap as to draw

23

24

them and to draw any of the maps, and this was

24

our roadmap to accomplish that because we felt

25

25

February 18, 2016?

FARR: Remember my instructions to
MR. FARR
you.

141

143

11

that those criteria, harmonized together, would

1
1

THE WITNESS: Yes. Yes, I understand.

2

meet the requirements by the Harris case.

2

I believe the map was online on the

So we clearly state that whether it's

3
4
5
6
7
8
9

3

I'm sure this would have
redistricting website. Pm

the court or legislators or anybody else, this
is how we arrived at the map, the 2016

4

been the third meeting that we would have had

5

with members of the Senate both in the Joint

contingent map, which, again, we didn't feel was
necessary because we were still confident that

6

Conference Committee on Redistricting, Senate

7

Redistricting and now on the floor. I think I

the 2011 map would remain -- would be found to

8
8

even mentioned the fact that there were at least

be constitutional, but we were meeting the

9

40 members that have been present one way or the

10

requirements of the court at the time this was

10

11
11

done. And all we had now was another day left

11
11

12

before we had to complete it so we were running

12

13

out of time.

13

BY MS. MACKIE:

Q. And if you will turn to -- well, did Senate

14

Q. And to that end, if you will turn to Page 63.

14

15

A. 60?

15

16

Q. 63, yes. Did the map pass the Senate

16

17

other in this.
So my best guess is that at some point
Senator Berger had seen the map.

Bill 2 pass the Senate on February 18th?
A. Yes.

17

Q. Page 110, the vote reflected there.
Q.

18

A. Yes.

18

A. Yes.

19

Q. And was it by a vote of 12 to 5?

19

Q. And was it 32 in favor and 15 opposed?
Q.

20

A. That's correct.

20

A. That is correct.

21
21

Q. Was that based on party lines?

21
21

Q. And was that on party lines?
Q.

22

A. Likely.

22

A. I don't have the breakdown before me, but I'll

23

Q. I'm going to hand you what we will mark as

23

Redistricting Committee on February 18th?

24
25

24

Exhibit 36.

25

///

M

142
142

assume yes.
MS. MACKIE: We've been going for
almost an hour and a half. Do you want to take

144
144

36 (Pages
141 to 144)
144)
(Pages 141
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
538
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
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 SENATOR ROBERT A. RUCHO

1
1

January 25,
25, 2017
1

a break?

does?

2

FARR: Okay.
MR. FARR

2

3

MS. MACKIE: We'll do just a quick

3

going to testify -- I'm going to instruct him

4

not to testify on any matters outside of

MR. FARR
FARR: Sure. Thank you.

5

congressional redistricting.

THE VIDEOGRAPHER: Off record at 2:25

6

4

break.

5
6
7

(Brief Recess.)

9
10
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11
12

MS. MACKIE: Okay.

7

p.m.

8

MR. STRACH: Objection. We're not

THE VIDEOGRAPHER: On record at

legislative immunity as to anything but

9

congressional redistricting as Mr. Farr said

10

2:40 p.m.

MR. STRACH: He's not waived his

8
8

earlier.

BY MS. MACKIE:

11
11

BY MS. MACKIE:

Q. Senator, if you could look at Tab 2 in

12

Q. So you're maintaining legislative privilege and

13

Exhibit 36, which is the Senate floor session on

13

14

February 19th.

14
14

A. Yes.

15

Q. I am going to hand you what was marked yesterday

15
16
17
18

Was a bill introduced at this session

immunity with regard to Senate Bill 4?

that's related to the logistics of a new

16

as Exhibit 16A. And I do have extra copies of

congressional election in 2016?

17

that.

18

A. Let me just be clear that the one we talked

19

Have you seen this document before,

19

about in the morning was Senate Bill 2. This

20

was House Bill 2. Actually, it came over from

20

A. I don't recall it. I know it was discussed

the House.

21
21

yesterday, but I don't recall seeing it or

21
21

Senator Rucho?

22

They had originated the bill dealing

22

23

with setting up the -- I think it was a June

23

I'm going to ask you about one specific
Q. Okay. Pm

24

primary election for congressional races that

24
24

paragraph in it. If you'll turn to Page 23 and

would run under the map that we have

25

it's Paragraph 68.

25

reading it.

145
11
2
3
4
5

submitted -- had submitted to the Harris court.

So yes.
Q. And did House Bill 2 pass the Senate on
February 19th? Page 3 may answer that question
for you.

147
1
1

Have you read Paragraph 68?

2

A. Yes, ma'am.

3

Q. Do you agree with Dr. Hofeller that the General

4

Assembly's overarching goal in 2011 was to

5

create as many safe and competitive districts

6

A. Yes.

6

for Republican incumbents or potential

7

Q. Actually, Page 14 is the third reading.

7

candidates as possible?

8

A. Right. Bipartisan support.

8

MR. STRACH: Objection.

9

Q. Thank you. You can put that notebook away.

9

You can answer that.

10

I'm going to hand you what we will mark

10

11
11

12
13
14
15
16
17

11
11

as Exhibit 37.

THE WITNESS: I would probably say our
overreaching goal was to pass the redistricting

12

maps and to get preclearance from the Justice

13

Department so that an election can take place in

BY MS. MACKIE:

14

2012 on the normal schedule.

Q. Senator Rucho, can you tell me what Exhibit 37

15

(WHEREUPON, Plaintiffs' Exhibit 37 was
marked for identification.)

16

is?

And, no, I don't agree with the premise
that they were the overarching goal as described

17

by Dr. Hofeller.

18

Bipartisan State Board of Elections and Ethics

18

BY MS. MACKIE:

19

Enforcement.

19

Q. Okay. If you will flip back to Paragraph 23,

A. It appears to be Senate Bill 4, Creation of

20

Q. And were you a sponsor of this bill?

20

21
21

A. I can't remember if I sponsored it or I ran it

21
21

the first line says:
"Political control of the

22

on the floor or what, but I was -- I was part of

22

redistricting process can also become an

23

the effort to pass it during one of the special

23

overarching factor."

sessions.

24

24
25

Q. And what is your understanding of what this bill
146

25

Would you agree with that statement?
A. I'd like to read it.
148

37 (Pages
148)
(Pages 145 to 148)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
539
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 SENATOR ROBERT A. RUCHO

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23
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January 25,
25, 2017

Q.
Q.

Sure. I'm only asking about that first sentence
in Paragraph 23.
MR. STRACH: Read the whole paragraph
for context.
THE WITNESS: I'm not sure I concur
with his premise primarily because of the fact
that in 2010 the Republicans running on
Democratically-drawn gerrymandered maps, we
ended up winning the majority. And so I'm not
sure that -- you know, if based on what he
described it was contradicted by the results of
the 2010 election.
BY MS. MACKIE:
Q. Okay. So you disagree that political control of
the redistricting process can also become an
overarching factor?
MR. STRACH: Objection.
You can answer that.
THE WITNESS: I'm not sure I
understand. Overarching factor for what? For?
BY MS. MACKIE:
Q. Would you agree that political control can be a
factor that takes precedence over other factors
in redistricting?
MR. STRACH: Objection.

11

to help many states gain the majority in the ---

2

for the Republicans in a number of states across

3

the country.

4

I'm not mistaken, I
I actually -- if Pm

5

think I went to one RSLC meeting and probably

6

walked away disappointed because I think they

7

had a series of tiers that they -- they thought

8
8

would be winning opportunities for them and

9

North Carolina didn't even make into the top

10

four tiers. So I said that's disappointing,

11

because, you know, everyone thinks that they can

12

win the majority.

13

14
14

I know of them, but that's probably the
extent of what I do know.

15

Q. When did you go to an RSLC meeting?

16

A. My recollection it was either in Raleigh or in

17

Charlotte. It was back in 2010 or earlier. And

18

they came around explaining what they were

19

doing. And I'm sure as a legislator I was

20

invited to attend probably to learn more than ---

21
21

I learned something that I never had known

22

before.

23
24
24
25

Q. And that was the only RSLC meeting you had went
to?
A. Best I can remember.

149

151

11

THE WITNESS: I don't mean to be

1
1

2

difficult. Are we talking political control

2

3

like controlling the legislative House and

3

4

Senate? Is that what we're describing?

4

Q. I want to hand you what was marked yesterday as
Exhibit 9.
MS. MACKIE: And, Phil, Pm
I'm sorry, I do
not have extra copies of this one.

5

BY MS. MACKIE:

5

THE WITNESS: Dear legislator letter.

6

Q. Sure. We can agree on that definition for

6

MR. STRACH: All right.

7
8
9
10

7

political control.
A. When we were running in 2010, it wasn't for the

purpose of -- it was the purpose of changing the

BY MS. MACKIE:

8
8

Q. Did you receive a copy of this letter?

9

A. I don't remember.

direction of the government, not necessarily --

10

Q. Have you seen this letter before?

11
11

the state government, not for any other reason.

11
11

A. I think this was something that was discussed

12

So I'm not sure -- I'm not sure I believe in

12

yesterday, but nothing that I've seen -- nothing

13

that premise.

13

prior than what was discussed yesterday.

14
15
16

Q. Okay. Thank you.
Are you familiar with the Republican

State Leadership Committee?

17

A. RSLC?

18

14

Q. So did you receive it?

15

A. I don't believe I had.

16

Q. And do you remember seeing it before yesterday?

17

A. No.

Q. Pm
I'm going to hand you what we will mark as

Q. Yes.

18

19

A. I think it was discussed at length yesterday.

19

20

Q. Had you heard of the RSLC before yesterday?

20

21
21

A. I did.

21
21

22

Q. How did you hear of it?

22

23

A. I think back in 2010 or somewhere in that period

23

24

of time when -- and I'm going on memory -- there

24

Q. Have you seen this document before?

25

was the -- the RSLC was in the process of trying

25

A. I don't believe I received the letter. I

150

Exhibit 38.
(WHEREUPON, Plaintiffs' Exhibit 38 was
marked for identification.)
THE WITNESS: Yes, I've read it.
BY MS. MACKIE:

152
152

38 (Pages
152)
(Pages 149 to 152)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
540
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 SENATOR ROBERT A. RUCHO

January 25,
25, 2017

11

believe this is the meeting that I attended. It

11

meeting to learn more," et cetera, et cetera,

2

was in Charlotte. And at that time the Chairman

2

"in a state update from Thom, Phil and Bob."

3

Hayes had invited us to attend, and it was

3

A. I don't remember back in 2010 if I spoke at this

4
4

during the period of time in 2010 that Senator

4

meeting or not. I can't -- I can't imagine I

5

Berger, Speaker Tillis and myself attempted to

5

would have, but if it would have been, it would

6

increase the number of our seats in the House

6

have been Speaker Tillis and Senator Berger, not

7

and the Senate, and that was when we ran under

7

8
8

the Democrat gerrymandered maps.

8

9
10
11
12
13

9

Q. Who is Robin Hayes?
A. Robin Hayes is the chairman -- was the chairman
at that time of the North Carolina GOP.
Q. And you said that you think that this may have

update at this meeting?

10

A. No, ma'am.

11

Q. Are you familiar with the State Government

12
13

been the RSLC meeting that you attended?

likely me.
Q. Okay. So you don't remember providing a state

Leadership Foundation?
A. I don't think so. The name doesn't -- the

14

A. My recollection is yes.

14

acronym in the name doesn't ring a bell.

15

-Q. So it would have been --

15

16

it's in Charlotte, and I remember that
A. I know its

16

Q. Okay. You have not heard of the SGLF?
A. No.

17

18

Robin Hayes was -- probably led the -- or

17

introduced him as he was probably hosting it.

18

Q. In 2011 were you -- were you aware of
Dr. Hofeller's role with the RSLC?

19

Q. And would that meeting have been June 23, 2010?

19

20

A. I don't know. I don't remember.

20

21
21

Q. Do you think it was in 2010 when you went to the

21
21

redistricting committee, but I did meet

22

Dr. Hofeller at that time, but I don't think ---

22

RSLC meeting?

A. I met Dr. Hofeller back in 2000. At the time we
were in the minority, and I wasn't on the

23

A. My guess is, especially with my name there, I

23

I didn't know who he worked for, to be honest

24

must have been invited to it. As a legislator,

24

with you. It might have been the RNC or

25

Pm
I'm sure I was invited, and if it was in the

25

somebody, but I can't specifically tell you that

153
1

155
1

Charlotte area I probably attended it.

I knew what -- who he was employed by.

2

Q. My question was was it in 2010.

2

3

A. As best I can tell.

3

North Carolina in 2011, were you aware of his

4

Q. And if you look in the first paragraph, he

4
4

role with the RSLC?

5

writes that -- he's writing about the impact

5

6

they will have on the upcoming 2011

6

know that he was very knowledgeable about that,

7

redistricting process.

7

and in 2011 our goal was to get the maps

8

approved by the Justice Department, pre-cleared

9

and then have it ready for 2012. So I was

8
9
10
11
11

Does that refresh your recollection
about when this meeting might have taken place?
A. Where do you see that part? Okay, I got it. In
the last line of the first paragraph.

Q. And when you hired him in 2011 to draw maps for

A. I don't know if I was familiar with that. I

10

hopefully counting on if he had expertise to

11
11

help us achieve that goal.

12

Q. Yes.

12

13

A. Well, I guess at that point if indeed the

13

14

Republicans could have won the election in 2010,

14

15

they would have had a say in the redistricting

15

16

process.

16

Q. But you did not know that he also was working
for the RSLC?
A. I don't believe I was, no.
MS. MACKIE: Thank you, Senator. I
don't have any other questions for you.

17

Q. Did you provide a state update at this meeting?

17

THE WITNESS: Thank you.

18

A. I doubt it because I had nothing to update them

18

MS. MACKIE: But you're not done yet.

19

on. I was just a senator working for a

19

20

majority, and so I'm not sure what I would have

20

21
21

talked to them about. As a matter of fact, I'm

21
21

22

sure this was their meeting. They wouldn't have

22

BY MS. RIGGS:

23

wanted me to speak there.

23

Q. Thank you for your patience, Senator Berger --

24
25

Q. Well, if you look at the last paragraph, it says

24
25

"I would like to invite you to a breakfast

154
154

THE WITNESS: I thought I was ready to
go home and take my power nap.
EXAMINATION

or, Senator Rucho. Sorry.
A. No problem.
156

39 (Pages
156)
(Pages 153 to 156)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
541
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 SENATOR ROBERT A. RUCHO
11
2
3
4

Q. As I mentioned, my name is Allison Riggs, and I

7
8
9
10

11
11
12
13
14
15

1

represent the League of Women Voters in a
separate case brought second in these quasi

2

consolidated actions.

4

5
6

January 25,
25, 2017

3

5

Pm
I'm not going to repeat questions that
Ms. Mackie asked. There's a couple of places
where I felt like I need a little clarification

6

and a few places where I want to go into a
little bit more detail, but I will be as brief

8
8
9
10

as possible.
I want to go back to the conversation

11
11

you had with Ms. Mackie earlier this morning
when you were reviewing your deposition notice

12
13

14
14

and talking about your search for calendar
items, calendar meetings, that discussion.

16

7

15
16

Do you remember that?

A. If it helped me be there, of course, I would try
to do that.
Q. Same thing with if you were meeting with
Dr. Hofeller, a few days in advance you would
mark it on your calendar so you wouldn't forget?
A. Best guess.
Q. Okay. Do you know what the policy at the
legislature with respect to archiving e-mails
and calendar items?
A. No.
Q. Do you know what the practice is at the
legislature with respect to deleting e-mails or

calendar items?
A. No.
Q. Is it your personal practice ever to delete
e-mails?

17

A. Yes.

17
17

A. If it's on my personal computer or my personal

18

Q. Okay. Do you use Outlook on your legislative
computer to schedule your meetings?

18

iPhone I would assume, especially when I keep
getting messages that I have too many messages
on there, it says you have to delete something
to get some more. So that's probably how I
would respond to that.
Q. Do you receive e-mails at your legislative
e-mail account on your personal iPhone?
A. Not anymore.

19

20
21
21
22
23
24
25

19

A. I really don't know how the legislative computer
worked. That was -- staff people did that, so I

20

don't know if it was Outlook or not. I don't ---

22

Q. So you don't know if there was any link -- let

21
21

23
24

me strike that.
Do you use Outlook on your iPhone to

25

157
11
2
3
4
5
6
7

1

Q. Did you when you were in the Senate?

A. I know it works. I don't know how it works.
Q. So you don't know if there was any link between

2

A. I think I might have, best I can guess.

3

Q. And so your same rule would apply, you would

your iPhone and your calendar or computer in
your legislative office?

4

delete those if you had a memory issue on your
phone?
phone9
A. Yes.
Q. What about on your legislative computer, when
you were in the legislature, was it your
practice to delete e-mails?
A. I never used the e-mail -- I mean, I never used
computer in the legislative building. It was
always handled by -- I never used it so...
Q. At the very end when you were talking with
Ms. Mackie you mentioned that you had met
Dr. Hofeller first in 2000; is that correct?
A. Yes.
Q. In what setting did you first meet him?
A. I think at the time that I met him he was
working with Senator Ballantine who was the
minority leader on redistricting.
Q. So you met him in the context of doing
redistricting in North Carolina after the 2000
census?
A. Yes, with the caveat that I was not on the
redistricting committee. So if it was, it

schedule meetings?

A. There may be. I don't know.
Q. Well, one way to get at that is did your

7

legislative assistant ever schedule a meeting

9

for you and then it would pop up on your iPhone?

11
11

12
13
14
15
16
17
18
19

20
21
21

22
23
24
25

5
6

8
8

10

159

8
8

A. Yes.
Q. Okay. Fair to say that for most meetings that

9
10

11
11

you would have you would have a calendar item
for that?

13

A. I mean, there are -- you know, being in the
legislative building, you could be walking down

15

12

14
14

the corridor and someone would say "Come in here
a minute," so it wouldn't be something

16

scheduled.
II can't
cant say whether it would or

18

17
17

19

wouldn't. Of course, you have constituents, you
set your calendar and work like that, but
sometimes yes, sometimes no.
Q. Okay. Standard, though, if you were going to
meet with your lawyers, you would mark it on
your calendar so you wouldn't forget?
158

20
21
21
22
23
24
25

160

40 (Pages
160)
(Pages 157 to 160)
Case
5:19-cv-00452-BO
Document
5-1
Filed
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Page
542
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
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 SENATOR ROBERT A. RUCHO
11

January 25,
25, 2017

was -- it was related to redistricting, but

1
1

2

that's the extent of it. I didn't get involved

2

3

with map drawing or anything of that sort.

3

4

Q. But you did vote on the 2001 Congressional

4

5
6

Redistricting Plan?
A. I can't remember if I voted yes or no, but,

6

Q. Yep.
Q.
A. Bizarre looking maps -- now that I understand it

7

8

because that covered the period of time that I

8
8

9

was there.

9

11
11
12

A. I remember in 2000. I can't recollect any

13

10
to
11

and 2003?
other.

a lot better -- that don't follow the
redistricting criteria, traditional criteria.
Q. Is that true for both a partisan gerrymander and
a racial gerrymander?

12

MR. STRACH: Objection.

13

You can answer that if you can.

14

Q. Was that your first introduction to

14

15

redistricting in 2001?
A. Yes, because of the fact that I had not been in

15

16

you're not being specific -A. Can I clarify.

yeah, I probably voted, and again in 2003

Q. Okay. And did you talk to Dr. Hofeller in 2001

if -- bizarre looking maps.
Q. Okay. So when you use the word gerrymander,

5

7

10
10

A. That's a good question. I would say to you that

THE WITNESS: I don't have a judgment

on that part.

16

BY MS. RIGGS:

the General Assembly, '97, so that would have

17

Q. Okay. Well, what do you -- you're familiar with

18

been the first period of time that we would have

18

19

been involved with redistricting.

19

17

the term "partisan gerrymander" or "political

gerrymander," right? You've heard it?

20

Q. And understanding that you weren't on the

20

21
21

-redistricting committee, did you still take --

21
21

Q. What would you understand that to mean?

22

take the opportunity to look at all of the

22

A. A political gerrymandering would -- basically to

23

-materials made available --

23

give advantage probably to one or another of the
parties that were drawing it.

24

A. No.

24

25

Q. -- to you?

25

A. Yes.

Q. And what do you understand a racial gerrymander

161
1

A. Well, only when the map came out. There wasn't

163
1
1

to be?

2

any other time that I would spend. Other people

2

MR. STRACH: Objection.

3

were involved in that, the other people on the

3

Again, you can answer this if you can.

4

committee.

4

THE WITNESS: After experiencing the

5

Q. I understand, but when it came to the Senate

5

Harris court, I surely recognize what it's not,

6

floor and you were asked to vote on it one way

6

but the -- the -- I guess it would be the fact

7

or the other, did you look at the stat packs

7

that either race was used predominantly or there

8

associated with the 2001 plan?

8

are -- well, there used to be -- probably not so

9

much now after Shelby -- Section 5 violations

9

A. I would assume before I voted on it I would have

10

looked at it. Would I have understood it or

10

11

whatever, the complications of it, that's

11
11

BY MS. RIGGS:

12

Pm going to
another question, but, you know, if I'm

12

Q. So when you use the term gerrymander, you might

13

vote on a bill I'm going to at least look at it.

13

use it in a way that's separate and apart from

14
14

either a partisan gerrymander or racial

gerrymander?

14

Q.
Q.

So I understood you to tell Ms. Mackie that you

with retrogression and things like that.

15

had -- that you were referring to the 2001 plan

15

16

as a Democrat gerrymander.

16

MR. STRACH: Objection.

17

Answer if you can.

18

THE WITNESS: Repeat the question.

17
18
19

20
21
21

22
23
24
25

Did I correctly understand what you
told her?
A. I believe that, yes. And the 2003 plan too.

19

BY MS. RIGGS:

Q. So you thought both were Democratic political

20

I'm getting at is you said the 2001 and
Q. So what Pm

gerrymanders?
A. No. They were gerrymanders because they didn't

follow the law.
Q. Okay. Well, how about you define for me the
word "gerrymander" in your mind.

162
162

21
21

2003 were Democrat gerrymanders, and what I want

22

to understand is does that mean you're talking

23

about gerrymandering separate and apart from

24
24

partisan gerrymandering and racial

25

gerrymandering?

164
164

41
161 to 164)
164)
41 (Pages
(Pages 161
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
543
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 SENATOR ROBERT A. RUCHO
11

January 25,
25, 2017
11

about is I'm still a little fuzzy on some of

saying that they did not follow the

2

this timeline stuff, so bear with me, and I just

3

redistricting principles and part of that was

3

want to pin some stuff down as best we can

4
4

exposed in the 2003 redistricting redraw by the

4

without having any calendar items.

5

courts.

5

2

A. I would probably define it at the level of

First, I want to talk about from the

6

So I would probably just say that

6

7

simplistically that, you know, they just didn't

7

ruled in 2016. You and Dr. Hofeller were both

8
8

follow the law when they were drawing the maps

8

at the Harris trial in Greensboro, correct?

9

and the legal precedence that came with it

9

A. I was at the Harris trial in Greensboro and I

10

11
11

following the Constitution. That's the level

10

that I would probably put it at.

11
11

Harris trial to February 5th when the court

believe Dr. Hofeller was also.
Q. And until February 5, 2016, did you have any

12

Q. So do you think the 2001 and 2003 plans, to use

12

opportunities to meet with or talk with

13

your words, gave advantage to Democrats over

13

Dr. Hofeller?

14
15
16
17

Republicans?
A. I would say that the Democrats, by not following
the law, did take advantage of the system.
Q. Okay. And do you know -- do you remember what

14

A. You mean like on redistricting stuff?

15

Q. Yes.

16

A. Not that I can recollect.

17

Q. So October, November, December, January, first

18

the composition of the congressional delegation

18

five days of February, no discussions with

19

was in 2002 and 2004?

19

Dr. Hofeller on redistricting?

20
21
21

A. No.

20

Q. Would it surprise you if it was 7-6 Republican

21
21

A. I was supposed to be a potential witness in that
case, and I can't remember -- I don't remember

22

if Dr. Hofeller was there when I was preparing

A. I don't know.

23

to potentially be a witness there. So I just

24

Q. But it wouldn't surprise you?

24

don't remember if he was in the room when I was

25

A. I don't know.

25

there.

22
23

control in both congressional sessions?

165

167
167

11

Q. And you would -- if that were true, would that

1
1

2

change your opinion that Democrats created an

2

3

advantage for themselves in the 2001 and 2003

3

you were at least in the same room with him in

4

redistricting process?

4

the courtroom --

5
6
7

MR. STRACH: Objection.

A. Yes.

You can answer.

6

Q. -- to February 5, 2016, did you have any

THE WITNESS: Clarification, if I may.

7

Are we talking about legislative or

8

9

congressional maps?

9

10

12
13

From the end of the Harris trial when

5

8

11
11

Q. Okay. And to be clear, I'm asking after that.

BY MS. RIGGS:

10

Q. Only congressional. Only congressional.

11
11

12

So if it's true that Republicans had

opportunity to talk to Dr. Hofeller in person or

on the phone about redistricting?
A. I don't remember that.
Q. And then -- so you certainly during that
timeframe didn't retain him to do anything?
A. I think I spoke with Ms. Mackie and I said I

7-6 majorities in both the 2002 and 2004

13

14

congressional delegations based on the 2001 and

14

15

2003 redistrictings, if that's true, does that

15

16

change your opinion that the 2001 and 2003 plans

16

17

gave Democrats an advantage over Republicans?

17

A. Closer to 6:00.

MR. STRACH: Objection.

18

Q. You didn't speak with Dr. Hofeller that evening,

You can answer if you're comfortable

19

18
19

20
21
21

speculating about the truth of the facts.
THE WITNESS: I really don't know if

didn't anticipate losing that case so there
would have been no reason to retain him.
Q. So 5:00 p.m. on February 5th when you find out
about the Harris ruling --

correct?

20

A. No, ma'am.

21
21

Q. And you can't remember if he was on the call on

22

I've got an answer to it because I don't

22

23

remember all that went on at that point.

23

February 6th?
A. I don't remember that.

24

BY MS. RIGGS:

24

Q. You don't remember if he was on the call or not?

25

Q. All right. Next thing I want to talk to you

25

A. That's correct. I remember being on the call.

166

168

42 (Pages
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(Pages 165 to 168)
Case
5:19-cv-00452-BO
Document
5-1
Filed
10/14/19
Page
544
of
662
DISCOVERY COURT REPORTERS
1-919-424-8242
www.discoverydepo.com

 SENATOR ROBERT A. RUCHO
11

January 25,
25, 2017
11

afternoon to continue the meeting. He had an

Q. The evening of February 5th, did it immediately

2

appointment that he had already scheduled. So I

3

occur to you that you would have Dr. Hofeller

3

can't remember if it's that day or the day

4
4

help out again?

4

afterwards, but -- because he had a doctor's

5

appointment that he had scheduled.

2

5

I'm pretty sure it was on the day after.

A. I didn't know exactly what was required of us by

6

the ruling so I probably waited until we had

6

7

some feedback.

7

8
8
9
10

11
11

Q. By the evening of that Saturday, February 6th,
at that point in your mind were you sure

can't be sure of that. I mean, it wouldn't
A. I cant

whatever day that first day is?

8

A. Continuation.

9

Q. Okay. So you would have gone to his house, left

10

Dr. Hofeller was going to help you?

Q. So you may have actually met with him twice on

and then gone back to his house?

11
11

A. The best I can remember.
Q. So after that continuation of the first meeting,

12

have been my decision alone. It would have been

12

13

Representative Lewis and myself to make that

13

14

decision.

14

when was the next meeting that you had with
Dr. Hofeller?

15

Q. Okay.

15

A. I don't recall.

16

A. So once we recognized that it was needing to be

16

Q. How many times did you meet with Dr. Hofeller

17

done, of course there may have been a need to

17

between the first meeting and the enactment of

18

bring Dr. Hofeller if he was available to do

18

19

that, but I can't
cant say to you Saturday night that

19

A. I don't recall.

20

I said yes.

20

Q. Did you talk to him every day during that

21
21

21
21

Q. But you met with Dr. Hofeller on Monday or

the 2016 contingent plan?

-12-day --

22

Tuesday, right?

22

A. I don't recall.

23

A. That's correct.

23

Q. Well, I want to narrow it -- sometimes narrowing

24

Q. So when did that meeting get set up?

24

it down may jog your memory, but bear with me.

25

A. Probably on Monday or so, whenever I came back.

25

Pm
I'm going to ask you some detailed questions.

169

171

1
1

I can't remember what day I got back in to

1
1

2

Raleigh, and it would have been set up probably

2

3

last minute. We were in the 14-day crunch time

3

4

which was already two days or three days gone,

4

A. I don't recall as far as meeting again.

so...

5

Q. Did Dr. Hofeller ever come down to the

legislative office or legislative building, I

5
6

Q. So you didn't have any conversation with

6

7

Dr. Hofeller on Sunday, February 7th?

7

8
8

A. I don't believe so.

9

Q. Did you have any conversations with Dr. Hofeller

If you don't recall, you can say that.
Did you meet with Dr. Hofeller in
person again after that first meeting?

guess I should say?

8
8

I'm sure he did when he inputted the maps.
A. Pm

9

Q. Okay.

10

before you met with him in person at his house

10

11
11

on the 8th or 9th?

11
11

I'm not sure why -- even then if I was
not, but Pm
supposed to.

12

A. I don't believe so.

12

13

Q. Okay. So you go to his house on the 8th or 9th,

can't remember if I saw him that day or
A. And I cant

13

Q. Was it ever the case that you would see his next

and this is your first time with Dr. Hofeller

14

versions of the maps where he wouldn't be the

15

since the Harris trial, first time talking about

15

deliverer? I mean, would he give them to

16

redistricting, right?

16

Representative Lewis and Representative Lewis

14

17

A. As best I can recollect.

17

would give them to you? Did that ever happen?

18

Q. Okay. I want to ask you a few more questions

18

A. You know, at one point Representative Lewis and

19

about what y'all discussed at that meeting, but

19

I found the map that achieved the criteria that

20

first I want to finish my timeline.

20

was required of us to get the Harris court to go

21
21

22
23

After you left that meeting, when was
the next time that you talked to Dr. Hofeller?
A. I think there were -- I think he had an

21
21

along with it, and that meant specifically the

22

best map that had the least amount of counties

23

that were split and VTDs that were split. And
at one point at his home -- and I just don't
remember what day -- Representative Lewis and I

24

appointment that day, and I think -- I can't

24

25

remember. I think we came back in the later

25

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January 25,
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agreed that this was the map that we would go

11

with.

2

had to amend the map. So I'm not even sure what

3

period of time that was.

Q. So that couldn't have been the initial meeting,

4
4

right?
A. No. There might have been a subsequent one, but

I can't -- it could have been a subsequent one.
1can't
Q. So if you did in fact approve of the final map

5

about it. Twasn't
I wasn't even aware of it until we

Q. Okay. Do you remember how you found out about
that error?

6

A. When1found
When I found out that we had an amendment to

7

bring forth, amended version of it and we needed
to have that in -- I can't even remember which

8
8

at Hofeller's home, there was at least another

8
8

9

in-person meeting at his home?

9

10

best I can recollect.
A. As best1can

10

11
11

I think when we talk about some of these
Q. Okay. 1think

11

12

draft maps, it might jog your memory a little

12

13

where I was actually
bit on that front, but where1was

13

14

trying to get to was how did Dr. Hofeller give

14

15

you draft maps? Hand them to you in person?

15

16

E-mailing them to you?

16

committee it was in, but I think it was one of
our redistricting committees, if I'm not
mistaken, the best I can remember.
Q. Let me make sure I understand. So you only
learned about that error when someone brought
forth an amended version?
A. When staff folks gave me an amended version. I
was probably chairing the committee at that

17

A. No. We would have been there and it was either

17

18

on the screen or something that he was able to

18

Q. Right.

print out.

19

A. So therefore it wouldn't have been something I

19

20
21
21

Q. So if you viewed a draft map, it was only in the

20
21
21

presence of Dr. Hofeller?

22

A. I would say yes.

22

23

Q. Okay. Do you remember the dates when you and

23

24

Representative Lewis finally said this is the

24

25

map that does it?

25

time. It wasn't anything earth-shattering.

would have to know about immediately. It was
just a corrective change.
Q. How did you notify Dr. Hofeller that you needed
to make that change?
A. I don't know if I did it or staff did it or what

it was. I don't remember exactly.

173
11
2
3
4

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1

A. I can't give you the exact date. I don't

2

remember.
Q. So what if we link it to the Joint Committee

3

Q. Were staff free to communicate with Dr. Hofeller
without you being an intermediary?
A. I just don't remember how it was done when it

meeting on the 17th when the map was presented.

4

5

I'm pretty
On the 17th is when it was presented, Pm

5

if someone else gave -- just said "fix that

6

sure. Was it that day or a few days in advance

6

problem." Again, it was not an issue to be

7

of that meeting?

7

concerned about because it was an error in the

8
8

address and that's all it was.

8
9
10
11

A. It was prior to -- it was prior to the time that

9

he came down to the legislative building to

was identified. It was -- I just can't
cant remember

Q. Sure. And I wasn't actually speaking about with

input the map on the state computer, so whenever

10

respect to that change. 1I mean globally were

that was.

11
11

staff authorized to directly provide

12

Q. You don't remember when he came to do that?

12

Dr. Hofeller with what he asked for or in any

13

A. I don't.

13

other way directly communicate with

Q. Generally would staff need like 24 hours

14

Dr. Hofeller?

14
15

15

after ---

A. No. It would be something either from

16

A. I don't even know how it's done.

16

Representative Lewis or myself on something that

17

Q. Okay. Did your interactions with Dr. Hofeller

17

was critical.

18
19

18

stop once you had decided this is the map?
A. The only thing I believe was necessary was that

19

Q. So fair to say -- going back to this first
meeting on the 8th or the 9th, fair to say based

20

when we had to make the modification due to the

20

on this timeline that we've constructed that

21
21

fact that the wrong address for congressman from

21
21

Hofeller didn't have any instructions from you

22

Greensboro, I believe, we had the wrong address

22

23

there and I think he made a modification on the

23

A. There -- Representative Lewis and I would have

24

map and subsequently we amended it, but -- and I

24

shared our initial vision of what we needed to

25

can't remember if I or -- I think I found out

25

do subsequent to our Saturday meeting. And

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174

prior to your first meeting with him?

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January 25,
25, 2017

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there's a lot of preliminary work that needs to

11

2

be done by Dr. Hofeller and I'm sure -- I don't

2

Q. It was in that range?

3

know how much map drawing you've done. I know

3

A. Yeah, somewhere.

4
4

there's a lot of preliminary work that needs to

4

Q. It wasn't a ten-hour meeting?

5

be done to get ready for implementing the

5

A. No.

6

changes.

6

Q. How did the meeting go? What was the first

7
8
8
9

So repeat your question one more time.
Q. So I understand when you and Representative
Lewis sat down with Dr. Hofeller on the 8th or

was an hour or two hours. I can't remember.

7

thing that you talked about when you sat down?

8

A. Representative Lewis and I discussed with him

9

some of the thoughts that we had that needed to

10

the 9th for the first time you shared with him

10

11

your version. My question is: Before sitting

11
11

original or traditional redistricting

12

down with him at his home, you didn't give him

12

requirements. And at that point we had come to

13

any input?

13

the conclusion the 12th district would be

14

A. I did not.

14

consolidated, letting him know that that would

15

Q. And you had talked with Caroline about the maps

15

be done. Basically outlined, without the final
draft, the redistricting criteria that we

be included in this. Talked about some of the

16

that Dr. Hofeller had already, the sort of

16

17

general sketches when you came in to meet with

17

18

him on the 8th or the 9th.

18

Q. Okay.

19

A. That was instructions to him.

20

Q. All oral?
A. Absolutely.

19

20

Do you remember that?

A. It was just some of the data that was on the

established.

21
21

board. I don't believe it had anything other

21
21

22

than some traditional redistricting criteria

22

Q. Did he ask questions about any of the criteria?

23

that would have normally been there, like the

23

A. He's a very knowledgeable man. He understood

24

zero deviation and as far as that goes and

24

25

things like that, which is -- some of it's
its

25

pretty much what we were describing.
Q. Okay. So after you and Representative Lewis go

177
11

179
1
1

-included in that criteria, but --

2

Q. But he didn't have that yet?

2

3

A. That's correct. I mean, but that's something

3

4

through and establish the criteria, what happens
next in the meeting?
A. I would probably say to you that was probably a

that he knew would have been in there anyhow.

4

5

It's just normally done when you draw maps,

5

6

redistricting maps.

6

Q. Okay.

time that Dr. Hofeller needed to go to his
appointment.

7

Q. And I recall what you told her was one of those

7

A. And sometime I think -- and I'm guessing, I'm

8
8

criteria he was trying to keep counties whole.

8

trying to remember. Sometime later on that

9

9

A. Well, the criteria is listed here. We've

afternoon we returned after his appointment and

10

already discussed it today, all eight of this

10

to continue the discussion and fall in line with

11
11

especially.

11
11

some of the things that he was needing to do.

12

Q. But he didn't have that yet?

12

And, of course, when he did his work, I'm sure

13

-- well, that was always something we tried to
A. II --

13

we were gone.

14
14

do whenever we could. The only time we ever did

14

15

it differently is if we were required to

15

16

accommodate the Voting Rights Act, which when we

16

17

redrew this map we were clearly told there was

17

A. Well, if the criteria is what we used to draw

18

Q. So when you came back after his appointment,
were you still discussing the criteria or you
had moved on to other topics?

no racially polarized voting and therefore there

18

the maps, then either we reiterated them or --

19

was no need for use of race and then that kind

19

but they were laid out for him to know what

20

of gives us some clear direction.

20

needed to be done so that we could harmonize

21
21

them together and get it approved by the Harris

21
21

Q. So when you sat down with Dr. Hofeller on the

22

8th or 9th, factoring in the fact that you had

22

23

to leave for his appointment, about how long did

23

24
24

that first meeting last?

24

25

25

A. I have no way of being able to say whether it
178

court.
Q. At what point did he tell you he had already had
some draft maps done?
A. I don't recall that -- you know, that being

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January 25,
25, 2017

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said. I can't even tell you if they were

11

Q. Okay.

2

preliminarily or -- call them what you want,

2

A. That would have allowed those districts to be

3

there are a number of iterations you have to go

3

4
4

I'm not even sure what you call a
through. Pm

4

5

draft map when it might not have included all

5

6

the criteria that he needed to harmonize so that

6

A. I didn't ask that.

7
7

he could get a map that would be worth looking

7

Q. Did you ask him what the political implications

8
8

at.

8

9

Q. Well, I understand for sure he wouldn't have had

9

competitive.
Q. So when Dr. Hofeller showed you that first map,

did you ask him "Is this a 10-3 map"?

were of his preliminary work?
A. I'm not even sure at that level of early review

10

time to deal with the criteria in that, but you

10

11

said he had some draft maps already.

11
11

really don't have the districts lined up and,
more importantly, you don't have the criteria

12

A. There were some maps on the board. Whether you

12

13

call them draft maps or not, you know, those are

13

14
14

the preliminary use of the traditional

14

15

redistricting that you would be using.

15

16
17
17

Q. Okay. So he's got a big poster board? What did

16
17

it say on the board?

that you can even be doing that because you

that are in place.
Q. So was one of your questions at that first

meeting with Dr. Hofeller "Let us know if 10-3
is possible"?
A. We asked him to put a map up and tell us -- you

18

A. On the screen.

18

know, try to put all these together to harmonize

19

Q. On his computer?

19

them and let's see what is doable. We had no

20

A. Yes.

20

clue if it was 10-3 or 9-4, whatever. You know,

21
21

Q. So he showed you some maps on his computer?

21
21

this was a brand new map based on criteria that

22

A. Just how some of the things were breaking out,

22

23
24
25

did not include race.

testing, you know, what parts you put together,

23

what parts you don't.

24

you wanted to ask him to look for a 10-3 map?

25

A. It was a request that we had, could it be done.

Q. Do you remember approximately how many maps he

Q. But you had already walking in there knew that

181

183

11

showed you that day?

1

2

A. I remember one, so...

2

Q. Did you ask him to look for an 11-2 map?

3

Q. Could it have been more than one?

3

A. At that point being so early on where there

4

A. I don't remember.

4

wasn't really, you know, all the implementation,

5

Q. When he was showing you that map, did he also

5

I don't even believe that's a legitimate

6

show you any -- it probably would have looked

6

question. So I'm saying you don't ask for 11-2.

7

differently, but any political data, like a stat

7

It wasn't even on the board. The districts

pack?

8
8

weren't even identified. So I'm not even sure

8
9

9

A. No.

Who knew until you actually have a map.

that would be a question that I would ask.

10

Q. And what did he tell you about that one map

10

Q. Well, wouldn't the same be true for a 10-3?

11

about how -- I think you said how things were

11
11

A. No, because the 10-3 was there because of the

12

breaking out. How did he -- what did he tell

12

13

you about that map?

13

fact that it was consistent with what the
enacted map was.
Q. Right, but you're starting from scratch then,
right?
A. Starting from scratch and saying this is
something we'd like to see. We didn't say can
it be done.
Q. Well, why didn't you say "We'd like to see an
11-2 map"?
A. We would like to see a 10-3; show us what you
can or can't do with it following the criteria
that we established.
Q. I'm still not understanding, though, why you
didn't want to see the whole range of

14

A. There wasn't much to say because it was so

14
14

15

preliminary. He needed time to implement the

15

16

guidelines that we established with the criteria

16

17

17
17

that he needed to implement it.

18

Q. When you were giving Dr. Hofeller the criteria

18

19

at that meeting, I think you phrased it earlier

19

20

in your discussion with Ms. Mackie that you were

20

21
21

wanting to do 10-3 if it were possible; is that

21
21

correct?
correct?

22

22
23

A. We -- we believed that to be similar to what the

23

24

other maps were that was if it was possible we

24

25

would have liked to have done that.

25

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Page
548
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DISCOVERY COURT REPORTERS
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 SENATOR ROBERT A. RUCHO
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January 25,
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11

possibilities.

A. We needed to see something to begin with and

2

then be able to modify it if it needed to be
modified, but you need a starting point.

3

Q. Did you leave Dr. Hofeller's home with any
papers in hand?

5

A. I don't remember that being -- no.
Q. Do you remember if the preliminary map that he

7

4

6

showed you on his computer screen that day had a
name associated with it?
A. No.
Q. I want to hand to you what was previously marked
as Exhibit 31 yesterday.

8
9

A. Yes.
A. I think we came -- I came down to the two that I

12

felt -- and I speak for -- Representative Lewis

13

can speak for himself -- that met the criteria
that we were trying to do, including a map that

15

map?
Q. No. So I'll represent to you yesterday -- my
Q.

15
16
17

understanding is these were draft maps that
Dr. Hofeller produced to plaintiffs in this

Q. Was one of those the map that you ultimately
approved?
Q. So there was only one map that you rejected?

14

17

remember looking at that I paid any attention
to.
to.

11

A. This is the final map, am I correct, the enacted

18

time there was just the preliminary map and then
I think I remember two other maps that I

10

14

16

district was different.
The best I can remember is the first

18

reduced or split the least amount of counties
and the least amount of VTDs along with
harmonizing the rest of the criteria that were
established. That's how I came -- personally

19

case. Based on an eyeball contingency looks

19

20

pretty similar to the enacted map, but this is

20

21
21

how we got them and there's a whole bunch of
them.

21
21

And if you skim through them, the

23

A. Yes, ma'am.

nomenclature is at the bottom left so you can

24

Q. And based on our conversation, we think there

its named. There's a series that are
see what it's

25

22
23
24
25

22

made a decision on it.
Q. So if you reviewed one of Dr. Hofeller's draft
maps, it was only at his house on his computer,
correct?

was only -- maybe only one trip to

185
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5
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9
10

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16

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17
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19

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21
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24
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called Congressional 2016 Contingent and then
Contingent B, Contingent C, and then there's a
series that are labeled Congress 16, dash, a
letter, then there are some that are labeled
Congress 19, dash, a letter, and there's a bunch
of them.
Take your time to look through them,
but I'm actually going to ask a few questions
before we get into the details with those
You've had a chance to look through
those?
A. Yep, best I could.
Q. So after the first meeting February 8th or 9th
until when you and Representative Lewis settled
on a final map before the tweak, the correction
of the address of the incumbent in Greensboro,
how many drafts did Dr. Hofeller show you?
-A. I think I remember the original time was not -I don't think you -- well, you can just look. I
think yesterday was mentioned they started from
reverse as to what he started. There were a lot
of iterations as to how he was trying to
configure this. And so I think it was -- it's
reversed because there were a lot more different
changes, different counties together in the 4th
186

187
1
1

Dr. Hofeller's after the initial meeting?

2

A. I believe that's correct, yes.

3

Q. At that meeting would you have been presented

4

with those two draft maps that you saw?
A. Yes. I would say yes.

5
6
7
8
9
10
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11

12
13
14
15
16
17
18
19

20
21
21

22
23
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25

Q. So he explained to you about each of them and
then you made a decision?
A. As to how close we were to conforming with the
criteria that had been established in
harmonizing them.
Q. And just clarifying what you said with respect
to Exhibit 31 before, you said he went in
reverse. Did you -A. No. That's what y'all said yesterday when it
was presented.
Q. Okay. I wasn't here yesterday.
Is it your understanding that the maps
toward the back of the packet were earlier
versions?
A. That's what was said yesterday. I can't speak
to it. I was just listening.
Q. Just your understanding?
A. And I didn't see the maps yesterday.
Q. There's obviously a lot more than two maps in
this pack. So is it fair to say that you hadn't
188

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 SENATOR ROBERT A. RUCHO
11
2

January 25,
25, 2017
11

seen before today most of the maps in this
packet?

2

3

A. I'd probably say yes.

3

4

Q. Tell me about the map that you rejected.

4

5

A. I don't remember exactly how it was except that
it did have more split counties and more split

5

6
7
8
9
10

11
11
12
13
14
15
16
17

VTDs, and to me that was something that was
considered seriously by the court, and if indeed
they followed the criteria that we established
as we harmonized them together and the map that

6
7
8
9
10

would have given least amount, which is pretty
much the one that we enacted or that we voted

11
11

on, passed, came down to 13 county splits and 12
VTD splits.

13

Q. Do you remember -- the plan that you rejected,
do you remember how many more counties were

12

14
15
16
17

split?

Q. I wanted to know -- so like what you were
saying, I want to know -- I want to know did he
tell you how it complied with the incumbency
criteria?
A. Incumbency, thank you. Under that situation, I
knew we were struggling in what was the 4th

district because of the close proximity
between District 4 and District 2, which would
have been Elmer's and Price and Holding. So I
knew there was a problem in that area.
Everything else was okay. I knew Elma
Adams had her own district in the northern part
because everything had been consolidated down
into Mecklenburg for the 12th. So everyone else

seemed to be in a position of --Q. So when you had that second meeting at
Dr. Hofeller's when he presented you with the

18

A. No. I was just told it was higher. I don't

18

two, did you have your criteria list and you're

19

remember.
Q. Dr. Hofeller didn't tell you the exact number?

19

sort of checking to make sure that everything
was satisfied on both plans?

21
21

A. I don't remember.

21
21

22

Q. Did he provide you stat packs for those maps

22

23

when you considered them?
A. I don't think so. I think the stat packs would

23

have had to come from the General Assembly

25

20

24
25

20

24

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ro
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23
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2

Q. Right. Fair enough. As we call them stat
packs, they're produced by the General Assembly.
Did he provide you any statistical data

3

on the two maps he was presenting you with?

5

4

6

A. I think the only part that I could remember

7

clearly was the split counties and the split
VTDs, which was important.

8
8

Q. So you don't remember whether it was one more

9
10

county or five more counties?

A. Correct.
Q. Same question for VTDs, do you remember

11
11

approximately how many more VTDs?
A. I don't remember.

13

Q. Okay. Did he tell you what the effect was on
incumbent -- incumbent protection in both plans

15

12

14
14

16

17
17

that he presented to you?
A. Definitely not the first day.

18

Q. Right. Right.
I'm sure we asked at that point
A. Subsequent days Pm

19

20

to see exactly how -- in trying to conform
completely with what we presented as far as the

21
21

redistricting criteria that we established.

23

22

24

Repeat your question one more time,

25

please.
190

Were both plans that were presented to
you equally populated within that one person?
A. One-person, one-vote?
191

1

computer.

A. Mentally that is what we did.
Q. Okay. Excellent.

Q. Well, yes. I think there's an odd number of
people in the state of North Carolina so you

couldn't --A. There would have been one of them that would
have been there, but off the computer -- and I
think, I don't know very much about Maptitude
other than it gives some very nice pictures, but
I'm sure that when he told us he zeroed them out
it would have been as close to, again, meeting
the criteria on equal population.
Q. Okay. So you didn't reject the plan that you
rejected because it didn't satisfy the equal
population criteria?
A. The maps that he presented got as close to that
as we could and that's what needed to be done
for us to get approval, which we did get from
Harris court.
the Han-is
Q. And then the second criteria, contiguity, did
both plans that he presented you at that second
meeting satisfy the contiguity criteria?
A. As best I can guess.
Q. I'm going to skip down to the 12th district.
Did both plans consolidate, as you
described, the 12th district in Mecklenburg
county?

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25, 2017

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A. I believe that is correct.

11

2

Q. And we discussed incumbency. Do you recall that
both plans had the same ---

2

4
4

A. I don't remember the incumbency issue as to

4

5

whether one was different than the other. I

5

6

remember the one that we ended up choosing had

6

7

the one problem with incumbency that wasn't able

7

8
8

to be addressed, not without making an unusual
shape.

8

3

9
10

11
11
12
13

Q. Okay. And then what about partisan advantage,
were both plans in your mind 10-3 plans?

3

9

10
10
11
12

A. I don't -- I don't remember that. You know, I
know the one that was 10-3 was selected. I

13

14

can't remember if indeed the other one was.

14

15

its
Now, you know, recognizing when it's

15

16
17
18
19

20

10-3, it doesn't mean 10 Republicans are going
to win that time and again. I think if you look

16

at Roy Cooper's elections within there, I think
you'll find that Roy Cooper won many of them.

18

17

19

20

So if the right candidate is in place,

needed or wanted. I'm trying to blend them all
together to make sure that the map that we were
able to select, which we ended up doing and we
ultimately got presented and the election met
all of the criteria.
So to pick out one and say this one
achieved it, you know, it might have been less,
it might have been more, but it all achieved it
to some level.
Q. But keeping counties whole and keeping VTDs
whole was a factor you were considering in
deciding whether this was a compact plan or not?
A. It was critical for me because of the fact that
the court had raised serious questions about it

and that was something we wanted to have
addressed.
Q. Did Dr. Hofeller explain why the plan that you
rejected had more split counties and VTDs?
A. I don't remember the explanation.
Q. Flipping -- so I want to turn back to

21
21

any candidate can win that thing. So, you know,

21
21

22

to say that it would be 10 Republicans is not
necessarily so.

22

Based on the names of any of these

23

maps, do any of these seem to be the plan that
you rejected?

23
24
25

Q. The plan that you ended up going with that day,
the one of the two, were you satisfied that your

24
25
25

Exhibit 31.

A. I don't remember the names nor -- when I

193
11
2

3
4
4

5
6
7
8
8
9
10
11
12
13
14
15
16

17
18
19

20
21
21
22
23
24
25

195

partisan advantage criteria was satisfied?
A. I am saying to you that the partisan advantage

1
1

was every bit as important as every other
criteria in there and as was harmonized, and

3

-under the circumstances if indeed it was 10-3 -you know, as we won the election in 2010 under

5

Democrat maps, anything can happen in an
election.

7

2

4
4

6

8
9

Q. So the answer is, yes, you were satisfied that
that criteria was satisfied?

10

A. We believed that all of them were harmonized and
everything was taken equally.

11
11

Q. Everything was satisfied, correct?
A. All criteria was satisfied.

13

Q. Okay. And you can't remember if in the plan you
rejected whether the partisan advantage criteria

15

was satisfied?
A. I think the main problem that I had, that got my

17

12

14

attention, was the number of split counties and
split VTDs, and that automatically would have

16

18
19

20

was -- when I selected the one that I needed or
that I felt comfortable with -- and, of course,
Representative Lewis had a vote in this too -that was the one that I focused on. So I don't
remember.
Q. Do you remember what any of the additional
counties that were split were?
A. No, ma'am.
Q. So sitting here today, you can't tell me that -which one of these you may have seen before?

A. Correct.
Q. Did you leave that meeting with Dr. Hofeller the
second day with any papers in hand?
A. I don't remember doing so. I would have
probably waited until all of the data was
inputted into the -- into the state computer.
Q. Okay. How long -- about how long did that
meeting last that day?
A. Probably an hour or two hours, maybe somewhere
in there.

rejected that map.
Q. So as I understand, that's mostly relating to

21
21

your compactness criteria, right?
A. I looked at that as every one of them. I don't

23

A. I don't recall meeting him before those two.

24

Q. So walking into his house the second time, did

22

25

just pick out one and say this is the one I

194
194

Q. And safe to say you hadn't met with Dr. Hofeller
in person between that first and second meeting?

you say, "Hey, Dr. Hofeller, is it possible to
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January 25,
25, 2017
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draw a 10-3 map"?
A. We asked him which one of the maps conforms the

2

criteria?
A. That was not the prime goal of saying which one

3

best to what the criteria was, and he showed us

3

could achieve all of those factors, all of the

4
4

the two choices. And the one that we selected

4

criteria. It isn't just that. You keep harping

5

was the map that is -- is before -- is the one

5

on that. That's not the only thing that was

6

that's been accepted and passed by the General

6

7

Assembly, but each of them to one plus or minus

7

8
8

extent achieved the criteria that we wanted to

8

9

established. Not one of them is going to

9

10

10

achieve everything.

11
11

Of course, you know, taking in

important.
Q. Well, I want to know how you were satisfied that
all the criteria were met.
A. To the -- you match all the criteria to the best
possible. Again, it was, one, if it looked

11

good, which was definitely better than what we
had as far as appearance was concerned.

12

consideration the population is critical because

12

13

its a
that's required by the Constitution, but it's

13

14

blending of it. We just picked and choose the

14

were -- you know, you could easily see which

15

ones that we felt we could do and achieve the

15

ones were split and not and then he could give

criteria that were established.

16

us some feedback as to what VTDs were.

16
17

Q. What did Dr. Hofeller represent to you about the

18
19

20
21
21

22
23
24

1I mean, those were some of the factors

partisan advantage in the two plans that he

18

that you tried to get as close as possible to.

presented to you?

19

Q. I understand, but you had to satisfy yourself

I'm trying to remember how much of a discussion
A. Pm

20

that all of the criteria had been satisfied and

we had on that thing. I'm not sure there was a

21
21

harmonized. You were -- ultimately the buck

lot of detail. I just don't remember exactly

22

stopped with you?

what part of that we discussed.

23

A. Representative Lewis and myself.

24

Q. Right. So at some point you had to be sure that

Q. You would have had to discuss it, though, right,

25

17

Secondly, that the counties that

25

because it was a criteria?

that goal had been met, right?

197
11

199
1
1

A. We did it to the best of our ability.

critical to me first and then especially dealing

2

Q. Right. And so I want to understand if you're

3

with the -- you know, we had a lot of questions

3

not doing any sort of independent analysis, was

4

raised by the court on the compactness, which is

4

Dr. Hofeller telling you that, yes, this

5

the counties, and then the VTDs. So that was an

5

6

important issue for me to get resolved to the

6

7

best possible way.

7

the stat packs came out as to be able to say,

8

you know, what did the elections do, how did

9

they, you know, come about.

2

A. It may have been. Again, the criteria was

8

Q. Okay. Was he using the 10-3 terminology too?

9

A. He -- I don't remember if he went ahead and said

10

that this was a 10-3 map that he could guarantee

10

11

or anything like that. I don't believe that --

11
11

12

you know, who knew what really would be until

12

13

you get your real stat packs in there to exactly

13

determine what you might have.

14

14
15

Q.
Q.

15

But were you under the impression that

satisfies all the criteria?
A. I think we probably got the best look at it when

Q. But you told me that you left that meeting

decided on this was our plan.
A. Yes, and we thought that would be the best way
that achieved all of the criteria that we had,

every one of them.
Q. So you knew that before you saw the stat pack at

16

Dr. Hofeller was analyzing the political data as

16

17

he was drawing the maps?

17

A. Well, we validated it with the stat pack.
Q. Okay. That's fine, but you knew it at the end

18

the General Assembly the next day?

A. I think he was putting in the election results

18

19

that was part of the criteria. So I'm assuming

19

20

that he had some idea as to what was done

20

21
21

because that's part of what was being put

21
21

Q. And it was based on what Dr. Hofeller told you?

22

together since race and partisan registration

22

A. It was based on the map, the way it looked and

23

were not factors.

23

the information that he did share with us the

24
25

Q. So if he didn't use the 10-3 terminology, did he

24
25

say this satisfies your partisan advantage
198

of that day?
A. It was our best guess.

best he could.
Q. And you didn't necessarily go one by one in

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January 25,
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criteria since -- through the criteria list

11

since you were more concerned about ---

2

A. It was a blending. There's no way you just pick

out does this fit, does this fit.

Q. I'm still struggling to understand how you were
satisfied that the enacted plan satisfied all

3

the criteria and one of the criteria being the

4

partisan advantage.

Q. Okay. So I understand that basis. I still want

5

6

to understand everything he told you about the

6

results he had used in his map drawing?

7

partisan performance of this map, the one you

7

A. He didn't specifically explain that to me or

8
8

went with.

8
8

9

I'm trying to remember exactly what part of it
A. Pm

9

So did he tell you which election

tell me that. It was a matter of just

determining which one seemed to fit the criteria

10

he was able to share with us only because of the

10

11

fact that Pm
I'm not sure that anybody was

11
11

12

guaranteed that one was a 10-3 or a 9-4 or

12

13

whatever it may be because there's no way of

13

Compactness was critical to it. There's just

14

being sure.

14

not one -- one you pull out and say that's the

15

one I want.

15

You go back to the 2010 election, you

as best we could.
Again, you know, partisan was one part
of it, but it wasn't the only part of it.

16

know, things change and, you know, things happen

16

17

differently.

17

compactness. You talked about Hofeller told you

18

about the number of counties kept whole, the

18

We just felt that this was a map that

Q. I know, but you've talked about a metric for

19

met the criteria, that was established in our

19

number of VTDs kept whole, so you're using some

20

criteria and one did not meet all of that

20

metric there. I want to understand what is the

21
21

criteria, especially when it started splitting

21
21

metric he was telling you with respect to

22

extra counties.

22

political performance for the map.

23
24
25

23

Q. Right. Okay. I follow.
Did he say "There's no guarantees this

is a 10-3 map"?

I'm trying to remember what he said, and I'm
A. Pm
Pm not

24

sure I can tell you exactly that. You know,

25

some folks may call it a 10-3 map. I know

203

201
11
2

A. I would have to say to you that nobody can

guarantee any of that.

1
1

that's what was discussed on it, but I can't say

2

to you -- nor did we have an abundance -- too

3

Q. That wasn't my question.

3

much time to resolve this issue. Our goal was

4

Did he tell you that?

4

to get this before the court on the 19th. So we

did the best we could with what we had, the time

5

A. I don't recall him saying it.

5

6

Q. Okay. Was it something that you just knew to be

6

7
8
8
9
10

11
11

limit.

true always? There's no guarantees in

7

elections?

8

districts would have performed using 2010 U.S.

9

Senate election results?

A. There really isn't any guarantees in elections.

Q. So you didn't talk about how the proposed

1I mean, you know, none of those districts were

10

A. I don't remember discussing that with him.

majority Republican districts.

11
11

Q. And you did not discuss with him how those

12

Q. Okay. By registration?

12

districts would have performed using 2012

13

A. By registration, right. Or -- well, if someone

13

gubernatorial election results?

14
15
16
17
18

14

is a "U," are they an "R" or a "D."
D.

15

Pm
I'm talking about the fact that by
registration, there's no way of knowing that and
that's why it was built on election results.
Q. But you had instructed Dr. Hofeller not to use

16
17

not use registration data, I understood you told
Ms. Mackie that the courts have said that

registration data. So you weren't talking about

19

20

registration data with him that day?

20

A. Pm
I'm talking about subsequent, when you look at

that -- the fact or the statistic.
Q. Okay. Going to the criteria and the decision to

18

19

21
21

A. I never remember Dr. Hofeller mentioning that --

election results are more probative.
A. Predictable.

21
21

Q. Predictable?

22

the results similar to what we did on the

22

A. Yeah.

23

Q. Do you understand that map drawer -- that

enacted maps. You know, at some point you look

23

24

at them and say, wait a minute, there are no

24

there's any legal prohibition on using

25

majority Republicans in this district.

25

registration data in map drawing?

202

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January 25,
25, 2017
11

would have won and who wouldn't have won. And,

was in the Harris case, a gentleman from Harvard

2

you know, again, in a shortened cycle, you know

talked about that and there was a real question

3

as well as I do you need money to win these

4

as to whether -- and the courts have ruled on it

4
4

elections. It was a tight time to try to

5

that they said registration is not as

5

generate that for anybody other than a

6

non-incumbent -- for anybody other than an

11
2
3

A. No. I mean, that was some of the evidence that

predictable as election results. So I know

6

7

there's no prohibition on it. It's just a

7

8

matter of what you think is the better way to do

8
8

9
10

9

it or not.

incumbent. So no.
Q. Did you -- so I used Pittenger as an example.
Did you speak about any other particular

Q. So why prohibit him from using it?

10

11
11

A. We just felt it wasn't what we wanted to do.

11
11

12

Q. You looked at it later?

12

Q. Yes.

13

A. Partisan -- well, after the map was done, yeah.

13

A. I did not speak on that.
Q. So is it your testimony that you spoke with

congressional incumbent?
A. As to their likelihood of winning?

14

1I mean, I didn't -- I didn't look at the final

14

15

map that -- in the stat pack that included all

15

16

of the other changes until after the map was

16

incumbents with respect to their ability to get

17

passed. You know, that was something that

17

reelected in November?

18

Senator McKissick had asked for when he wanted

18

19

to have a similar stat pack to 2011.

19

20
21
21
22
23
24
25

20

Q. Okay.
MR. STRACH: Allison, is this a good
stopping point to take a break?
MS. RIGGS: It's actually a great
stopping point.
THE VIDEOGRAPHER: Off the record at

Dr. Hofeller about none of the current

A. No. The only thing we talked about was where
are they in the district.

Q. Okay. Leaving that -- okay.

21
21

Did you have any discussion with

22

Dr. Hofeller about durability? And by that I

23

mean one of your criteria was aiming for a 10-3

24

delegation. Did you have any discussion about

25

whether it would be a 10-3 delegation for the

205
11
2
3

207
11

4:00 p.m.

rest of the decade?

(Brief Recess.)

2

A. No, we did not. It just doesn't last over time.

THE VIDEOGRAPHER: On record at

3

It withers away as was evident in the 2010

4:14 p.m.

4

legislative elections. Districts change ---

5

BY MS. RIGGS:

5

Q. Sure.

6

Q. Just a couple last questions about your second

6

A. -- during that period of time, so chances are

4

7

meeting at Dr. Hofeller's house when you

7

8
8

reviewed the two maps.

8
8

9
10

11
11
12
13

9

Did you have any discussion with him

you cannot guarantee anything like that.
Q. Your goal -- but you're a Republican, right,
sir?

about the two maps about how incumbents might

10

A. Yes.

fair in future elections? So that's to say, did

11
11

you look at the map and say "Dr. Hofeller, can

12

Q. Your goal was to maintain Republican advantage
Q.
for as long as possible, correct?

Pittenger win in this district"?

13

MR. STRACH: Objection.

A. I didn't ask that question, nor did he tell me

14

THE WITNESS: My goal was to get a map

15

that, but the fact is since it was a different

15

in front of the Harris court that they would

16

Pm not even sure you could make
primary day, I'm

16

approve and not have to redraw it or do

14

17

that judgment because having a primary in June,

17

something like that. That was my have goal, as

18

the people that would have run it are running

18

it was the 2011 to get the pre-clearance on the

19

against an incumbent who are having a very

19

maps. I mean, those are -- those -- there's no

20

difficult time running. So it's not like an

20

election without that being done. So my job was

21
21

ordinary election year if you know what Pm
I'm

21
21

to get the election maps ready so there could be

saying to you.

22

22
23
24
25

Q. The primary, but the general election was the
same normal time, right?
A. Well, of course, but in the primary you know who

206

an election. That's my goal.

23

BY MS. RIGGS:

24

Q. But you didn't think there was anything such as

25

thing as an unconstitutional partisan

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Page
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January 25,
25, 2017

gerrymander, right?
MR
MR. STRACH: Objection.
Answer that if you can.
THE WITNESS: The way the law -- the
way my understanding -- and I'm not a lawyer.
My understanding is that the partisan
gerrymandering did not occur.
BY MS. RIGGS:
Hofeller that second
Q. So sitting there with Dr. Hotelier
day, you didn't think the Harris court was going
to reject a map because it created a 10-3 split,
did you?
A. After the result of the Harris case, I didn't
know what the Harris court was going to do
because I never expected them to reject the map
that we had, especially based on the evidence
that was there in front of the three-judge
panel.
Q. So you were worried that having it be too
extreme as far as partisan split could create a
problem?
A. All I'm saying, to answer your question, I
didn't know what the court was going to do so
that's why we put the criteria that we believed
addressed the concerns of the court.

11
2
3
4
5
6
7
8
9
10
11
12

some of the criteria that was necessary to
achieve our goal. In essence, you would have

gone beyond the limit of the counties that we
had. I mean, we have an ideal number of
counties, you know, 13 counties and 12 VTDs. I
mean, that's where the splits occur.
You know, best I could guess and best
judgment that I had that might have been
pressing the issue beyond the ability to do it.
Q. So Dr. Hofeller told you that?
A. That was my judgment.
Q. What does that mean?

13

A. That's my experience that I would have had.

14

Dr. Hofeller didn't offer 11-2 and I didn't ask

15

for an 11-2.

16

Q. Likewise, Dr. Hofeller didn't offer a 9-4 and

17

you didn't ask for
foraa 9-4?
A. I wanted to see what could be done to deliver

18
19

20
21
21
22
23
24
25

the criteria that we established. We believed
had this been done like was supposed to be done

in setting the criteria that our goal was to get
the court to approve our map so that it could
allow for the election. It was already delayed
over a month, so that's not -- we weren't happy
with the fact that -- that's not what you try to

209
11
2

3
4
4

5
6
7
8
8
9
10
10
11
11
12
13
14
15
16

17
18
19

20
21
21
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23

211

Q. Do you think a map that had shot for
foraa 9-4
division might have been more likely to get

1
1

approved by the Harris court?
A. I had no way of knowing what the Harris court

3

was going to do. I was surprised at the
original decision, to be very honest with you.

5

2

4

6
7

Q. So you had no discussion about durability.
Leaving that meeting that day, were

8
9

you, in essence, happy with what you bought,

10

happy with what Dr. Hofeller did?

11
11

MR. STRACH: Objection.
Answer if you can.

12

THE WITNESS: I was happy with the fact
that the process was going, and our goal was to

13

get the maps -- the map approved and ready to be
delivered on the 19th to the court. That was my

15

principal goal to get it done.
BY MS. RIGGS:
Q. And you never -- when you reviewed the map, you
never asked Dr. Hofeller, after having woven in

14

16

but the 10-3?
A. Repeat that question again.
Q. And if you want -- if it would help you to look
at the criteria list that's Exhibit 24.
A. I've got it here.
Q. Could you have dawn a map that had equal
population, was contiguous, had limited
political data, compressed the 12th district,
was compact and protected incumbents and yet
wasn't a 10-3 split?
A. I still think the 10-3 is something that may not
be a reality. I think it's more of an

18

aberration. You know, to be -- I think that it
just wasn't an ordinary election this last time,

19

20

22
23

A. I think in talking with Dr. Hofeller on any of

in redistricting, you think it was possible to
draw a map that satisfied all of the criteria

17

21
21

all the criteria, was it possible to draw an
11-2 map?

do during an election.
Q. So based on your extensive experience chairing
the redistricting committee and being involved

you know.
Q. We'll get to that. I'm going to have some more

questions about that, but you were satisfied
that the 10-3 criteria was satisfied. And what

24

this stuff, my judgment would have been that if

24

I'm asking you is could you have drawn a map

25

we'd try to draw an 11-2 map, we would have lost

25

that satisfied all of the rest of the criteria

210

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 SENATOR ROBERT A. RUCHO

January 25,
25, 2017

11

and been 9-4 based on your broad and -- broad

11

2

knowledge in North Carolina?

2

3

computer before it was discussed in that meeting
on the 16th?

A. I don't know.

3

4

Q. You didn't look?

4

don't remember when that was brought to their

5

A. I didn't look.

5

attention, whether -- you know, whether the

6

Q. Next, I want to sort of ask a few questions

6

state would have paid money for it or whether

7

about the process.

8

As I understood it, you -- one of the

A. There was some discussion on that with -- I just

7

they would have found another way to deliver and

8

subsequently supported by the State, but, you
know, if they felt it was important enough to

9

things you said with Ms. Mackie is you offered

9

10
10

the Democrats an opportunity to submit another

10
o

11

map -- to submit an alternative map during the

11

line with what the court asked for, they would

12

legislative process but they didn't; is that

12

have had the same opportunity as of the decision

13

right?
right'?

13

14
15

A. They were -- as they did in the 2011, I spoke

14

draw alternative maps that they believe were in

on February 5th to do the same thing.
Q. But they weren't -- there was no legislative

with Senator McKissick on numerous occasions,

15

16

money was available, computer was available and

16

17

all of that stuff. There was never a map done

17

18

on the time -- to include it in, again, the

18

original, so that's why we did it, you know, in

19

minority, both House and Senate, chose never ---

19

the original time we did in 2011. So that time

20

to not deliver one. So that was their decision,

20

we did the same thing at this point, you know

I imagine.

21
21

with the $25,000 so we're consistent with what

21
21
22
23
24
25
25

Q. Am I correct, though, that the minority members

22

didn't know what the criteria were until that
meeting on the 16th?

23

A. They -- the criteria that we established was

25

24

action to authorize their use of computers and
state money until the 16th, correct?
A. There was -- the same thing was done in the

we -- how everybody was treated.
Q. So the answer is, yes, it wasn't until the 16th

-that there was legislative action to -A. I don't recall if they were notified earlier.

213

215

11

there. Had they established their own criteria

1
1

2

they would have been able to bring it up during

2

enactment of the plan, did you have a Republican

3

the initial discussion when the criteria was

3

caucus meeting?

4

established, when we voted on each of the

4
4

criteria.

5

Republican caucus meetings during the time that

6

we were called back in.

5
6
7
8
8
9

10
10

Q. Well, they did, right, they had amendment

7

criteria that they proposed?
A. But there was no map to show that this is how it
would have been done.

Q. Right, but it's reasonable, isn't it, to want to

Q. Okay. At any point between February 5th and the

A. Between February 5th -- I'm sure there were

Is that what you're asking?

8

Q. Yes.

9

A. Yes, I'm sure we had.

10

Q. Whole caucus or broken up by Senate and House?
A. Likely it -- I don't think we had any joint

11

know what the criteria are to see then what you

11
11

12

can do?

12

caucus meetings, so it would have been Senate

13

and House had their own private conference,

private meetings.

13

A. Every one of those -- I mean, other than the

14
14

12th district, that really is a consolidation,

14

15

it's all the traditional redistricting

15

16

principles.

16

17
18
19
20

21
21
22
23

Q. On the joint hearing on the 16th, the Democrats
did not have these criteria in hand, correct?

Q. And did you have multiple Senate Republican
caucus meetings during that special session?

17

A. I don't recall how many of them we had.

18

Q. Did you have any meetings prior to introducing

A. They -- that was the time that they had a chance

19

the criteria?

to discuss it, have it explained and to vote on

20

A. I don't recall.

it.
it.

21
21

Q. Did you have any Republican -- Senate Republican

Q. Do you know when the notice for the joint
hearing on the 16th went out?

22

caucus meetings after you'd seen the draft map,

23

the draft -- the two draft maps that

24
24

A. I do not.

24

Dr. Hofeller showed you at that second visit?

25

Q. Did the Democrats know that they had money and a

25

I'm trying to remember when did we get called
A. Pm

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January 25,
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back in because unless they were there, all the
members, there would not have been a caucus. I

11

just don't remember what day we were called back
in for that. I don't think we were called back

3

2

4

in on the 15th which was the public hearing. A

5

6

lot of people were in their home locations

6

7

helping with the public hearing. So that would
have had to have been Tuesday.

7

8
8
9

10
10
11
12
13
14
15
16
17
18
19

So you're asking the question --

caucus and we did, I urged everybody, House

when there was Senate Republican caucus
meetings.

12
13
14
15
16
17
18

Q. By the first floor meeting -- floor debate

19

everyone had to be called back?

A. If in explaining -- well, if it was in the
Republicans and Democrats, to attend the caucus
meetings -- not caucus -- the committee meetings

10

ultimately.

Republican caucus your support for the version
of the map that you chose?

9

11

was everybody or just the Redistricting
Committee or the Joint Redistricting Committee

part -- it was public at that point.
Q. Did you explain to members of the Senate

8
8

I'm trying to pin down
Q. Well, this is helpful. Pm

A. I don't remember the day we were called back in
and whether it was Tuesday or not and whether it

Q. Okay.
A. The best I -- I don't believe we -- it was

20

A. Senate debate.

20

21
21

Q. Yes.

21
21

22

A. I would assume yes.

22

23

Q. But you don't know if everyone would had to have
Q.

23

24

been called back between the Senate

24

25

Redistricting Committee and the Senate floor?

25

even if they weren't on the committee. So by
the time we actually had a Senate floor, there

were about 40 members who had already been
briefed at least twice as to what was in the
map, what the criteria was and all of that
thing.
So we made an effort to try to make
sure that as many people, even if you weren't on

the committee, could come in to attendance so
that everybody would have numerous opportunities
to see what was going on and understand it.
Q. I wasn't asking about the committee meeting. I
was asking about the caucus meeting.
So obviously no Democrats were invited
to the Senate Republican --

217
11
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3
4
5
6
7
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8
9
10
11

12
13
14
15
16
17
18
19

219
1
1

A. So repeat your question.

just don't remember what day we were called back
in. It could have been the redistricting folks

2

Q. So did you explain to members of the Senate
Republican caucus why you were supporting this

might have been called back in because it was a
committee meeting like that, but I don't

4

remember.
Q. Did you ever have sub caucus meetings when just

6

A. Correct. Because it could have been -- and I

the redistricting committee folks were around?

3

5

7
8
9

A. No. The only time we had caucus -- not
caucus -- committee meetings, it was posted.

10

I'm asking about caucus meetings.
Q. No. But Pm

11
11

Did you have whoever was available from
the Republican caucus meet?
A. Not that I remember.
Q. So you did meet, but we're not sure when, the

Republican caucus?
A. There were caucus meetings during the time that
we were called back in.
Q. Okay. And did you take the map that you and

12
13
14
15
16
17
18
19

Representative Lewis had approved to the
Republican caucus meeting?

20

22

A. I think that was -- at the time it was brought

22

23

forward in the -- when the joint caucus -- the

23

24

joint caucus voted on it, I believe it was put
on the website and so it would have been public.

24

20
21
21

25

21
21

218

25

plan?
A. I probably would have explained the criteria
that was there, and I probably would have said
that this is the closest that we can get to
achieve our criteria and then we believe that
this would be the best plan to send forward to
have the Harris court feel that we complied with
all of the issues that the Harris court had
brought to our attention.
Q. And did you go through criteria by criteria and
say it satisfied this, satisfied that?
A. No, because the criteria was explained early on.
And I don't know why you keep asking that. We
don't do it on a one-by-one basis. It's overall
broadly looked at and said does it work or does
it not work. We're not pulling them out and
saying this fits, well, you know, all of a
sudden you make a change and if it goes from a
90 to a 70 is that good or bad, there's no way
of measuring that. So it's looked at through
the broad picture.
Q. What did you tell members of the Senate

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 SENATOR ROBERT A. RUCHO
11
2

January 25,
25, 2017

Republican caucus about the political

11

didn't get the names transcribed over there

performance of this map?

2

where it says GV, and I think that's where

3

A. I told them that this meets the needs of what we

3

4

believe that the criteria wanted us to establish

4

Q. Sure.

5

and that the court would be able to accept.

5

A. I think in the subsequent stat pack that came

6
7

Q. Did you represent that this would likely produce
a 10-3?

8

A. I don't recall if I mentioned that or not.

9

Q. You can't recall if you mentioned that to your

10

11
11

6

delivered, it had the names rather than the keys

8
8

or the codes.

9

11

A. No. It was six, eight months ago. At that

out that was requested by Senator McKissick and

7

10

fellow Republicans?

governor would be and things like that.

Q. Can you turn to the sixth page with me. It's
the 2010 General Election Results for the U.S.

Senate?

12

I'm talking about it. I mean, everybody
point Pm

12

13

was discussing it in committee meetings. So I

13

Q. They're not numbered. I counted it.

14

just don't recall that.

14

-A. So election results 2010 or --

15

Q. Yes, 2010 general USS.
A. Got it.

Q. Can you look at the third column which is the
Q.

15

Q. Did you make any representations about whether

16

Republican incumbents would be treated well

16

17

under this new map?

17

18

A. Well, the incumbency, everybody knows what it

A. Sixth page.

18

percent that the Democratic candidate got in the

19

was, it was there as best we could. One

19

-2010 election. And can you count up how many --

20

Republicans -- two Republicans were put into --

20

in how many of the congressional districts did a

21
21

-well, not really. As it turned out, they ran --

21
21

Democrat -- did the Democrat win based on these

22

Holding ran in the 2nd district even though he

22

23

was in the 4th. Price and Holding were in the

23

A. I see three.

24

4th together. So I'm not sure that's good or

24

its a
Q. Okay. So using the 2010 Senate race, it's

bad on that -- on that issue.

25

25

reconstituted election results?

10-3 plan?

221
11
2

223
1
1

Repeat your question one more time.
Q. Did you -- when you were in that Senate

A. Yes.

2

Q. 10 Republicans, 3 Democrats?

3

Republican caucus meeting, did you make any

3

A. That's what I read.

4

representations to the caucus members about how

4

Q. Was 2010 -- the 2010 election a normal election?

5

incumbents -- Republican incumbents would fair

5

A. I don't believe -- it was probably more normal

6

under this new map?

6

than this one because of all of the confusion

7

with the changing of the primary dates and which

8
8

districts people were going to be running in.

9

I don't think this one is a normal

7
8
9
10

11
12

A. I don't believe this is a 10-3 map in a normal

election.
Q. It was a 10-3 in 2016, correct?
A. I think that's not a normal election.

10

election in any way because there were probably

Q. Okay. Well, since we're going to talk about

11
11

still people out there wondering what precincts

that, why don't you pull out Exhibit 27.

13

We're done with that.

14

12

or what districts they were running in or they

13

were supposed to vote in.

Do you recognize this document?

14

15

A. Yes, ma'am. That was the stat pack that came

15

16

from -- in the original version of -- or just ---

16

17

I say stat pack. It's probably not that.

18
19

20

What it is it talks about the election

Q. So the only thing that made 2016 not normal was
the changing of the primary dates?
A. Well, that's part of it. And when people were

17

running in different districts, different

18

counties.

results that were included. Unfortunately, I

19

Q. Doesn't that happen after every redistricting?

don't see it, but there's supposed to be a key
to it to determine which one is which.

20

A. No, because they had already had two or three

21
21

elections -- I think it was two or three

22

-Q. If it would help you as we're going through --

22

elections they had run already under the

23

A. There's the key.

23

original enacted map. People were -- it was

24

Q. -- this is 28.

24

25

A. Somehow or another it was done quickly and we

25

21
21

222

towards the middle of the cycle.
Q. So 2010 is a normal election by your metric,

224

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January 25,
25, 2017

then?
A. I would say to you yes. We've added probably

1

750,000 new people into the state and things
like that which change the demographics.

3

Q. All right. Can you turn to the next page, then.
At the top in blue, it says Election Results

5

2

4

6
7

2012 General G and LG.

8
8

Do you see that page?
A. Okay, I've got Election Results 2012 General G
and LG.

9
10

Q. Yes.
A. Okay.

11
11

Q. So can you look at the third column which is the
percent that the Democratic candidate got for

13

governor, and scroll down there and count for
me. In how many districts did the Democratic

15

12

candidate win?
A. In 2012.

14

very unusual election, not with only the changes
that occurred but also on the presidential side

too. This was what you call not a normal year.
Q. I understood your position, and your position is
this isn't a 10-3 plan because 2016 is unusual,
but we've just gone back and seen that 2010 and
2012 election results reconstituted also
indicated it was a 10-3 plan.
So my question is: Was 2012 an unusual
or not normal election?

A. I don't know the answer to that.
Can we look at Roy Cooper's election?
Pm done
Q. Your counsel can ask you about that. I'm
with that exhibit.
Senator Rucho ---

16

A. Both of them?

17

I'm done with them.
Q. Yes, Pm

18

Did you have that stat pack in hand

Q. For the governor.
A. Uh-huh. I see three.

19

when you met with the Senate Republican caucus?
A. This stat pack?

Q. Okay. So using that election results metric,
this is a 10-3 plan with Republicans having 10

21
21

and Democrats having 3, right?
A. Yes.

23

Q. So then can you scroll over, same page, the 14th

25

20

22

24

Q. Yes. Probably right because it was produced
with the Redistricting Committee meeting.
A. It probably would have been part of the public
record on the screen. I can't remember if I had
it in my hand when we talked, and if we talked,

225
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3
4
5
6
7
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8
9
10

11
11
12
13
14
14
15
16

17
17
18
19

20
21
21
22
23
24
25

column -- actually, the easiest, it's the fourth
pct_EL12G_LG_D.
EL12G LG D.
one from the right. It's pct
Do you see that column?
A. No. Tell me again where that is.
Q. It's the fourth column from the right.
A. On which page again?
Q. Same page we were on before.
A. Sorry.
Q. It's the lieutenant governor's race.
A. Under the LG.
Q. It's the fourth column from the right, and the
column title is pct
pct_EL12G_LG_D.
EL12G LG D.
Do you see that?
A. Okay.
Q. Now, can you scroll down through that list and
tell me how many -- and that's the percent that
the Democratic candidate got in the lieutenant
governor race in 2012.
Can you tell me in how many districts
did the Democratic candidate win?
A. It looks like three.
Q. So that -- using that metric, this 2016
Contingent Plan is a 10-3 map, right?
A. As far as past election experience, it appears
to be, but yet again, this 2016 election was a

226

227
1
1

2
3
4
5
6
7
8
9
10
11
11

I can't remember that, but okay.
Q. So you don't remember if you discussed any of
these specific election results with --

A. People would have gone on their own to the stat
pack, and we encourage that, actually, as we did
during one of the committee meetings. I think
Senator Ford had asked questions, and once he
was given the key or the code, he was able to...
Q. Can you grab the criteria?
A. Got it.
Q. All right. Did you ever have any discussions

12

with Dr. Hofeller -- and I think you sort of

13

were skirting around with this because there was

14

an issue with Representative Holding and
Representative Price and Representative Elmers

15
16
17

living pretty close to each other.
Did you ever have a discussion with

18

Dr. Hofeller about whether it was possible to

19

keep them in their own -- each in their own

20

district if you relaxed the equal population
requirement a little bit, so maybe had

21
21

22
23
24
25

population deviations of 10 or a hundred?
A. I don't see that -- I don't see there's any way
to compromise on the equal population.
Q. So on that criteria no compromise?

228

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 SENATOR ROBERT A. RUCHO

January 25,
25, 2017

11

A. That's not my choice. That's mandated.

11

2

Q. But on the incumbency criteria, that was allowed

2

3
4

to be compromised?
A. There's a give and a take on most every other

3

A. No.

4

Q. So you don't know sitting here today whether

one, but on the -- you had to be there, at least

5

6

that was my understanding under the court

6

7

requirement.

7

5

8
9
10
11
12

Q. Can you pull up -- pull out Exhibit 25, which is

8
9

the enacted map, and keep the criteria out.

go through each split VTD and tell you why he
decided to split that VTD?

VTDs were split for equal population reasons or
political impact reasons?
A. All I know is that he followed the criteria to
the best he could to get it achieved.
Q. And you were satisfied with that representation

A. Is this it?

10
10

Q. No. It's a single piece of paper floating

11

A. Yes, ma'am.

12

Q. If you don't mind -- well, going back, you've

around. There you go. Thank you.

by Dr. Hofeller?

13

So looking at the compactness criteria,

13

had the opportunity to review a whole lot of

14

which is on the second page of the criteria --

14

election results over the last 15 years when --

15

go back to the criteria exhibit.

15
15
16

16

A. Okay, got it.

17

Q. The compactness one on the second page. It

18

says:

19

17

Q. Well, you've voted on it.

18

A. Well, I think in the last -- since 2011 is where

19

"Division of counties shall only be

in your work on redistricting, right?
A. I haven't been on redistricting for 15 years.

I had to be responsible for it.

20

made for reasons of equalizing population,

20

Q. Okay. So since 2011 you've spent a lot of time

21

consideration of incumbency and political

21

with redistricting and, by necessity, election

22

impact."

22

24
25

results, right?

23

A. Where necessary.

A. That's what it says.

24

Q. Okay. Does that give you a sense of, you know,

Q. So in the enacted plan that you have in front of

25

23

Did I read that right?

North Carolina's political bent?

229

231

11

you, there's 13 county splits. Did Dr. Hofeller

11

MR. STRACH: Objection; form.

2

explain to you why each of those counties were
split?

2

You can answer that if you can, if you

A. He did not go in detail. It was part of what he
felt he needed to do to implement our criteria.

4

Q. So you left the -- you left it up to

6

BY MS. RIGGS:
Q. Would you describe North Carolina as a swing

3
4
5
6

3

5

7

Dr. Hofeller to make the judgment that any

7

8

county split was only split for equal
population, consideration of incumbency or

8
8

9
10
11

12
13

99

political impact, correct?
A. That's correct. And there are 13 areas that

-this would be impacted --

know what that means.
THE WITNESS: I don't. You might need
to explain what you're asking for.

state?
MR. STRACH: Objection to form.

10

THE WITNESS: It's hard. It changes.

11

It could be a swing state. I mean, you've got

12

two U.S. Senators that are Republican. You've

-Q. So fair to say --

13

got a Democrat governor now. You know, it could

14

A. -- out a 100.

14

be what -- federal and state could make a

15

Q. So sitting here today, you can't tell me which

15

difference too, you know, federal candidate may

16

of the 13 splits were for political impact as

16

lean Republican and state candidates may lean

17

opposed to equal population?

17

Democrat.

A. No.

18

BY MS. RIGGS:

-Q. Do you have any sense of which splits --

19

Q. Okay. You don't take much stock from just

18
19

20

understanding he didn't tell you that

20

looking at statewide voter registration

21

specifically, do you have any sense of which

21

breakouts, though, right?

22

county splits were made for political impact?
A. No.

22
23

don't know whether somebody votes -- how they

Q. Did -- same thing with all the split VTDs which

24

vote, actually. And then you have -- in the

25

last few years you've had a significant growth

23
24
25

aren't represented on this map, did Dr. Hofeller

230

A. No, because, one, it changes; two, you really

232

58 (Pages
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 SENATOR ROBERT A. RUCHO
11
2
3

January 25,
25, 2017

in unaffiliated voters. Where do you categorize

11

them.

2

characterization that because there are 54

3

percent victory that they should only have 54

Q. Have you ever had the chance to go back and look

geographical areas. So I see no way of making a

4

at in congressional elections the share of the

4

percent elected people. That just doesn't ring

5

two-party vote statewide, so look at how many

5

true in my mind.

6

votes Republican congressional candidates get

6

7

and how many votes Democratic candidates get?

7

8
8
9

8
8

A. No reason to.

9

Q. Okay. So you've never looked at that?

Q. That wasn't my question, sir.
I was just asking you right now in
Washington, DC, 10 out of 13 congressional seats
are represented by Republicans, right?

10

A. (Witness shaking head from side to side.)

10

A. In North Carolina.

11

Q. Would it surprise you to hear that Republicans

11
11

Q. Right. So in Washington, DC, 76.9 percent of

12

win the two party -- the vote share of the two

12

13

party with like 53 percent of the vote?

13

the congress people are currently Republicans;

is that correct?

14

A. Congressional races are not statewide elections.

14

A. That's correct.

15

They're regional geographic elections. So you

15

Q. Okay.

can't look at what a statewide vote is.

16

16
17

17

You look at what each district actually

18

does to elect their candidate. To me that would

18

19

be apples and oranges.

19

20

20

Pm talking about is
Q. Well, this metric I'm

MS. RIGGS: Can we take a break now and

do a brief conference.
MR. STRACH: I was hoping you would say
you're about done.

MS. RIGGS: Pm
I'm about done.

21
21

aggregating the votes from each district, so

21
21

22

its not comparing District 1 to District 12.
it's

22

23

It's just saying Republican candidates for

23

(Brief Recess.)

24

Congress and all across the state get X number

24

THE VIDEOGRAPHER: On record at

of votes and Democratic get Y number of votes.

25

25

THE VIDEOGRAPHER: Off the record at
4:51 p.m.

5:03 p.m.

233

235

11

A. I've never looked at it.

1
1

BY MS. RIGGS:

2

Q. Okay. Republicans control 10 out of the 13

2

Q. Thank you for your patience, Senator Rucho. I'm

3
4

3

districts, right?

almost done here.

MR. STRACH: Objection to form.

4

THE WITNESS: At this point.

5

After you left the second meeting with

5

One question I forgot to ask you is:

6

BY MS. RIGGS:

6

Dr. Hofeller with the map that you were

7

Q. Do you know what percentage that equals out to?

7

decided -- that you and Representative Lewis had

8

A. 10 of 13?

8
8

decided on but before the committee met, the

9

Q. Yes.

9

Joint Committee met, did you give that map to

10
11

A. Not offhand.

10

anyone else in the legislature?

-Q. If I hand you a calculator --

11
11

A. I did not walk away with a map.

12

A. You calculate.

12

Q. Okay. Did you authorize Dr. Hofeller to give it

13

Q. No. You're the witness. That's the rules.

13

14

14

Tell me what 10 divided by 13 is.

to anyone else?

A. No, ma'am. His responsibility was to get and

15

A. I have to turn it on first. There it is. 76.

15

16

Q. Is it 76.9 percent?

16

17

A. Uh-huh.

17

example, didn't have a copy of that before you

18

Q. So Republicans now constitute 76.9 percent of

18

made it public on the website?

put it on the state computer.
Q. So as far as you know, Senator Berger, for

19

the North Carolina's congressional delegation,

19

20

right?

20

Q. And the same with any other senator?

21
21

A. (Witness shaking head from side to side.)

21
21

A. You can't compare it on a statewide election.

A. I -- as far as I know, absolutely not.

22

They're not statewide candidates. They're

22

Q. Answer verbally.

23

district candidates and they represent

23

A. Yes. To my knowledge, none of them had a copy

24

geographical areas different. As each of those

24

25

districts are, they represent different

25

234

of that map.
Q. Okay. And you didn't let the Senate Republican

236

59 (Pages
(Pages 233 to 236)
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DISCOVERY COURT REPORTERS
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 SENATOR
SENATOR ROBERT
ROBERT A.
A. RUCHO
RUCHO

1
2

January 25,
25, 2017
2017

caucus know anything about the map that you

1

decided before that committee meeting?

2

E R R A T A SHEET
SHEET
ERRATA

Case Name: Common Cause v Rucho / LWV NC v Rucho

3

A. I don't believe -- I don't believe we had a time

3

3

Witness Name: ROBERT A. RUCHO

4
4

of a caucus prior to the -- I don't believe that

'4

Deposition Date: Wednesday, January 25, 2017

5

we had prior to the Joint Committee where we

5

6

took up the issue of criteria.

6

6

Page/Line

____/____ _______________________ ___________________________
/

Reads

Should Read

7

Q. You didn't send them any e-mails?
Q.

7

8
8

A. No.

8

____/____ _______________________ ___________________________
/
I

9

Q. Okay. I have no further questions.

9

____/____ _______________________ ___________________________

10

MR. STRACH: Any other questions?

10

____/____ _______________________ ___________________________

11
11

We have no questions. Thank you.

11

____/____ _______________________ ___________________________

12

THE VIDEOGRAPHER: This concludes the

12

____/____ _______________________ ___________________________

13

____/____ _______________________ ___________________________

14

____/____ _______________________ ___________________________

15

____/____ _______________________ ___________________________

16

16

____/____ _______________________ ___________________________

17

17

____/____ _______________________ ___________________________

18

18
18

____/____ _______________________ ___________________________

19

19
19

____/____ _______________________ ___________________________

20

20

____/____ _______________________ ___________________________

21
21

21
21

____/____ _______________________ ___________________________

22

22

____/____ _______________________ ___________________________

23

23

13
14
15

deposition. The time is 5:05 p.m.
[SIGNATURE RESERVED]
[DEPOSITION CONCLUDED AT 5:05 P.M.]

24

24

25

25

Signature

Date

237
237
1

ACKNOWLEDGEMENT
A C K N O W L E D G E M E N T OF
O F DEPONENT
DEPONENT

239
239
1

STATE OF NORTH CAROLINA

3

I, ROBERT A. RUCHO, declare under the penalties of

2
2

4

perjury under the State of North Carolina that I have read

3

5

the foregoing pages, which contain a correct transcription

4
4

6

of answers made by me to the questions therein recorded,

7

with the exception(s) and/or addition(s) reflected on the

8

correction sheet attached hereto, if any.

9

)

CERTIFICATE
) CERTIFICATE

2

Signed this the

day of

, 2017.

10

)

5

I, DENISE MYERS BYRD, Court Reporter and Notary

6

Public, the officer before whom the foregoing proceeding was

7
7

conducted, do hereby certify that the witness(es) whose

8

testimony appears in the foregoing proceeding were duly

9

sworn by me; that the testimony of said witness(es) were

10
11
11

ROBERT A. RUCHO

COUNTY OF WAKE

taken by me to the best of my ability and thereafter

11
11

transcribed under my supervision; and that the foregoing

12

pages, inclusive, constitute a true and accurate

13

transcription of the testimony of the witness(es).

12
12
13
14
14
14
15

I do further certify that I am neither counsel for,
related to, nor employed by any of the parties to this

15

16
17
17
18
19

16

action, and further, that I am not a relative or employee of

17

thereof, nor
any attorney or counsel employed by the parties thereof;

18

financially or otherwise interested in the outcome of said

19

action.

20

20

This the 16th day of February 2017.

21
21

21
21

22

22

23

23

Denise Myers Byrd

24
24

24

25

25

238
238

CSR 8340, RPR, CLR 102409-02

240
240

60 (Pages
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DISCOVERY COURT
COURT REPORTERS
REPORTERS
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1-919-424-8242
DISCOVERY
1-919-424-8242
www.discoverydepo.com

 Exhibit 

Case Document 5-1 Filed 10/14/19 Page 563 of 662

EN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
COMMON CAUSE, et at,
Plaintiffs,
v.
ROBERT A. RUCHO, in his official
capacity as Chairman of the North
Carolina Senate Redistricting Committee
for the 2016 Extra Session and CoChairman of the Joint Select Committee
on Congressional Redistricting, et aL,

Civil Action No. 1:16-CV-1026-WO-JEP
Three-Judge Court

Defendants.

League of Women Voters of North
Carolina, et al.,
Plaintiffs,
v.

Civil Action No. 1:16-CV-1164-WO-JEP

Robert A. Rucho, in his official capacity
as Chairman of the North Carolina
Senate Redistricting Committee for the
2016 Extra Session and Co-Chairman of
the Joint Select Committee on
Congressional Redistricting, et aL,

Three-Judge Panel

Defendants.
DEFENDANTS' RESPONSES TO PLAINTIFFS' FIRST REQUESTS FOR
ADMISSION
Defendants, by and through undersigned counsel, serve their objections and
responses to Plaintiffs' First Set of Requests for Admissions:

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 564 of 662

PLAINTIFF'S
EXHIBIT
2043
1:16-CV-1026

 GENERAL OBJECTIONS
Defendants make the following answers, responses, and objections to Plaintiffs'
First Requests for Admission ("Requests"). Each of the following responses is made
subject to any and all objections as to competence, relevance, or other grounds that would
require exclusion of such statement if made by a witness present and testifying in court.
Any and all such objections and grounds are expressly reserved and may be interposed at
the time of the trial.
The responses are based on Defendants' present knowledge, information, and
belief, as derived from (a) the knowledge and information of present employees or agents
of Defendants gained in their capacity as such and (b) a review of the documents and
materials maintained by Defendants that would be likely to contain the information called
for by the Requests. These responses are subject to amendment and supplementation as
Defendants acquire additional information and complete their review and analysis and
made without prejudice to Defendants' right to use subsequently discovered or developed
information. Defendants state that their responses to the Requests were prepared in
consultation with their attorneys and may not exactly match the words or phrases that
may be used by individuals in the course of this litigation to describe events, policies, and
practices discussed herein.
No incidental or implied admissions are intended by these responses. The fact that
Defendants respond or object to any Request should not be taken as an admission that
2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 565 of 662

2043-2

 Defendants accept or admit the existence of any facts assumed by such Request or that
such response or objection constitutes admissible evidence as to any such assumed facts.
The fact that Defendants responds to part of or all of any Request is not intended to be,
and shall not be, construed as, a waiver by Defendants of any part of any objection to any
Request.
Defendants will respond to Plaintiff's Requests for Admission in accordance with
Rule 36 of the Federal Rules of Civil Procedure and will not provide responses or
documents to the extent such responses or production would exceed the requirements of
those Rules.
These responses are provided solely for the purpose of and in relation to this
action.
RESPONSES AND OBJECTIONS TO REOEUSTS FOR ADMISSION
1.

Attached Exhibit 1 is a true and accurate copy of the redistricting

legislation enacted by the General Assembly on February 19, 2016.
Response: Admitted.

2.

Attached Exhibit 2 is a true and accurate copy of the map created by the

legislation contained in Exhibit I.
Response: Admitted.

3

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 566 of 662

2043-3

 3.

Attached Exhibit 3 is a true and accurate copy of the congressional map

adopted by the Joint Select Committee on Congressional Redistricting (JCCR) on
February 17, 2016.
Response: Admitted.

4.

Attached Exhibit 4 is a true and accurate copy of the transcript of a public

hearing convened by the JCCR on February 15, 2016. That transcript accurately and fully
reflects the February 15 public hearing.
Response: Admitted.

5.

Attached Exhibit 5 is a true and accurate copy of the transcript of the

February 16, 2016 meeting of the JCCR. That transcript accurately and fully reflects the
February 16 JCCR meeting.
Response: Admitted.

6.

Attached Exhibit 6 is a true and accurate copy of the February 17, 2016

meeting of the JCCR. That transcript accurately and fully reflects the February 17 JCCR
meeting.
Response: Admitted.

4

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 567 of 662

2043-4

 7.

Attached Exhibit 7 is a true and accurate copy of the transcript of the

February 18, 2016 meeting of the Senate Redistricting Committee. That transcript
accurately and fully reflects the February 18 Senate committee meeting.
Response: Admitted.

8.

Attached Exhibit 8 is a true and accurate copy of the transcript of the

February 19, 2016 meeting of the Senate Redistricting Committee. That transcript
accurately and fully reflects the February 19 Senate committee meeting.
Response: Admitted.

9.

Attached Exhibit 9 is a true and accurate copy of the transcript of the

February 18, 2016 Floor Session of the Senate. That transcript accurately and fully
reflects the February 18 Senate Floor Session.
Response: Admitted.

10.

Attached Exhibit 10 is a true and accurate copy of the transcript of the

February 19, 2016 Floor Session of the Senate. That transcript accurately and fully
reflects the February 19 Senate Floor Session.
Response: Admitted.

5

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 568 of 662

2043-5
2043.5

 11.

Attached Exhibit 11 is a true and accurate copy of the transcript of the

February 18, 2016 House Redistricting Committee. That transcript accurately and fully
reflects the February 18 House committee meeting.
Response: Admitted.

12.

Attached Exhibit 12 is a true and accurate copy of the transcript of the

February 19, 2016 House Redistricting Committee. That transcript accurately and fully
reflects the February 19 House committee meeting.
Response: Admitted.

13.

Attached Exhibit 13 is a true and accurate copy of the transcript of the

February 18, 2016 Floor Session of the House. That transcript accurately and fully
reflects the February 18 House Floor Session.
Response: Admitted.

14.

Attached Exhibit 14 is a true and accurate copy of the transcript of the

February 19, 2016 Floor Session of the House. That transcript accurately and fully
reflects the February 19 House Floor Session.
Response: Admitted.

6

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 569 of 662

2043-6
20434

 15.

Attached Exhibit 15 contains true and accurate copies of entries on a

website maintained by the defendant North Carolina State Board of Elections that
accurately report the results of the 2016 election in each congressional district (1-13) by
county.
Response: Admitted.

16.

Attached Exhibit 16 is a true and accurate copy of criteria adopted by the

JCCR on February 16, 2016.
Response: Admitted.

17.

A true and accurate copy of the election results contained on the General

Assembly's website and loaded on Dr. Hofeller's personal computer is contained in the
attached Exhibit 17.
Response: Admitted.

18.

The formula Dr. Hofeller used to evaluate the partisan performance of

congressional districts he was drawing is attached as Exhibit 18. (This formula includes
the results of seven statewide elections: the 2008 elections for US Senate, Governor and
Commissioner of Insurance, the 2010 election for US Senate, the 2012 elections for
Governor and Commissioner of Labor and the 2014 election for US Senate.)
7

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 570 of 662

2043-7

 Response: Defendants admit that Dr. Hofeller used the formula in Exhibit 18 that
included the results of the statewide elections listed above to evaluate the political
characteristics of the congressional districts he drew. In all other respects, this Request is
denied.

19.

The terms on which Dr. Hofeller was retained to develop the 2016

Congressional Redistricting Plan are accurately and fully described in the attached
Exhibit 19.
Response: Admitted.

20.

The maps attached as Exhibit 20 (and contained in Exhibit 31 to the

Hofeller deposition) are the only maps drawn by Hofeller in carrying out his work for
Rucho and Lewis in February 2016, other than the maps in attached Exhibits 2 and 3.
Response: Admitted.

21.

The documents Thomas Farr provided plaintiff's counsel by email on

February 14, 2017 are the only non-privileged documents relating to the 2016
Congressional Redistricting Plan on Hofeller's computer. A true and accurate copy of
those documents is contained in attached Exhibit 21.

8

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 571 of 662

2043-8
20434

 Response:

Defendants admit that email exchanges between counsel and

defendants' discovery responses state that all non-privileged, relevant documents from
Dr. Hofeller's computer have been produced. In all other respects, this Request is denied.

22.

Attached Exhibit 22 (which contains exhibits 6, 6a, 9, 10, 13, 21, 22, and

23 from Hofeller's deposition in this matter) are true and accurate copies of business
records of the Republican State Leadership Committee (RSLC).
Response: Defendants admit that Exhibit 22 contains copies of certain documents
produced by the Republican State Leadership Committee in response to a subpoena from
Plaintiffs, however, Defendants cannot admit or deny whether records that they did not
create and maintain are "business records" within the meaning of this Request.

23.

One or more plaintiffs has standing to challenge the constitutionality of the

2016 Congressional Redistricting Plan as a whole.
Response: Denied.

24.

One or more of the individual plaintiffs in Common Cause v. Rucho, 1:16-

CV-1026-WO-JEP, has standing to challenge the constitutionality of each congressional
district (1-13) contained in the 2016 Congressional Redistricting Plan.
Response: Denied.
9

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 572 of 662

2043-9
20434

 25.

No Democratic member of the General Assembly voted for the legislation

relating to the 2016 Congressional Redistricting Plan in any committee or on the floor of
the Senate or House.
Response: Admitted.

26.

No Republican member voted against the legislation relating to the 2016

Congressional Redistricting Plan in any committee or on the floor of the Senate or the
House.
Response: Denied.

27.

Representative David Lewis and Senator Robert Rucho were appointed

Chairs of the House and Senate Redistricting Committees and charged with redrawing the
2011 Congressional Redistricting Plan declared unconstitutional on February 5, 2016.
Response: Defendants admit that Representative David Lewis and Senator Robert
Rucho were appointed Chairs of the House and Senate Redistricting Committees and that
those committees were charged with redrawing the 2011 Congressional Redistricting
Plan in accordance with the Harris court's February 5, 2016 order. In all other respects,
this Request is denied.

10

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 573 of 662

2043-10

 Exhibit 

Case Document 5-1 Filed 10/14/19 Page 574 of 662

258

1

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF NORTH CAROLINA

2
3

DAVID HARRIS, CHRISTINE
BOWSER, and SAMUEL LOVE,

4

Plaintiff,

5

vs.

6
7
8
9
10

PATRICK MCCRORY, in his
capacity as Governor of North
Carolina, NORTH CAROLINA STATE
BOARD OF ELECTIONS, and JOSHUA
HOWARD, in his capacity as
Chairman of the North Carolina
State Board of Elections,

Greensboro, North Carolina
October 14, 2015
9:06 a.m.

Case No. 1:13CV949

Defendants.

11
12
13

TRANSCRIPT OF BENCH TRIAL VOLUME II OF III HELD BEFORE
THE HON. WILLIAM L. OSTEEN, JR., UNITED STATES DISTRICT JUDGE
THE HON. MAX 0. COGBURN, JR., UNITED STATES DISTRICT JUDGE
THE HON. ROGER L. GREGORY, UNITED STATES DISTRICT JUDGE

14
15

APPEARANCES:

16

For the Plaintiff:

17

KEVIN J. HAMILTON
Perkins Coie, LLP
1201 Third Ave., Ste. 4900
Seattle, WA 98101-9741

18
EDWIN M. SPEAS , JR.
JOHN WARD WHALE
Poyner Spruill, LLP
POB 1801
Raleigh, NC 27602-1801

19
20
21
For the Defendant:
22
23

THOMAS A. FARR
PHILLIP JOHN STRACH
Ogletree Deakins Nash Smoak & Stewart
POB 31608
Raleigh, NC 27622

24
25

•

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 575 of 662

PLAINTIFF'S
EXHIBIT
2 2045-3
1:16-W326

 525

Hofeller - Direct

1

my opinion, as were many other people, and one of the things I

2

did was to look at how these different elections track one

3

another.

4

The other thing I might add, too, is that I didn't

5

draw this plan in a vacuum as far as the data was concerned.

6

First of all, I've drawn numerous plans in the state of North

7

Carolina over decades.

8

the State House districts, and I know from that experience that

9

the underlying political nature of the precincts in the state

10

I drew the State Senate districts and

does not change no matter what race you use to analyze it.

11

The only way the underlying political demographics,

12

if you could use that term, change in a precinct is if the

13

precinct is changed in the nature of the people that are living

14

in the precinct.

15

Democratic precinct, it's probably going to act as a strong

16

Democratic precinct in every subsequent election.

17

would be true for Republican precincts.

18

So once a precinct is found to be a strong

The same

So if you used a conglomeration of elections, my

19

experience is you'd come up with the same -- the same result.

20

You may find a little higher score for the Democrats overall in

21 one election because the candidate did better, or you might
22

find a lower one, but the general ranking of the precincts as

23

to how Republican or how Democratic they are is simply not

24

going to change.

25

Q

All right.

Now, and to clarify again, when you were

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 576 of 662
2045-4
ZI45-4

 Exhibit 

Case Document 5-1 Filed 10/14/19 Page 577 of 662

PLAINTIFF'S
EXHIBIT
2003
1:16-CV-1026

NORTH CAROLINA GENERAL ASSEMBLY
JOINT SELECT COMMITTEE ON CONGRESSIONAL REDISTRICTING
February 16, 2016
VIA HAND DELIVERY
Dr. Thomas Hofeller
Dear Dr. Hofeller:
We require your professional assistance. Earlier today, a motion prevailed in the meeting
of the Joint Select Committee on Congressional Redistricting (the "Committee") authorizing the
Co-Chairs to engage a map drawing expert to produce a contingent Congressional Map or Maps
using the attached criteria prevailing today on individual motions in the Committee (the
"Adopted Criteria"). Based on your knowledge and experience, we believe you are best
qualified to produce such a map or maps. Therefore, we offer to engage you to produce such a
map for possible presentation to the Committee and ultimate use by the General Assembly.
OUR OFFER OF ENGAGEMENT IS SUBJECT TO THE FOLLOWING TERMS:
• You will produce a map of 13 congressional districts in North Carolina that complies
with the Adopted Criteria. The map you produce may be presented to the Committee, the
General Assembly or any third party in the sole discretion of the Co-Chairs.
• As a legislative contractor and consultant, your work will be subject to legislative
confidentiality as prescribed by Article 17 of Chapter 120 of the General Statutes. Your
work may also be subject to the doctrine of legislative privilege as provided by the
common law in North Carolina. By directive of the Committee, these protections will
accrue to the benefit of the Co-Chairs of the Committee, and the Co-Chairs shall have the
sole discretion to grant any request for their waiver. Finally, and notwithstanding the
foregoing, all drafting and information requests to you and documents prepared by you
concerning redistricting shall no longer be confidential and shall become public records
upon the act establishing the relevant district plan becoming law.
• To allow us and you to better to predict the cost of this engagement, we are prepared to
offer compensation to you in the form of a flat fee equal to $25,000.00 payable upon
Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 578 of 662

 February 16, 2016
Letter to Dr. Thomas Hofeller
Page 2 of 2

receipt by the Legislative Services Officer of an invoice from you for work performed
and upon prior approval from the President Pro Tempore of the Senate and the Speaker of
the House.
Should the terms of this engagement be acceptable to you, please indicate your
acceptance in the space marked below. We appreciate your willingness to serve in this manner,
and we look forward to working with you pursuant to the Committee's directive.
Sincerely,

Rep. David Lewis

Sen. Bob Rucho

Enclosures
Agreed and Accepted to by:
44
Dr. homas Hofe er
Date: Fierwr 7

, zcsie

Agreement Authorized and Approved:

Sen. Phil Berger
President Pro Tempore

Rep. Tim Moore
Speaker

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 579 of 662

2003-2
2003-2

 STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
19 CVS 012667

REBECCA HARPER, et al.,
Plaintiffs,
v.
DAVID LEWIS, IN HIS OFFICIAL CAPACITY AS SENIOR
CHAIRMAN OF THE HOUSE SELECT COMMITTEE ON
REDISTRICTING, et al.,

[PROPOSED] ORDER ON
PLAINTIFFS’ MOTION FOR
A PRELIMINARY
INJUNCTION

Defendants.

The Court, having considered the Plaintiffs’ Motion for a Preliminary Injunction hereby
GRANTS the motion and ORDERS as follows:
1. Legislative Defendants and State Defendants, and their respective agents, officers,
and employees, are preliminarily enjoined from preparing for or administering the
2020 primary and general U.S. House elections using the 2016 Plan;
2. The Court will afford the General Assembly two weeks from the date of this
Order, namely through November ______, 2019, to enact a remedial
congressional map for the 2020 primary and general elections (hereinafter, the
“Remedial Map”) in conformity with this Order.
3. Except as otherwise noted in this Order, the following criteria shall exclusively
govern the drawing of the Remedial Map:

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 580 of 662

 a. Equal Population: The mapmakers shall use the 2010 federal decennial
census data as the sole basis of population for the establishment of districts
in the Remedial Map. The number of persons in each congressional
district shall be as nearly as equal as practicable, as determined under the
most recent federal decennial census.
b. Contiguity: Congressional districts shall be comprised of contiguous
territory. Contiguity by water is sufficient.
c. Compactness and the Division of Counties and VTDs: The mapmakers
shall make reasonable efforts to construct districts in the Remedial Map
that improve the compactness of the districts in place prior to the 2016
Plan and that keep more counties and VTDs whole as compared to the
districts in place prior to the 2016 Plan. Division of counties shall only be
made for reasons of equalizing population. Reasonable efforts shall be
made not to divide a county into more than two districts.
d. Incumbency: Candidates for Congress are not required by law to reside in
a district they seek to represent. However, reasonable efforts may be
made to ensure that incumbent members of Congress are not paired with
another incumbent in one of the new districts constructed in the Remedial
Map.

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 581 of 662

 4. In redrawing the relevant districts in the Remedial Map, neither the invalidated
2011 districts nor the invalidated 2016 districts may be used as starting points for
drawing new districts, and no effort may be made to preserve the cores of
invalidated 2011 or 2016 districts.
5. Legislative Defendants and their agents shall conduct the entire remedial process
in full public view. At a minimum, this requires all map drawing to occur at
public hearings, with any relevant computer screen visible to legislators and
public observers. Legislative Defendants and their agents shall not undertake any
steps to draw or revise the new districts outside of public view. Legislative
Defendants shall ensure that equivalency files for all proposed maps and
amendments are publicly posted to a General Assembly website in a timely
manner.
6. To the extent that Legislative Defendants wish to retain one or more individuals
who are not current legislative employees to assist in the map-drawing process,
Legislative Defendants must seek and obtain prior approval from the Court to
engage any such individuals.
7. Notwithstanding the General Assembly having the opportunity to draw the
Remedial Map in the first instance, the Court, by subsequent Court Order, shall
promptly appoint a Referee to (1) assist the Court in reviewing any Remedial Map
enacted by the General Assembly; and (2) to develop a remedial map for the

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 582 of 662

 Court should the General Assembly fail to enact a lawful Remedial Map within
the time allowed.
8. No later than November ___, 2019, the parties may submit to the Court names
and qualifications of suggested referees. The Court will thereafter appoint a
referee by subsequent Court Order.
9. The Court orders that the remedial process will commence immediately upon
entry of this Order.
10. The Court, on its own motion, denies a stay of the remedial process pending
appeal.
11. The Court retains jurisdiction to move the primary date for the U.S. House
elections, or all of the State’s 2020 primaries, including for offices other than the
U.S. House, should doing so become necessary to provide effective relief in this
case.
So ORDERED this _____ day of ____________, 2019.
_______________________________________
The Honorable Paul C. Ridgeway
Superior Court Judge
_______________________________________
The Honorable _________________________
Superior Court Judge
____________________________________
The Honorable __________________________
Superior Court Judge

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 583 of 662

 Arnold&Porter

Stanton Jones
+1 202.942.5563 Direct
Stanton.Jones@amoldporter.com
Stanton.Jones@arnoldporter.com

October 4, 2019
The Honorable Paul Ridgeway
Senior Resident Judge
Wake County Justice Center
300 S. Salisbury Street
Raleigh, NC 27602
The Honorable Alma L
L. Hinton
Senior Resident Judge
Halifax County Courthouse
357 Ferrell Lane
Halifax, NC 27839
The Honorable Joseph N. Crosswhite
Senior Resident Judge
Hall of Justice
226 Stockton Street
Statesville, NC 28677
Re:

Harper v. Lewis, No. 19-cvs-12667

Dear Judges Ridgeway, Hinton, and Crosswhite:
On behalf of Plaintiffs in Harper v. Lewis, we write to request that the Court rule
on Plaintiffs'
Plaintiffs’ motion to expedite Plaintiffs'
Plaintiffs’ preliminary injunction motion without
waiting for a lawyer to notice an appearance on behalf of Legislative Defendants. As of
this filing, no lawyer has noticed an appearance on behalf of Legislative Defendants in
this case, even though the Verified Complaint and Summonses were served on
Legislative Defendants on September 30, 2019, and even though Plaintiffs filed their
motion for a preliminary injunction and motion to expedite on September 30 as
well. Those motions were served on Legislative Defendants via mail and also emailed to
the lawyers at Ogletree Deakins who have long represented Legislative Defendants in
redistricting matters.

Based on Legislative Defendants'
Defendants’ actions thus far and their prior attempts to avoid
judicial review of their redistricting plans through delay tactics, we believe Legislative
I Arnold & Porter Kaye Scholer LLP
601 Massachusetts Ave, NW I  Washington, DC 20001-3743  I www.arnoldporter.com

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 584 of 662

 Arnold StPorter
October 4, 2019
Page 2
Defendants are seeking to run out the clock by having their counsel delay filing an
appearance. Per the attached email exchanges, on the day the complaint was filed,
Plaintiffs'
Plaintiffs’ counsel emailed Mr. Strach and Mr. Fan•
Farr asking whether they would accept
service on behalf of Legislative Defendants via email. Three days later, Mr. Strach
“We are not authorized to accept service of the Verified Complaint and
responded: "We
Summonses at this time."
time.” Plaintiffs'
Plaintiffs’ counsel then notified Mr. Strach and Mr. Farr that
Legislative Defendants had been served via UPS, and asked whether Ogletree Deakins
would be representing Legislative Defendants in this case and would accept email service
Plaintiffs’ counsel followed up several days
moving forward. They did not respond. Plaintiffs'
later asking the same questions, and Mr. Strach responded that Ogletree Deakins
“as of
purportedly has not been retained to represent Legislative Defendants in this case "as
today,” i.e., October 3, but would let Plaintiffs'
Plaintiffs’ counsel know "if
“if that changes.”
today,"
changes."

Thus, to date, no information has been provided about who is representing
Legislative Defendants in this case. We are concerned that Legislative Defendants will
not enter an appearance of counsel unless ordered to respond to Plaintiffs'
Plaintiffs’ preliminary
injunction motion.
For these reasons, we respectfully request that the Court issue a decision on the
motion to expedite and order Legislative Defendants to respond to the preliminary
injunction motion by Monday, October 14, which is two weeks after they received
it. While Legislative Defendants surely learn of all filings in this matter in real time from
Mr. Strach and Mr. Farr (who have received all of the filings via email), as well as
through the local and national media coverage, we request that any orders issued by the
Plaintiffs’ preliminary injunction
Court, including an order setting a briefing schedule for Plaintiffs'
motion, be served on Legislative Defendants by U.S. Mail.

Elections’ submission today in Common
Lastly, we note that the State Board of Elections'
Cause v. Lewis seems to indicate that, if the deadline for mailing absentee ballots is
moved back five days to January 18, 2020 (which the State Board or the Court has
discretion to do under state law), the State Board would not need to receive the shapefile
for a remedial redistricting plan until December 15, 2019—rather than the earlier date
noted in Plaintiffs'
Plaintiffs’ motion to expedite.
Court’s attention to this matter.
We appreciate the Court's
Sincerely,
/s/ R. Stanton Jones
R. Stanton Jones

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 585 of 662

 EXHIBIT A

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 586 of 662

Jacobson, Daniel
Daniel
Jacobson,
From:
From:
Sent:
Sent:
To:
To:
Cc:
Cc:
Subject:
Subject:

Strach, Phillip J. <phil.strach@ogletree.com>
Thursday, October
October 3,
PM
Thursday,
3, 2019
2019 7:36
7:36 PM
Jones, Stanton;
Jones,
Stanton; Farr, Thomas A.
Burton Craige; Narendra Ghosh; Paul Smith; MElias@perkinscoie.com;
zzz.External.AKhanna@perkinscoie.com; Theodore,
Theodore, Elisabeth;
Elisabeth; Jacobson,
Jacobson, Daniel
Daniel
zzz.External.AKhanna@perkinscoie.com;
Harper et
et al.
al. v.
v. Lewis
Lewis et
et al.,
al., Case
Case No.
No. 19-cvs-12667
19-cvs-12667
RE: Harper

External E-mail
E-mail
External
Stanton: as
today we
not been
to represent
the legislative
this case
if that
that changes
Stanton:
as of
of today
we have
have not
been asked
asked to
represent the
legislative defendants
defendants in
in this
case but
but if
changes we
we
will
let you
you know
Phil
will let
know promptly.
promptly. Phil

Phillip J. Strach I  Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
4208 Six Forks Road, Suite 1100 !  Raleigh, NC 27609 !  Telephone: 919-789-3179  1 Fax: 919-783-9412
phil.strach@ogletree.com  1 www.ogletree.com  1 Bio

Jones, Stanton
Stanton <Stanton.Jones@arnoldporter.com>
<Stanton.Jones@arnoldporter.com>
From: Jones,
Thursday, October
03, 2019
PM
Sent: Thursday,
October 03,
2019 5:16
5:16 PM
Strach, Phillip
Phillip J.
J. <Phil.Strach@ogletreedeakins.com>;
<Phil.Strach@ogletreedeakins.com>; Farr,
Farr, Thomas
Thomas A.
A. <thomas.farr@ogletreedeakins.com>
<thomas.farr@ogletreedeakins.com>
To: Strach,
Burton Craige
<bcraige@pathlaw.com>; Narendra
Narendra Ghosh
<nghosh@pathlaw.com>; Paul
Paul Smith
Smith
Cc: Burton
Craige <bcraige@pathlaw.com>;
Ghosh <nghosh@pathlaw.com>;
<psmith@pathlaw.com>; MElias@perkinscoie.com;
MElias@perkinscoie.com; AKhanna@perkinscoie.com;
AKhanna@perkinscoie.com; Theodore,
Theodore, Elisabeth
Elisabeth
<psmith@pathlaw.com>;
<Elisabeth.Theodore@arnoldporter.com>; Jacobson,
Jacobson, Daniel
Daniel <Daniel.Jacobson@arnoldporter.com>
<Daniel.Jacobson@arnoldporter.com>
<Elisabeth.Theodore@arnoldporter.com>;
RE: Harper
Harper et
v. Lewis
Lewis et
No. 19-cvs-12667
19-cvs-12667
Subject: RE:
et al.
al. v.
et al.,
al., Case
Case No.
Phil: II have
no response
to my
my email
Are you
you representing
the legislative
this case?
If
Phil:
have received
received no
response to
email below.
below. Are
representing the
legislative defendants
defendants in
in this
case? If
not, do
you know
not,
do you
know who
who is?
is?
Regards,
Regards,
Stanton
Stanton
Jones, Stanton
Stanton <Stanton.Jones@arnoldporter.com>
<Stanton.Jones@arnoldporter.com>
From: Jones,
Monday, September
September 30,
11:49 AM
AM
Sent: Monday,
30, 2019
2019 11:49
Strach, Phillip
Phillip J.
J. <phil.strach@ogletree.com>;
<phil.strach@ogletree.com>; Farr,
Farr, Thomas
Thomas A.
A. <thomas.farr@ogletreedeakins.com>
<thomas.farr@ogletreedeakins.com>
To: Strach,
Cc: Burton
Burton Craige
<bcraige@pathlaw.com>;
Narendra
Ghosh
<nghosh@pathlaw.com>;
Paul Smith
Smith
Craige <bcraige@pathlaw.com>; Narendra Ghosh <nghosh@pathlaw.com>; Paul
<psmith@pathlaw.com>; MElias@perkinscoie.com;
MElias@perkinscoie.com; zzz.External.AKhanna@perkinscoie.com
<psmith@pathlaw.com>;
zzz.External.AKhanna@perkinscoie.com
<AKhanna@perkinscoie.com>; Theodore,
Theodore, Elisabeth
Elisabeth <Elisabeth.Theodore@arnoldporter.com>;
<Elisabeth.Theodore@arnoldporter.com>; Jacobson,
Jacobson, Daniel
Daniel
<AKhanna@perkinscoie.com>;
<Daniel.Jacobson@arnoldporter.com>
<Daniel.Jacobson@arnoldporter.com>
RE: Harper
Harper et
v. Lewis
Lewis et
No. 19-cvs-12667
19-cvs-12667
Subject: RE:
et al.
al. v.
et al.,
al., Case
Case No.
Phil:
Phil:
The Legislative
Legislative Defendants
Defendants were
served via
via UPS
UPS this
this morning.
morning. Going
forward, will
you be
the Legislative
Legislative
The
were served
Going forward,
will you
be representing
representing the
Defendants in
this case
you accept
service of
Plaintiffs’ further
further court
submissions?
Defendants
in this
case and
and will
will you
accept email
email service
of Plaintiffs'
court submissions?
Regards,
Regards,
Stanton
Stanton
1
1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 587 of 662

 Strach, Phillip
Phillip J.
J. <phil.strach@ogletree.com>
<phil.strach@ogletree.com>
From: Strach,
Monday, September
September 30,
11:41 AM
AM
Sent: Monday,
30, 2019
2019 11:41
Farr, Thomas
Thomas A.
A. <thomas.farr@ogletreedeakins.com>
<thomas.farr@ogletreedeakins.com>
Narendra Ghosh
<nghosh@pathlaw.com>; Farr,
To: Narendra
Ghosh <nghosh@pathlaw.com>;
Burton Craige
<bcraige@pathlaw.com>; Paul
Paul Smith
Smith <psmith@pathlaw.com>;
<psmith@pathlaw.com>; MElias@perkinscoie.com;
MElias@perkinscoie.com;
Cc: Burton
Craige <bcraige@pathlaw.com>;
zzz.External.AKhanna@perkinscoie.com
<AKhanna@perkinscoie.com>; Theodore,
Theodore, Elisabeth
Elisabeth
zzz.External.AKhanna@perkinscoie.com <AKhanna@perkinscoie.com>;
<Elisabeth.Theodore@arnoldporter.com>; Jacobson,
Jacobson, Daniel
Daniel <Daniel.Jacobson@arnoldporter.com>;
<Daniel.Jacobson@arnoldporter.com>; Jones,
Jones, Stanton
Stanton
<Elisabeth.Theodore@arnoldporter.com>;
<Stanton.Jones@arnoldporter.com>
<Stanton
Jones@arnoldporter.com>
RE: Harper
Harper et
v. Lewis
Lewis et
No. 19-cvs-12667
19-cvs-12667
Subject: RE:
et al.
al. v.
et al.,
al., Case
Case No.
External E-mail
E-mail
External
Hi Narendra:
Narendra:
Hi
We
not authorized
to accept
service of
the Verified
Verified Complaint
Complaint and
Summonses at
this time.
time.
We are
are not
authorized to
accept service
of the
and Summonses
at this
Thanks.
Thanks.
Phil
Phil

Phillip J. Strach I  Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
4208 Six Forks Road, Suite 1100 !  Raleigh, NC 27609 !  Telephone: 919-789-3179  1 Fax: 919-783-9412
phil.strach@ogletree.com  1 www.ogletree.com  1 Bio

Narendra Ghosh
<nghosh@pathlaw.com>
From: Narendra
Ghosh <nghosh@pathlaw.com>
Friday, September
September 27,
PM
Sent: Friday,
27, 2019
2019 5:21
5:21 PM
Strach, Phillip
Phillip J.
J. <Phil.Strach@ogletreedeakins.com>;
<Phil.Strach@ogletreedeakins.com>; Farr,
Farr, Thomas
Thomas A.
A. <thomas.farr@ogletreedeakins.com>
<thomas.farr@ogletreedeakins.com>
To: Strach,
Burton Craige
<bcraige@pathlaw.com>; Paul
Paul Smith
Smith <psmith@pathlaw.com>;
<psmith@pathlaw.com>; MElias@perkinscoie.com;
MElias@perkinscoie.com;
Cc: Burton
Craige <bcraige@pathlaw.com>;
AKhanna@perkinscoie.com; Theodore,
Theodore, Elisabeth
Elisabeth <Elisabeth.Theodore@arnoldporter.com>;
<Elisabeth.Theodore@arnoldporter.com>; Jacobson,
Jacobson, Daniel
Daniel
AKhanna@perkinscoie.com;
<Daniel.Jacobson@arnoldporter.com>; Jones,
Jones, Stanton
Stanton <Stanton.Jones@arnoldporter.com>
<Stanton.Jones@arnoldporter.com>
<Daniel.Jacobson@arnoldporter.com>;
Re: Harper
Harper et
v. Lewis
Lewis et
No. 19-cvs-12667
19-cvs-12667
Subject: Re:
et al.
al. v.
et al.,
al., Case
Case No.
Mr. Strach, Mr. Farr,
We understand you represent the Legislative Defendants in this case. Attached are the Verified Complaint and
Summonses for these Defendants.

Can you let us know if you accept service of these materials on behalf of the Legislative Defendants via
email? If so, please confirm your acceptance of service on the attached summonses in the return of service
section. If you'd like us to send hard copies of anything, let us know.

Thanks,
Narendra

Narendra K. Ghosh
Patterson Harkavy LLP
100 Europa Dr., Ste. 420
Chapel Hill, NC 27517
2
2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 588 of 662

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(919)
(866) 397-8671 fax
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Jones, Stanton
Stanton <Stanton.Jones@arnoldporter.com>
<Stanton.Jones@arnoldporter.com>
From: Jones,
Friday, September
September 27,
12:15 PM
PM
Sent: Friday,
27, 2019
2019 12:15
Myers, Kellie
Kellie Z.
Z. <Kellie.Z.Myers@nccourts.org>
<Kellie.Z.Myers@nccourts.org>
To: Myers,
Burton Craige
<bcraige@pathlaw.com>; Narendra
Narendra Ghosh
<nghosh@pathlaw.com>; Paul
Paul Smith
Smith
Cc: Burton
Craige <bcraige@pathlaw.com>;
Ghosh <nghosh@pathlaw.com>;
<psmith@pathlaw.com>; MElias@perkinscoie.com
MElias@perkinscoie.com <MElias@perkinscoie.com>;
<MElias@perkinscoie.com>; AKhanna@perkinscoie.com
AKhanna@perkinscoie.com
<psmith@pathlaw.com>;
<AKhanna@perkinscoie.com>; Theodore,
Theodore, Elisabeth
Elisabeth <Elisabeth.Theodore@arnoldporter.com>;
<Elisabeth.Theodore@arnoldporter.com>; Jacobson,
Jacobson, Daniel
Daniel
<AKhanna@perkinscoie.com>;
<Daniel.Jacobson@arnoldporter.com>; Cox,
Paul <pcox@ncdoj.gov>;
<pcox@ncdoj.gov>; amajmundar@ncdoj.gov
<Daniel.Jacobson@arnoldporter.com>;
Cox, Paul
amajmundar@ncdoj.gov
<amajmundar@ncdoj.gov>; sbrennan@ncdoj.gov
sbrennan@ncdoj.gov <sbrennan@ncdoj.gov>;
<sbrennan@ncdoj.gov>; Strach,
Strach, Phillip
Phillip J.
J.
<amajmundar@ncdoj.gov>;
<Phil.Strach@ogletreedeakins.com>; Farr,
Farr, Thomas
Thomas A.
A. <thomas.farr@ogletreedeakins.com>
<thomas.farr@ogletreedeakins.com>
<Phil.Strach@ogletreedeakins.com>;
Harper et
v. Lewis
Lewis et
No. 19-cvs-12667
19-cvs-12667 --- complaint
letter to
to Judge
Judge Ridgeway
Ridgeway
Subject: Harper
et al.
al. v.
et al.,
al., Case
Case No.
complaint and
and letter
Dear Ms.
Ms. Myers:
Myers:
Dear
Attached please
find aa Verified
Verified Complaint
Complaint we
filed this
this morning
morning in
the clerk’s
The case
No. 1919Attached
please find
we filed
in the
clerk's office.
office. The
case has
has been
been assigned
assigned No.
cvs-12667.
I’ve
also
attached
a
letter
to
Judge
Ridgeway
requesting
expeditious
appointment
of
a
three-judge
panel
cvs-12667. I've also attached a letter to Judge Ridgeway requesting expeditious appointment of a three-judge panel
pursuant
to N.C.
N.C. Gen.
Stat. 1-267.1(a).
1-267.1(a). The
The letter
letter and
to Judge
Judge Ridgeway
Ridgeway today
today as
pursuant to
Gen. Stat.
and complaint
complaint will
will be
be delivered
delivered to
as well.
well.
Please let
let me
me know
Thank you
you for
for your
your attention
to this
this matter.
matter.
Please
know any
any questions.
questions. Thank
attention to
Best regards,
Best
regards,
Stanton
Stanton
_______________
Stanton Jones
Jones
Stanton
Partner
Partner
Arnold &
& Porter
Porter
Arnold
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Ave., NW
601 Massachusetts
Massachusetts Ave.,
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Washington
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Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 589 of 662

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Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 590 of 662

 STATE OF NORTH CAROLINA
COUNTY OF WAKE

i:
15 or

L ENI_THE GENERAL COURT OF JUSTICE
At;

10:

3S4UPERIOR COURT DIVISION
19 CVS 12667

REBECCA HARPER, et al.,
Plaintiffs,
NOTICE OF
APPEARANCE

v.
REPRESENTATIVE DAVID R. LEWIS, in his
official capacity as Senior. Chair of the House
Standing Committee on Redistricting, et al.,
Defendants.

PLEASE TAKE NOTICE that Stephanie A. Brennan, Special Deputy Attorney General,
enters her Notice of Appearance on behalf of Defendants the North Carolina State Board of
Elections, Damon Circosta, Stella Anderson, Kenneth Raymond, Jeff Carmon, and David C.
Black, By this Notice of Appearance, the undersigned requests that she receive all notices from
the Court and all papers served by the parties hereto.
This the 1st day of October, 2019.
JOSHUA H. STEIN
Attorney General

a
Stephanie A. Brennan
Special Deputy Attorney General
State Bar No. 35955
North Carolina Dept. of Justice
P.O. Box 629
Raleigh, NC 27602
Email: sbrennan@ncdoj.gov
Tele No.: (919) 716-6920
Fax No.: (919) 716-6763

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 591 of 662

 CERTIFICATE OF SERVICE
This is to certify that the undersigned has this day served the foregoing NOTICE OF
APPEARANCE in the above-titled action upon all parties to this cause by depositing a copy in
the United States Mail, postage prepaid to:
Burton Craige
Narendra K. Ghosh
Paul E. Smith
PATTERSON HARKAVY LLP
100 Europa Dr., Suite 420
Chapel Hill NC 27517
bcraige@pathlaw.com
nghosh@pathlaw.coin
psmith@pathlaw.com

R. Stanton Jones
Elisabeth S. Theodore
Daniel F. Jacobson
William C. Perdue
Sara Murphy D'Amico
Graham W. White
ARNOLD AND PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington DC 20001-3743
stantonjones@arnoldporter.corn

Counsel for Plaintiffs'

Marc E. Elias
Aria C. Branch
PERKINS COIE LLP
700 13th Street, NW
Washington DC 20005-3960
melias@perkinscoie.com
Abha Khanna
PERKINS COIE LLP
1201 Third Ave., Suite 4900
Seattle WA 98101-3099
akhanna@perkinscoie.com
Counselfor Plaintiffs

This the 1st day of October, 2019.

Stephanie A. Brennan
Special Deputy Attorney General

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 592 of 662

 STATE OF NORTH CAROLINA
COUNTY OF WAKE

.:-.- \

r t

O1

W‘t

L

IN THE GENERAL COURT OF JUSTICE
Nti 10: ut SUPERIOR COURT DIVISION
19 CVS 12667
kkti fi

REBECCA HARPER, et al.,

BY
Plaintiffs,
v.

NOTICE OF
APPEARANCE

REPRESENTATIVE DAVID R. LEWIS, in his
official capacity as Senior Chair of the House
Standing Committee on Redistricting, et al.,
Defendants.
PLEASE TAKE NOTICE that Paul M. Cox, Special Deputy Attorney General, enters his
Notice of Appearance on behalf of Defendants the North Carolina State Board of Elections,
Damon Circosta, Stella Anderson, Kenneth Raymond, Jeff Cannon, and David C. Black. By this
Notice of Appearance, the undersigned requests that he receive all notices from the Court and all
papers served by the parties hereto.
This the 1st day of October, 2019.
JOSHUA H. STEIN
Attorney General

Paul M. ox
Special Deputy Attom General
N.C. State Bar No. 49 46
Email: pcox@ncdoj.gov
North Carolina Dept. of Justice
Post Office Box 629
Raleigh, N.C. 27602
Tele No.: (919) 716-6900
Fax No.: (919) 716-6763

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 593 of 662

 CERTIFICATE OF SERVICE
This is to certify that the undersigned has this day served the foregoing NOTICE OF
APPEARANCE in the above-titled action upon all parties to this cause by depositing a copy in
the United States Mail, postage prepaid to:
Burton Craige
Narendra K. Ghosh
Paul E. Smith
PATTERSON HARKAVY LLP
100 Europa Dr., Suite 420
Chapel Hill NC 27517
bcraige@pathlaw.corn
righosh@pathlaw.corn
psmith@pathlaw.corn

R. Stanton Jones
Elisabeth S. Theodore
Daniel F. Jacobson
William C. Perdue
Sara Murphy D'Amico
Graham W. White
ARNOLD AND PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington DC 20001-3743
stanton.jones@arnoldporter.com

Counsel for Plaintiffs

Marc E. Elias
Aria C. Branch
PERKINS COIE LLP
700 13th Street, NW
Washington DC 20005-3960
melias@perkinscoie.corn
Abha Khanna
PERKINS COIE LLP
1201 Third Ave., Suite 4900
Seattle WA 98101-3099
akhanna@perkinscoie.com
Counsel for Plaintiffs

This the 1st day of October, 2019.

Special Deputy Attorney General

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 594 of 662

 STATE OF NORTH CAROLINA
COUNTY OF WAKE
REBECCA HARPER, et al.,

IN THE GENFIRKILCOLIRT OF JUSTICE
RIOR COURT DIVISION
ZUI
119t1V8:13467
C. S. C.
BY.

Plaintiffs,
v.

NOTICE OF
APPEARANCE

REPRESENTATIVE DAVID R. LEWIS, in his
official capacity as Senior Chair of the House
Standing Committee on Redistricting, et al.,
Defendants.
PLEASE TAKE NOTICE that Amar Majmundar, Senior Deputy Attorney General,
enters his Notice of Appearance on behalf of Defendants the North Carolina State Board of
Elections, Damon Circosta, Stella Anderson, Kenneth Raymond, Jeff Carmon, and David C.
Black. By this Notice of Appearance, the undersigned requests that he receive all notices from
the Court and all papers served by the parties hereto.
This the 1st day of October, 2019.
JOSHUA H. STEIN
Attorney General

A ro r Maj nun ear
Senior De ut Attorney General
State Bar o. 24668
North Carolina Dept. of Justice
Post Office Box 629
Raleigh, N.C. 27602
Email: amajmundar@ncdoj.gov
Tele No.: (919)-716-6821
Fax No.: (919)-716-6763

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 595 of 662

 CERTIFICATE OF SERVICE
This is to certify that the undersigned has this day served the foregoing NOTICE OF
APPEARANCE in the above-titled action upon all parties to this cause by depositing a copy in
the United States Mail, postage prepaid to:
Burton Craige
Narendra K. Ghosh
Paul E. Smith
PATTERSON HARKAVY LLP
100 Europa Dr., Suite 420
Chapel Hill NC 27517
bcraige@pathlaw.com
nghosh@pathlaw.corn
psmith@pathlaw.corn

R. Stanton Jones
Elisabeth S. Theodore
Daniel F. Jacobson
William C. Perdue
Sara Murphy D'Amico
Graham W. White
ARNOLD AND PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington DC 20001-3743
stantonjones@arnoldporter.com

Counselfor Plaintiffs

Marc E. Elias
Aria C. Branch
PERKINS COIE LLP
700 13th Street, NW
Washington DC 20005-3960
melias@perkinscoie.corn
Abha Khanna
PERKINS COIE LLP
1201 Third Ave., Suite 4900
Seattle WA 98101-3099
akhanna@perkinscoie.corn
Counsel for Plaintiffs

This the 1" day of October, 2019.

r Majm nd
enior Dep ty ttorney General

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 596 of 662

 STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
Case No. 19 CVS 12667

REBECCA HARPER, et al.

)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,

(i)()

v.
REPRESENTATIVE DAVID R. LEWIS , et al.
Defendants.

NOTICE OF APPEARANCE
Alyssa M. Riggins of the law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
enters her Notice of Appearance as counsel on behalf Defendants Timothy K. Moore, in
his official capacity as Speaker of the North Carolina House of Representatives, Philip E.
Berger, in his official capacity as President Pro Tempore of the North Carolina Senate,
Representative David R. Lewis, in his official capacity as Senior Chair of the House
Standing Committee on Redistricting, Ralph Hise, in his official capacity as Co-Chair of
the Senate Standing Committee on Redistricting, Warren Daniel in his Official Capacity
as Co-Chair of the Senate Standing Committee on Redistricting, Paul Newton in his official
capacity as Co-Chair of the Senate Standing Committee on Redistricting ("Legislative
Defendants"). Ms. Riggins is a member in good standing with the bar of the state of North
Carolina.
Respectfully submitted this 7th day of October, 2019.

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 597 of 662

 OGLETREE, DEAKINS, NASH
SMOAK & STEWART, P.C.

Alyssa M. Riggins
N.C. State Bar No. 52366
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Telephone: (919) 787-9700
Facsimile: (919) 783-9412
Attorneys for Legislative Defendants

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 598 of 662

 CERTIFICATE OF SERVICE
It is hereby certified that the foregoing document was served upon the parties by mailing
a copy thereof to the address indicated below in accordance with the North Carolina Rules of
Civil Procedure:
Burton Craige,
Narendra K. Ghosh
Paul E. Smith
100 Europa Dr., Suite 420
Chapel Hill, NC 27517
(919) 942-5200

R. Stanton Jones
David P. Gersch
Elisabeth S. Theodore
Daniel F. Jacobson
601 Massachusetts Ave. NW
Washington, DC 20001-3761
(202) 942-5000
Stantond ones@arnoldporter. Corn

Counsel for Plaintiffs
Paul Cox
Stephanie Brennan
North Carolina Department of
Justice
114 W. Edenton St
Raleigh, NC 27603
(919) 716-6932
pcox@ncdoj.gov

Marc E. Elias
Aria C. Branch
700 13th Street NW
Washington, DC 20005-3960
(202) 654-6200
melias@perkinscoie. corn
Abha Khanna
1201 Third A venue
Suite 4900
Seattle, WA 98101-3099
(206) 359-8000

Counsel for the State Board of
Elections

Counsel for Plaintiffs

This, the 7th day of October, 2019
OGLETREE, DEAKINS, NASH
SMOAK & STEWART, P.C.

Alyssa M. Riggins
N.C. State Bar No. 52366
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Telephone: (919) 787-9700
Facsimile: (919) 783-9412
Attorneys for Legislative Defendants

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 599 of 662

 STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
Case No. -1.9rVS 12667

REBECCA HARPER, et al.

)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
REPRESENTATIVE DAVID R. LEWIS , et al.
Defendants.

RP

NOTICE OF APPEARANCE
Michael D. McKnight of the law firm Ogletree, Deakins, Nash, Smoak & Stewart,
P.C. enters his Notice of Appearance as counsel on behalf Defendants Timothy K. Moore,
in his official capacity as Speaker of the North Carolina House of Representatives, Philip
E. Berger, in his official capacity as President Pro Tempore of the North Carolina Senate,
Representative David R. Lewis, in his official capacity as Senior Chair of the House
Standing Committee on Redistricting, Ralph Hise, in his official capacity as Co-Chair of
the Senate Standing Committee on Redistricting, Warren Daniel in his Official Capacity
as Co-Chair of the Senate Standing Committee on Redistricting, Paul Newton in his official
capacity as Co-Chair of the Senate Standing Committee on Redistricting ("Legislative
Defendants"). Mr. McKnight is a member in good standing with the bar of the state of
North Carolina.
Respectfully submitted this 7th day of October, 2019.

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 600 of 662

 OGLETREE, DEAKINS, NASH
SMOAK & STEWART, P.C.

Michael D. McKnight
N.C. State Bar No. 36932
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Telephone: (919) 787-9700
Facsimile: (919) 783-9412
Attorneys for Legislative Defendants

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 601 of 662

 CERTIFICATE OF SERVICE
It is hereby certified that the foregoing document was served upon the parties by mailing
a copy thereof to the address indicated below in accordance with the North Carolina Rules of
Civil Procedure:
Burton Craige,
Narendra K. Ghosh
Paul E. Smith
100 Europa Dr., Suite 420
Chapel Hill, NC 27517
(919) 942-5200

R. Stanton Jones
David P. Gersch
Elisabeth S. Theodore
Daniel F. Jacobson
601 Massachusetts Ave. NW
Washington, DC 20001-3761
(202) 942-5000
Stanton.jones@amoldporter. Com

Counsel for Plaintiffs
Paul Cox
Stephanie Brennan
North Carolina Department of
Justice
114 W. Edenton St
Raleigh, NC 27603
(919) 716-6932
pcox !,ncdoj.gov

Marc E. Elias
Aria C. Branch
700 13th Street NW
Washington, DC 20005-3960
(202) 654-6200
melias@perkinscoie. corn
Abha Khanna
1201 Third A venue
Suite 4900
Seattle, WA 98101-3099
(206) 359-8000

Counsel for the State Board of
Elections

Counselfor Plaintiffs

This, the 7th day of October, 2019
OGLETREE, DEAKINS, NASH
SMOAK & STEWART, P.C.

Michael D. cKnight
N.C. State Bar No. 36932
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Telephone: (919) 787-9700
Facsimile: (919) 783-9412
Attorneys for Legislative Defendants

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 602 of 662

 STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
Case No. 19 CVS 12667

REBECCA HARPER, et al.
Plaintiffs,
v.
REPRESENTATIVE DAVID R. LEWIS , et al.
Defendants.

)
)
)
)
)
)

NOTICE OF APPEARANCE
Phillip J. Strach of the law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
enters his Notice of Appearance as counsel on behalf Defendants Timothy K. Moore, in
his official capacity as Speaker of the North Carolina House of Representatives, Philip E.
Berger, in his official capacity as President Pro Tempore of the North Carolina Senate,
Representative David R. Lewis, in his official capacity as Senior Chair of the House
Standing Committee on Redistricting, Ralph Hise, in his official capacity as Co-Chair of
the Senate Standing Committee on Redistricting, Warren Daniel in his Official Capacity
as Co-Chair of the Senate Standing Committee on Redistricting, Paul Newton in his official
capacity as Co-Chair of the Senate Standing Committee on Redistricting ("Legislative
Defendants"). Mr. Strach is a member in good standing with the bar of the state of North
Carolina.
Respectfully submitted this 7th day of October, 2019.

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 603 of 662

 OGLETREE, DEAKINS, NASH
SMOAK & STEWART, P.C.

PlUllip J.
ch
N.C. State Bar No. 29456
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Telephone: (919) 787-9700
Facsimile: (919) 783-9412
Attorneys for Legislative Defendants

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 604 of 662

 CERTIFICATE OF SERVICE
It is hereby certified that the foregoing document was served upon the parties by mailing
a copy thereof to the address indicated below in accordance with the North Carolina Rules of
Civil Procedure:
Burton Craige,
Narendra K. Ghosh
Paul E. Smith
100 Europa Dr., Suite 420
Chapel Hill, NC 27517
(919) 942-5200

R. Stanton Jones
David P. Gersch
Elisabeth S. Theodore
Daniel F. Jacobson
601 Massachusetts Ave. NW
Washington, DC 20001-3761
(202) 942-5000
Stanton.jones@arnoldporter. Corn

Counsel for Plaintiffs
Paul Cox
Stephanie Brennan
North Carolina Department of
Justice
114 W. Edenton St
Raleigh, NC 27603
(919) 716-6932
pcox@ncdoj.gov

Marc E. Elias
Aria C. Branch
700 13th Street NW
Washington, DC 20005-3960
(202) 654-6200
melias@perkinscoie.com
Abha Khanna
1201 Third A venue
Suite 4900
Seattle, WA 98101-3099
(206) 359-8000

Counselfor the State Board of
Elections

Counselfor Plaintiffs

This, the 7th day of October, 2019
OGLETREE, DEAKINS, NASH
SMOAK & STEWART, P.C.

Phillip J. St
N.C. State Bar No. 29456
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Telephone: (919) 787-9700
Facsimile: (919) 783-9412
Attorneys for Legislative Defendants

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 605 of 662

 I- :
STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
L r7.
Case No. 19 CVS 12667

REBECCA HARPER, et al.
Plaintiff,

Ca a

v.
REPRESENTATIVE DAVID R. LEWIS , et al.
Defendants.

')
)
)
)
)
)
)
)
)
)
)

NOTICE OF APPEARANCE

Thomas A. Farr of the law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
enters his Notice of Appearance as counsel on behalf Defendants Timothy K. Moore, in
his official capacity as Speaker of the North Carolina House of Representatives, Philip E.
Berger, in his official capacity as President Pro Tempore of the North Carolina Senate,
Representative David R. Lewis, in his official capacity as Senior Chair of the House
Standing Committee on Redistricting, Ralph Hise, in his official capacity as Co-Chair of
the Senate Standing Committee on Redistricting, Warren Daniel in his Official Capacity
as Co-Chair of the Senate Standing Committee on Redistricting, Paul Newton in his official
capacity as Co-Chair of the Senate Standing Committee on Redistricting ("Legislative
Defendants"). Mr. Farr is a member in good standing with the bar of the state of North
Carolina.
Respectfully submitted this 7th day of October, 2019.

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 606 of 662

 OGLETREE, DEAKINS, NASH
SMOAK & STEWART, P.C.

Thomas A. Farr
N.C. State Bar No. 10871
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Telephone: (919) 787-9700
Facsimile: (919) 783-9412
Attorneys for Legislative Defendants

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 607 of 662

 CERTIFICATE OF SERVICE
It is hereby certified that the foregoing document was served upon the parties by mailing
a copy thereof to the address indicated below in accordance with the North Carolina Rules of
Civil Procedure:
R. Stanton Jones
David P. Gersch
Elisabeth S. Theodore
Daniel F. Jacobson
601 Massachusetts Ave. NW
Washington, DC 20001-3761
(202) 942-5000
Stanton.jones@arnoldporter. Com

Burton Craige,
Narendra K. Ghosh
Paul E. Smith
100 Europa Dr., Suite 420
Chapel Hill, NC 27517
(919) 942-5200
Counselfor Plaintiffs

Marc E. Elias
Aria C. Branch
700 13th Street NW
Washington, DC 20005-3960
(202) 654-6200
melias@perkinscoie. corn

Paul Cox
Stephanie Brennan
North Carolina Department of
Justice
114 W. Edenton St
Raleigh, NC 27603
(919) 716-6932
pcox@ncdoj.gov

Abha Khanna
1201 Third A venue
Suite 4900
Seattle, WA 98101-3099
(206) 359-8000

Counsel for the State Board of
Elections

Counsel for Plaintiffs

This, the 7th day of October, 2019
OGLETREE, DEAKINS, NASH
SMOAK & STEWART, P:C.

Thomas A. Farr
N.C. State Bar No. 10871
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Telephone: (919) 787-9700
Facsimile: (919) 783-9412
Attorneys for Legislative Defendants

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 608 of 662

 IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
FILE NO.: 19 CVS 012667

STATE OF NORTH CAROLINA
COUNTY OF WAKE

REBECCA HARPER, et al.,
)
Plaintiffs,
)
)
)
v.
)
REPRESENTATIVE DAVID R. LEWIS, IN )
)
HIS OFFICIAL CAPACITY AS SENIOR
)
CHAIRMAN OF THE HOUSE SELECT
)
COMMITTEE ON REDISTRICTING, et
)
)
)
Defendants.

)

1

MOTION TO INT
(Three-Judge Court Purs ant to N.C. Gen. Stat § 1-26

NOW COME Intervenor Applicants Ted Budd, Virginia Foxx, and Richard Hudson
(collectively, "Intervenor Applicants"), and, pursuant to Rule 24 of the North Carolina Rules of
Civil Procedure (the "Rules"), file this Motion to Intervene ("Motion") as Defendants in the abovecaptioned case. In support of their Motion, Intervenor Applicants show the Court as follows:
INTRODUCTION
1.

For more than a century the North Carolina General Assembly has taken political

considerations, including incumbency protection and partisan advantage, into account in drawing
congressional district lines, with North Carolina appellate courts traditionally upholding such
considerations. See, e.g., Stephenson v. Bartlett, 355 N.C. 354, 371, 562 S.E.2d 377, 390 (2002)
(allowing Legislature to "consider partisan advantage" when redrawing maps, so long as it
complies with the State Constitution's Whole County Provisions, N.C. Const. Art. II, §§ 3(3),
5(3)). Now Plaintiffs—many of whom were also plaintiffs in Common Cause v. Lewis, 18-CVS14001 (WAKE) represented by the same counsel—seek to extend their upheaval of North Carolina
1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 609 of 662

 redistricting law by bringing the exact same claims they raised in Common Cause v. Lewis
regarding North Carolina's state legislative districts, now against the congressional maps, two and
a half months before filing begins for the 2020 elections. They do so despite having been able to
raise those claims since the maps were enacted, or at the very least in Common Cause v. Lewis
almost year ago, when their proposed remedies would have caused less confusion and chaos for
voters and candidates, who are now preparing for primary elections in these congressional districts
within mere months, and less confusion and chaos for the Court and the Parties.
2.

Plaintiffs are fourteen alleged Democratic voters, most of whom were Plaintiffs in

Common Cause v. Lewis, 18-CVS-14001 (WAKE). They ask the Court to declare that North
Carolina's 2016 congressional redistricting plan (N.C. Sess. Law 2016-1) (the "2016 Plan"), is
invalid for the same reasons set forth in this Court's September 3, 2019 Order in Common Cause
v. Lewis. Their principal complaint is that the Legislative Defendants consideration of partisan
advantage in drafting the 2016 Plan purportedly made it an "extreme partisan gerrymander" that
violates North Carolina's Free Elections Clause. As a result, Plaintiffs allege that their votes have
been diluted through "packing" and "cracking," preventing them from electing the Democratic
candidates of their choice. Plaintiffs here are not hiding their objective: they are using political
arguments to advance a legal theory supporting a political goal.
3.

Intervenor Applicants are incumbent representatives of North Carolina's 5th, 8th,

and 13th congressional districts—all of which Plaintiffs challenge—who anticipate running to
keep their seats in 2020. In their capacity as Representatives and candidates for office, they have
invested significant time and resources interacting with and serving their constituents, fundraising,
and electioneering, all in reliance on the current district configuration. Redrawing the state's
Congressional Maps for the 2020 elections—barely over a year away—would be significantly

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 610 of 662

 disruptive, costly, and would impair Intervenor Applicants' rights relating to both their current
offices and their candidacies for the same.
4.

Moreover, Intervenor Applicants are not only representatives of those

congressional districts, but also residents and voters therein. As voters and residents of the
congressional districts they represent, Intervenor Applicants believe that, to the extent any of the
Plaintiffs have standing to raise their claims, Intervenor Applicants have the same purported rights,
and that an award of the remedy Plaintiffs seek may impair Intervenor Applicants' rights.
Therefore, Intervenor Applicants also seek to intervene in this case to protect their rights as
residents and voters.
5.

Additionally, Intervenor Applicants have a cognizable interest under Article I,

Section 4 of the U.S. Constitution in ensuring that the direct grant of rights and responsibilities for
their election to members of the State Legislature for drawing Congressional districts is fully and
faithfully enforced and considered by this Court. See Bush v. Palm Beach County Canvassing
Board, 531 U.S. 70 (2000); see also Arizona State Legislature v. Arizona Independent
Redistricting Comm 'n, 135 S. Ct. 2652, 2677-2694 (Roberts, C.J., dissenting).
6.

Plaintiffs' proposed relief—which would invalidate the 2016 Plans entirely and

require all new districts—would impair the Intervenor Applicants' own interests as representatives
and voters and harm the rights accorded to them through their state legislators under Article I,
Section IV of the U.S. Constitution.
7.

Plaintiffs can only vindicate their interest in enhanced representation by impairing

Intervenor Applicants' own interests in the same, and can only accomplish this by injecting chaos
into the political cycle by enjoining use of maps that have been used for two election cycles,
including special elections merely a month ago. In short, if Plaintiffs' alleged enhanced rights

3

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 611 of 662

 exist, Intervenor Applicants have those same rights, which may be impaired by the outcome of this
case. And Intervenor Applicants have an even more personal stake in the outcome of this case, as
they are elected Congressional Members currently representing, and campaigning to continue
representing, the people in those same challenged districts.
8.

As such, Intervenor Applicants have an interest in the outcome of this litigation,

and their interests are not fully represented by the current Defendants, who are state actors that
took part in the district map drawing process and are being sued only in their official capacities.
Furthermore, as this lawsuit was filed just over a week ago and no Defendant has answered or
otherwise pled in response to the Complaint, intervention is timely, allowing intervention will not
prejudice the Parties, and intervention will benefit this Court through the evidence and legal
argument that Intervenor Applicants can provide. Accordingly, pursuant to N.C. R. Civ. P. 24,
Intervenor Applicants should be allowed to intervene as Defendants.
PARTIES
9.

Plaintiffs are comprised of a group of fourteen (14) alleged Democratic voters.

(Compl. ¶¶ 6-19). Each of the Plaintiffs contend that they (1) live and vote in certain North
Carolina Congressional districts and (2) regularly vote for Democratic candidates for office, (Id.),
and that their right to vote has been "diluted" by the purportedly unconstitutional congressional
maps, making it less likely that their preferred candidates will win election, (e.g., id. 11119, 127,
135, 141-42).
10.

Intervenor Applicants are certain members of North Carolina's congressional

delegation who also vote and reside in the challenged districts and who regularly vote for
Republican candidates for office.

4

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 612 of 662

 11.

Intervenor Applicant Rep. Virginia Foxx is the member of the United States House

of Representatives for the NC-05 district. Rep. Foxx is a registered Republican who has
consistently voted for Republican candidates for Congress.
12.

Intervenor Applicant Rep. Richard Hudson is the member of the United States

House of Representatives for the NC-08 district. Rep. Hudson is a registered Republican who has
consistently voted for Republican candidates for Congress.
13.

Intervenor Applicant Rep. Ted Budd is the member of the United States House of

Representatives for the NC-13 district. Rep. Budd is a registered Republican who has consistently
voted for Republican candidates for Congress.
14.

Defendants are comprised of six state legislators, Representative David R. Lewis,

Senator Ralph E. Hise, Jr., Senator Warren Daniel, Senator Paul Newton, Speaker Timothy K.
Moore, and President Pro Tempore Philip E. Berger, sued in their legislative capacities (the
"Legislative Defendants"); the North Carolina State Board of Elections; and the members of the
North Carolina State Board of Elections (the State Board and its members are referred to herein as
the "State Defendants") (Id. 7 20-31). Defendants are sued in their official capacities only, and
not in their individual capacities. (Id.).
PROCEDURAL HISTORY
15.

On September 27, 2019, Plaintiffs filed their first Complaint. On September 30,

2019, Plaintiffs filed a Motion for Preliminary Injunction and a Motion for Expedited Briefing and
Resolution of Plaintiffs' Motion for Preliminary Injunction. On or about October 2, 2019, the
Chief Justice assigned the three-judge panel to hear the case. Accordingly, Intervenor Applicants'
Motion is properly before this Court.

5

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 ARGUMENT
16.

"Liberal intervention is desirable to dispose of as much of a controversy involving

as many apparently concerned persons as is compatible with efficiency and due process." Feller
v. Brock, 802 F.2d 722, 729 (4th Cir. 1986); see Virmani v. Presbyterian Health Servs. Corp., 127
N.C. App. 629, 648, 493 S.E.2d 310, 322 (1997) (The North Carolina rule for intervention and the
federal rule are "substantially the same," thus "the holdings of the federal circuit courts are
instructive." (citation omitted)), aff'd in part, rev'd in part on other grounds, 350 N.C. 449, 515
S.E.2d 675 (1999).
17.

Intervention may be available as a matter of right or, if the party does not have an

absolute right to intervene, the Court may allow permissive intervention. N.C. R. Civ. P. 24(a),
(b). In either instance, the party's motion must be timely and "accompanied by a pleading setting
forth the claim or defense for which intervention is sought." N.C. Rule Civ. P. 24(c). Intervenor
Applicants are entitled here to intervene by right or, in the alternative, show that the Court should
grant permissive intervention.
I.

The Motion is Timely.
18.

Regardless of whether the movant seeks to intervene as a matter or right or by

permissive intervention, the motion must be timely. N.C. R. Civ. P. 24(a), (b). "In considering
whether a motion to intervene is timely, the trial court considers `(1) the status of the case, (2) the
possibility of unfairness or prejudice to the existing parties, (3) the reason for the delay in moving
for intervention, (4) the resulting prejudice to the applicant if the motion is denied, and (5) any
unusual circumstances.' Hamilton v. Freeman, 147 N.C. App. 195, 201, 554 S.E.2d 856, 859
(2001) (quoting Procter v. City of Raleigh Bd. ofAdjust., 133 N.C. App. 181, 183, 514 S.E.2d 745,
746 (1999)).

6

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 614 of 662

 19.

Here, Intervenor Applicants' Motion is timely and does not prejudice Plaintiffs.

This action has only just begun, with the Complaint and Plaintiff's outstanding Preliminary
Injunction motions as the only filings. See also Hamilton, 147 N.C. App. at 201, 554 S.E.2d at
859-60 (2001) ["A motion to intervene is rarely denied as untimely prior to the entry of
judgment . . ." (citations omitted)]; compare, e.g., State Employees' Credit Union, Inc. v. Gentry,
75 N.C. App. 260, 264-65, 330 S.E.2d 645, 648 (1985) (denying intervention as untimely after
entry of default) with Defenders of Wildlife v. NCDOT, 281 F.R.D. 264, 267 (E.D.N.C. 2012)
(allowing intervention after responsive pleadings were filed, but before the record and summary
judgment motions were due). In Common Cause v. Lewis, this Court permitted intervention by a
group of Republican voters where the Motion to Intervene was filed over two months after the
plaintiffs in that case filed their initial Complaint. Order Granting Motion to Intervene, Common
Cause v. Lewis, Case No. 18-CVS-14001 (N.C. Super. Ct. February 26, 2019). In this case,
Intervenor Applicants have moved even more quickly by filing within two weeks of Plaintiffs'
initiating this action, and before any Defendants have filed any responsive pleadings. Accordingly,
allowing the Motion will not substantially delay the proceedings and prejudice the Parties.
II.

Intervenor Applicants Are Entitled to Intervention as a Matter of Right.
20.

Rule 24(a) allows intervention of right "[w]hen (1) a statute confers an

unconditional right to intervene, or (2) [w]hen the applicant claims an interest relating to the
property or transaction which is the subject of the action and he is so situated that the disposition
of the action may as a practical matter impair or impede its ability to protect that interest, unless
the applicant's interest is adequately represented by existing parties." N.C. R. Civ. P. 24(a). Both
subsections of Rule 24(a) apply here.

7

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 615 of 662

 21.

Under N.C. R. Civ. P. 24(a)(2), the Court must allow a party to intervene when the

proposed intervenor demonstrates that "(1) [the intervenor] has a direct and immediate interest
relating to the property or transaction, (2) denying intervention would result in a practical
impairment of the protection of that interest, and (3) there is inadequate representation of that
interest by existing parties." Virmani, 350 N.C. at 459, 515 S.E.2d at 683. A party has a direct
interest in the action if "he will either gain or lose by the direct operation and effect of the
judgment." Id. at 459, 515 S.E.2d at 683 [quoting Strickland v. Hughes, 273 N.C. 481, 485, 160
S.E.2d 313, 316 (1968)].
22.

Courts nationwide

have

recognized the substantial interest of elected

representatives in cases challenging the legality of the districts they were elected to represent. See,
e.g., League of United Latin Am. Citizens, Council No. 4434 v. Clements, 884 F.2d 185, 188-89
(5th Cir. 1989) (noting that elected judges have cognizable interest in their individual capacity in
racial gerrymandering challenge to judicial districts in Texas); Ohio A. Philip Randolph Inst. v.
Smith, No. 1:18CV357, 2018 WL 8805953 (S.D. Ohio Aug. 16, 2018) (granting permissive
intervention of Republican members of Ohio congressional delegation in lawsuit challenging Ohio
congressional maps as partisan gerrymanders); Martinez v. Bush, 234 F. Supp. 2d 1275, 1287 (S.D.
Fla. 2002) (noting that congressional member in racial gerrymandering suit was granted
intervention); Johnson v. Mortham, 915 F. Supp. 1529, 1538 (N.D. Fla. 1995) (permitting
intervention of congressional member whose congressional district was challenged in racial
gerrymandering challenge); Order Granting Motion to Intervene, League of Women Voters of
Pennsylvania v. Commonwealth ofPennsylvania, Case No. 261 M.D. 2017 (Pa. Commw. Ct. Nov.
13, 2017) (granting intervention of Republican voters and Republican candidate for congress).
Elected officials whose electoral districts are challenged as unlawful have "personal interests in

8

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 616 of 662

 their office," "equitable interests" in the timing and form of relief, and interests in their continued
incumbency. See Clements, 884 F.2d. at 188; see also Williams v. State Board of Elections, 696 F.
Supp. 1563, 1571-72 (N.D. Ill. 1988).
23.

In this case, Intervenor Applicants have the same substantial interests in the legality

of their districts as those recognized in courts nationwide. Though they were not responsible for
drawing the 2016 Plans, Intervenor Applicants have invested countless hours of their time and
energy learning their districts, listening to and addressing the needs of their constituency, League
of Women Voters of Mich. v. Johnson, 902 F.3d 572, 579 (6th Cir. 2018) (permitting congressmen
to permissively intervene because, in part, they have an interest in representing their constituents)
(citing and quoting McCormick v. United States, 500 U.S. 257, 272 (1991)), raising and spending
money on electioneering activities, and developing coalitions of supporters within those districts.
The remedy sought by Plaintiffs would likely destroy the relationships and goodwill developed by
the Intervenor Applicants with the voters and residents in their respective districts formed over
several years. Plaintiff's remedy may also pair two or more Intervenor Applicants in the same
districts, virtually guaranteeing that one or more of the double-bunked members will effectively
be prevented from running in their district as the Republican candidate. See Democratic Party v.
Benkiser, 459 F.3d 582, 586-588 (5th Cir. 2006) (an injury in fact exists when a candidate's
"election prospects and campaign coffers" are threatened.); Barlow v. Collins, 397 U.S. 159, 16364 (1970) (noting that economic injury is the quintessential form of injury.
24.

Furthermore, Intervenor Applicants have substantial interests in this action as

voters and residents of their districts. If Plaintiffs' right to vote is impaired, then Intervenor
Applicants' right is similarly affected. See City of Boerne, 659 F.3d at 434-435; Bailey, 326 N.C.
at 747, 392 S.E.2d at 356. Plaintiffs seek to expand the concept of the right to vote in a way that

9

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 617 of 662

 favors Plaintiffs over other North Carolina citizens, claiming the strength of their votes was
impermissibly diluted by the 2016 Plan. (Compl. ¶ 135). If Plaintiffs' alleged right to enhanced
representation exists, the Intervenor Applicants have that same right. But their political and policy
views, as Republican Party voters, differ from Plaintiffs' views. Plaintiffs can only vindicate their
interest in enhanced representation by diminishing the exact same interests of the Applicants.
25.

As such, courts have routinely allowed voters to intervene in cases implicating their

right to vote. See, e.g., City of Boerne, 659 F.3d 421; NAACP, Inc. v. Duplin County, 2012 WL
360018, at *5 (E.D.N.C. Feb. 2, 2012) (allowing voters' intervention as of right); Miller v.
Blackwell, 348 F. Supp. 2d 916, 920 (S.D. Ohio 2004); Carter v. Dies, 321 F. Supp. 1358, 1360
(N.D. Tex. 1970), aff'd sub nom. Bullock v. Carter, 405 U.S. 134 (1972); see also Republican
Party of N.C. v. Martin, 865 F.2d 1259 (4th Cir. 1988) (per curiam) (allowing intervention for
association's interest in preserving the residency requirement for election of North Carolina
judges); Order Granting Motion to Intervene, Common Cause v. Lewis, Case No. 18-CVS-14001
(N.C. Super. Ct. February 26, 2019) (allowing permissive intervention of Republican voters in
lawsuit challenging state legislative district lines on claims of partisan gerrymandering).
26.

In addition, this case directly implicates Article I, Section IV of the U.S.

Constitution. This direct grant of authority to the state legislatures for drawing Congressional
districts is a substantial interest shared by Intervenor Applicants, and deserves special
consideration by this Court. See Bush v. Palm Beach County Canvassing Board, 531 U.S. 70
(2000)
27.

Intervenor Applicants' interests in this action are more personal and fundamental

than those of the Legislative Defendants. As officeholders and candidates in the challenged
districts, Intervenor Applicants are directly impacted by any changes in the boundaries of their

10

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 618 of 662

 districts and the composition of their constituency. Further, as Republican voters who reside and
vote in and around the districts Plaintiffs have expressly put at issue in this case, Plaintiffs'
proposed remedy would directly impact their ability to work with Republican candidates in their
counties, organize together, select their preferred candidates, and voice their values and political
views.
28.

These unique, substantial, and important legal interests are not adequately

represented by the existing Defendants in this case, who consist of constitutional officers of North
Carolina government whose official duty interests are not as personal and fundamental as the rights
and interests of the Intervenor Applicants. See League of United Latin Am. Citizens v. Clements,
884 F.2d 185, 188 (5th Cir. 1989) (discussing individual and official capacities and that "[a] voting
rights case challenges the election process rather than the individuals holding office"). None of
the Legislative Defendants have been sued in their individual capacity—only in their official
capacity. See id. Moreover, none of the Defendants face the consequences of this Court granting
Plaintiffs' requested relief in the same manner as the Intervenor Applicants, who suffer the threat
of having his or her district redrawn in a manner detrimental to his or her interests as an elected
official, candidate, and voter. Therefore, the Legislative Defendants cannot represent the interests
of each district and the representatives thereof and candidates and voters therein, nor can they
adequately represent the unique interest of the Intervenor Applicants as representatives,
candidates, and voters.
29.

Allowing Intervenor Applicants to intervene will ensure that these unique and

important interests applicable to the congressional members, candidates, and voters are
represented, and that this Court has the benefit of the evidence and legal argument Intervenor

11

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 619 of 662

 Applicants can provide. Accordingly, intervention as of right pursuant to Rule 24(a)(2) should be
allowed.
III.

Intervenor Applicants Are Also Entitled to Permissive Intervention.
30.

Rule 24(b) provides that a Court may allow intervention "(1) [w]hen a statute

confers a conditional right to intervene, or (2) [w]hen a movant's claim or defense and the main
action have a question of law or fact in common." N.C. R. Civ. P. 24(b). "In exercising its
discretion the court shall consider whether the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties." N.C. R. Civ. P. 24(b)(2).
31.

"Rule 24(b)(2) does not require a permissive intervenor to show 'a direct personal

or pecuniary interest in the subject of the litigation.' " Koenig v. Town of Kure Beach, 178 N.C.
App. 500, 507, 631 S.E.2d 884, 889 (2006) (quoting In re Scearce, 81 N.C. App. 531, 541, 345
S.E.2d 404, 410 (1986)). Indeed, the substantive issue to be addressed if the Intervenor Applicants
are permitted to intervene—whether the future use of the 2016 Plan should be enjoined—is a
separate determination that does not affect "the question of who should be allowed to appear and
present the issue[.]" Virmani, 350 N.C. at 461, 515 S.E.2d at 684. Further, the trial court's
decision on permissive intervention is within its sound discretion and will not be disturbed absent
a "ruling so arbitrary that it could not have been the result of a reasoned decision." Id. at 460, 515
S.E.2d at 683 (citation omitted).
32.

For the same reasons described above, the Intervenor Applicants' claims or

defenses have questions of law and fact in common with the main action, constituting a real and
direct interest in the determination of whether the 2016 Plan is deemed invalid. Plaintiffs seek to
invalidate the 2016 Plan on constitutional grounds, and Intervenor Applicants seek to defend the
constitutionality of the Plan and, in general, defend their districts. Moreover, all the voters of an

12

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 620 of 662

 affected district, like Intervenor Applicants here, have an equally protected interest in the
constitutionality of the 2016 Plan. Furthermore, Intervenor Applicants have properly submitted a
proposed answer as their responsive pleading, see N.C. R. Civ. P. 24(c), supporting the same.
33.

Permitting the Intervenor Applicants to intervene would not result in undue delay

or prejudice the adjudication of the rights of Plaintiffs or Defendants. The lawsuit was initiated
two weeks ago, and there have been no responsive pleadings filed. Moreover, any possible
prejudice that Plaintiffs might claim is substantially outweighed by the prejudice that Intervenor
Applicants would suffer to their personal interests as Representatives, candidates, and voters in
their respective districts if this Court denied their motion. The Court will also benefit from the
evidence and legal argument Intervenor Applicants can provide. Accordingly, the Intervenor
Applicants satisfy the requirements for permissive intervention, and the Court should allow the
motion.
CONCLUSION
WHEREFORE, Intervenor Applicants respectfully request that the Court grant their
Motion to Intervene as a matter of right or, in the alternative, with permission of the Court.
Pursuant to N.C. R. Civ. P. 24(c), an unsigned proposed Answer by Intervenor Applicants
is attached hereto as Exhibit A. In the event that the Motion is granted, Intervenor Applicants ask
that the Court allow them at least seven (7) days to file an Answer to Plaintiffs' Complaint.

13

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 621 of 662

 This the 9th day of October, 2019.
SHANAHAN LAW GROUP, PLLC

HOLTZMAN VOGEL JOSEFIAK
TORCHINSKY PLLC

By:
Kiera
S anah n, NCSB # 13329
John E. Branch III, NCSB # 32598
Andrew D. Brown, NCSB # 45898
Nathaniel J. Pencook, NCSB # 52339
128 E. Hargett Street, Suite 300
Raleigh, North Carolina 27601
Telephone: (919) 856-9494
Facsimile: (919) 856-9499
kieran@shanahanlawgroup. corn
jbranch@shanahanlawgroup.com
abrown@shanahanlawgroup.com
npencook@shanahanlawgroup.com

Jason B. Torchinsky*
Chris Winkelman*
45 North Hill Drive, Suite 100
Warrenton, Virginia 20186
(540)-341-8808
JTorchinsky@hvjt.law
Attorneys for Intervenor Applicants
*Applications for Pro Hac Vice admissions
forthcoming

Attorneys for Intervenor Applicants

14

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 622 of 662

 EXHIBIT A

Case Document 5-1 Filed 10/14/19 Page 623 of 662

STATE OF NORTH CAROLINA

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
FILE NO.: 19 CVS 012667

COUNTY OF WAKE

REBECCA HARPER, et al.,
)
)
)
v.
)
)
REPRESENTATIVE DAVID R. LEWIS, IN )
)
HIS OFFICIAL CAPACITY AS SENIOR
)
CHAIRMAN OF THE HOUSE SELECT
COMMITTEE ON REDISTRICTING, et al.., )
)
Defendants.
)
)
Plaintiffs,

INTERVENOR APPLICANTS'
PROPOSED ANSWER PURSUANT TO
RULE 24(C)

NOW COME Potential Intervenors Ted Budd, Virginia Foxx, and Richard Hudson
("Intervenor Defendants") and hereby submit this Proposed Answer pursuant to Rule 24(c) of the
North Carolina Rules of Civil Procedure, as follows:
Any allegations not contained in numbered paragraphs are denied. Intervenor Defendants'
use of Plaintiffs' headings is for convenience only, and is not an admission.
RESPONSE TO ENUMERATED ALLEGATIONS
INTRODUCTION
1.

The Court's opinion in Common Cause v. Lewis speaks for itself. The remaining

allegations contained in Paragraph 1 are legal conclusions, which do not require a response. To
the extent the allegations are not legal conclusions, such allegations are denied.
2.

Admitted that this case concerns North Carolina's 2016 congressional map

("Congressional Map"). Denied that "there is no dispute" about the lawfulness of the
Congressional Map. The remaining allegations contained in Paragraph 2 are legal conclusions,
1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 624 of 662

 which do not require a response, or allege facts about the Legislative Defendants to which
Intervenor Defendants lack sufficient personal knowledge or information to respond; therefore,
such allegations are denied.
3.

Admitted that Republican candidates have won elections for 10 of North Carolina's

13 congressional seats since the 2016 Plan was adopted. This Court's opinion in Common Cause
v. Lewis speaks for itself. Intervenor Defendants lack sufficient personal knowledge or information
to respond to the remaining allegations contained in Paragraph 3; therefore, such allegations are
denied.
4.

The opinion of the Supreme Court of the United States in Rucho v. Common Cause

speaks for itself. This Court's opinion in Common Cause v. Lewis speaks for itself. The remaining
allegations contained in Paragraph 4 are legal conclusions, which do not require a response. To
the extent the allegations are not legal conclusions, such allegations are denied.
5.

This Court's opinion in Common Cause v. Lewis speaks for itself. The remaining

allegations contained in Paragraph 5 are legal conclusions, which do not require a response. To
the extent the allegations are not legal conclusions, such allegations are denied.
PARTIES
A. Plaintiffs
6.

Admitted that incumbent Rep. G.K. Butterfield won the NC-01 congressional race

with 69.85% of the vote in 2018. Intervenor Defendants lack sufficient information or knowledge
to respond to the remaining allegations contained in Paragraph 6; therefore, such allegations are
denied.
7.

Admitted that incumbent Republican Rep. George Holding won the NC-02

congressional race with 51.27% of the vote in 2018. Intervenor Defendants lack sufficient

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 625 of 662

 information or knowledge to respond to the remaining allegations contained in Paragraph 7;
therefore, such allegations are denied.
8.

Admitted that then-incumbent Republican Rep. Walter Jones won the NC-03

congressional race with 100% of the vote in 2018. Admitted that now-incumbent Dr. Greg Murphy
won the NC-03 congressional race with 61.7% of the vote in 2019. Intervenor Defendants lack
sufficient information or knowledge to respond to the remaining allegations contained in
Paragraph 8; therefore, such allegations are denied.
9.

Admitted that incumbent Democrat Rep. David Price won the NC-04 congressional

race with 72.37% of the vote in 2018. Intervenor Defendants lack sufficient information or
knowledge to respond to the remaining allegations contained in Paragraph 9; therefore, such
allegations are denied.
10.

Admitted that incumbent Republican Rep. Virginia Foxx won the NC-05

congressional race with 57.03% of the vote in 2018. Intervenor Defendants lack sufficient
information or knowledge to respond to the remaining allegations contained in Paragraph 10;
therefore, such allegations are denied.
11.

Admitted that incumbent Republican Rep. Mark Walker won the NC-06

congressional race with 56.52% of the vote in 2018. Intervenor Defendants lack sufficient
information or knowledge to respond to the remaining allegations contained in Paragraph 11;
therefore, such allegations are denied.
12.

Admitted that incumbent Republican Rep. David Rouzer won the NC-07

congressional race with 55.54% of the vote in 2018. Intervenor Defendants lack sufficient
information or knowledge to respond to the remaining allegations contained in Paragraph 12;
therefore, such allegations are denied.

3

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 626 of 662

 13.

Admitted that incumbent Republican Rep. Richard Hudson won the NC-08

congressional race with 55.34% of the vote in 2018. Intervenor Defendants lack sufficient
information or knowledge to respond to the remaining allegations contained in Paragraph 13;
therefore, such allegations are denied.
14.

Admitted that Republican Rep. Dan Bishop won the NC-09 congressional race with

50.69% of the vote in 2019. Intervenor Defendants lack sufficient information or knowledge to
respond to the remaining allegations contained in Paragraph 14; therefore, such allegations are
denied.
15.

Admitted that incumbent Republican Rep. Patrick McHenry won the NC-10

congressional race with 59.29% of the vote in 2018. Intervenor Defendants lack sufficient
information or knowledge to respond to the remaining allegations contained in Paragraph 15;
therefore, such allegations are denied.
16.

Admitted that incumbent Republican Rep. Mark Meadows won the NC-11

congressional race with 59.21% of the vote in 2018. Intervenor Defendants lack sufficient
information or knowledge to respond to the remaining allegations contained in Paragraph 16;
therefore, such allegations are denied.
17.

Admitted that incumbent Republican Rep. Mark Meadows won the NC-11

congressional race with 59.21% of the vote in 2018. Intervenor Defendants lack sufficient
information or knowledge to respond to the remaining allegations contained in Paragraph 17;
therefore, such allegations are denied.
18.

Admitted that incumbent Democrat Rep. Alma Adams won the NC-12

congressional race with 73.07% of the vote in 2018. Intervenor Defendants lack sufficient
information or knowledge to respond to the remaining allegations contained in Paragraph 18;

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 627 of 662

 therefore, such allegations are denied.
19.

Admitted that incumbent Republican Rep. Ted Budd won the NC-13 congressional

race with 51.54% of the vote in 2018. Intervenor Defendants lack sufficient information or
knowledge to respond to the remaining allegations contained in Paragraph 19; therefore, such
allegations are denied.
B.

Defendants
20.

Admitted upon information and belief.

21.

Admitted upon information and belief.

22.

Admitted upon information and belief

23.

Admitted upon information and belief.

24.

Admitted upon information and belief.

25.

Admitted upon information and belief.

26.

Admitted upon information and belief

27.

Admitted upon information and belief.

28.

Admitted upon information and belief

29.

Admitted upon information and belief.

30.

Admitted upon information and belief

31.

Admitted upon information and belief.
JURISDICTION AND VENUE

32.

The allegations of Paragraph 32 assert legal conclusions and do not require a

response. To the extent the allegations are not legal conclusions, such allegations are denied.
33.

The allegations of Paragraph 33 assert legal conclusions and do not require a

response. To the extent the allegations are not legal conclusions, such allegations are denied.

5

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 628 of 662

 34.

The allegations of Paragraph 34 assert legal conclusions and do not require a

response. To the extent the allegations are not legal conclusions, such allegations are denied.
FACTUAL ALLEGATIONS
A.

National Republican Party Officials Target North Carolina for Partisan
Gerrymandering Prior to the 2010 Election

35.

Intervenor Defendants lack sufficient knowledge or information to respond to the

allegations contained in Paragraph 35; therefore, such allegations are denied.
36.

Intervenor Defendants lack sufficient knowledge or information to respond to the

allegations contained in Paragraph 36; therefore, such allegations are denied.
37.

Intervenor Defendants lack sufficient knowledge or information to respond to the

allegations contained in Paragraph 37; therefore, such allegations are denied.
38.

Intervenor Defendants lack sufficient knowledge or information to respond to the

allegations contained in Paragraph 38; therefore, such allegations are denied.
B.

Republican Mapmakers Create the 2011 Plans from Party Headquarters With
the Intent to Advantage Republicans and Disadvantage Democrats

39.

Intervenor Defendants lack sufficient knowledge or information to respond to the

allegations contained in Paragraph 39; therefore, such allegations are denied.
40.

Intervenor Defendants lack sufficient knowledge or information to respond to the

allegations contained in Paragraph 40; therefore, such allegations are denied.
41.

Intervenor Defendants lack sufficient knowledge or information to respond to the

allegations contained in Paragraph 41; therefore, such allegations are denied.
42.

Upon information and belief, the referenced deposition transcript of Dr. Thomas

Hofeller speaks for itself. Intervenor Defendants lack sufficient knowledge or information to
respond to the remaining allegations contained in Paragraph 42; therefore, such allegations are

6

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 629 of 662

 denied.
43.

Upon information and belief, the referenced deposition transcript of Dr. Thomas

Hofeller speaks for itself. Intervenor Defendants lack sufficient knowledge or information to
respond to the remaining allegations contained in Paragraph 43; therefore, such allegations are
denied.
44.

Admitted that Republican candidates won 9 of 13 congressional seats in 2012.

Admitted that the 2012 election results speak for themselves. Intervenor Defendants lack sufficient
knowledge or information to respond to the remaining allegations contained in Paragraph 44;
therefore, such allegations are denied.
C.

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

45.

Admitted that the Harris v. McCrory opinion speaks for itself. Any remaining

allegations contained in Paragraph 45 are denied.
46.

Admitted that there was a supermajority of Republicans in both chambers of the

General Assembly in 2016. Intervenor Defendants lack sufficient knowledge or information to
respond to the remaining allegations contained in Paragraph 46; therefore, such allegations are
denied.
47.

Upon information and belief, the referenced deposition transcript of Rep. David

Lewis speaks for itself. Intervenor Defendants lack sufficient knowledge or information to respond
to the remaining allegations contained in Paragraph 47; therefore, such allegations are denied.
48.

Intervenor Defendants lack sufficient knowledge or information to respond to the

allegations contained in Paragraph 48; therefore, such allegations are denied.
49.

Upon information and belief, the referenced deposition transcripts and trial

testimony of Dr. Thomas Hofeller speaks for themselves. Intervenor Defendants lack sufficient
7

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 630 of 662

 knowledge or information to respond to the remaining allegations contained in Paragraph 49;
therefore, such allegations are denied.
50.

Upon information and belief, the referenced deposition transcripts of Dr. Thomas

Hofeller speaks for themselves. Intervenor Defendants lack sufficient knowledge or information
to respond to the remaining allegations contained in Paragraph 50; therefore, such allegations are
denied.
51.

Upon information and belief, the referenced deposition transcript of Dr. Thomas

Hofeller speaks for itself Upon information and belief, the referenced deposition transcript of Rep.
David Lewis speaks for itself. Intervenor Defendants lack sufficient knowledge or information to
respond to the remaining allegations contained in Paragraph 51; therefore, such allegations are
denied.
52.

Upon information and belief, the referenced deposition transcript of Dr. Thomas

Hofeller speaks for itself. Upon information and belief, the referenced deposition transcript of Rep.
David Lewis speaks for itself Intervenor Defendants lack sufficient knowledge or information to
respond to the remaining allegations contained in Paragraph 52; therefore, such allegations are
denied.
53.

Upon information and belief, the referenced deposition transcript of Rep. David

Lewis speaks for itself. Intervenor Defendants lack sufficient knowledge or information to respond
to the remaining allegations contained in Paragraph 53; therefore, such allegations are denied.
54.

Intervenor Defendants lack sufficient knowledge or information to respond to the

allegations contained in Paragraph 54; therefore, such allegations are denied.
55.

Intervenor Defendants lack sufficient knowledge or information to respond to the

allegations contained in Paragraph 55; therefore, such allegations are denied.

8

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 631 of 662

 56.

Admitted, upon information and belief.

57.

The Adopted Criteria speak for themselves. Any remaining allegations contained

in Paragraph 57 are denied.
58.

The referenced legislative record speaks for itself Intervenor Defendants lack

sufficient knowledge or information to respond to the remaining allegations contained in
Paragraph 58; therefore, such allegations are denied.
59.

The referenced legislative record speaks for itself. Intervenor Defendants lack

sufficient knowledge or information to respond to the remaining allegations contained in
Paragraph 59; therefore, such allegations are denied.
60.

The Adopted Criteria speak for themselves. Any remaining allegations contained

in Paragraph 60 are denied.
61.

The referenced legislative record speaks for itself Intervenor Defendants lack

sufficient knowledge or information to respond to the remaining allegations contained in
Paragraph 61; therefore, such allegations are denied.
62.

The Adopted Criteria speak for themselves. Any remaining allegations contained

in Paragraph 62 are denied.
63.

The proceedings of the General Assembly are public records and speak for

themselves. The referenced legislative record speaks for itself. Intervenor Defendants lack
sufficient knowledge or information to respond to the remaining allegations contained in
Paragraph 63; therefore, such allegations are denied.
64.

Intervenor Defendants lack sufficient knowledge or information to respond to the

allegations contained in Paragraph 64; therefore, such allegations are denied.
65.

Intervenor Defendants lack sufficient knowledge or information to respond to the

9

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 632 of 662

 allegations contained in Paragraph 65; therefore, such allegations are denied.
66.

Upon information and belief, the referenced deposition transcript of Dr. Thomas

Hofeller speaks for itself. Intervenor Defendants lack sufficient knowledge or information to
respond to the remaining allegations contained in Paragraph 66; therefore, such allegations are
denied.
67.

The referenced legislative record speaks for itself. Intervenor Defendants lack

sufficient knowledge or information to respond to the remaining allegations contained in
Paragraph 67; therefore, such allegations are denied.
68.

The referenced legislative record speaks for itself. Intervenor Defendants lack

sufficient knowledge or information to respond to the remaining allegations contained in
Paragraph 68; therefore, such allegations are denied.
69.

The proceedings of the General Assembly are public records and speak for

themselves. Intervenor Defendants lack sufficient knowledge or information to respond to the
remaining allegations contained in Paragraph 69; therefore, such allegations are denied.
70.

Upon information and belief, the referenced deposition transcript of Sen. Rucho

speaks for itself Intervenor Defendants lack sufficient knowledge or information to respond to the
remaining allegations contained in Paragraph 70; therefore, such allegations are denied.
D.

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

71.

Denied.

72.

The 2016 electoral results speak for themselves. Any remaining allegations

contained in Paragraph 72 are denied.
73.

The 2018 electoral results speak for themselves. Specifically denied that the

"adjust[ed]" vote percentage, after apparently taking out all votes from some of the most
10

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 633 of 662

 Republican areas of North Carolina, is representative of how North Carolina voted in 2018 as a
whole. Any remaining allegations contained in Paragraph 73 are denied.
74.

The 2018 electoral results speak for themselves. Any remaining allegations

contained in Paragraph 74 are denied.
75.

The 2018 electoral results speak for themselves. Any remaining allegations

contained in Paragraph 75 are denied.
76.

To the extent Plaintiffs seek to introduce expert testimony from previous challenges

to the 2016 Plan, Intervenor Defendants reserve the right to rebut such testimony with expert
testimony of their own. To the extent the conclusions of Drs. Jowei Chen and Jonathan Mattingly
are contained in expert reports disclosed in discovery, introduced into evidence or in trial
testimony, such documents speak for themselves. Any remaining allegations contained in
Paragraph 76 are denied.
E.

The 2016 Plan Packs and Cracks Democratic Voters in Every District

77.

Denied.
Congressional District 1

78.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 78 are denied.
79.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 79 are denied.
80.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 80 are denied.
81.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 81 are denied.

11

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 634 of 662

 82.

The 2016 and 2018 electoral results speak for themselves. Any remaining

allegations contained in Paragraph 82 are denied.
Congressional District 2
83.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 83 are denied.
84.

The 2016 and 2018 electoral results speak for themselves. Any remaining

allegations contained in Paragraph 84 are denied.
Congressional District 3
85.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 85 are denied.
86.

The 2016 and 2018 electoral results speak for themselves. Any remaining

allegations contained in Paragraph 86 are denied.
Congressional District 4
87.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 87 are denied.
88.

The 2016 and 2018 electoral results speak for themselves. Any remaining

allegations contained in Paragraph 88 are denied.
Congressional District 5
89.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 89 are denied.
90.

The 2016 and 2018 electoral results speak for themselves. Any remaining

allegations contained in Paragraph 90 are denied.

12

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 635 of 662

 Congressional District 6
91.

Admitted upon information and belief that Greensboro is the third most populous

city in North Carolina. Any remaining allegations contained in Paragraph 91 are denied.
92.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 92 are denied.
93.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 93 are denied.
94.

The 2016 and 2018 electoral results speak for themselves. Any remaining

allegations contained in Paragraph 94 are denied.
Congressional District 7
95.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 95 are denied.
96.

The 2016 and 2018 electoral results speak for themselves. Any remaining

allegations contained in Paragraph 96 are denied.
Congressional District 8
97.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 97 are denied.
98.

The 2016 and 2018 electoral results speak for themselves. Any remaining

allegations contained in Paragraph 98 are denied.
Congressional District 9
99.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 99 are denied.
100.

The 2016 and 2018 electoral results speak for themselves. Any remaining

13

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 636 of 662

 allegations contained in Paragraph 100 are denied.
Congressional Districts 10 and 11
101.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 101 are denied.
102.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 102 are denied.
103.

The 2016 and 2018 electoral results speak for themselves. Any remaining

allegations contained in Paragraph 103 are denied.
Congressional District 12
104.

Upon information and belief, the referenced deposition transcript of Dr. Thomas

Hofeller speaks for itself. The Congressional Districts and their territorial locations speak for
themselves. Any remaining allegations contained in Paragraph 104 are denied.
105.

The 2016 and 2018 electoral results speak for themselves. Any remaining

allegations contained in Paragraph 105 are denied.
Congressional District 13
106.

The Congressional Districts and their territorial locations speak for themselves.

Any remaining allegations contained in Paragraph 106 are denied.
107.

The 2016 and 2018 electoral results speak for themselves. Any remaining

allegations contained in Paragraph 107 are denied.
F.

Legislative Defendants Did Not Draw Any District in the 2016 Congressional
Map to Comply with the Voting Rights Act

108.

Upon information and belief, the referenced deposition transcript of Dr. Thomas

Hofeller speaks for itself. Any remaining allegations contained in Paragraph 108 arc denied.
109.

The Adopted Criteria speak for themselves. Any remaining allegations contained
14

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 637 of 662

 in Paragraph 109 are denied.
110.

Upon information and belief, the referenced deposition transcripts of Rep. David

Lewis and Sen. Rucho speak for themselves. Intervenor Defendants lack sufficient knowledge or
information to respond to the allegations contained in Paragraph 110; therefore, such allegations
are denied.
G.

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

111.

The opinion of the Supreme Court of the United States in Rucho v. Common Cause

speaks for itself. The remaining allegations contained in Paragraph 111 are admitted, upon
information and belief.
112.

The Middle District of North Carolina's opinion in Common Cause v. Rucho speaks

for itself. Any remaining allegations contained in Paragraph 112 are denied.
113.

The opinion of the Supreme Court of the United States in Rucho v. Common Cause

speaks for itself. Any remaining allegations contained in Paragraph 113 are denied.
114.

The opinion of the Supreme Court of the United States opinion in Rucho v. Common

Cause speaks for itself. Any remaining allegations contained in Paragraph 114 arc denied.
H.

The Superior Court Strikes Down North Carolina's State Legislative Maps
Under the North Carolina Constitution

115.

This Court's opinion in Common Cause v. Lewis speaks for itself. Any remaining

allegations contained in Paragraph 115 are denied.
116.

This Court's opinion in Common Cause v. Lewis speaks for itself. Any remaining

allegations contained in Paragraph 116 are denied.
117.

This Court's opinion in Common Cause v. Lewis speaks for itself. Any remaining

allegations contained in Paragraph 117 are denied.

15

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 638 of 662

 118.

This Court's opinion in Common Cause v. Lewis speaks for itself. Any remaining

allegations contained in Paragraph 118 are denied.
119.

Denied.
COUNT ONE
Violation of the North Constitution's
Free Elections Clause, Art. I., 4 10

120.

Intervenor Defendants incorporate by reference their responses to all other

paragraphs as if fully set forth herein.
121.

The North Carolina Constitution speaks for itself. Any remaining allegations

contained in Paragraph 121 are denied.
122.

The cited documents speak for themselves. The remaining allegations of Paragraph

122 assert legal conclusions and do not require a response. To the extent the allegations are not
legal conclusions, such allegations are denied.
123.

The cited documents speak for themselves. The remaining allegations of Paragraph

123 assert legal conclusions and do not require a response. To the extent the allegations are not
legal conclusions, such allegations are denied.
124.

The North Carolina Constitution speaks for itself. The cited case law speaks for

itself The remaining allegations of Paragraph 124 assert legal conclusions and do not require a
response. To the extent the allegations are not legal conclusions, such allegations are denied.
125.

The North Carolina Constitution and this Court's opinion in Common Cause v.

Lewis speak for themselves. Any remaining allegations contained in Paragraph 125 assert legal
conclusions and do not require a response. To the extent the allegations are not legal conclusions,
such allegations are denied.
126.

This Court's opinion in Common Cause v. Lewis speaks for itself. Any remaining

16

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 639 of 662

 allegations contained in Paragraph 126 assert legal conclusions and do not require a response. To
the extent the allegations are not legal conclusions, such allegations are denied.
127.

Denied.

128.

Denied.
COUNT TWO
Violation of the North Constitution's
Equal Protection Clause, Art. 1, & 19

129.

Intervenor Defendants incorporate by reference their responses to all other

paragraphs as if fully set forth herein.
130.

The North Carolina Constitution speaks for itself. Any remaining allegations

contained in Paragraph 130 are denied.
131.

The cited case law speaks for itself. The remaining allegations in Paragraph 131 are

legal conclusions and do not require a response. To the extent the allegations are not legal
conclusions, such allegations are denied.
132.

The Stephenson case speaks for itself. The remaining allegations in Paragraph 132

are legal conclusions and do not require a response. To the extent the allegations are not legal
conclusions, such allegations are denied.
133.

This Court's opinion in Common Cause v. Lewis speaks for itself. Any remaining

allegations contained in Paragraph 133 assert legal conclusions and do not require a response. To
the extent the allegations are not legal conclusions, such allegations are denied.
134.

Denied.

135.

Denied.

17

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 640 of 662

 COUNT III
Violation of the North Constitution's
Freedom of Speech and Freedom of Assembly Clauses, Art. I, §§ 12 & 14
136.

Intervenor Defendants incorporate by reference their responses to all other

paragraphs as if fully set forth herein.
137.

The North Carolina Constitution speaks for itself. Any remaining allegations

contained in Paragraph 137 are denied.
138.

The North Carolina Constitution speaks for itself. Any remaining allegations

contained in Paragraph 138 are denied.
139.

This Court's opinion in Common Cause v. Lewis speaks for itself. Any remaining

allegations contained in Paragraph 139 assert legal conclusions and do not require a response. To
the extent the allegations are not legal conclusions, such allegations are denied.
140.

This Court's opinion in Common Cause v. Lewis speaks for itself. Any remaining

allegations contained in Paragraph 140 assert legal conclusions and do not require a response. To
the extent the allegations are not legal conclusions, such allegations are denied.
141.

Denied.

142.

Denied.

143.

Denied.

144.

Denied.

To the extent that any portion of the Complaint and any of its subparts and sections contain
allegations that have not been specifically responded to in this Answer, such allegations are denied.
Furthermore, the Prayer for Relief and Headings contained in the Complaint (to the extent that the
words and phrases contained therein may constitute allegations) are denied.

18

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 641 of 662

 FIRST AFFIRMATIVE DEFENSE
Plaintiffs' Amended Complaint fails to state a claim upon which relief can be granted and
should be dismissed pursuant to Rule 12(b)(6).
SECOND AFFIRMATIVE DEFENSE
Plaintiffs' claims are barred by the doctrines of estoppel, laches, and waiver. Specifically,
Plaintiffs—most of whom were Plaintiffs represented by the same counsel in Common Cause v.
Lewis—failed to raise these claims in their previous lawsuit challenging North Carolina legislative
district maps as unconstitutional partisan gerrymanders. Plaintiffs' unreasonable delay harms the
interests of Intervenor Defendants and other North Carolina candidates and voters who will suffer
due to the confusion and delay Plaintiffs' proposed remedy would cause.
THIRD AFFIRMATIVE DEFENSE
Plaintiffs' politically-biased theory of liability is a non-justiciable political question and
therefore the Amended Complaint should be dismissed pursuant to Rule 12(b)(1).
FOURTH AFFIRMATIVE DEFENSE
Plaintiffs requests that this Court enter an order to the General Assembly dictating the time,
places, and manner of holding the congressional elections. Such a request, if granted, violates
Article I, Section 4 of the United States Constitution, which mandates that state legislatures set the
"Times, Places and Manner of holding Elections for . . . Representatives[.]"
FIFTH AFFIRMATIVE DEFENSE
Plaintiffs request that the Court grant them a right to reside or vote in districts that are
drawn to favor their preferred political party at the expense of their non-preferred political party.
Such a request if granted violates the First and Fourteenth Amendments to the United States
Constitution and Article I, Sections 10, 12, 14, and 19 of the North Carolina Constitution.

19

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 642 of 662

 SIXTH AFFIRMATIVE DEFENSE
The North Carolina Constitution allows the General Assembly to consider partisan
advantage and incumbency protection in the application of its discretionary redistricting decisions.
Stephenson v. Bartlett, 355 N.C. 35, 562 SE.2d 377, 390 (2002). Plaintiffs' requested relief thus
violates the First and Fourteenth Amendments to the United States Constitution and Article I, Secs.
10, 12, 14, and 19 of the North Carolina Constitution.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs' politically-biased theory of liability, if adopted by this Court, would effectively
bypass the People and adopt a judicial amendment of the North Carolina Constitution in violation
of Article XIII.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs' requested relief, to redraw legislative districts without any consideration of party
affiliation, violates of the separation of powers doctrine, in Article I, Section 6 of the North
Carolina Constitution.
NINTH AFFIRMATIVE DEFENSE
Plaintiffs' are requesting that the Court "punish" and "burden" Intervenor Defendants, both
as candidates and voters, in the same way plaintiffs contend that the General Assembly has
"punished" or "burdened" Democratic voters. Plaintiffs' request for equitable relief should
therefore be denied because plaintiffs have unclean hands.

20

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 643 of 662

 PRAYER FOR RELIEF
WHEREFORE, Defendants respectfully request that the Court enter an order and final
judgment which:
1. Dismisses all of Plaintiffs' claims with prejudice;
2. Awards Defendants' their costs and attorneys' fees; and
3. Award Defendants such other and further relief as may be equitable and proper.

This the

day of October 2019.

HOLTZMAN VOGEL JOSEFIAK
TORCHINSKY PLLC

SHANAHAN LAW GROUP, PLLC

By:
Kieran J. Shanahan, NCSB # 13329
John E. Branch III, NCSB # 32598
Andrew D. Brown, NCSB # 45898
Nathaniel J. Pencook, NCSB # 52339
128 E. Hargett Street, Suite 300
Raleigh, North Carolina 27601
Telephone: (919) 856-9494
Facsimile: (919) 856-9499
kieran@shanahanlawgroup.com
jbranch@shanahanlawgroup.com
abrown@shanahanlawgroup.corn
npencook@shanahanlawgroup.com

Jason B. Torchinsky*
Chris Winkelman*
45 North Hill Drive, Suite 100
Warrenton, Virginia 20186
(540)-341-8808
JTorchinsky@hvjt.law
Attorneys for Intervenor Applicants
*Applications for Pro Hac Vice admissions
forthcoming

Attorneys for Intervenor Applicants

21

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 644 of 662

 CERTIFICATE OF SERVICE
I hereby certify that I have this day served the foregoing Motion to Intervene upon all
parties to this matter by placing a copy in the United States Mail, First Class, postage prepaid and
addressed as follows:
Burton Craige, NC Bar No. 9180
Narendra K. Ghosh, NC Bar No. 37649
Paul E. Smith, NC Bar No. 45014
PATTERSON HARKAVY LLP
100 Europa Dr., Suite 420
Chapel Hill, NC 27517
(919) 942-5200
bcraigeapathlaw.com
nghoshApathlaw.com/psmith@pathlaw.com

R. Stanton Jones/Elisabeth S. Theodore
Daniel F. Jacobson/William C. Pcrdue
Sara Murphy D' Amico
Graham W. White
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Avenue NW
Washington, DC 20001-3743
(202) 954-5000
stanton.jones@arnoldporter.corn

Marc E. Elias
Aria C. Branch
PERKINS COIE LLP
700 13th Street NW
Washington, DC 20005-3960
(202) 654-6200
melias@perkinscoie.com

Abha Khanna
PERKINS COTE LLP
1201 Third Avenue
Suite 4900
Seattle, WA 98101-3099
(206) 359-8000
alchanna@perkinscoie.com

Phillip J. Strach/Michael McKnight
Alyssa Riggins/Thomas A. Farr
OGLETREE, DEAKINS, NASH, SMOAK
& STEWART, P.C.
4208 Six Forks Road, Suite 1100
Raleigh, NC 27609
Phillip.strach@ogletree.com
Michael.mcknight@ogletree.com
Alyssa.riggins@ogletree.com
Thomas.farr@ogletree.com

Paul Cox
Stephanie Brennan
North Carolina DOJ
114 W. Edenton St.
Raleigh, North Carolina 27603
(919) 716-6932
pcox@ncdoj.gov

1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 645 of 662

 This the 9th day of October, 2019.

SHANAHAN LAW GROUP, PLLC

By:
Kieran p. Shanahan, NCSB # 13329
John E. Branch III, NCSB # 32598
Andrew D. Brown, NCSB # 45898
Nathaniel J. Pencook, NCSB # 52339
128 E. Hargett Street, Suite 300
Raleigh, North Carolina 27601
Telephone: (919) 856-9494
Facsimile: (919) 856-9499
kieran shanahaniawgroup.com
jbranch@shanahanlawgroup.com
abrown@shanahanlawgroup.com
npcncook(@,shanahanlawgroup.com
Attorneysfor Intervenor Applicants

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 646 of 662

 STATE OF NORTH CAROLINA
WAKE COUNTY

IN THE GENERAL COURT OF JUSTECE
SUPERIOR COURT DIVISION
19 CVS 012667
2: tt 0

REBECCA HARPER, et al.
Plaintiffs,
v.

CASE MANAGEMENT ORDER

Representative DAVID R. LEWIS,
in his official capacity as Senior
Chairman of the House Standing
Committee on Redistricting, et al.,
Defendants.

THIS MATTER comes before the undersigned Three-Judge Panel upon its own motion
for the purposes of setting out an orderly process to be followed for the submission of filed
papers to the Court and requests for hearings.
This Case Management Order ("Order") establishes certain procedures to be used and
sets deadlines for various matters likely to arise through trial. It shall remain in effect until
rescinded by the Court or superseded by subsequent orders. The North Carolina Rules of Civil
Procedure; the General Rules of Practice for the Superior and District Courts; and the Local
Rules of Civil Superior Court for Wake County shall govern all matters not expressly covered
by this Order.
This Order, as well as any subsequent case management orders and briefing schedules
entered by the Court, shall bind all parties to this action and all parties added hereafter
unless the Court orders to the contrary.
The Court may amend or supplement this Order as deemed appropriate by the Court
upon its own motion or that of any party.

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 647 of 662

 For the purpose of efficient management of this matter, the Court orders the following:
1.

Electronic copies of all documents filed with the Clerk of Court shall be
promptly transmitted by email to:
(a)

10th Judicial District Trial Court Administrator Kellie Myers
(Kellie.Z.Myers@nccourts.org), and

(b)
2.

N.C. Judicial Fellow Adam Steele (Adam.H.Steele@nccourts.org).

The subject line of the transmittal email shall state a short caption of the case,
the file number, and the name of the document transmitted (e.g. Harper v.
Lewis (19 CVS 12667) — Plaintiffs' Motion for Preliminary Injunction).

3.

If the document being transmitted to the Court as per paragraph 1 above is a
motion, the body of the email shall state, if applicable:
(a)

Whether all parties consent to the entry of an order granting the
requested relief;

(b)

Whether the movant is requesting a hearing;

(c)

Whether the movant has conferred with opposing counsel for
purposes of recommending a proposed briefing schedule and
hearing dates and, if so, those recommendations; and

(d)

Such other matters that ought to be brought to the Court's
attention regarding the scheduling and disposition of the motion.

4.

If the parties have not conferred about a motion being transmitted to the Court,
all opposing parties, through counsel, shall promptly upon receipt of the
transmitting email, respond by email to the persons listed in paragraph 1 above
with the following information:
(a)

Whether the responding party consents to the entry of an order
granting the relief requested by the movant;
2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 648 of 662

 (b)

Whether the responding party is requesting a hearing;

(c)

Whether the responding party intends to submit a written r eply
or memorandum, and if so, the period of time the responding
party wishes to be allowed for its reply; and

(d)

Such other matters that ought to be brought to the Court's
attention regarding the scheduling and disposition of the motion.

5.

All counsel shall be cc'd on any email correspondence required by this Order.

6.

In instances where a hearing before the three-judge panel is required, upon
receipt of the foregoing information, the Trial Court Administrator shall
endeavor to arrange a hearing. Counsel should be mindful of the fact that
facilities and court personnel to conduct three-judge panel hearings are limited,
and coordinating the schedules of the members of the three-judge panel, in light
of their already existing dockets, can be difficult. Hence, counsel should attempt
to give ample notice of the need for a hearing and, where possible, bundle all
pending matters for a single hearing date.

7.

Any document required to be served on a party (other than a summons and
complaint or third-party complaint) may be served on parties via e-mail. Briefs
or memoranda provided to the Court may not be filed with the Clerk of Court
unless ordered by the Court, pursuant to NCRCP Rule 5. Any changes to
parties' or counsels' e-mail addresses must be made in writing to all
parties/counsel and to the Court as per paragraph 1 above.

8.

Counsel shall transmit to the Court any document it intends to present at a
hearing at least five (5) business days before the date of such hearing, unless
otherwise ordered. The document shall be transmitted to the Court as per
paragraph 1 above.
3

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 649 of 662

 9.

Proposed orders, when requested by the Court, shall be transmitted to the Court
as per paragraph 1 above, in Microsoft Word format.

10.

Counsel should be familiar with 98 Formal Ethics Opinion 13 issued by the N.C.
Bar in July 1999, entitled Written Communications with a Judge or Judicial
Official, and communications required by this Order should comport therewith.

SO ORDERED, this the 10th day of October, 2019.

/s/ Paul C. Ridgeway
Paul C. Ridgeway, Superior Court Judge
/s/ Joseph N. Crosswhite
Joseph N. Crosswhite, Superior Court Judge
/s/ Alma L. Hinton
Alma L. Hinton, Superior Court Judge

4

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 650 of 662

 CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parti es by
emailing a copy thereof to the address below, in accordance with the October 10, 2019 Case
Management Order:
Burton Craige
Narenda K. Ghosh
Paul E. Smith
PATTERSON HARKAVY LLP
bcraige@pathlaw.com
nghosh@pathlaw.com
psmith@pathlaw.com
Counsel for Plaintiffs
R. Stanton Jones*
Elisabeth S. Theodore*
Daniel F. Jacobson*
William Perdue*
Sara Murphy D'Amico*
Graham White*
ARNOLD & PORTER KAYE SCHOLER LLP
Stanton.jones@arnoldporter.com
Elisabeth.theodore@arnoldporter.com
Danieljacobson@arnoldportercom
William.Perdue@arnoldporter.com
Sara.D'Amico@arnoldportercom
Graham.White@arnoldporter.com
Counsel for Plaintiffs
Phillip J. Strach
Thomas A. Farr
Michael McKnight
Alyssa Riggins
OGLETREE DEAKINS NASH SMOAK & STEWART PC
Phil.strach@ogletree.com
Thomas.farr@ogletree.com
Michael.mcknight@ogletree.com
Alyssa.riggins@ogletree.com
Counsel for Legislative Defendants

*Admitted Pro Hoc Vice
1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 651 of 662

 Amar Majmundar
Stephanie A. Brennan
Paul M. Cox
NORTH CAROLINA DEPARTMENT OF JUSTICE
amajmundar@ncdoj.gov
sbrennan@ncdoj.gov
pcox@ncdoj.gov
Counsel for the State Board of Elections and members of the State Board of Elections
Kieran J. Shanahan
John E. Branch, Ill
Nathaniel J. Pencook
Andrew D. Brown
SHANAHAN LAW GROUP PLLC
kieran@shanahanlawgroup.com
jbranch@shanahanlawgroup.com
npencook@shanahanlawgroup.com
abrown@shanahanlawgroup.com
Counsel for Intervenor-Applicants

This the 10th day of October, 2019.

Kellie Z. Myers \./
Trial Court Administrator — 10th Judicial District
kellie.z.myers@nccourts.org

*Admitted Pro Hac Vice

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 652 of 662

 STATE OF NORTH CAROLINA
WAKE COUNTY

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
19 CVS 012667

REBECCA HARPER, et al.
Plaintiffs,
v.

NOTICE OF HEARING

Representative DAVID R. LEWIS,
in his official capacity as Senior
Chairman of the House Standing
Committee on Redistricting, et al.,
Defendants.
To: Counsel for all Parties
TAKE NOTICE that the Three-Judge Panel assigned to this action will
conduct an in-person hearing on the below pending motions as follows:
Pending Motions: Intervenor-Applicants' Motion to Intervene,
filed October 9, 2019
Plaintiffs' Motion for a Preliminary Injunction,
filed September 30, 2019
Date/Time:

Thursday, October 24, 2019, at 10:00 a.m.

Location:

Campbell University School of Law
Boyce Courtroom
225 Hillsborough Street
Raleigh, NC 27603

This the 10th day of October, 2019.

r)
Kellie . Mye s
Trial Court A ministrator, 10th Judicial District

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 653 of 662

 CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parties by
emailing a copy thereof to the address below, in accordance with the October 10, 2019 Case
Management Order:
Burton Craige
Narenda K. Ghosh
Paul E. Smith
PATTERSON HARKAVY LLP
bcraige@pathlaw.com
nghosh@pathlaw.com
psmith@pathlaw.com
Counsel for Plaintiffs
R. Stanton Jones*
Elisabeth S. Theodore*
Daniel F. Jacobson*
William Perdue*
Sara Murphy D'Amico*
Graham White*
ARNOLD & PORTER KAYE SCHOLER LLP
Stanton.jones@arnoldporter.com
Elisabeth.theodore@arnoldporter.com
Daniel.jacobson@arnoldporter.com
William.Perdue@arnoldporter.com
Sara.D'Amico@arnoldportercom
Graham.White@arnoldporter.com
Counsel for Plaintiffs
Phillip J. Strach
Thomas A. Farr
Michael McKnight
Alyssa Riggins
OGLETREE DEAKINS NASH SMOAK & STEWART PC
Phil.strach@ogletree.com
Thomas.farr@ogletree.com
Michael.mcknight@ogletree.com
Alyssa.riggins@ogletree.com
Counsel for Legislative Defendants

*Admitted Pro Hac Vice
1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 654 of 662

 Amar Majmundar
Stephanie A. Brennan
Paul M. Cox
NORTH CAROLINA DEPARTMENT OF JUSTICE
amajmundar@ncdoj.gov
sbrennan@ncdoj.gov
pcox@ncdoj.gov
Counsel for the State Board of Elections and members of the State Board of Elections
Kieran J. Shanahan
John E. Branch, Ill
Nathaniel J. Pencook
Andrew D. Brown
SHANAHAN LAW GROUP PLLC
kieran@shanahanlawgroup.com
jbranch@shanahanlawgroup.com
npencook@shanahanlawgroup.com
abrown@shanahanlawgroup.com
Counsel for Intervenor-Applicants

This the 10th day of October, 2019.

Kel ie . Mye
Trial Court Administrator — 10th Judicial District
kellie.z.myers@nccourts.org

*Admitted Pro Hac Vice
2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 655 of 662

 STATE OF NORTH CAROLINA
WAKE COUNTY
7r!!!)

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
0
19 CVS 012667

REBECCA HARPER, et al.
Plaintiffs,
v.

ORDER

Representative DAVID R. LEWIS,
in his official capacity as Senior
Chairman of the House Standing
Committee on Redistricting, et al.,
Defendants.
THIS MATTER comes before the undersigned three-judge panel upon Plaintiffs'
Motion for Expedited Proceedings, filed September 30, 2019.
On September 27, 2019, Plaintiffs filed a verified complaint in Superior Court, Wake
County, seeking a declaration that the current North Carolina congressional districts,
established by an act of the General Assembly in 2016, N.C. Sess. Laws 2016-1 (Senate Bill
2), violate the rights of Plaintiffs and all Democratic voters in North Carolina under the
North Carolina Constitution. Plaintiffs seek to enjoin the future use of the 2016
congressional districts. On September 30, 2019, this action was assigned to the
undersigned panel by the Chief Justice of the Supreme Court of North Carolina.
On September 30, 2019, Plaintiffs filed a motion for preliminary injunction and a
motion for expedited briefing and resolution of Plaintiffs' motion for a preliminary
injunction. On October 2, 2019, Defendants North Carolina State Board of Elections and
its members (hereinafter "State Defendants") notified the Court that they support
expedited consideration of this matter because candidate filing for congressional primaries
is set to begin on December 2, 2019. On October 7, 2019, counsel for Defendants
Representative David R. Lewis, Senator Ralph E. Hise, Jr., Speaker Timothy K. Moore,
President Pro Tempore Philip E. Berger, Senator Warren Daniel, and Senator Paul Newton

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 656 of 662

 (hereinafter "Legislative Defendants") entered notices of appearance. On October 9, 2019, a
motion to intervene was filed by three incumbent Congressional Representatives
(hereinafter "Intervenor Applicants"), seeking to intervene in this action in both their
capacity as Representatives and as residents and voters in three of the Congressional
districts challenged in Plaintiffs' verified complaint.
A separate Case Management Order has been contemporaneously entered with this
Order.
After reviewing the pleadings and motion for expedited proceedings, the Court, in its
discretion and for good cause shown, hereby ORDERS that Plaintiffs' motion for expedited
proceedings is GRANTED in part as follows:
1. Any Defendant desiring to respond to Plaintiffs' motion for a preliminary
injunction shall submit a response brief to the Court by 5:00 p.m. on October 21,
2019, in the manner set forth in the Case Management Order.
2. Plaintiffs shall submit any reply briefs to the Court by 5:00 p.m. on October 23,
2019, in the manner set forth in the Case Management Order.
3. Plaintiffs' motion for preliminary injunction will be heard by the Court at
10:00 a.m. on October 24, 2019.
4. If Intervenor-Applicants desire to respond to Plaintiffs' motion for
preliminary injunction, they may submit a response brief to the Court by
5:00 p.m. on October 21, 2019, in the manner set forth in the Case Management
Order and, if they desire to be heard at the hearing on October 24, 2019 on
Plaintiffs' motion, they shall be prepared to be heard on that date. In the event
that the Court allows the Intervenor-Applicants' Motion to Intervene, the Court
shall consider any brief and arguments made by the Intervenor-Applicants.
5. Plaintiffs' other requests relating to scheduling in the motion for expedited
proceedings are otherwise denied.
SO ORDERED, this the 10th day of October, 2019.
/s/ Paul C. Ridgeway
Paul C. Ridgeway, Superior Court Judge
/s/ Joseph N. Crosswhite
Joseph N. Crosswhite, Superior Court Judge
/s/ Alma L. Hinton
Alma L. Hinton, Superior Court Judge

2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 657 of 662

 CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parti es by
emailing a copy thereof to the address below, in accordance with the October 10, 2019 Case
Management Order:
Burton Craige
Narenda K. Ghosh
Paul E. Smith
PATTERSON HARKAVY LLP
bcraige@pathlaw.com
nghosh@pathlaw.com
psmith@pathlaw.com
Counsel for Plaintiffs
R. Stanton Jones*
Elisabeth S. Theodore*
Daniel F. Jacobson*
William Perdue*
Sara Murphy D'Amico*
Graham White*
ARNOLD & PORTER KAYE SCHOLER LLP
Stanton.jones@arnoldporter.com
Elisabeth.theodore@arnoldportercom
Daniel.jacobson@arnoldporter.com
William.Perdue@arnoldporter.com
Sara.D'Amico@arnoldportercom
Graham.White@arnoldportercom
Counsel for Plaintiffs
Phillip J. Strach
Thomas A. Farr
Michael McKnight
Alyssa Riggins
OGLETREE DEAKINS NASH SMOAK & STEWART PC
Phil.strach@ogletree.com
Thomas.farr@ogletree.com
Michael.mcknight@ogletree.com
Alyssa.riggins@ogletree.com
Counsel for Legislative Defendants

*Admitted Pro Hac Vice
1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 658 of 662

 Amar Majmundar
Stephanie A. Brennan
Paul M. Cox
NORTH CAROLINA DEPARTMENT OF JUSTICE
amajmundar@ncdoj.gov
sbrennan@ncdoj.gov
pcox@ncdoj.gov
Counsel for the State Board of Elections and members of the State Board of Elections
Kieran J. Shanahan
John E. Branch, Ill
Nathaniel J. Pencook
Andrew D. Brown
SHANAHAN LAW GROUP PLLC
kieran@shanahanlawgroup.com
jbranch@shanahanlawgroup.com
npencook@shanahanlawgroup.com
abrown@shanahanlawgroup.com
Counsel for Intervenor-Applicants

This the 10th day of October, 2019.

s

Kellie Z. Myers
Trial Court Administrator — 10th Judicial District
kellie.z.myers@nccourts.org

*Admitted Pro Hoc Vice
2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 659 of 662

 STATE OF NORTH CAROLINA
WAKE COUNTY

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
'
19 CVS 012667

REBECCA HARPER, et al.
Plaintiffs,
v.

ORDER

Representative DAVID R. LEWIS,
in his official capacity as Senior
Chairman of the House Standing
Committee on Redistricting, et al.,
Defendants.
This cause coming on to be heard before the undersigned on the motion of Burton
Craige, Narendra K. Ghosh, and Paul E. Smith, attorneys duly admitted to the Bar of the
State of North Carolina, for the admission of R. Stanton Jones, Elisabeth Theodore, Daniel
Jacobson, William Perdue, Sara Murphy D'Amico, and Graham White, as counsel for
Plaintiffs in connection with this case.
IT IS THEREFORE ORDERED that R. Stanton Jones, Elisabeth Theodore, Daniel
Jacobson, William Perdue, Sara Murphy D'Amico, and Graham White of the law firm Arnold
& Porter Kaye Scholer LLP are allowed to practice in the General Court of Justice of North
Carolina and appear on behalf of Plaintiffs in the above-captioned legal proceeding.
SO ORDERED, this the 10th day of October, 2019.
/s/ Paul C. Ridgeway
Paul C. Ridgeway, Superior Court Judge
/s/ Joseph N. Crosswhite
Joseph N. Crosswhite, Superior Court Judge
/s/ Alma L. Hinton
Alma L. Hinton, Superior Court Judge

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 660 of 662

 CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parties by
emailing a copy thereof to the address below, in accordance with the October 10, 2019 Case
Management Order:
Burton Craige
Narenda K. Ghosh
Paul E. Smith
PATTERSON HARKAVY LLP
bcraige@pathlaw.com
nghosh@pathlaw.com
psmith@pathlaw.com
Counsel for Plaintiffs
R. Stanton Jones*
Elisabeth S. Theodore*
Daniel F. Jacobson*
William Perdue*
Sara Murphy D'Amico*
Graham White*
ARNOLD & PORTER KAYE SCHOLER LLP
Stanton.jones@arnoldporter.com
Elisabeth.theodore@arnoldporter.com
Daniel.jacobson@arnoldporter.com
William.Perdue@arnoldporter.corn
Sara.D'Amico@arnoldportercorn
Graham.White@arnoldportercom
Counsel for Plaintiffs
Phillip J. Strach
Thomas A. Farr
Michael McKnight
Alyssa Riggins
OGLETREE DEAKINS NASH SMOAK & STEWART PC
Phil.strach@ogletree.com
Thomas.farr@ogletree.com
Michael.mcknight@ogletree.com
Alyssasiggins@ogletree.conn
Counsel for Legislative Defendants

*Admitted Pro Hoc Vice
1

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 661 of 662

 Amar Majmundar
Stephanie A. Brennan
Paul M. Cox
NORTH CAROLINA DEPARTMENT OF JUSTICE
amajmundar@ncdoj.gov
sbrennan@ncdoj.gov
pcox@ncdoj.gov
Counsel for the State Board of Elections and members of the State Board of Elections
Kieran J. Shanahan
John E. Branch, III
Nathaniel J. Pencook
Andrew D. Brown
SHANAHAN LAW GROUP PLLC
kieran@shanahanlawgroup.com
jbranch@shanahanlawgroup.com
npencook@shanahanlawgroup.com
abrown@shanahanlawgroup.com
Counsel for Intervenor-Applicants

This the 10th day of October, 2019.

Kellie Z. Myer
Trial Court Administrator — 10th Judicial District
kellie.z.myers@nccourts.org

*Admitted Pro Hac Vice
2

Case 5:19-cv-00452-BO Document 5-1 Filed 10/14/19 Page 662 of 662

  

 

Exhibit 2

Case Document 5-2 Filed 10/14/19 Page 1 of 258

1

1

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF NORTH CAROLINA

2
DAVID HARRIS, CHRISTINE
3 BOWSER, and SAMUEL LOVE,
4
5
6
7
8
9
10

)
)
)
Plaintiff,
)
)
vs.
)
)
PATRICK MCCRORY, in his
)
capacity as Governor of North
)
Carolina, NORTH CAROLINA STATE
)
BOARD OF ELECTIONS, and JOSHUA
)
HOWARD, in his capacity as
)
Chairman of the North Carolina
)
State Board of Elections,
)
)
Defendants.
)
_________________________________)

Greensboro, North Carolina
October 13, 2015
9:01 a.m.

Case No. 1:13CV949

11
12
13

TRANSCRIPT OF BENCH TRIAL VOLUME I OF III HELD BEFORE
THE HON. WILLIAM L. OSTEEN, JR., UNITED STATES DISTRICT JUDGE
THE HON. MAX O. COGBURN, JR., UNITED STATES DISTRICT JUDGE
THE HON. ROGER L. GREGORY, UNITED STATES DISTRICT JUDGE

14
15 APPEARANCES:
16 For the Plaintiff:
17

KEVIN J. HAMILTON
Perkins Coie, LLP
1201 Third Ave., Ste. 4900
Seattle, WA 98101-9741

18
EDWIN M. SPEAS , JR.
JOHN WARD O'HALE
Poyner Spruill, LLP
POB 1801
Raleigh, NC 27602-1801

19
20
21
For the Defendant:
22
23

THOMAS A. FARR
PHILLIP JOHN STRACH
Ogletree Deakins Nash Smoak & Stewart
POB 31608
Raleigh, NC 27622

24
25

Case 5:19-cv-00452-BO Document 5-2 Filed 10/14/19 Page 2 of 258

 2

1 APPEARANCES, CONTINUED:
2 For the Defendant:
3

ALEXANDER MCCLURE PETERS
N.C. Department of Justice
POB 629
Raleigh, NC 27602-0629

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22 Court Reporter:
23
24

Joseph B. Armstrong, RMR, FCRR
324 W. Market, Room 101
Greensboro, NC 27401

Proceedings reported by stenotype reporter.
Transcript produced by Computer-Aided Transcription.

25

Case 5:19-cv-00452-BO Document 5-2 Filed 10/14/19 Page 3 of 258

 3

1

I N D E X

2

PAGE

3

Opening statement by Mr. Hamilton

4

Opening statement by Mr. Farr

6
19

5
WITNESSES FOR THE PLAINTIFF:
6
7

DANIEL BLUE
Direct Examination By Mr. Speas
Cross-Examination By Mr. Strach

40
64

8
MELVIN WATT
9
Direct Examination By Mr. Speas
Cross-Examination By Mr. Farr
10
Redirect Examination By Mr. Speas

100
114
153

11 G.K. BUTTERFIELD
Direct Examination By Mr. Speas
12
Cross-Examination By Mr. Peters
Redirect Examination By Mr. Speas
13
Recross-Examination By Mr. Peters

156
175
204
206

14 DAVID PETERSON
Direct Examination By Mr. Speas
15
Cross-Examination By Mr. Strach
Redirect Examination By Mr. Speas
16
17
18
19
20
21
22
23
24
25

Case 5:19-cv-00452-BO Document 5-2 Filed 10/14/19 Page 4 of 258

208
233
252

 4

1

P R O C E E D I N G S

2

(At 9:01 a.m., proceedings commenced.)

3

JUDGE OSTEEN:

All right.

Good morning, everyone.

4 All the lawyers know who everyone is, but just so that
5 everybody understands, Judge Gregory, being the gentleman that
6 he is, is seated to my right.

It will be the only time that

7 I'm seated in the middle of a panel with Judge Gregory seated
8 to my right, and Judge Cogburn is to my left.
9

So we'll go -- we'll calling for trial

10 Case No. 13CV949, Harris, et al., versus McCrory, et al.
11 I'll start with the plaintiffs.

So

If you will, just state for

12 the record who is seated at counsel table at this point.
13

MR. HAMILTON:

Good morning, Your Honor.

14 Hamilton for the plaintiffs.

Kevin

With me today is he Eddy Speas to

15 my immediate right, and to his right John O'Hale representing
16 the plaintiffs.
17

JUDGE OSTEEN:

All right.

And the plaintiffs are

18 ready to proceed?
19

MR. HAMILTON:

We are, Your Honor.

20

JUDGE OSTEEN:

All right.

21

MR. FARR:

Mr. Farr?

Thank you very much, Your Honor.

22 appreciate you being here today.

My name is Tom Farr.

23 from the Raleigh office of Ogletree Deakins.

We
I'm

With me is Alex

24 Peters.

He's from the North Carolina Attorney General's

25 Office.

Next to Mr. Peters is Phil Strach, who is my law

Case 5:19-cv-00452-BO Document 5-2 Filed 10/14/19 Page 5 of 258

 5

1 partner at Ogletree Deakins, and at the far end of the table is
2 our ace, super duper paralegal Philen Alexander who we've
3 stolen from the Charlotte office and made him be here today
4 even though he has more interesting things and more pleasurable
5 things to do in Charlotte.
6

JUDGE OSTEEN:

All right.

Well, welcome everyone.

7 And defendants are ready to proceed, Mr. Farr?
8

MR. FARR:

Yes, we are, Your Honor.

9

JUDGE OSTEEN:

10 ahead with this hearing.
11 stipulation.
12 that.

All right.

Well, we will proceed

Yesterday, the parties filed a

I think all of us have seen that and reviewed

As I indicated at this point in time, we are denying the

13 motion to stay without prejudice.
14

We have two motions in limine that are pending.

We

15 will address those briefly further once we get to that expert
16 testimony, and at this point I anticipate that we will be -17 whether you want to call it denying the motion in limine
18 without prejudice or reserving judgment on it, we will probably
19 go ahead and hear the testimony in its entirety subject to
20 whatever objections remain.

We'll discuss that further when

21 the experts are called.
22

Will either one of those experts be called today, do

23 you think, Mr. Hamilton?
24

MR. HAMILTON:

It's possible that Dr. Ansolabehere

25 might be called by the end of the day.

It's possible.

Case 5:19-cv-00452-BO Document 5-2 Filed 10/14/19 Page 6 of 258

 6

1

JUDGE OSTEEN:

2 along.

Okay.

Well, we'll see how we get

Once you get ready to call one of those experts, we'll

3 talk about procedures related to that at that particular time.
4

All right.

5 opening statements.

The parties may proceed with their
The plaintiff is recognized.

6 Mr. Hamilton?
7

MR. HAMILTON:

Thank you, Your Honors.

8 record, it's Kevin Hamilton again.

And for the

I appear on behalf of the

9 plaintiffs in this litigation, David Harris and Christine
10 Bowser.
11

The Equal Protection Clause of the Fourteenth

12 Amendment forbids race-based redistricting absent a compelling
13 state interest, and even then only when narrowly tailored to
14 meet that state interest.

The evidence will show that in 2011

15 the North Carolina General Assembly used race as the
16 predominant factor in drawing North Carolina's 1st and
17 12th Congressional District, had no compelling state interest
18 for doing so, and in all events failed to narrowly tailor those
19 districts to that state interest.
20

The evidence will show that the General Assembly

21 manipulated these districts by moving voters in and out of the
22 districts based on the color of their skin.

With respect to

23 CD 1, the 1st Congressional District, racial predominance is
24 really not in serious dispute.

The General Assembly increased

25 the number of African-Americans in the district with the

Case 5:19-cv-00452-BO Document 5-2 Filed 10/14/19 Page 7 of 258

 7

1 express goal of creating a majority-black district, what they
2 called a Voting Rights Act District, all on the theory that
3 doing so is somehow required by the Voting Rights Act.
4 no dispute what was going on here.

There's

The defendants baldly admit

5 their purpose was to increase the black voting-age population
6 to 50 percent plus one or higher.
7

With respect to the 12th Congressional District, the

8 General Assembly drew the district to include the heavily
9 African-American population of Guilford County on the theory
10 that doing so was required by Section 5 to prevent
11 retrogression.

Again, this was hardly a secret.

The

12 legislators explained that they drew the proposed 12th
13 Congressional District, and I quote, At a black voting-age
14 level that is above the percentage of black voting-age
15 population found in the current district to ensure
16 preclearance, closed quote, under Section 5 of the Voting
17 Rights Act.
18

That's Plaintiff's Exhibit 68.

The evidence plaintiffs will put before the Court

19 come from the mouths of the defendants themselves, their
20 emails, their statements on the floor of the General Assembly,
21 their documents.
22

In addition, plaintiffs will call several witnesses.

23 First this morning, Senator Dan Blue, a member of the General
24 Assembly, who observed firsthand the enactment of this flawed
25 plan, will testify.

The current incumbents in both of these

Case 5:19-cv-00452-BO Document 5-2 Filed 10/14/19 Page 8 of 258

 8

1 two districts, Representative Watt and Representative
2 Butterfield, will testify.

Both of them opposed the plan as

3 did the entire Black Caucus in the General Assembly, and both
4 of them informed the defendants that the plan was legally
5 flawed and unnecessary as a practical matter.
6

And we will present two expert witnesses.

The first

7 is Dr. David Peterson, and the second is Dr. Steven
8 Ansolabehere.

Dr. Peterson analyzed precincts on the borders

9 of these districts in the Cromartie litigation in 2000 here in
10 North Carolina, and the Supreme Court specifically discussed
11 and relied on his analysis in its decision in that case in
12 finding that race did not predominate in the construction of
13 the districts at that time.

Dr. Peterson will repeat his

14 analysis here but reaches the opposite conclusion using the
15 same methodology, but different data.

And then finally,

16 Dr. Ansolabehere will testify using several different analyses
17 that race predominated in the drawing of these districts.
18

Together, the evidence will show that race, not

19 politics, was the predominant purpose of this redistricting
20 plan from start to finish and that neither district was
21 narrowly tailored to achieve a compelling state interest, and,
22 as a result, the plans necessarily fail constitutional muster
23 and must be invalidated.
24

Now, I know the Court has already had the benefit of

25 the parties' briefing in the trial brief before the proceeding

Case 5:19-cv-00452-BO Document 5-2 Filed 10/14/19 Page 9 of 258

 9

1 got started, so rather than repeat or do a dramatic recitation
2 of the trial brief that you've already read, I thought I would
3 just emphasize a couple of -- a handful of key facts that we
4 believe will be clear from the record and will be established
5 during the course of the trial.
6

First, the evidence will show that the incumbent

7 representatives in the 1st and 12th Congressional Districts
8 were safe in winning re-election by large margins of victory.
9 In the jury box, we've blown up the table showing the election
10 results and the black voting-age population.

We'll also be

11 showing that on the screen during the course of the trial
12 showing the black voting-age population and then the election
13 results, the winning margin.
14

Congressional District 1 was first drawn in its

15 present configuration in 1992.

Between 1997 and 2001, the

16 black voting-age population fell below 50 percent.

It has

17 remained below 50 percent since that time until -- all the way
18 up until this redistricting exercise.

CD 12 is similar.

From

19 1997 to 2011 it had a black voting-age population well below
20 50 percent.
21

Yet, despite the fact that neither district was a

22 majority African-American district, African-American candidates
23 of choice easily and consistently won re-election in an
24 unbroken string of clear and overwhelming electoral victories.
25 How did that happen?

It happened because white voters crossed

Case 5:19-cv-00452-BO Document 5-2 Filed 10/14/19 Page 10 of 258

 10

1 over to vote with African-American voters to elect those
2 candidates.

It's simple now.

That's what happened.

And

3 that's a terrific result, and that's one we should all be proud
4 of and applaud.
5

But rather than applaud this post racial success in

6 these two districts where white and black voters united to
7 elect candidates of choice, the North Carolina General Assembly
8 chose instead to dismantle both districts and to sort voters by
9 the color of their skin packing black voters into CD 1 and
10 CD 12 and astonishingly now stand before this Court and assert
11 that the Voting Rights Act, of all things, somehow required
12 dismantling these two districts sorting voters by race and
13 creating black and white electoral districts.

To put it

14 delicately, that's a decidedly odd reading of the Voting Rights
15 Act of 1965.
16

Second, the record will demonstrate that neither

17 district has been challenged under the Voting Rights Act at any
18 point in the last 20 years, not once.

Both districts have been

19 consistently precleared pursuant to Section 5 of the Voting
20 Rights Act, and neither has been the subject of a lawsuit under
21 Section 2.

In fact, the evidence will show there's been no

22 state-wide redistricting Section 2 lawsuit filed in over three
23 decades in this state, and for good reason.

As the historical

24 record vividly demonstrates, white and blacks in these
25 districts have voted for the same candidate in numbers

Case 5:19-cv-00452-BO Document 5-2 Filed 10/14/19 Page 11 of 258

 11

1 sufficient to elect the African-American candidate of choice.
2

In other words, in the words of Gingles, the white

3 majority did not, quote, vote as a bloc to the African-American
4 candidates of choice, closed quote.
5 happened.

Precisely the opposite

Significant crossover voting supporting

6 African-American preferred candidates occurred.

On such a

7 record, there's really no credible argument that baldly
8 increasing the black voting-age population levels of these
9 districts is somehow required to avoid liability.
10

Third, the evidence will show that the General

11 Assembly used a mechanical 50 percent black voting-age
12 population floor in drawing these two districts.

The evidence

13 is clear, direct, and undisputed.
14

With respect to CD 1, defendants baldly admit their

15 goal of achieving a racial threshold of 50 percent black
16 voting-age population.

Senator Rucho and Representative Lewis

17 labeled CD 1 a "VRA district" and explicitly instructed
18 Dr. Hofeller to draw the district to increase the black
19 voting-age population to more than 50 percent.
20 critical, and the point is entirely undisputed.

The point's
Dr. Hofeller

21 will admit it from the stand.
22

With respect to CD 12, Senator Rucho and Lewis

23 conceded that it was not what they called a "VRA district," but
24 they pointed to Guilford County, which is a covered
25 jurisdiction under Section 5, or was a covered jurisdiction

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 12

1 under Section 5 of the Voting Rights Act, as a reason to ensure
2 that the existing black voting-age populations in the district
3 be maintained or increased.
4 error.

This is plain constitutional

That score is now settled beyond dispute by the Supreme

5 Court's recent decision last year in the Alabama case which
6 flatly condemned the use of such mechanical racial targets and
7 by the recent decision in the United States District Court for
8 the Eastern District of Virginia decided just last year in Page
9 versus Virginia State Board of Elections which similarly struck
10 down the use of a 55 percent black voting-age population
11 threshold for Virginia's Third Congressional District.
12

But even if the direct evidence were not so clear and

13 undisputed, the circumstantial evidence makes clear what's
14 going on.

Both districts -- and I've blown up easels.

Here is

15 CD 1, and there is CD 12 -- make a mockery of traditional
16 redistricting principles.

Whether measured by split counties

17 or split VTDs or highly irregular shapes, you can take a look
18 what's called the "interocular test" and see that these are
19 unusually shaped districts.
20

Fourth, although Senator Rucho and Representative

21 Lewis pointed to the Supreme Court's decision in Strickland
22 versus Bartlett as requiring at least 50 percent BVAP, that's
23 the explanation, to be clear, that the defendants will offer
24 that Strickland somehow required this.
25 anything of the sort.

The case doesn't say

Strickland was a badly splintered

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 13

1 Supreme Court decision.

The plurality opinion only had three

2 justices sign on to it, and those three justices explicitly
3 recognized that where, as here, there's substantial crossover
4 voting, it is, by definition, impossible to establish liability
5 under Section 2 because of the absence of racially polarized
6 voting sufficient to defeat the African-American candidate of
7 choice from being elected.
8 here?

How do we know that's not existing

Those tables are a vivid testament to that, 20 years of

9 African-Americans every year being elected year after year.
10

The Court went out of its way in Strickland to point

11 out the irony if the Voting Rights Act interpreted to entrench
12 racial differences.

Here's what they said, quote:

Crossover

13 districts are by definition the result of white voters joining
14 forces with minority voters to elect their preferred candidate.
15 The Voting Rights Act was passed to foster this cooperation,
16 closed quote.

The statute most assuredly does not require

17 balkanization of voters on the basis of race, particularly
18 where, as here, there is no evidence of racial bloc voting that
19 would deny minority voters the opportunity to elect the
20 candidate of their choice.
21

Fifth, the evidence will show that 50 percent black

22 voting-age rule predominated over all other criteria, save one
23 man, one vote, one person, one-vote.

Defendants apparently

24 intend to present evidence that they considered political
25 factors in drawing these maps, and they may well have done so,

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 14

1 but only after satisfying the nonnegotiable goal of creating
2 majority minority districts.

It was hardly an accident that

3 both of these districts ended up above 50 percent black
4 voting-age population.

That was the whole point of the

5 exercise.
6

Dr. Hofeller will testify that he considered black

7 voting-age population levels when drawing CD 1, but he will
8 also testify that as to CD 12 he only used the 2008
9 presidential election results to draw CD 12, and he used those
10 results in order to favor Republicans and disfavor Democrats.
11 But using a racially charged election involving the first
12 African-American major party candidate for the United States
13 presidency in US history, if you use that as the measuring
14 stick, that hardly shelters what's going on here.

The 2008

15 presidential election results in CD 12 were much more closely
16 coordinated with race than party affiliation as
17 Dr. Ansolabehere will testify.
18

Sixth, the evidence will show that the defendants

19 cannot identify a compelling state interest to justify the use
20 of race in drawing these districts.

Defendants contend that

21 the General Assembly's alleged goal of complying with Section 2
22 and Section 5 of the Voting Rights Act justified its use of
23 race in drawing these districts, but the only way to survive
24 strict scrutiny since the Supreme Court's decision in Miller
25 versus Johnson is to ensure that the plans were actually -- is

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 15

1 to prove that the plans were actually required by Section 5.
2

But there's no plausible argument here that either

3 Section 2 or Section 5, properly interpreted, required a
4 50 percent black voting-age population.
5 harbor, as the defendants like to say.

There's no safe
Both of these districts

6 were already performing for minority preferred candidates with
7 large winning majorities.

There was no need to increase those

8 to levels that would be embarrassing to even Eastern European
9 dictators.
10

The question under Section 5 is whether there's been

11 retrogression, that is, whether the proposed plan would reduce
12 minority voters' effective ability to elect candidates of their
13 choice.

It most assuredly does not command a state to match,

14 much less significantly increase, the preexisting level of
15 minority population without regard to the minority communities'
16 actual ability to elect.

If that's what the General Assembly

17 thought or was advised, it was just wrong.
18

If the Supreme Court's decision last year in Alabama

19 means anything, it means that this is a district-specific
20 analysis and mechanical, numerical thresholds are forbidden.
21 The burden is on the state to establish that it had a strong
22 basis in evidence -- that's the quote -- strong basis in
23 evidence for believing that Section 5 required it to draw these
24 districts with this level of black voting-age population; and
25 in the absence of such a showing, the plan necessarily fails

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1 the strict scrutiny analysis.

Here, the defendants will fail

2 in that showing.
3

Defendants claim that racially polarized voting

4 exists generally in North Carolina, but that certainly doesn't
5 establish racially polarized voting in these two specific
6 districts; and, as Alabama teaches, this is an analysis that is
7 district-specific, not state-wide.
8 the reversal in Alabama.

That's the whole reason for

The analysis there was done on a

9 state-wide level, and the Court reversed and said you can't do
10 it that way.

It's done state-wide, done with a flat black

11 voting-age population threshold.
12

In the absence of such a district-specific analysis,

13 it's simply impossible to have a strong basis in evidence for
14 believing that either Section 2 or Section 5 required
15 increasing the number minority voters to achieve the 50 percent
16 BVAP in these districts, and the evidence will show that the
17 authors of the enacted plan simply declined to conduct such an
18 analysis and chose instead to guess -- set a rule of 50 percent
19 and pack black voters into these districts.
20

That approach, no matter how well-intentioned -- and

21 this is not an intent case.

We don't have the burden and don't

22 intend to try and show that anyone was motivated by ill-intent
23 here.

No matter how well-intentioned, using this approach to

24 draw these districts cannot be considered a strong basis in
25 evidence for believing that Section 5 required them.

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Simply

 17

1 invoking the name of the Voting Rights Act without actually
2 conducting an analysis, as required by the statute, cannot
3 inoculate race-based redistricting from constitutional
4 scrutiny.
5

Seventh, even if the defendants could identify

6 compelling state interest, they can't meet their burden of
7 proving that these districts were narrowly tailored to meet
8 that interest.

The Supreme Court long ago declared the

9 reapportionment plan, quote, would not be narrowly tailored to
10 the goal of avoiding retrogression if the state went beyond
11 what was reasonably necessary to avoid retrogression.

That's

12 the Shaw case from this very state.
13

But that's exactly the evidence that will be placed

14 before you in this case.

Both districts consistently

15 cleared -- consistently elected African-American candidates of
16 choice by wide margins.

No straight-faced argument can be

17 advanced that either needed to have their black voting-age
18 population increased in order to prevent retrogression.

As the

19 Court declared in Shaw, covered jurisdictions do not have carte
20 blanche to engage in racial gerrymandering in the name of
21 retrogression.
22

That's exactly what happened here.

Now, before I sit down, let me just mention.

There

23 is a parallel state court litigation challenging these
24 districts.
25 Court.

It is pending before the North Carolina Supreme

The state trial court in that case issued a decision

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1 before the US Supreme Court issued the decision in Alabama,
2 and, as a result, the Court failed to review these two
3 districts on a district-specific basis and didn't have the
4 teaching of Alabama to assist it in resolving the cases, but
5 that's the status of the stated Court litigation.
6

The Supreme Court emphasized in its Miller decision

7 that, quote, the essence of the Equal Protection claim
8 recognized in Shaw is that the state used race as a basis for
9 separating voters into districts without any compelling state
10 interest necessitating such race-based redistricting.
11

The Strickland plurality decision as well condemned

12 racial balkanization where minority communities had
13 successfully joined forces with white voters to achieve
14 electoral success, and Strickland noted the irony if the
15 shining star of the Civil Rights Act -- shining star of the
16 Civil Rights movement were interpreted to actually require
17 separation of voters into districts according to the color of
18 their skin.
19

The Shaw court condemned the redistricting plan there

20 because they, quote, threatened to carry us further from the
21 goal of a political system in which race no longer matters, a
22 goal that the Fourteenth and Fifteenth Amendment embody and to
23 which the nation continues to aspire, closed quote.
24

So, too, will the evidence condemn the plans before

25 this Court.

The evidence will show that the General Assembly

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 19

1 used race, not politics, as a predominant factor in drawing
2 these districts and that this constitutionally suspect use of
3 race was neither required by a compelling state interest nor
4 narrowly tailored to further any such interest.
5

At the conclusion of the trial, the plaintiffs will

6 ask this Court to invalidate these two districts and to
7 implement appropriate, immediate, and effective remedies.
8 Thank you, Your Honors.
9

JUDGE OSTEEN:

10 All right.

All right.

Give me just a moment.

Mr. Farr, or whoever is ready to proceed for the

11 defense.
12

MR. FARR:

I am, Your Honor.

Suffice it to say, Your

13 Honor, that we have strong disagreements with the plaintiffs in
14 the way they've outlined the facts and the applicable law in
15 the case.
16

What this case is really about, Your Honors, is it's

17 a political case.

The legal fees in this case are being paid

18 by something called the National Democratic Voting Rights Trust
19 Fund who are bringing cases like this all across the United
20 States.

The reason why this case was brought is because a

21 Democratic General Assembly enacted the 2001 Congressional Plan
22 in a way that favored the Democratic Delegation, and the 2011
23 General Assembly enacted a plan that favored the Republican
24 Delegation.

The only way that the plaintiffs, who we contend

25 are bound by the prior decision in the Dickson case, and their

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 20

1 counsel in the National Democratic Voting Rights Trust Fund can
2 try to get these plans thrown out is through the legal theories
3 they're alleging in this case which were also litigated in the
4 Dickson case.
5

So we disagree with plaintiffs' counsel.

We do not

6 think the evidence will show that race was the predominant
7 motive for either one of these districts.

District 12 was

8 drawn based upon political characteristics as it had been done
9 in 1997 and in 2001.

The difference between District 12 is

10 that in '97 and 2001, it was drawn by a Democratic legislature
11 to be a strong Democratic district, but enough Democratic votes
12 were shaved out of the district to create strong adjoining
13 Democratic districts such as the former Senate -- or
14 Congressional District 13.

You'll see a picture of that.

It

15 is at least as bizarre looking as any of the other
16 congressional districts that have been drawn in North Carolina.
17 It stretched from Raleigh to Guilford County.

It was drawn by

18 the Chairman of the Senate Redistricting Committee, Brad
19 Miller, who then ran that district and was elected to Congress
20 in that district.
21

In the Mecklenburg area, Mecklenburg County was added

22 to the 8th Congressional District in the 2001 plan in order to
23 create a stronger Democratic 8th District which ultimately
24 resulted in the defeat of the Republican incumbent in that
25 district, Robin Hayes, by Congressman Kissell.

So this case is

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1 about politics.
2

If the Court finds that the 1st District -- if you

3 find that the race was the predominant motive in the 1st
4 District, then we believe the evidence will show that there was
5 a compelling governmental interest, that there's a substantial
6 basis in the evidence to support that.

I'll go over some of

7 that as I walk through a history of the Congressional Plan, but
8 I'm not really sure how plaintiffs can say that the district -9 that either the legislature or the Court in Dickson did not do
10 a district-by-district analysis.
11

The legislature had two polarization experts that

12 studied racially polarized voting in all of the counties in
13 which the 1st Congressional District is located, and this now
14 brings me, Your Honors, to a couple map notebooks that are
15 going to be helpful to the Court.

I'm not going to hand this

16 one up right now, but Exhibit 22 is the map notebook that the
17 parties provided the three-judge court in the Dickson case; and
18 what this notebook has in it, it has all of the so-called
19 benchmark plans, the benchmark plans being the plans that were
20 in place during the 2010 general election.

So in the case of

21 the congressional district, it's the 2001 Congressional Plan
22 which is also known as the zero deviation plan.

It has the

23 2003 Senate plan, and it has the 2009 House plan.
24

The House plan was amended in 2009 because of the

25 case which we've cited to the Court called Strickland v.

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 22

1 Bartlett, and we do think that a case says that if you're going
2 to draw a VRA district, a Section 2 district, the black
3 voting-age population needs to be above 50 percent.

That is

4 how the state interpreted that case, and I know that one of the
5 dissenting judges in Strickland interpreted that case as
6 stating that the legislature should create VRA districts that
7 are above 50 percent.
8

So what else is in this notebook, Your Honors, are

9 all of the alternative proposed maps for the Congress, for the
10 House, for the Senate, and included in this notebook is what we
11 call the "stat pack" which has got all of the census categories
12 in it.

It has election results for all the districts.

This

13 will make more sense to you when you actually see the notebook.
14

But a point that's very important, Your Honor, is

15 that this notebook is based upon the 2010 Census; and, during
16 the course of this case, you'll discover that there's two
17 different categories to measure black population.

There's a

18 category called "single-race black population," and there's a
19 category that the Census Bureau calls "any part black
20 population."

"Any part black population" is where the person

21 reports themselves as being black and some other race in
22 addition to being black.
23

So those are two different categories.

That's

24 important to understand because when we go to the charts that
25 the plaintiffs have over here, and we'll point this out when we

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 23

1 get a chance, they talk about the black population in these
2 districts, the black voting-age population.

I've looked at

3 these charts just before we started today, and the black
4 voting-age population they list for the 2011 1st and
5 12th Districts is from the 2010 Census, and it's the any part
6 black voting-age population.

That term "any part black

7 voting-age population" is defined in this notebook with the
8 phrase "total black population."

So it's called "total black

9 voting-age population" in this notebook.

The Census calls it

10 "any part black population."
11

So for the black voting-age population, they've

12 listed in their charts for the 2010 1st and 12th Districts -13 they've used the 2010 Census "any part black."

For the

14 population that they've listed for the 2001 Congressional
15 Districts, they've used "single-race black," and they've used
16 the 2000 Census.
17 different ways.

So they're comparing apples to oranges in two
Just as a minor fact, Your Honor, if we're

18 going to look at single-race black population, the
19 12th District was not drawn over 50 percent.

It's slightly

20 below 50 percent.
21

So that's the importance of this notebook.

Now,

22 there's another notebook I would like to hand up to the Court
23 if I might.
24

JUDGE OSTEEN:

25

MR. FARR:

Now?

Yes, because it's part of my opening

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 24

1 statement.
2

JUDGE OSTEEN:

3

MR. FARR:

Okay.

And I think it will help the Court.

This

4 is Exhibit 126, Your Honor, and this is important to review
5 this with the Court now to give the Court the historical
6 perspective, and I've got extras if the law clerks would like
7 one.
8

JUDGE OSTEEN:

All right.

Keep it to an overview,

9 Mr. Farr.
10

MR. FARR:

11

JUDGE OSTEEN:

12

MR. FARR:

13

I just want to flip through the tabs in this quickly,

14 Your Honor.

What's that?
Keep it to an overview if you can.

I will, Your Honor.

Tab 1 is the original version of the 1st District

15 that was enacted in 1991.

It was precleared by the Justice

16 Department, and the Justice Department objected to the failure
17 of the state to create a second majority-black -- or majority
18 minority district running from Charlotte to basically
19 Wilmington.
20

And it's important, Your Honor, that you understand

21 some terms for voting rights districts.

A majority-black

22 district is where the black population is in the majority.

A

23 coalition district is where whites are in the minority, there
24 is no majority white population, and blacks and, say, Hispanics
25 create the majority.

Then there's something called a crossover

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 25

1 district.
2

That's where whites are actually in the majority.
Counsel for the plaintiff referred to the 1st

3 District as a crossover district in his opening argument.
4 That's not correct.

In none of these plans from '91 through

5 the present, the 1st District has never been a white crossover
6 district.

Whites have never been in the majority in that

7 district.

It originally started off as a majority-black

8 district in population and voting-age, and then I believe by
9 the time of the '97 Plan, the 1st District was a majority-black
10 in population and a plurality voting age.
11 understand those terms.

So make sure you

There's never been a majority-white

12 population in the 1st District that could vote as a black to
13 defeat the candidate of choice of the African-American
14 population.
15

So going through this notebook quickly, Your Honor,

16 under Tab 2 is the '92 Congressional Plan.

This was the plan

17 that was the subject of the litigation in the Shaw case.

The

18 12th District -- it's hard to read on this, but basically it
19 stretched from Gastonia to Durham along the interstate
20 highways.

The 1st District was in Eastern North Carolina.

21 There was never a ruling in Shaw on the 1st District.

There

22 was no plaintiff withstanding to challenge the 1st District, so
23 the Court in Shaw never ruled on the 1st District, but they did
24 declare the 12th District unconstitutional as illegal racial
25 gerrymandering.

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 26

1

So then if you turn to the next tab, Tab 3, Your

2 Honors, this was the plan that the state enacted after Shaw in
3 1997; and as you're looking at these plans, I want you to note
4 we heard from counsel about how horrible this district looked.
5 This district looks no different than any other versions of the
6 1st District that have ever been enacted.

There was historical

7 precedence for this district, and having beautiful appearance
8 was never a criteria that any of the General Assemblies
9 followed.

I mean, I really would like to have counsel get up

10 here and explain to me how any of these versions of the 1st
11 District passed the interocular test in a way that's better
12 than the 2011 1st District.
13

Now, the point on the '97 plan, Your Honor, is the

14 court -- the district court originally granted summary judgment
15 for the plaintiffs, and in that case the plaintiffs were
16 relying on registration statistics to prove that race was the
17 prominent motive.

In the first Cromartie case, the Supreme

18 Court reversed and sent it back to trial, and they very
19 strongly indicated that voting patterns were more probative of
20 whether race was a predominant motive in registration
21 statistics, and that's because we have a large number of
22 unaffiliated voters, and also because everyone in this
23 courtroom knows that there's a lot of white Democrats that vote
24 Republican.
25 vote.

So registration does not correlate with how people

How people vote correlates with how people vote.

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 27

1

So when this was sent back down for trial, the 1st

2 District -- which I defy anyone to tell me how this is prettier
3 than the 2011 1st District -- this was found to be
4 constitutional and survived the Shaw compelling governmental
5 interest test.

The Court found that it was compact.

The Court

6 found there was racially polarized voting even though it was a
7 majority -- a minority-black voting-age population district.

I

8 think there was only 46 percent single-race black voting-age
9 population in the 1st District under this plan.
10

The district court found the 12th District to be

11 illegal, again, based upon expert testimony involving
12 registration statistics.

So it went up to the Supreme Court

13 again, and the Supreme Court found that registration statistics
14 do not correlate with the way people vote and that you can't
15 use registration statistics to prove a racial gerrymander.

And

16 amazingly, that's exactly what Dr. Ansolabehere -- and I
17 apologize if I have not pronounced his name correctly.

The

18 main point of his testimony is to use registration statistics
19 to prove that Congressional District 12 is an illegal racial
20 gerrymander after we've had two Supreme Court decisions saying
21 that's not a proper way to prove that case.
22

Your Honor, Tab 8 -- or excuse me -- Tab 4 was a plan

23 the General Assembly enacted after they lost in the district
24 court in the first Cromartie case.
25 the 1998 election.

This plan was only used in

It had a much lower black voting-age

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 28

1 population, but I think it was still well above 30 percent.

If

2 we look at the evidence, we'll see that Congressman Watt, I
3 believe, had his closest election in '98 of all the elections
4 he's had when he was representing this district.

When the

5 state won the Cromartie case, they reverted back to the '97
6 plan for Congressional District 12.
7

The next tab, five, is the Congressional Zero

8 Deviation Plan.

This is the 2001 plan.

9 look at the 1st District.

Again, Your Honor, you

I would like to have someone tell me

10 how that passes the interocular test but the 2011 District
11 doesn't.

And what's important to note, Your Honor, is that

12 nobody has ever argued until this case that racially polarized
13 voting does not exist where the First Congressional District
14 has been drawn.
15

In 2001, the state in its preclearance submission

16 admitted that they were drawing the 1st District as a Section 2
17 district as they had done from the beginning of this district.
18 There had never been a black congressional representative in
19 North Carolina until the 1st District and 12th District were
20 enacted.
21

Also, Your Honor, what this case is really about is

22 the Strickland case as far as it relates to Congressional
23 District 1.

They -- on their charts here, Your Honor, they

24 haven't reported the actual black voting-age population for
25 CD 1 under the 2010 Census.

If you look at the any party black

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 29

1 voting-age population for CD 1 under the 2010 Census, if you
2 look at the 2001 version, it's about 48.65 percent.
3

So the General Assembly was looking at the Strickland

4 case.

There's no -- there is no dispute in the legislative

5 record that significant -- legally significant racially
6 polarized voting exists in this part of North Carolina.

One

7 thing these map notebooks will show you, Your Honor, is that
8 all of the proposed legislative maps produced majority-black or
9 coalition districts in the very area where Congressional
10 District 1 was drawn.
11

That was before the General Assembly.

They had two racial polarization experts who studied

12 racial polarization in these counties.

A three-judge court in

13 Dickson looked at each one of these districts on an individual
14 basis to make it's findings, and so the whole issue is did the
15 General Assembly violate the law because they drew a district
16 slightly above 50 percent instead of the 48.65 percent district
17 that existed under the 2010 Census?
18

Now, counsel for the plaintiffs refers to the Alabama

19 case, and I want to say something about that briefly.
20 Alabama case was a Section 5 case.

The

Alabama drew their

21 districts that there was a legislative Section 5 case.

The

22 district that was scrutinized by the Supreme Court had been
23 drawn to be over 70 percent black, and the state justified that
24 by saying, well, we decided that we had to keep districts at
25 this level because that's what they were previously.

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 30

1

Now, there's no Supreme Court case that says that,

2 and the 70 percent district, Your Honor, I would say is quite a
3 bit different than the 52 or 53 percent district which we're
4 talking about here in Congressional District 1, and the state
5 didn't adopt a mechanical rule that they came up with.

Alabama

6 came up with a mechanical rule that they made up with no
7 Supreme Court basis.
8

North Carolina followed a rule that had been adopted

9 not only by the United States Supreme Court but also by the
10 North Carolina Supreme Court that if you're going to draw a VRA
11 district, it had to be over 50 percent because one of the
12 Gingles elements is there's no racially polarized voting unless
13 the blacks need a majority to defeat the white minority voters
14 who are voting in a bloc.
15

And so what's interesting is plaintiffs get up here

16 and say there's no racially polarized voting because whites are
17 crossing over in a crossover district, which it wasn't, to vote
18 for the black candidate.

Well, if that's true, Your Honor,

19 then why did the plans proposed by the Legislative Black Caucus
20 and the NAACP and the Democratic leadership -- they all
21 produced plans that were 47 to 48 percent black voting-age
22 population.

If there's no racially polarized voting anymore,

23 then we don't need this district at all.

It can go away.

We

24 can draw the district that -- 10 percent black population if
25 there's no racially polarized voting.

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 31

1

That's not what the plaintiffs wanted.

They want the

2 Court to think that Strickland didn't happen, and they want to
3 shave the black population out of these majority-black
4 districts to create a better plan for Democrats because black
5 voters are highly correlated with voting for Democratic
6 candidates.
7

I also want to point out, Your Honor, that Tab 5 is

8 the Congressional Zero Deviation Plan with the 2000 Census.

If

9 you flip through there, you'll see that the reports from the
10 General Assembly did not report the any part black voting-age
11 population.

That would be on about page 3.

It was the

12 single-race black population that was reported.
13

And if you go to Tab 6, Your Honor, that's the 2001

14 Congressional Plan with the 2010 Census.

And if you look at

15 all the cases and the guidance from the Justice Department,
16 what the General Assembly was obligated to do was to compare
17 the benchmark plan using the 2010 Census, not the 2000 Census.
18

Oh, by the way, I do want to point out that we've

19 heard about the percentage of the vote that Congressman
20 Butterfield received, but what the plaintiffs don't want to
21 talk about is what's the actual margin of victory?
22 district was underpopulated by 97,500 people.

So this

Congressman

23 Butterfield had several elections where he won by less than
24 that amount.

And so the question is what type of white voters

25 do you have to put back into the district to keep it at

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 32

1 98 percent?

And that's exactly what the Supreme Court said the

2 states were not obligated to do under Strickland, that
3 legislatures and courts needed a judicially manageable
4 standard.
5

So, again, North Carolina didn't make up a mechanical

6 rule like Alabama did.

They followed the US Supreme Court; and

7 while not binding on you, Your Honors, it is binding on the
8 General Assembly.

The North Carolina Supreme Court said the

9 same thing.
10

The rest of these maps, Your Honor, are proposed

11 maps.

There were only two proposed maps from other parties,

12 the Southern Coalition for Social Justice which represented a
13 coalition including the NAACP.

That's under Tab 7.

14 see their 1st District there in yellow.

You can

Someone tell me how

15 that passes the interocular test while the enacted plan
16 doesn't, and they drew that district, I think, with a black
17 voting-age population of 47 to 48 percent.

Again if, there's

18 no racial polarized voting, why isn't it at 25 or 28 percent?
19

They also drew that district, Your Honor, with -- so

20 that whites were in the minority.

Nobody's ever proposed a 1st

21 Congressional District with a majority-white population.

And

22 they also proposed a district with very -- nearly a majority of
23 the vote -- registered voters being black.
24

There are several versions of the Dickson v. Rucho

25 plan in this notebook, Your Honor.

The plan was originally --

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 33

1 the 1st District was originally drawn into Wake County because
2 the cochair, Senator Rucho, and Representative Lewis may have
3 misunderstood Congressman Butterfield.
4 respect.

For him, I have great

But they thought that he had requested that the

5 district be drawn into Wake instead of Durham acknowledging
6 that the severe underpopulation of the 1st District could
7 require something like that, putting it into the RTP area to
8 make up the severe underpopulation.
9

The ultimate plan enacted by the General Assembly

10 took the district into Durham instead of Wake County.

There

11 was historical precedent for that because the very first map we
12 looked at, the '91 Plan, which was precleared by the Justice
13 Department, had drawn the district into Durham.

In fact, if

14 you look at the Shaw II case, the Supreme Court kind of
15 acknowledges that that district was a proper remedial district.
16 So there was historical precedent for that.

There was also a

17 speaker at a public hearing who supported leaving the district
18 into Durham.
19

But again, Your Honor, what these maps show is that

20 it would be real hard to put these maps on a reality TV show
21 and have some judges decide which one of these maps is prettier
22 and then explain why, or why the 1st District is not pretty
23 enough.

In fact, Your Honor, the 2001 First Congressional

24 District is more compact under -- or is only slightly less
25 compact than the 1997 1st Congressional District which the

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 34

1 three-judge court found to be compact.
2

It's very, very close.

Just talking briefly about the 12th District, Your

3 Honor.

That district survived the Cromartie litigation because

4 the state had drawn that using something called a vote
5 Tabulation District.

A vote tabulation district is a piece of

6 census geography which the Census uses to do all sorts of
7 things.

In North Carolina, vote tabulation districts are

8 pretty much identical to precincts with some few exceptions,
9 and precincts, of course -- the Court is familiar with what
10 precincts are.
11

That's where people go to vote on election day.

The state in '97 and 2001 drew the 12th District to

12 be a strong Democratic district.

The software that is

13 available to do that, you can look at the election results on
14 VTD level with no racial data being present.

Dr. Ansolabehere

15 admits this in his deposition, that if you looked at election
16 results, you can't tell what the race of the voters are, and
17 that's exactly why the General Assembly in '97 to 2001 and in
18 2011 drew the 12th District based upon whole VTDs looking at
19 election results because they could not tell the race of the
20 voters.
21

The difference, Your Honor, is that the 2011 General

22 Assembly drew the 12th District to help Republicans in
23 adjoining districts.

Dr. Ansolabehere has not looked at that.

24 He admits he hasn't looked at how the adjoining districts were
25 affected by the way CD 12 was drawn.

And if you go back and

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 35

1 you check the Cromartie II case, that's fatal to his testimony
2 along with his somewhat inexplainable decision to rely on
3 registration statistics.
4

But even if they had proven -- if they could prove,

5 which they can't, that race was the predominant motive for
6 Congressional District 12, because -- and I'm quoting, I think,
7 Justice Souter if I'm right.

It might be Breyer, but whoever

8 wrote the majority opinion in Cromartie -- because there's such
9 a high correlation between African-Americans and voting for
10 Democrats that sits over 90 percent.

So if you're going to

11 make a more Democratic district, there has got to be more
12 African-Americans in it, particularly in that part of the state
13 where there's a high concentration of African-Americans.
14

And the Supreme Court in Cromartie said where there's

15 a high correlation between African-Americans and the party -16 the candidate for who they vote for, even if you prove some
17 sort of indication that race was the predominant motive, the
18 plaintiffs have to offer a map showing how they could draw that
19 district in a way where race was not the predominant motive but
20 also achieving the political goals of the General Assembly.
21

There's a few other things that counsel said that I

22 disagreed with, Your Honor, but I've taken up enough time.

At

23 the end of the day, Your Honor, this is just a fight over a
24 policy decision.
25

In 2001, Senator Miller drafted the 13th district in

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 36

1 a way that's just as strange looking as the 12th District
2 running from Wake County to Greensboro.

He actually split up

3 part of Congressman Watt's 12th District in doing that.

They

4 put Mecklenburg County into the 8th District to create a
5 district in which a Democrat could defeat Robin Hayes, which
6 happened.

Those are all decisions under the cases that were

7 within the discretion of the General Assembly; and just the
8 same as those decisions were not illegal under any theory, what
9 the General Assembly in 2011 did also is lawful and is within
10 the discretion of the state's elected representatives.

Thank

11 you very much.
12

JUDGE OSTEEN:

All right.

Are the plaintiffs ready

13 to call their first witness?
14

MR. SPEAS:

Yes, Your Honor.

But before we call our

15 first witness -- Eddy Speas for the plaintiffs -- we would like
16 to move the introduction of our Trial Exhibits 1 through 144
17 previously identified in this matter.

It is my understanding

18 that with one exception, all of these documents came from the
19 Dickson record, which is the subject of the stipulation that
20 the Court mentioned on Friday.

With exception of one document,

21 I believe, there is no objection to the admissibility of the
22 documents.

So we would at this point move the introduction of

23 Plaintiff's Exhibits 1 through 144.
24

Your Honors, I regret to tell you they're over there

25 in boxes.

It's a pile.

To make this case manageable for all

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 37

1 of us, as we call witnesses, we will give them a witness
2 notebook and share it with you and the clerks that will focus
3 on the particular exhibits that are important for those
4 witnesses.

But the immediate matter on the table is we move to

5 introduce Exhibits 1 through 144.
6

JUDGE OSTEEN:

And all those documents, except one,

7 were taken care of in that stipulation filed -- like Document
8 69 or something like that?
9

MR. SPEAS:

Document 70, and we would withdraw that

10 one.
11

JUDGE OSTEEN:

12

MR. SPEAS:

13

MR. FARR:

Okay, and use this one?

Yes.
I'm just questioning Mr. Speas.

I think

14 Document 70 is the attorney-client privilege -15

MR. SPEAS:

Thirteen is the document that's got your

16 name on it.
17

MR. FARR:

Okay.

We have an attorney-client

18 privilege objection to Exhibit 13 then, Your Honor.
19

JUDGE OSTEEN:

So plaintiff -- so no objection to 1

20 through 12 and 14 through 144?
21

MR. FARR:

If -- and Mr. Speas, I'm sure, has given

22 me the right number.

If it's Exhibit -- what did you say, 13?

23

To clarify, we will withdraw our

MR. SPEAS:

24 Exhibit 70 which was not in the record in Rucho.

The only

25 exhibit to which there is an objection is Exhibit 13, which is

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 38

1 an email in which Mr. Farr is copied.

To the extent there was

2 a privilege, we think it's been waived, so we would -- and it
3 is a part of the Dickson record.
4

JUDGE OSTEEN:

All right.

So to clarify then,

5 Mr. Farr, no objection to 1 through 12, 14 through 69, and 71
6 through 144?
7

MR. FARR:

Your Honor, there's one other -- there's

8 like an expert report from a group that we objected to on the
9 grounds of hearsay -- oh, okay.
10 have is to Exhibit 13.

Yes.

So the only objection we

And, Your Honor, when you look at it, I

11 wasn't just copied, I was giving legal advice to people who
12 were working for the legislature.
13

JUDGE OSTEEN:

All right.

Seventy is withdrawn.

So

14 I'm going to -- 1 through -- now, I've got my numbers mixed up.
15 So 1 through 12, 14 through 69, 71 through 144 are admitted
16 without objection.

There is a pending objection as to

17 Plaintiff's Exhibit 13.

Unless there's a better procedure, to

18 keep us moving this morning, at present I'm going to admit it
19 subject to the objection, and we'll rule on the objection when
20 we have a few minutes.
21

MR. FARR:

22 that, Your Honor.

I was going to suggest something like

I was thinking if the Court would look at

23 that at some point in time and just tell us what you think,
24 that would be fine.

You don't need to do it right at this

25 moment.

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 39

1

JUDGE OSTEEN:

2 right for my notes.

All right.

Let me get my numbers

1 through 12 -- Plaintiff's Exhibits 1

3 through 12 are admitted.

14 through 69 are admitted.

4 Plaintiff's Exhibits 71 through 144 are admitted.

Plaintiff's

5 Exhibit 13 is admitted pending a final determination of the
6 attorney-client privilege objection.

Where are -- is that the

7 boxes over there?
8

MR. SPEAS:

Yes, Your Honor.

9 of the judges and each of your clerks.

There's a box for each
But as I said, as a

10 witness is called, we will hand the witnesses notebooks that
11 contain those exhibits so that it will be manageable for
12 everyone hopefully.
13

JUDGE OSTEEN:

14

MR. SPEAS:

All right.

Move forward then.

Your Honors, thank you.

15 call as our first witness Senator Dan Blue.

We would then

And as Senator

16 Blue comes around, Your Honors, if I may approach the bench?
17

JUDGE OSTEEN:

Yes.

Mr. Farr, will it be easier for

18 us to give you these back -- hold on just a second -- the
19 exhibits you've handed us now and let you hand them up again
20 when you're ready to introduce them, or just keep them up here?
21

MR. FARR:

Whatever the Court prefers.

You might

22 like to refer to them as the testimony is going forward.
23

MR. SPEAS:

I have no objection to you keeping them.

24

JUDGE OSTEEN:

25

(Witness sworn by the clerk.)

Okay.

All right.

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Blue - Direct
1

MR. SPEAS:

Your Honor, if I may approach the witness

2 and hand him the exhibits.
3

THE COURT:

You may.

4

MR. SPEAS:

Your Honor, in addition to using the

5 notebook, to the extent my technological skills permit this to
6 happen, I am hoping to put up on the screens the pertinent
7 parts of their testimony so that we will all be talking about
8 the same thing.
9

THE COURT:

All right.

10

DANIEL BLUE,

11

PLAINTIFF'S WITNESS SWORN AT 10:04 a.m.

12

DIRECT EXAMINATION

13 BY MR. SPEAS:
14 Q

Would you stated your name for the record, please?

15 A

Yes.

Good morning, Your Honors.

My name is Daniel Blue,

16 Jr.
17 Q

And would you tell the Court a little bit about where you

18 grew up and where you went to school.
19 A

I grew up in Robeson County on a farm in Lumberton.

After

20 graduating from the public schools in Robeson County, I
21 enrolled at North Carolina Central University and got a degree
22 in mathematics and from there I went to Duke Law School and
23 graduated from Duke Law School with a JD in 1973.
24 Q

Have you been engaged in the practice of law since then?

25 A

I have, since August 1973 when I got word that I passed

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Blue - Direct
1 the bar exam.
2 Q

And tell the Court just a little bit about your law

3 practice over those years.
4 A

Out of law school, I was recruited to one of the bigger

5 firms in Raleigh.

It was Sanford, Cannon, Adams and

6 McCullough, a firm founded by and headed by former Governor
7 Terry Sanford, and I practiced there for a while and then left.
8

I along with two other associates of my earlier

9 associates established a law firm in Raleigh, Thigpen, Blue &
10 Stephens, and since that time I have practiced with that firm
11 in one iteration or the other, but it's now Blue, Stephens &
12 Fellers in Raleigh, and so for the last 42 -- 42 plus years,
13 we've consecutively practiced general litigation but also
14 specializing in some subareas.
15 Q

Did your work with former Governor Sanford inspire you to

16 get involved in political life yourself?
17 A

It did.

Growing up, it's not popular now, but I was

18 nailing signs up on light posts and trees when Sanford was
19 running for governor in 1960.

I was a little boy.

I was 10

20 years old, 11, and so when we joined the firm, one of the
21 requirements that Sanford had -- who at that time had become
22 president at Duke but was still involved in the firm, is that
23 everybody had to do something politically oriented, whether it
24 was work in your precincts or run for office or do various
25 things.

Multiple people in the firm ran and served in various

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 42

Blue - Direct
1 public offices around Wake County and around the state.
2 Q

And you yourself have served in public office, I believe?

3 A

I was elected to the North Carolina House of

4 representatives in 1980, and I served continuously in that body
5 until 2001 when a slight fit of insanity hit me and I ran for
6 the United States Senate.

I stayed out of the legislature from

7 2003 and went back in 2006 back to the House and went over to
8 the Senate in 2009.
9 Q

And during your many years, I guess more than 30 years now

10 in the legislature, were you involved in various redistricting
11 decisions by the North Carolina General Assembly as a member of
12 the General Assembly?
13 A

I have been since 1980, in November when I was certified

14 as a member of the House.

I've somewhat been involved.

In the

15 1981 session of the General Assembly, I was involved both in
16 Congressional Redistricting Committees and the House
17 Redistricting Committee, and was involved in the districts that
18 led to Gingles.
19

I was first elected county wide in Wake County and

20 ran county wide on several occasions.

In '84 as a result of

21 Gingles, Gingles versus -- became Gingles versus Thornburg, but
22 as a result of that case, a single member district, a system of
23 single member districts were created in Wake County, and what
24 had been a six member at large district became six single
25 member districts, so I represented those.

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 43

Blue - Direct
1

In 1990, I was involved pretty intimately in the

2 redistricting process.

I was elected Speaker of the House of

3 the session that began in 1991, so not only was I involved, I
4 appointed the redistricting committees, both the House
5 Redistricting and the Congressional Redistricting Committees
6 and was involved in many of the discussions regarding the 1991
7 Congressional Redistricting effort, and so I did that.
8

And then in 2000 I was still in the House, and I was

9 involved in the redistricting discussions, both at the
10 Congressional level as well as in the House redistricting, and
11 I was not involved in the redistricting committee.

I was not

12 appointed to the Senate Redistricting Committee in 2011,
13 although I tried hard to be and had a guy who was a senator who
14 was going to resign so that I could serve there, but it was a
15 choice of the president pro tem of the Senate not to appoint me
16 to redistricting, but I was still involved in following the
17 hearings and listening to testimony and talking to people all
18 across the state regarding the redistricting effort.
19 Q

Okay.

Now, were you involved in the redrawing of

20 Congressional District 1 and Congressional District 12 in 1997
21 following the 1996 decision of the US Supreme Court in Shaw v
22 Hunt?
23 A

I was.

24 Q

Okay.

And Senator Blue, I would ask you to turn to the

25 tab behind your testimony marked 73, which is Plaintiff's

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 44

Blue - Direct
1 Exhibit 73, and if our paralegal could put that up on the
2 screen.

Is it there?

3

Yes.

Thank you.

Senator, is this the Section 5 submission made to the

4 US Department of Justice by the North Carolina General Assembly
5 in 1997 sending forth for preclearance the rewrite of those
6 Congressional 1 and Congressional 12 following the Shaw
7 decision?
8 A

Yes, that's what it purports to be, and that's what it is,

9 typical cover letter sent with submissions.
10 Q

And would you turn to pages 10 -- I'm sorry, nine and 10

11 of that document, and there's a section there entitled, "Effect
12 of Change on Minority Voters," is that correct?
13 A

That's correct.

14 Q

And is it fair to say -- I don't want you to get into read

15 it or anything like that.

Is it fair to say in that section,

16 the North Carolina General Assembly explained to the US
17 Department of Justice the criteria that it was following and
18 the factors that it was considering in establishing those
19 districts?
20 A

That is a correct characterization of it, and that is

21 consistent with typical explanations that had been given; but,
22 yes, it clearly says what the criteria is and what the factors
23 are that are being considered.
24 Q

And would you actually read for us the first two sentences

25 of that section?

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 45

Blue - Direct
1 A

"The General Assembly's primary goal in redrawing the plan

2 was to remedy the constitutional defects in the former plan.
3 Those defects were the predominance of race in the location and
4 shape of Districts 12, and perhaps in the location and shape of
5 District 1, and a failure of narrow tailoring."
6 Q

And would you look with me to page 10 of that document,

7 the 6th line from the top, I believe, and is it accurate that
8 the legislature applying the criteria it described there and
9 weighing the factors it described there, set the voting -10 black voting-age population for Congressional 1 in 1997 at
11 46.54 percent?
12 A

That's -- that states it correctly, yes.

13 Q

Okay.

Now, was the '97 legislation precleared by the US

14 Department of Justice?
15 A

Yes, it was.

16 Q

Was any suit filed challenging that legislation under

17 Section 2 of the Voting Rights Act?
18 A
19 Act.
20 Q

There was no suit under Section 2 of the Voting Rights
Yeah, as I recall correctly, there was not.
And that brings us to the 2001 redistricting.

You were in

21 the legislature?
22 A

I was.

23 Q

And is it fair to say that the Congressional 1 and

24 Congressional 12 in the 2001 plan looked a fair amount like the
25 '97 versions?

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 46

Blue - Direct
1 A

They did.

They did.

2 Q

And were those versions precleared by the US Department of

3 Justice?
4 A

They were.

5 Q

And was any suit filed during that decade challenging any

6 of those districts on Section 2 grounds?
7 A

There was no suit filed against them on Section 2 basis;

8 and, in fact, Mr. Speas had the honor, I call it that, but when
9 I was Speaker, the challenges on the basis of Section 2 were -10 basically it was the Justice Department objecting because we
11 were refusing to create a second Congressional District that
12 was race based.
13

Following the redistricting, it was pretty much

14 concluded that polarization and all of those issues existed in
15 the northeast and the east primarily, and you could draw a
16 district that was contiguous and somewhat compact, but with
17 respect to a second minority Congressional District, we made
18 the call, primarily with my urging, not to create a second
19 Congressional District and the United States Department of
20 Justice corrected us on that and made us go back and do it.
21 Q

That was in '91?

22 A

That was in '91.

23 Q

Not 2000?

24 A

Yeah, that's what I was saying all of that to say that

25 subsequent to that, I think that may have been the last

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 47

Blue - Direct
1 Section 2 challenge that was started out as Section 5.

May

2 have been the last Section 2 challenge, other than leading up
3 to the earlier -- the '97 remapping.
4 Q

I apologize for my confusing question.

5 addressed to the 2001 plan.
6 A

My question is

Was it precleared?

It was precleared, and there was no lawsuit brought in

7 connection with it.
8 Q

Now, that brings us to 2011.

9 A

Yes, sir.

10 Q

You were in the legislature?

And you were not on the Redistricting Team Committee, but

11 is it fair to say you have an avid interest in redistricting?
12 A

I do.

13 Q

Would you provide the Court with an overview of this 2011

14 redistricting process as you saw it as a member of the Senate.
15 A

As a sitting member of the Senate, again, there was -- I

16 think maybe it was in June or July sort of that there was this
17 discussion after the census data had been received where
18 Senator Rucho, who was the Senate chairman of both Senate
19 Redistricting and Congressional Redistricting, along with
20 Representative Lewis who was his counterpart in the House sort
21 of sprung them out, and said these are the things that we're
22 looking for in redistricting, and we're going to have public
23 hearings to see what the public reaction is to what they're
24 trying to do.

That's sort of the background of how we started

25 talking about redistricting.

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 48

Blue - Direct
1 Q

So it's accurate that first plans are presented by the

2 defendants here some time in mid-June and then they're enacted
3 by the end of July; is that -4 A

Yes, that's accurate.

5 Q

And that's Congressional and State House and State Senate?

6 A

That's right.

7 Q

So it was a pretty quick process?

8 A

It was a quick process, and there was -- for all intents

9 and purposes there was no real external input other than
10 they're presenting the map, and any tweaking or changes they
11 did among themselves.

I mean, the -- there were no changes

12 that were adopted that may have come from anybody externally in
13 the sense of legislators not on the committee.
14 Q

And what role did Senator Rucho and Representative Lewis

15 play in this process?
16 A

Senator Rucho was the Senate Chair of Congressional as

17 well as Senate Redistricting.

Representative Lewis was the

18 House Chair of House Redistricting and Joint Chair of the
19 Congressional Redistricting, and for the most part, the two of
20 them drew the maps -- not necessarily drew them, but supervised
21 the drawing of the maps, which were done external of the
22 General Assembly.
23 Q

And do you know who actually drew the maps?

24 A

Mr. Tom Hofeller.

25 Q

Okay.

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 Blue - Direct
1 A

49

I've learned since then drew the maps, and that's what we

2 learned during the course of the enactment of the plans.
3 Q

Did Mr. Hofeller ever appear in the legislature and

4 explain how he drew the plans?
5 A

No, sir.

6 Q

Okay.

Now, I think the historical record establishes that

7 Senator Rucho and Representative Lewis communicated their
8 criteria for developing these plans in a series of public
9 statements, is that correct?
10 A

Yes, they on several occasions, both written and I think

11 in press conference form, indicated what they were looking for
12 and what they were looking at in trying to arrive at the
13 redistricting plans.
14 Q

And did they explain in these statements and in other

15 places their understanding of their obligations under the
16 Voting Rights Act?
17 A

Well, the thing that stood out is that they explained that

18 their obligation was to create voting rights districts, Voting
19 Rights Act districts pretty much throughout the state, both
20 legislatively and congressionally and that the criteria that
21 they had to adhere to was the 50 percent plus voting-age
22 population in each of the districts because that's what they
23 read Strickland to mean.
24 Q

And, Senator, if you would turn to the tab in -- after

25 your notebook that's labeled five, it's in front of -- actually

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 50

Blue - Direct
1 Defendant's Exhibit 55 is a very nice collection of all the
2 public statements.

Is the first public statement issued in

3 June, on June 17, 2001 -4 A

It is.

5 Q

-- 2011?

6 A

It is June 17, 2011, issued from them.

7 Q

And could we put page 2 of that up on the screen?

8

THE COURT:

Let me ask a question.

So in the

9 notebook, the tab five is Plaintiff's Exhibit 5?
10

MR. SPEAS:

I'm sorry, Your Honor, it got mislabeled.

11 It's Defendant's Exhibit 55 which we listed as, you know, we -12 in our -13

THE COURT:

So the defendant/plaintiff labels may not

14 mean anything as we go along?
15

MR. SPEAS:

Not in this particular instance.

I'm

16 sorry for the confusion.
17

THE COURT:

So it's Defendant's Exhibit -- I have on

18 the first page a deposition Exhibit 55, and then down at the
19 bottom I have a copy of a Defendant's Exhibit something.

How

20 do these numbers -21

MR. SPEAS:

22

MR. FARR:

I thought it was 55.

Maybe I'm confused.

Your Honor, Defendant's 55 is some

23 testimony from a person in a public hearing, and our version of
24 what Mr. Speas was referring to is I think it's Defendant's -25

THE COURT:

So the sticker at the bottom that says

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 51

Blue - Direct
1 Defendant's Exhibit D-5.11 is the number for the record?
2

MR. FARR:

Yeah, Your Honor.

I think the defendant's

3 sticker for this case on the screen is in blue at the bottom.
4 The exhibit number at the top was the exhibit number in the
5 Dickson case.
6

I think that clears it up.

THE COURT:

Okay.

So make sure, as you go along, do

7 the best you can to get me the right numbers.
8

MR. SPEAS:

I apologize, Your Honor.

It's

9 Defendant's Exhibit D-5.11.
10

THE COURT:

Okay.

11 BY MR. SPEAS:
12 Q

Senator Blue, now that I've not confused it too terribly I

13 hope, would you look on the second page of this exhibit which
14 is one of the public statements and read into the record the
15 second paragraph, beginning paragraph, the first two sentences
16 beginning, "In creating."
17 A

Yes, sir.

"In creating new majority African-American

18 districts, we are obliged to follow the decisions in Stephenson
19 1 and 2 as well as the decision by the North Carolina Supreme
20 Court and the United States Supreme Court in Strickland versus
21 Bartlett, with a cite.

Under the Strickland decisions,

22 districts created to comply with Section 2 of the Voting Rights
23 Act must be created with a black voting-age population, BVAP,
24 as reported by the census at the level of at least 50 percent
25 plus one."

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1 Q

Okay.

And would you look -- that was from the June 17

2 public statement?
3 A

Yes, that was from the joint statement by Senator Rucho

4 and Representative Lewis dated or released June 17, 2011.
5 Q

And I'm going to ask our paralegal to put up on the screen

6 the public statement dated July 12, particularly page 4.

Do

7 you have the July 12 statement?
8 A

Is that -- do you mean on page 4 of this document?

Yes,

9 I'm looking at page 4 of the document.
10 Q

Okay.

11

THE COURT:

While we're stopped.

We had an air

12 conditioning problem of all things this morning.
13 went down and GSA was slow.

The chillers

So to get us restarted, I

14 understand the problem has supposedly been taken care of, but
15 it's going to take a little while for the cooling to fix this
16 courtroom, and I apologize for that.
17 BY MR. SPEAS:
18 Q

Senator Blue, could you look over at the screen.

That's

19 the particular part of the July 12 statement I'm interested in.
20 Could you read that into the record, please.
21 A

Sure.

First, we have complied, as we must, with the

22 holding by the United States Supreme Court and the North
23 Carolina Supreme Court in Strickland versus Bartlett, with a
24 cite.

These decisions require that districts drawn to insulate

25 the state from liability under the Voting Rights Act must be

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1 drawn with a black voting-age population in excess of
2 50 percent plus one.
3

THE COURT:

4 comes from.
5

Let me make sure I understand where that

Where is --

MR. SPEAS:

It comes from the July 12 public

6 statement which is a part of Defendant's Exhibit D-5.11.
7

THE COURT:

Oh, that's page 2.

8

MR. SPEAS:

I apologize for the confusion, 5.11.

9 apologize for the confusion.

I

This exhibit contains all the

10 public statements issued.
11

THE COURT:

All right.

12 BY MR. SPEAS:
13 Q

Now, were you in debates in the legislature where these

14 same statements were made by Senator Rucho?
15 A

Was I in the legislature?

16 Q

Yes.

17 A

Sure.

18 Q

And you heard these statements on the floor of the Senate?

19 A

Well, this statement was from a July statement that he

20 made, but I've heard him make, yes, the statement because this
21 wasn't the only time.
22 Q

Okay.

He said that multiple times.

Now, let me now ask you, Senator Blue, if you would

23 look at the July 1 public statement which is a part of
24 Defendant's Exhibit D-5.11 at page 3.
25 A

I have that.

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1 Q

Did you -- do you have that in front of you?

2 A

I have page 3, yes.

3 Q

Okay.

And if you would look at page 3 of that statement,

4 would you -- could we put this up on the screen, please.
5 Senator Blue, if you would look at the screen.

Is that up?

6 I'm sorry, Your Honor, I'm having a hard time seeing.
7 Honor, I've managed to completely confuse myself.

Your

Let's just

8 skip by that for the moment.
9

Let's look, Senator, at exhibit -- Plaintiff's

10 Exhibit 139 which is in front of you under tab 139.
11 A

Got it.

12 Q

Is that a transcript of the July 25, 2011 session of the

13 North Carolina General Assembly?
14 A

It is.

15 Q

And would you look at pages 8 and 9, particularly at the

16 bottom of page 8, at line 19, the paragraph beginning
17 "however."
18 A

I got it.

19 Q

Okay.

20 A

It says, "However, we must alter the 2001 version of the

Would you read that into the record, please.

21 first district because of two flaws.

First, the current first

22 district is underpopulated by over 97,000 people.

Secondly, it

23 does not include a majority-black age voting - black voting-age
24 population, better known as BVAP, as required by Section 2 of
25 the Voting Rights Act, see Strickland and Bartlett -- Bartlett

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1 excuse me.

Thus any revision of the first district requires

2 the addition of over 97,000 people.

Also, the added population

3 must include a sufficient number of African-Americans so that
4 the first district can re-establish as a majority-black
5 district.
6

Prior to our release of the Rucho/Lewis 1, we

7 discussed both of these problems with Congressman Butterfield.
8 We believe that he understood and agreed that his district
9 would be drawn in either Wake or Durham County to cure the
10 district's equal population and voting rights deficiencies.

We

11 understood that Congressman Butterfield preferred that his
12 district be drawn in Wake instead of Durham.

We also discussed

13 with Congressman Butterfield that drawing his district in Wake
14 County may result in the withdrawal from his district of one or
15 more counties covered by Section 5 of the Voting Rights Act."
16 Q

Okay.

Thank you.

And when the General Assembly enacted

17 the Congressional Plan in July, did Congressional District 1
18 contain more than 50 percent voting-age -- black voting-age
19 population?
20 A

The plan finally enacted did.

21 Q

Okay.

And let me go back just a moment to your district.

22 You were in Senate District 14, I believe?
23 A

I am in Senate District 14, yes.

24 Q

And tell the Court what Senate District 14 was like in

25 2010 in terms of shape and in terms of voting -- black

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1 voting-age population.
2

MR. STRACH:

3

THE COURT:

4

MR. STRACH:

Objection, Your Honor.
Basis?
It appears that the line of questioning

5 is going into legislative districts.

This matter seems to be

6 focused on Congressional Districts, so we'd simply note
7 objection, Your Honor, to testimony from Senator Blue regarding
8 Legislative Senate District 14.
9

THE COURT:

Relevance of the statement?

10

MR. SPEAS:

It illustrates the application of the

11 50 percent plus one rule.
12

THE COURT:

Just a second.

Is it for illustrative

13 purposes only, in your opinion?
14

MR. SPEAS:

Yes.

15

THE COURT:

Yes, sir?

16

MR. STRACH:

We wouldn't have any objection to it for

17 illustrative purposes.
18

THE COURT:

19

MR. STRACH:

20

THE COURT:

No objection?
For illustrative purposes.
For illustrative -- hold on just a

21 second.
22

(Discussion among judges.)

23

THE COURT:

We'll allow it for illustrative purposes.

24

MR. SPEAS:

Thank you, Your Honors.

25 BY MR. SPEAS:

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1 Q

Senator Blue, briefly, tell the Court what your district

2 was like in 2010 before it was redrawn in terms of shape and
3 population.
4 A

Yeah, my district, as the other districts that later

5 became the majority minority districts was well under
6 50 percent black, not only voting-age population but black
7 population, and the idea that Senator Rucho expressed in the
8 press release that you saw earlier as well as in his statement
9 on the floor was that any district drawn to satisfy the
10 requirements as he perceived of Section 2 of the Voting Rights
11 Act had to be more than 50 percent plus voting -- black
12 voting-age population.
13

So my district was somewhere down in the low 40s, 40,

14 41, 42 at most and had consistently been that level.

It had 70

15 or 80,000 people too many in it, and by the time we did 2010
16 census; but, anyhow, my district is illustrative of what
17 happened to the other districts that had black senators in that
18 it was taken from roughly 40, 42 percent black population,
19 black voting-age population, to in excess of 50 percent, and
20 that was the same -- same thoughts that he had expressed about
21 the Congressional Districts, that even though they were below
22 50 percent, that he was going to take them above 50 percent
23 black voting-age population.
24 Q

And at some point in the legislative process, you posed to

25 Senator Rucho the question, what is it about the Voting Rights

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1 Act that requires you to increase the black voting-age

2 population in districts that are less than 50 percent that are
3 already electing African-American candidates?
4 A

He said it was his understanding and his belief that he

5 had to take them all beyond 50 percent because Strickland
6 informed him that that's what he's supposed to do.
7 Q

Now, let me ask you, Senator, to do this for me.

We've

8 talked about the 2001 plan that was precleared by US Justice,
9 or plans that were precleared, and we talked about the 2011
10 plan.

The 2001 plan had how many majority African-American

11 voting-age population districts, the 2001 plan?
12 A

I believe the 2001 plan had nine.

13 Q

No, I'm sorry.

14 A

Congressional District.

Congressional Districts?
The 2001 plan had two districts

15 that had black Congress people representing them.

Neither of

16 those districts was over 50 percent black voting-age
17 population.
18 Q

And the enacted plan had how many districts over

19 50 percent?
20 A

In 2001?

Oh, in 2011.

21 Q

Yes.

22 A

The 2011 plan took both districts in excess of 50 percent

23 or at least attempted to take both districts in excess of 50
24 percent black voting-age population.
25 Q

And how many districts, Senate districts, in the 2001 plan

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1 had a majority-black African-American voting-age population?
2 A

Nine Senate districts.

3 Q

No in 2001?

4 A

2001?

2001 had no State Senate districts.

5 voting-age population in excess of 50 percent.

However, black
The range ran

6 from I think the high 20s, even lower than that in a district
7 that was represented by a black Senator in Alamance County, but
8 the 2001 plan, or three plan as finally enacted, had no North
9 Carolina Senate districts that had black voting-age population
10 above 50 percent.
11 Q

And the 2011 Senate plan had how many majority --

12 A

It went from zero in the 2003 final plan to nine in the

13 2011 plan.

So zero in 2003 had over 50 percent -- had

14 50 percent plus black voting-age population, nine following the
15 2011 redistricting had 50 percent black voting-age population.
16 Q

And on the House side, in 2001, do you recall

17 approximately how many House districts had majority-black
18 voting-age populations?
19 A

The House had -- it was either 10 or 11 black voting-age

20 population districts in 2001 and 2003 after the redistricting
21 effort, and the 2011 plan, the House had 23 black voting-age
22 population districts.
23 Q

That --

24 A

That were over 50 percent.

25 Q

So let me see if I've got this right and to summarize.

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1 The Senate plan went from no majority-black voting-age
2 population district in 2001 to nine in 2011?
3 A

That's correct.

4 Q

The House went from 10 majority African-American

5 voting-age districts in 2001 to 23 in 2011?
6 A

That's accurate.

7 Q

And in the Congressional side, the 2001 plan had no

8 Congressional District with a majority voting-age population
9 black; the 2011 plan had two?
10 A

That's correct.

11 Q

Now, did you vote on all three of these plans?

12 A

I voted on all three of them, yes.

13 Q

And how did you --

14 A

No, no, no, I voted on two of them.

I couldn't vote for

15 the House plan.
16 Q

Okay.

17 A

I could at the end --

18 Q

How did you vote?

19 A

I could at the end, but I voted -- I voted no on all of

20 them, and every other black Senator voted no on all of them,
21 all three plans.

And the reason I made the comment earlier is

22 typically the Senate affirms what the House does its plans, and
23 the House affirms what the Senate does to its plan, and then
24 both fight about the Congressional Plan.
25

But in this case all of the African-American

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1 senators, and there were nine at the time, nine who came from
2 these non-majority-black districts, all voted against the plan.
3 No, there may have been more than that at the time; but,
4 anyway, all of them voted against it, and all of the House
5 members voted against all three plans, the black House members.
6 Q

All of the African-American members of the Senate in 2011

7 voted against the plan that was finally enacted for the Senate
8 and the plan finally enacted for Congress?
9 A

Yes.

10 Q

Okay.

Would you take a minute and just tell the Court why

11 you opposed these plans that created all these new for the
12 first time majority African-American voting-age population
13 districts.
14 A

Well, there's several reasons, but the most obvious was

15 that this was seen among those who had been elected to
16 represent all of the people in their districts, not just the
17 black citizens in their districts, it was seen as a
18 balkanization of the electorate, and basically a ghettoization
19 of the black elected officials.
20

It was creating districts where they were not needed

21 and where they were not justified to create a majority-black
22 district in Wake County, and this was part of a discussion with
23 the Congressional debate as well.

A county that since the

24 passage of the Voting Rights Act shortly thereafter had
25 consistently elected minorities in county-wide positions; a

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62

1 county which had two of the four constitutional officers, the
2 Register of Deeds and the sheriff, two of the four county
3 constitutional officers elected county wide were minority; a
4 county that had elected judges county wide and in districts
5 since following the passage of the Voting Rights Act, a county
6 that had elected African-Americans at every level of county
7 Government to the legislature, as well as other places, school
8 board, and everything else; a county that had elected three
9 African-Americans at the same time in -- from 2000 to 2010 to
10 the House of Representatives, although there was only one
11 majority minority district, and it was not over 50 percent, but
12 had elected African-Americans in districts that were under
13 20 percent African-American, a second district that was under
14 30 percent African-American, that there was no indication that
15 you needed to draw districts that were over 50 percent
16 African-Americans in order to achieve the purposes of the
17 Voting Rights Act; and, quite frankly, it was offensive to most
18 of those of us who represented the people of our districts and
19 especially those of us who were African-American.
20

It was acting as if the Voting Rights Act had

21 determined that things would go in a negative direction, that
22 you would create these districts, and they would sit there
23 forever, that they would not grow with time, that they would
24 not expand, that they would not basically do what we felt the
25 Voting Rights Act was designed to do, and that is eliminate the

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1 need for race -- race use in any kind of districting or any

2 kind of plan as we basically made the promise of America apply
3 equally to everybody.
4

And this plan was seen as basically reversing all of

5 that, ignoring the last 50 years of history and acting as if
6 Wake County, which had a record that I just described to you, I
7 was elected county wide to the General Assembly, we had a
8 senator elected county wide, but that Wake County had the same
9 history or the same proclivities as some of the other counties
10 where remedial action was necessary.

That was an insult not

11 only to the black citizens of Wake County, but to everybody in
12 Wake County, including the white citizens who had been told
13 that they were racist, that they voted in a polarized fashion,
14 when the record showed they did not.

When the record showed

15 they voted in coalition forms, voted for candidates, and that
16 there was no need to have special privileges and special
17 districts set aside that became -- I called them, I think in my
18 floor debate, townships like existed in South Africa.
19

MR. SPEAS:

Thank you, Senator Blue.

20

THE WITNESS:

21

THE COURT:

22

MR. STRACH:

Yes, sir.

Cross-examination?
Yes, Your Honor, Phil Strach for

23 defendants.
24
25

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1

CROSS-EXAMINATION

2 BY MR. STRACH:
3 Q

Good morning, Senator Blue.

4 A

Good morning, Phil.

5 Q

Good to see you again.

6 A

Same here.

7 Q

Senator Blue, you just had a discussion about Wake County.

8 If the legislature had drawn a Senate district for you that was
9 in the 10 to 15 percent black voting-age population range,
10 would you have agreed to that?
11 A

I probably would have, yes.

12 Q

Do you believe --

13 A

I got elected in a district initially that was less than

14 15 percent black voting-age population.
15 Q

Do you believe that a black candidate other than yourself

16 could be elected in that district?
17 A

Yes, I just indicated that county wide we elected a

18 sheriff when less than 15 percent of the county population,
19 black voting-age population -- when less than 15 percent of the
20 county's black voting-age population was African-American.
21

We elected county commissioners.

We elected judges

22 county wide in districts that had less than 15 percent
23 registered black vote.

The vote in Wake County now is

24 approximately 23, 24 percent African-American, reflects the
25 state population pretty much; and, again, consistently, that

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1 county has elected African-Americans.
2

There is no study that I'm aware of that I have seen,

3 and I've followed this for the last 30 plus years, that shows
4 that degree of polarized voting in Wake County that would
5 justify the creation of these super majority minority
6 districts, a super saturated minority districts.
7

One of the things that, Phil, that distinguished Wake

8 County from some of the other urban counties is that most of
9 the black voting-age population and the black population did
10 not live in just one section of Raleigh, of Wake County, and so
11 part of the difficulty in drawing districts, if you determine
12 that you're going to make a certain percent black, you've got
13 to have all these strange appendages all over your maps because
14 you've got to reach into neighborhoods that are not
15 majority-black, but they've got majority-black pockets in them.
16 And so you reach all over the place getting pieces of votes
17 through neighborhoods without regard to other things that unify
18 those neighborhoods.
19

So, yeah, I would have voted for a plan that

20 naturally divided Wake County on some basis.

I think it would

21 have been tough to draw a plan that did not have at least a
22 House district or a Senate district with over 25, 30 percent
23 minority population if you kept together the natural area in
24 southeast Raleigh, but that that would have been the natural
25 thing.

You could have drawn a district 30 percent black

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1 voting-age population I think that would have been acceptable
2 to most people.
3 Q

Do you -- were you aware of alternative Legislative and

4 Congressional Plans proposed by the Legislative Black Caucus.
5 A

I'm aware of two or three other groups that proposed

6 plans.
7 Q

Did you have any input on the -- the alternative maps that

8 were proposed by the Legislative Black Caucus?
9 A

The only influence I had was to convince people that it

10 made no sense to pack all African-Americans in as few of
11 districts as possible.

I didn't have any plans on the final

12 proposal that they sent forth.

In fact, I disagreed with some

13 of the districts that they proposed to create.
14 Q

Were you aware that the Legislative Black Caucus proposed

15 House districts -- or at least one House district in Wake
16 County that was majority-black?
17 A

Yeah, it was a continuation of old House District 33, I

18 believe; and, again, as I say, if you go into southeast Raleigh
19 which is a traditional African-American area of town, you can
20 come up with 40,000 African-Americans without having contorted
21 districts, without having strange appendages.

So if you just

22 take that population, you'll end up with a district that's
23 close to 50 percent African-American.
24

But what the legislature did, for the first time they

25 created two African-American House Districts in Wake County

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1 that have strange looks to them; and, again, in light of the
2 fact that Wake County had elected three African-Americans in
3 districts that were far less than the 30, 40 percent
4 African-American black voting-age population.
5 Q

Now, you're talking about blacks that have been elected

6 county wide, correct?
7 A

County wide and district wide, no, no, no.

8 elected in specific districts.

They were

There was one district in the

9 Knightdale/Raleigh area that had 29 percent black population,
10 black voting-age population, that consistently elected a black
11 woman.

There was another district in northwest Raleigh that

12 elected and reelected Ty Harrell.
13 20 percent African-American.

That district was less than

All of that was done and occurred

14 between 2001 and 2010.
15 Q

Now, the candidate in the district that you just mentioned

16 that had 29, 30 percent in the Knightdale area, who -- was that
17 Linda Coleman?
18 A

Linda Coleman won reelection in that district.

19 Q

How many times?

20 A

She ran -- again, I was out of the House from 2003 to

21 2006.

Linda was there when I got back, and she ran -- she was

22 re-elected -- I think she was re-elected two times, and then
23 she chose to join the cabinet of Governor Perdue after Governor
24 Perdue was elected in 2009.
25 Q

Right.

And do you know who won that district after she

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1 left that district?
2 A

Darren Jackson.

I don't think there was a black opponent.

3 If it was, it wasn't a serious one.
4 Q

But he's white, correct?

5 A

Darren is white, yes.

6 Q

Now, Senator Blue, you said that you were in the North

7 Carolina House from 1980, and I think you were there through
8 December 31 of 2002?
9 A

That's correct.

10 Q

Is that correct?

So you were consistently elected from

11 either a multimember district or your single member district
12 from 1980 to -- to through 2000, is that correct?
13 A

That's correct.

14 Q

And so you were in the State House when the 2001

15 Congressional Plan was enacted?
16 A

I was.

17 Q

And you were on the redistricting committee?

18 A

I was.

19 Q

All right.

20 A

I was traveling pretty extensively as a said.

I was.
So -I was

21 running for the -- in the primary for the United States Senate,
22 so I have to admit that I probably didn't put as much time in
23 the legislature as I should have, but I paid attention to
24 redistricting.
25 Q

But you were on the redistricting committee, so you had a

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1 direct voice in the drawing of those maps, correct?
2 A

Yep, sure, as well as other members.

3 process.

It was an open

Not only those on the redistricting committee, but

4 members of the House had pretty free rein to say what they
5 believed, and everybody reviewed their own districts.
6 Q

Do you remember how many times you ran in multimember

7 districts at the beginning?
8 A

Primary and general elections?

9 Q

Just -- yeah, primary and general.

10 A

I ran in multimember districts in three or four primaries,

11 I think, and two general elections.
12 Q

All right.

And then that's after the Gingles litigation

13 that then went to a single member district?
14 A

Yes, after Gingles and after '84 it became a single member

15 district.
16 Q

All right.

17 A

And it became a single member district not -- because the

18 proposal that had been made after Gingles was handed down was
19 that we create single member districts in the urban areas,
20 including those that were not necessarily affected by Gingles.
21 For example, in Durham County, the Gingles decision determined
22 that there did not have to be any majority minority district.
23 Gingles specifically said Durham did not have polarized voting,
24 but decision was made in the General Assembly so that these
25 districts wouldn't be isolated and stand out as different, that

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1 if we were going to create single member districts in these

2 urban areas, that all of the districts in the urban areas would
3 become single member districts and we would totally dismantle
4 the multimember districts that would remain; but that, again,
5 was to make sure that these majority-black districts that were
6 deemed necessary by Gingles were not sort of looked at as again
7 isolated and ghettoized districts.
8 Q

So in a multimember district, Senator Blue, you said that

9 Wake County was a six member multimember district, so six
10 seats -- voters could vote for six seats at one time county
11 wide, is that correct?
12 A

That's correct.

13 Q

And so in that situation a voter -- there might be several

14 white candidates, there might be several black candidates
15 within that pool of how ever many candidates were running,
16 correct?
17 A

That's right.

18 Q

So in that situation in a multimember district, voters

19 have the option of voting both for white candidates and black
20 candidates at the same time, is that correct?
21 A

That's correct.

22 Q

All right.

And in a single member district, you have to

23 vote for one or the other?
24 A

That's correct.

25 Q

All right.

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1 A

Unless both of them are the -- you know, two blacks or two

2 white candidates.
3 Q

Right.

And in a multimember district, are you familiar

4 with the concept of single shop voting?
5 A

Sure.

6 Q

What is single-shot voting?

7 A

Single-shot you can vote for one or fewer than all of the

8 available slots that you have that you could vote in.
9 Single-shot voting was a technique perfected primarily in the
10 '50's and '60's as a way to get over these districts.

I don't

11 defend multimember districts, but I'm saying over time you
12 learn how to adapt and you make whatever you have work for you.
13

So single-shotting was -- single-shooting was one of

14 the techniques that was developed to elect minorities in
15 districts where minorities hadn't been elected so that you
16 didn't have to vote, say, for all six.

You could vote for your

17 top three candidates, and the probability that one of them or
18 two of them or three of them would win was much greater if you
19 didn't spread your votes to the others.
20 Q

All right.

So that was one way in the multiple member

21 system that black voters could overcome the effects of racially
22 polarized voting, is that correct?
23 A

One way, yes.

24 Q

So -- because otherwise you might have a sizeable compact

25 population of black voters who would otherwise be submerged

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1 county wide, is that correct?
2 A

If there's a sizeable enough bloc, and you got contiguous

3 compact base, I think it's pretty clear that you ought to draw
4 the district that would be natural in that population.
5 Q

All right.

Now, and once you -- once you went over to a

6 single member district, particularly when you were in the State
7 House, you were running in and winning in just a small portion
8 of Wake County itself, correct?
9 A

Yeah, much smaller portion, part of the county rather than

10 the full county.
11 Q

Right.

And so is it fair to say that the vast majority of

12 the elections you won in in the State House were in that
13 smaller portion of Wake County?
14 A

Oh, sure.

I mean, I ran from '84 through 2000 in that

15 smaller district, mostly without primaries, but generally in
16 the general election I had very little opposition and -- in the
17 primary and, quite frankly, not a lot in the general elections.
18 Q

Right.

And do you think part of that is because after

19 you'd won several elections, you had the benefits of
20 incumbency?
21 A

Well, I'd like to think that it was because of how I

22 represented the district.

I don't think that longevity in and

23 of itself necessarily commands that you keep holding a
24 position.

I'd like to think that the citizens of the district

25 thought that I represented them adequately and well.

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1 Q

73

Sure, but the longer you personally represent the district

2 and do a good job, the more the voters get to know you
3 personally, correct?
4 A

Yeah, but I would add that following that logic you'd

5 rarely get an incumbent defeated, and it happens more often
6 than you think; and, in fact, one of the prime examples is one
7 of these minority districts in Charlotte, where a sitting black
8 Senator -- where a black Senator-to-be defeated one of the most
9 powerful white legislators in the Senate in a district that had
10 only 28, 29 percent black population.
11

Malcolm Graham beat Fountain Odom down there, and

12 that's one of the districts, again, that had this same logic
13 applied to it, that any time you created a majority-black
14 district it had to go over 50 percent, which is the same logic
15 that was applied with respect to the Congressional
16 Redistricting.
17 Q

But, Senator Blue, you agree with me that over time the

18 name recognition that you gathered in your district certainly
19 helped you win elections?
20 A

Oh, I concede that it has value, yes.

21 Q

All right.

22 A

Before social media it had a lot more value than it does

23 now.
24 Q

And, Senator Blue, you brought up your Senate district,

25 and since you brought it up, I want to make sure I clarify a

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1 few points about it.

Before 2011, you're in Senate District

2 14, correct?
3 A

That's correct.

4 Q

And it's in Wake County?

5 A

Yes.

6 Q

Before 2011, your Senate District 14 did, in fact, have a

7 total minority population, black plus other minorities,
8 exceeding 50 percent, is that correct?
9 A

It has -- again, it started downtown, and it went out all

10 of Eastern Wake County, and in that area, there was a pretty
11 sizeable Hispanic population.

I don't know what the percentage

12 was, but I think that the black and Hispanic population, most
13 of which was not registered to vote, by the way, may have -- it
14 did not exceed 50 percent, I don't think.

I mean, I didn't

15 study close with stuff like -- but I don't think it exceeded
16 50 percent.
17 Q

But you don't think -- your district before 2011 was

18 certainly not majority white, was it?
19 A

I think it was majority white.

20 Q

Do you recall testifying in the Dixon v. Rucho state court

21 proceedings?
22 A

I do.

23 Q

Do you recall testifying about this point about whether

24 your district was minority 50 percent plus before 2011?
25 A

I recall -- I don't know what I said about it.

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1 district is what it is; but, again, I don't think that it is
2 majority minority.

I know it's not majority minority black

3 voting-age population.
4 Q

If you testified then that you believe that your district

5 before 2011 had minority population exceeding 50 percent, would
6 you be willing to stand on that assuming that's what the record
7 says?
8 A

That my district had more than 50 percent black

9 population?
10 Q

Black plus Hispanic?

11 A

It may have.

I mean, again, I don't -- I don't know

12 exactly what the black plus Hispanic plus Asian population was
13 in my district.
14 Q

All right.

15 A

But, again, the important thing is I know, because I had

16 studied it, it did not have a majority-black voting-age
17 population, and I stand by my statement that the black
18 population, black voting-age population, was somewhere in the
19 low 40s, 40, 42 percent.

And, you know, forgive me, that's not

20 the most important thing to me in representing the district,
21 because I figured I represented all 190,000 people in the
22 district, not just 80, 90,000 who may have been
23 African-American.
24 Q

I understand, but you have been involved in redistricting,

25 you understand the important distinctions between crossover

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1 districts, say, and coalition districts, is that right?
2 A

Yeah, I understand that.

3 Q

And so you -- would you agree that if your district was

4 over 50 percent minority of all minorities, then that was a
5 coalition district not a crossover district?

Would you agree

6 with that?
7 A

Well, it depends on whether they were coalescing.

It

8 depends on -- I mean, I think that the definition of a
9 coalition district is a district where there's evidence that
10 people are coalescing, that they're coming together for a
11 common purpose, not some predetermined description of it, at
12 least that's how I define a coalition district, and that's what
13 we tried creating in Wake County from about 1976 to 1980
14 forward.
15 Q

So you were trying to create coalition districts?

16 A

Coalitions between people of different viewpoints,

17 different races, different origins so that we were looking for
18 a common way to address the problems in the district so that
19 race played no issue in how you address the problems, but you
20 focused on dealing with the issues that you ought to as an
21 elected official.
22 Q

All right.

So what in -- what is -- in your

23 understanding, what is the difference between a crossover
24 district and a coalition district?
25 A

I don't know whether those are terms of art the way you're

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1 using them, but a crossover district I look at as a district
2 that was involved in Strickland.

Strickland was a crossover

3 district because even though it was not a majority-black
4 district, historically white voters had crossed over and voted
5 for the black representative, and they had two or three in the
6 cycle from 2001 until Strickland was decided, two or three
7 black representatives.
8

And although it was not majority minority,

9 consistently the white vote would go for the African-American
10 candidate, whether primary or general election.

That's what I

11 considered a crossover district, and that's what I thought that
12 Strickland was addressing.
13 Q

All right.

Do you know if any of the single member house

14 districts you ever ran in were majority white district of the
15 total population or voting-age?
16 A

You mean other than the at large district that I ran in?

17 Q

Right.

18 A

In the '90s, because of the intervention of the Justice

19 Department in creating these districts initially, I think
20 initially pre-district, and I think it was 33 in the '90s, the
21 numbers changed in 2000.

It may have been 13 or something, it

22 may have been another district number, but when they were first
23 created, the directive was to create all of these districts
24 somewhere, and the number that the Justice Department felt
25 comfortable could elect African-Americans.

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1

For example, there was a district created in

2 Northeastern North Carolina where there's a pretty rich history
3 at the time of polarized voting that the Justice Department
4 rejected because it did not have in excess of 68 percent black
5 population in it, but that number over time came down, and the
6 Justice Department started accepting smaller numbers as one
7 would hope it would if the Voting Rights Act was having the
8 effect that it was designed to have.
9

And so the same thing may be true with respect to how

10 the initial majority minority districts were created in the
11 urban areas, in 1984 as well as in 2000 -- I mean, in '91 and
12 2000 I do know that there was a big push made in '91 to create
13 20 some majority minority districts, and we resisted that and
14 refused to do it, and that's why I think ultimately you had 10
15 or 12 majority-black districts with more than 50 percent black
16 voting-age population.
17 Q

I appreciate that, Senator Blue.

18 much more simple than that.

My question is actually

It simply is do you know whether

19 you've ever run in Wake County in a House, a single member
20 House district, that was majority white?
21 A

Majority white?

22 Q

Yes.

23 A

I think I probably have.

Again, I don't know what the

24 final makeup -- how the district changed from 2000 -- from 1991
25 to 2000, but understand that Wake County -- Wake County's

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1 population and the city of Raleigh's population increased
2 almost exponentially.

So a county went from three, 400,000

3 people to a million by the time we got around to 2010, so my
4 district was growing and it was a downtown district and
5 downtown was gentrifying and whites were moving in.
6

The suburbs that were developing around it had mostly

7 whites moving in, so the district could have been
8 majority-black again -- I mean, majority white.
9 not study it.

I simply did

I may have looked at it when we finally went

10 back to redistricting as to what it finally looked like; but
11 so, yeah, during that period, it probably was majority white at
12 some point.
13 Q

But you haven't looked at any data to confirm that?

14 A

Gut feeling tells me that it was majority white at

15 different junctures; but, again, when you're getting 70,
16 80 percent of the vote, you don't go down to drill down to see
17 where polarized voting is occurring, and that's the kind of
18 result that we were getting in my House district and in the
19 Senate district.

Not only me, but at districts that were less

20 than 50 percent majority-black majority.
21

The black candidate was getting in excess of

22 60 percent of the vote, and sometimes up towards 70 percent of
23 the vote and the general election; and so, again, you were not
24 so mindful as to who made up certain segments.

If you ask me

25 whether I routinely won in majority white precincts, because

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1 the voting tabulation districts were the precinct levels, I
2 consistently won, and so did other black candidates, in Wake
3 County in majority white precincts.
4

MR. STRACH:

Your Honor, I have another couple lines

5 of questions.
6

THE COURT:

Is now a good time to take a mid-morning

7 recess?
8

MR. STRACH:

9

THE COURT:

Yes, Your Honor.
All right.

Let's take a 15-minute

10 recess.

Before we walk out, let me see counsel up here at the

11 bench.

We can do it with two, Farr and Hamilton will be fine.

12

(Bench conference as follows:)

13

THE COURT:

I'm speaking for myself at this point.

14 I'm going to talk to these other judges about it over the
15 recess.

During the course of the opening statements, which I

16 thought overall were very well done, there was some argument
17 back and forth, a comment about Eastern Bloc stuff and then was
18 responded to in kind, shall we say, during the -- and I'm
19 afraid that kind of set a stage for what I perceive to be -20 these other judges may disagree with me -- questions and
21 answers that are running the gamut from factual to political
22 opinion to political argument in some respects.
23

And I'm not criticizing the witnesses.

This is a

24 very difficult case to stay out of areas of political opinions
25 and views, and I'm not suggesting at this point that it should

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1 stop.

But my observation is that as we proceeded through

2 opening statements and have heard testimony from the first
3 witness, both through opening, the questions and various other
4 things, we've got, at least in my mind, we've got a mix.
5

And, again, these other judges may overrule me and

6 disagree with me on this, but we've got kind of a mix of
7 factual information, commentary on legal analysis of cases and
8 various other things, which are important part of it, but I
9 want to make sure in terms of the questioning that we stay
10 focused on, as I see it, at least the factual part of this
11 trial.
12

I don't want this thing to drag on to four days

13 because we've got a lot of commentary that may or may not be
14 helpful to get us to the final end result, and at least in my
15 mind the way to avoid it is make sure on both sides that the
16 questions are appropriate and tailored to elicit an appropriate
17 response.
18

The more open-ended they are, the more inviting.
I say the whole thing again, these judges may

19 disagree, I'll update you after the break, but I don't want to
20 let the opening statement portion having set the tone for a lot
21 of commentary to come in response to what was heard during the
22 course of the opening statements, if that makes any sense.
23

I'm not asking you to do anything at this point, just

24 think about it.

I'll talk to these other judges and see where

25 they fall on this, and then we'll go from there.

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1

MR. HAMILTON:

Thank you, Your Honor.

2

MR. FARR:

3

(Bench conference concluded.)

4

THE COURT:

Thank you, Your Honor.

All right.

Let's take a 15-minute

5 recess.
6

(At 11:06 a.m., break taken.)

7

(At 11:23 a.m., break concluded.)

8

THE COURT:

9 to the witness stand.
10

MR. STRACH:

All right.

Senator Blue, you may return

You may continue.
Thank you, Your Honor.

11 BY MR. STRACH:
12 Q

Senator Blue, I want to turn your attention for a moment

13 to the development of the 2011 enacted Congressional Plans at
14 issue in this case.
15 A

Okay.

16 Q

Did you at any point in the Legislative process in 2011

17 submit any alternative redistricting -- Congressional
18 Redistricting Plans yourself?
19 A

Not me individually, no.

20 looked at.

We had several plans that I

There was a plan submitted, I think, by the -- I

21 was not the Democratic leader at the time, but there was a plan
22 submitted by the Democratic caucus in the Senate, and as you
23 alluded to earlier, there was a plan that may have been
24 submitted by the Black Caucus and the General Assembly, but -25 and I looked at them.

I didn't submit any individual plans

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1 myself.
2 Q

Do you know when those plans were submitted by the

3 Legislative Black Caucus and others on the Democratic side in
4 the 2011 redistricting process?
5 A

I think they were some time after Senator Rucho and

6 Representative Lewis submitted their plans, I think.

I'm not

7 absolutely sure since I didn't personally deliver them.
8 Q

All right.

Isn't it true that those were submitted to the

9 legislature on the first day of the redistricting session in
10 2011?
11 A

I wouldn't disagree with that, I just don't know.

12 Q

All right.

And did you, with regard to -- well, there

13 were two different alternative plans -- there were actually
14 three.

There were the plans submitted by the Southern

15 Coalition for Social Justice which were submitted earlier in
16 the process.
17 A

Did you have any input on those plans?

No input on them.

I criticized them because I thought

18 that they unnecessarily, in some instances, were trying to
19 create majority minority districts where they weren't justified
20 and the percentages that some of them looked at.
21 Q

Okay.

So you criticized the SCSJ plan?

22 A

Sure did, sure.

23 Q

And who did you submit that criticism to?

24 A

To the ones who were basically espousing them.

I informed

25 their counsel that -- North Carolina is not Alabama or

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1 Mississippi, quite frankly, and it did not have the same kind
2 of polarized voting history that those states had.

Unlike

3 those other southern states, North Carolina had only 40
4 counties covered by Section 5 of the Voting Rights Act because
5 you hadn't had the practice as prevalent in North Carolina as
6 you had in those other southern states.

And so I suggested

7 that some of the remedies were a one size fits all, that you
8 don't create these districts just because you can based on
9 race, that it goes in the opposite direction of where I think
10 our state and our country ought to be going.
11

There may have been some other plan, but I remember

12 specifically when I first heard of the plans proposed by the
13 southern coalition group.
14 Q

And when you say you criticized the plans to their

15 counsel, I think, who was that?
16 A

I'm trying to think who had it then.

17 represents the group.

I know Anita Earls

I'm not sure that it was Anita, but

18 there are various people who've been involved.

Irv Joyner and

19 some of the other people who had looked at it.
20 Q

All right.

Did you ever publicly criticize the SCSJ

21 Congressional proposal?
22 A

Did I have press conferences beating them up?

No.

There

23 was no need -- no need to publicly do it because I expressed my
24 opinions to the redistricting chairs.
25 the Senate floor.

I did in my debate on

I did in discussions.

There was some Senate

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1 committee, although I wasn't a member of the redistricting
2 committee where Senator Rucho gave me an opportunity to say
3 something, and I was critical of any effort to unduly pack
4 black voters into as few a districts as possible.
5 Q

On the Senate floor in the debate on the 2011 plans, did

6 you ever criticize the SCSJ proposal?
7 A

I criticized the proposal that was before us, which was

8 Rucho 1 or -- Rucho 2, I think, was the final plan we were
9 acting on, and I openly criticized it and made probably a
10 30-minute speech.

It and any plan that unduly packed black

11 voters, whether it was a Congressional Plan or a House Plan or
12 a Senate Plan without justification for it, and I thought that
13 the simple justification were those set forth initially in the
14 Gingles decision, where you could show sufficient polarization,
15 and I figured you couldn't do that in the districts that were
16 created in either of those plans, or that it had not been done
17 for this election cycle.
18

It had been done 20 years ago and maybe adopted 10

19 years ago, but there was not any kind of polarization study
20 done, that I'm aware of, on the districts that were created,
21 either Congressional or Legislative in 2011.

And I can't help

22 but think that a lot of the counties had elected black
23 sheriffs.

They had elected black officeholders in many

24 positions since 1990.
25

And so my first argument, and I suggested to Senator

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1 Rucho in my debate on the Senate floor was that in my mind the
2 Fourteenth Amendment required that you have a compelling state
3 interest to do it, and then if you could find that, it had -4 that solution had to be narrowly tailored to address the issue
5 that you were trying to address, not just packing districts
6 with 50 percent plus when they had performed the way they were
7 designed to perform with less than 40 in many instances, but
8 certainly less than 50 percent majority minority population in
9 90 plus percent of the cases.
10

And so as I criticized that with Senator Rucho, I

11 hope that criticism, or at least observation, would have
12 registered with the sponsors of the other plans because they
13 backed off of their plans.
14 Q

Okay.

15 this:

So when the -- when the -- well, let me ask you

Did you ever reduce your criticisms of the SCSJ plan to

16 writing and submit that to anyone?
17 A

No.

18 Q

Other than your debates on the Senate floor, did you ever

19 reduce your criticisms of the proposed enacted plans and submit
20 that to anyone?
21 A

I have.

Did you ever reduce those to writing?

I did a lecture at the Wake Forest law school

22 making observations about all of the maps, and I've spoken to
23 law school groups at various times about the maps and what I
24 thought some of the flaws were.

I have -- not just law school

25 groups, but civic groups, classes, so I have criticized them on

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1 many instances; and, again, my criticism is not at the
2 individuals specifically who did it, but I just think that
3 they're out of the spirit of the Voting Rights Act, and they
4 tend to segregate more than to lead us to an integrated
5 continuous society.
6 Q

Right.

And all I'm asking, Senator Blue, is there's

7 voluminous records in this case.

I'm not aware of a memo or

8 any writing from you to Representative Lewis or Senator Rucho
9 criticizing either the SCSJ plans or the proposed enacted
10 plans.
11 A

Am I missing something or is there no such --

No, sir.

I never directed any writings to Senator Rucho

12 or Representative Lewis.

My comments to them were in the

13 context of the Legislative setting, and I did a rather lengthy
14 floor debate on the Senate plan; and, again, as I said, I
15 commented at the committee, and I commented to the press when
16 they would ask me on various of these plans.

But, no, I never

17 did any formal submission to Senator Rucho or Representative
18 Lewis regarding them, other than the normal way we communicate
19 about Legislative issues.
20 Q

All right.

21 an election.

And you talked about black candidates winning

Is it fair to say that most, if not all, of your

22 experience with black candidates winning elections is in Wake
23 County where you've been most of your career, is that correct?
24 A

No, that's not correct.

25 Q

Do you have specific information or knowledge about

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1 similar type information regarding candidates in the northeast
2 part of the state?
3 A

Yeah, there are instances.

As I said, there are black

4 sheriffs in counties up there that are not majority-black.
5 There are commission chairs.

There are school boards.

I mean,

6 the history in the state in the 40 covered counties, at least
7 those that were covered initially by the '65 Voting Rights Act,
8 was that polarized voting was commonplace, and I know that in
9 the 1980s formulation that led to Gingles, there was testimony
10 that no black candidate had ever gotten more than 10 percent of
11 the white vote east of Interstate-95, you know, one county over
12 from Wake County, but in the other 60 counties, that was not
13 necessarily so.
14

And one would think over the 30-year period, as we've

15 basically had more desegregation of public schools, mind you
16 that didn't start in earnest until the 1970s, and this data was
17 predicated on stuff that happened before 1980, but over the
18 30-year period, one would certainly hope that if you did a
19 current day polarization study, you would find that there would
20 be much greater cross-racial voting in those areas.
21

And what I'm suggesting is that study was not done.

22 If that study showed that you still had polarized voting,
23 African-American still could not elect the candidates of their
24 choice, be them black or white, and that you had a geographical
25 area that was sufficiently compact enough that you would then

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1 need to do something to remedy that.

But the remedy shouldn't

2 be put in place to last in perpetuity, because when you put it
3 in place to last in perpetuity, you're simply preserving the
4 status quo forever, and that's what we want to move away from
5 and that's what I think the Voting Rights Act was designed to
6 do.
7 Q

Senator Blue, were you aware of the polarization study

8 conducted by SCSJ expert Dr. Block?
9 A
10 Q

No, I was not -- I didn't see that.
SCSJ.

SCSJ?

Were you aware of the study by their expert of

11 racially polarized -12 A

I never saw that.

It was not -- it was not part of our

13 deliberation in the Senate debate.
14 Q

All right.

If the transcripts in the record say

15 otherwise, you'd obviously be willing to rely on the written
16 record?
17 A

Oh, ab -- yeah, I don't know.

I mean, I never heard

18 anybody mention those polarized studies in our debate.
19 certainly was not mentioned in the Senate debate.

It

What was

20 mentioned was that somebody had studied polarized voting in the
21 '90s and 2000 and that same thing was still occurring, but
22 there was no current study of polarized voting on a
23 district-by-district basis as far as I know.

And it was my

24 feeling, and I think a requirement, that you look at it on a
25 district-by-district basis, especially in a state like North

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1 Carolina where you had 40 counties that had a different history
2 than the other 60 counties.
3 Q

Right.

And when the state was covered under the Voting

4 Rights Act, it was counties that were covered, right, not
5 districts?

Weren't there 40 counties, not 40 districts that

6 were covered?
7 A

Forty counties, yes.

8 Q

Right.

And were you also aware of a racial polarization

9 study done by Dr. Brunell who expanded upon Dr. Block's work?
10 Were you aware of that?
11 A

In 2011?

12 Q

In 2011, yes, sir.

13 A

2011?

14 Q

2011.

15 A

No, nobody referred to that specifically.

I didn't see

16 that as part of the presentation before the committees.
17 Q

All right.

So your testimony today is based on your

18 belief that there was racially polarized voting analysis that
19 was lacking before the legislature in 2011?
20 A

My testimony today is I was not aware of any

21 district-by-district polarization study that was done based on
22 the 2010 census and the other factors that would have been used
23 for 2011 redistricting.

If it was, in fact, looked at, it was

24 not made part of the debate or the arguments in the Senate and
25 when the plan was presented to us, neither the Congressional

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1 Plan nor the Senate Redistricting Plan.
2 Q

All right.

And just to be clear, though, your testimony

3 today is you are not aware of, and you never read, the reports
4 by Dr. Block or Dr. Brunell?
5 A

I know that there was a report that said that the

6 polarization studies from 20 -- from 1990 or '91 and 2001 show
7 that there was polarized voting in North Carolina and that that
8 polarized voting continued.

I never saw any data, was not

9 presented with any report or any other indication that there
10 was a polarization study done on a district by district basis
11 either in the Congressional Districts or the Legislative
12 Districts that were made majority minority black in 2011.
13 Q

All right.

Now, Senator Blue, turning -- shifting back to

14 Congressional District 1, and this is related to this
15 polarization issue we've been discussing.

Isn't it true that

16 at least as late as 1997 the conditions existed in that
17 district for what we call a VRA district or a majority-black
18 district?
19 A

In the Congressional District?

20 Q

Yes, sir.

21 A

Yeah, because there was a district that was created and

22 nobody -- nobody challenged it in a serious way.
23 Q

And in the exhibit that we looked at earlier, Exhibit 73,

24 which was the preclearance submission for the '97 plan, do you
25 recall that the state stated in that that the Gingles factors

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1 were still in effect in CD 1 at that time?
2 A

In 1997, yes, because there had been a study done in that

3 time frame within the last three or four years, I think.
4 Q

All right.

Now, you said that in 2001 you were on the

5 redistricting committee that created the redistricting plans
6 that year, is that right?
7 A

As I recall, yes.

8 Q

All right.

9 A

And, again, understand, Mr. Strach, that in '80, '90, and

10 2000, all members got access to the redistricting process, the
11 debates in the redistricting committees, and members were
12 consulted individually about their proposed districts, be they
13 Republican or Democrat.

That was the process on those

14 districts prior to 2011.
15

So, as I said, I participated in discussions about

16 Congressional Districts as well as House districts in the 2000
17 redistricting cycle.

I was not involved in 2003 because I had

18 left the General Assembly, and ultimately the 2003
19 redistricting is what determined the districts that we all ran
20 under from 2003 to 2010.
21 Q

And isn't it true, Senator Blue, that even as late as

22 2001, when CD 1 was created, that the conditions satisfying the
23 Gingles factors existed then, too?
24 A

I think they probably did in the counties where the

25 studies had been done, but the difference is that there were

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1 multiple counties dragged into the Congressional District 1 in
2 2011 that were not Section 5 counties, and specifically I
3 mentioned Durham County again.
4

Durham County had never been a Section 5 county.

In

5 the Gingles decision the Court specifically found that there
6 was not polarized voting in Durham County that -- or
7 specifically held that there was not polarized voting in Durham
8 County, that Durham County residents, African-American and
9 others, could elect the candidates of their choice, and so
10 there was no requirement to even draw a minority district in
11 Durham, even though it was easily drawable because you had a
12 compact enough population to do it in.
13

The case law didn't require it.

The General Assembly

14 just decided to draw one so that it wouldn't be sort of
15 standing out like the others.
16 Q

Now, you agree, though, that other than Durham County,

17 there are a lot of other counties in 2011 CD 1 that are in fact
18 Section 5 counties, is that correct?
19 A

Absolutely, I agree totally with you.

And, again, most of

20 the counties in that district are east of Interstate 95.
21 Q

And Senator Blue, with regard to the finding in Gingles

22 that there was no polarized voting in Durham, that was in the
23 context of a multimember district, is that correct?
24 A

Um-hum.

25 Q

Okay.

Not a single member district?

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1 A

But if there's no polarized voting in a multimember

2 district, there's none in a single member district.

The

3 finding is no polarized voting.
4 Q

Right.

5 A

That the whites vote for African-Americans and a

6 percentage high enough so that you can't prove that it's
7 polarized voting against African-Americans.
8 Q

Senator Blue, this relates to the point we made earlier

9 about single-shot voting, correct.

Wasn't it possible to

10 single-shot vote in Durham in the Gingles era?
11 A

No, because that was a state-wide phenomena.

12 happened in Mecklenburg.

That

That happened in Cumberland, which

13 was a covered county, Cumberland was.
14 Q

Right.

I understand.

The only point I'm trying to get

15 you to agree with is that district was a multimember district
16 in Durham and folks could single-shot if they wanted to?
17 A

But the point is in Gingles the Court said that you don't

18 have to draw a single member district in this multimember
19 setting.

Regardless of what they're doing, you cannot show

20 that there's white polarized voting against black candidates.
21 That was the specific holding in Gingles.
22 Q

All right.

Well, Gingles speaks for itself.

23 A

Yes, sir.

24 Q

We'll let the Court decide what Gingles means.

In

25 Congressional District 1, Senator Blue, under the 2001 plan, do

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1 you recall that the black percentage of Democrats in that
2 district was a super majority?
3 A

The black percentage of blacks in the Democratic primary

4 was a majority.
5 Q

Yes.

Wasn't it a super majority, Senator Blue?

6 A

Super majority being what?

7 Q

Over 60 percent?

8 A

I don't know whether that was the fact or not; and, again,

9 what I remember looking at it is that Eva Clayton, who
10 represented the district at the time, had consistently gotten
11 higher percentages of the vote after her initial run in a
12 district that was somewhat different against now Congressman
13 Walter Jones, and her numbers kept going up.

And I think maybe

14 by the end of the decade, she was getting close to 70 percent
15 of the vote in the general election and not having any serious
16 primary opposition or any opposition that amounted to very
17 much, and may have been getting 80 plus percent when she was
18 challenged in the primary.
19

I mean, it was clearly a district that Clayton was

20 going to consistently be elected in and history showed that
21 everybody else, even though the numbers went down, were elected
22 in it.

Frank Ballance was elected in it, first term by a

23 comfortable margin.

G.K. Butterfield was -- has consistently

24 been elected in it, prior to 2010 when it had far less than
25 50 percent of black voting-age population.

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1 Q

Right.

My question though is do you have any reason to

2 dispute me when I say that the black percentage in the
3 Democratic Party, in terms of controlling the Democratic Party,
4 is over 60 percent?
5 A

I just don't know.

I just don't know.

I don't know that

6 that was one of the factors that really was focused on that
7 much.

What was looked at is that there was a feeling that

8 that -- that the Gingles factors were still prevalent in the
9 1st Congressional District as it was comprised, and I think all
10 but one or two counties in the district, and it may be all of
11 them, were Section 5 counties.

But Durham County, the most

12 pronounced of the counties in it now, had never been a Section
13 5 county, had never violated any of the Gingles principles, and
14 to build a district around Durham County saying that you are
15 forced to take the percentages above 50 percent just didn't
16 quite register.
17

That's the only point I was trying to make.

MR. STRACH:

Your Honor, may I approach the witness

18 with an exhibit?
19

THE COURT:

You may.

20 BY MR. SPEAS:
21 Q

Senator Blue, what I've handed you has been marked

22 Defendant's Exhibit 2.64.
23 A

Um-hum.

24 Q

It's a chart regarding the 2001 Congressional Plan, and

25 there's some data on this chart, and I simply want to draw your

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1 attention to about the middle of the chart.
2 part of the chart regards District 1.

You'll see the top

Do you see that?

3 A

Yes.

4 Q

And if you move over to the right on this chart, at the

5 top part of it, there's a column called "black portion of
6 DEMS," do you see that column?
7 A

I see that.

8 Q

And so for Congressional District 1, the black portion of

9 DEMS in that particular district under the 2001 plan was
10 66.55 percent.

Do you see that?

11 A

Yep, I see that.

12 Q

All right.

Do you have any reason to believe that that's

13 incorrect?
14 A

I have no reason to believe that that's correct for 2010.

15 It doesn't say what it is for 2008 and 2006, but, no, I don't
16 dispute that.
17 Q

And at the bottom of that column, there's a number that

18 says that state-wide, without regard to districts,
19 41.38 percent of DEM, Democrats, are black, do you see that,
20 the last number in that column below?
21 A

I see that, yes.

22 Q

So the proportion of Democrats who were black in

23 Congressional District 1 was significantly greater than their
24 state-wide proportion.
25 A

Would you agree with me on that?

I agree with you on that, and that's in 2010 before

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1 redistricting.
2 Q

This was on -- this was in -- for 2000 -- right, that's

3 right, this is for the 2001 plan -4 A

Um-hum.

5 Q

-- correct?

6 A

Um-hum.

7 Q

Now, you were involved in the creation of the 2001

8 Congressional Plan, correct?
9 A

Um-hum.

10 Q

As part of the Redistricting Committee?

11 A

Yes.

12 Q

Why would it be necessary to ensure that black voters were

13 a super majority of the Democrat Party in that district in
14 2001?
15 A

A good portion of the district consisted of whole

16 counties, and so you would tend to, I guess, dilute the
17 white -- the overall population.

I don't know what this number

18 would look like in the 2012 election, the 2011 redistricting
19 plan, but you're talking about the percentage of voters, not
20 the percent of black voting-age population of black registered
21 voter I take it.

You're talking about those who were inspired

22 enough to go vote in 2010, and so I don't know what -- I'm
23 trying to figure out what the numbers mean and how they would
24 compare with the current numbers, say, 2012, because in 2012
25 probably it was a much higher percentage of -- the black

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1 portion of the Democrats was probably much higher than the
2 number that you see here.
3 Q

Right.

4 okay.

And I'm just focused on 2001 right now, if that's

Didn't you and your colleagues in 2001 ensure that

5 blacks were a super majority of Democrats in that district to
6 ensure that in a race between a black Democrat and a white
7 Democrat that the black voters could control the outcome of
8 that race?
9 A

That was part of the -- not necessarily that the black

10 voter -- the black candidate would control it, that the black
11 citizens in that district would be able to elect the candidate
12 of their choice.

Now, what the numbers looked like in 2010,

13 Mr. Strach, would be totally different than what they looked
14 like in 2001.
15

And the reason that they would be different, you've

16 already pointed out.

That district lost more than 15 percent

17 of its population base.

It lost -- it was not -- not lost it

18 but did not increase its population base.

It was almost

19 100,000 people short at the redistricting effort, so it changed
20 from 2001 to 2010, and you're giving me numbers to comment on
21 that are based on turnout as opposed to who's registered or
22 who's black voting-age population.
23 understand it.

I'm simply trying to

I'm not trying to evade your question, but I'm

24 simply trying to understand what you want me to observe on
25 this.

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1

MR. STRACH:

That's fine, Senator Blue.

2 think you've answered the question.

I actually

Your Honor, I don't have

3 any further questions.
4

THE COURT:

Redirect?

5

MR. SPEAS:

No, Your Honor, thank you.

6

Your Honor, we would call Congressman Mel Watt to the

7 stand.
8

(Witness sworn by the clerk.)

9

MELVIN WATT,

10

PLAINTIFF'S WITNESS SWORN AT 11:52 a.m.

11

DIRECT EXAMINATION

12 BY MR. SPEAS:
13 Q

Would you state your name for the record, please.

14 A

Melvin Watt.

15 Q

And would you tell the Court a little bit about where you

16 grew up and where you went to school?
17 A

I was born in Mecklenburg County outside of Charlotte.

18 Went to high school, segregated high schools -- schools all the
19 way -- public schools in Mecklenburg County.
20

Graduated from high school in 1963, and then went on

21 to the University of North Carolina, got a BS degree in
22 business administration from the University of North Carolina
23 at Chapel Hill in 1967, and then went to Yale Law School and
24 got an LLM, which was subsequently converted to a JD degree
25 from Yale University Law School in 1970.

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1 Q

And did you practice law in North Carolina for thereafter?

2 A

I did.

I went back to North Carolina in 1971 and

3 practiced law from 1971 to 1990 -- I guess early 1993 in
4 Charlotte.
5 Q

And what firm were you with?

6 A

The firm at that time was Chambers, Stein, Ferguson &

7 Lanning.

In subsequent iterations of it, it was known as The

8 Chambers Firm.
9 Q

And was it a firm significantly involved in civil rights

10 litigation?
11 A

It was, but I went to the firm, actually, to -- because

12 there was a recognition that there was more and more an
13 economic component to civil rights.

And so, my role was really

14 to start a business practice, and I did -- that's basically
15 what I did for 20 years, small businesses, real estate, estates
16 work, and some workers' compensation.
17 Q

At some point, did you become interested in politics?

18 A

Yes.

I got a call from Harvey Gant one day after he had

19 been appointed to the Charlotte City Council to replace an
20 individual who had gone on to the State Senate.

And he had to

21 run a campaign, and he asked me to be his campaign manager.
22 think that was 1974.

And he was running for the Charlotte City

23 Council in 1975, I believe it was.
24 Q

Okay.

I

And as a result of that experience, did you

25 learn -- did you become interested in running for office

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1 yourself?
2 A

No, not really.

I managed his political campaigns for

3 city council in '77 -- '75, '77, and then in 1979, he called
4 and said he was going to run for mayor of Charlotte, and I
5 managed his campaign for mayor of Charlotte.

We lost that

6 election by about 95 votes out of 100,000 votes cast in the
7 Democratic primary.
8

So he was out of office.

Then, two years later, he ran for the city council

9 again and was overwhelmingly elected, became the mayor pro tem.
10 And then two years after that, he ran for mayor again.

I

11 managed that campaign, and he was elected mayor of Charlotte in
12 that election.
13 Q

And --

14 A

And then, subsequently, he, in 19 -- let me get my years

15 right -- 1989, he called me and said he was going to run for
16 the United States Senate against Jesse Helms, and I managed his
17 first state-wide campaign in 1990.
18 that election.

And, of course, he lost

And then they created the 12th Congressional

19 District based on the 2000 Census.
20

And I called him and said I was ready to manage his

21 campaign for Congress, and he told me he was not going to run,
22 and suggested that I might consider doing it.

And I did.

23 Q

And that was in 1992 that you first ran for Congress?

24 A

1992, yes.

25 Q

And I believe you were elected for 11 terms?

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1 A

I was elected for 11 straight terms, right.

2 Q

You're not currently in Congress?

3 A

That is correct.

4 Q

What are you doing at present?

5 A

I'm the Director of the Federal Housing Finance Agency as

6 an independent agency that has regulatory supervision over the
7 federal home loan banks and Fannie Mae and Freddie Mac.
8 Q

And, Congressman, over the years, were you aware of the

9 percentage of your district that was African-American?
10 A

Yes, I was.

I tracked it.

It was constantly in

11 litigation the first 10 years I was in Congress.

I think the

12 district changed at least four or five times, some of which I
13 ran in and some of which got thrown out before the subsequent
14 election.

But in the early stages, the Congressional District

15 was majority -- the voting-age population was majority
16 African-American.
17

And then the Court ruled that race was being taken

18 into account too much, and so they drew the district down.

And

19 there was district that I ran in in which the African-American
20 population was about 35 or 36 percent, and then that one got
21 changed.

And we finally settled on a district that was

22 approximately 40, 41, 42 percent African-American, and that one
23 was approved by the Supreme Court.
24 Q

Is it accurate, Congressman, that at every election since

25 1998, the African-American voting-age population in your

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1 district was less than 50 percent?
2 A

That's correct.

3 Q

And at one point, it actually got down to, I think, 32 or

4 so percent?
5 A

Somewhere -- I was thinking it was a little bit higher

6 than that, but it probably was down to 32 percent.
7 Q

And like most politicians, you probably are familiar with

8 how you did in those elections?
9 A

Yes, I tracked that.

And when the district was over

10 40 percent, I generally got between 60 and 65 percent of the
11 vote.

The one occasion where the minority percentage had been

12 drawn down to 32 or whatever it was percent that we agreed on,
13 I got approximately 55 percent of the vote.

That was the

14 election in which they spent about a million dollars against me
15 telling people how terrible I was.
16 Q

Congressman Watt, you're a student of politics.

Tell the

17 Court what you think accounts for those margins of victory in a
18 district that was, since 1998, less than 50 percent
19 African-American?
20 A

Well, I would like to say good representation first.

I

21 think that is a factor in trying to serve all of the members of
22 the Congressional District without regard to race or gender or
23 ethnicity.

Over the years, and actually going all the way back

24 to when I managed campaigns for Harvey Gant in Charlotte, we
25 had developed a pretty strong process for building coalitions

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1 across racial lines, across precinct lines, and racial
2 attitudes were in the process of changing, and they have
3 continued to change over time.
4 Q

Now, let's turn our attention to the 2011 redistricting.

5 You were still in Congress at that point?
6 A

That's correct.

7 Q

Okay.

Were you approached by Senator Rucho to meet with

8 him with regard to redistricting?
9 A

Yes, I was.

He asked me if I would come and meet with him

10 and give him my thoughts about congressional redistricting in
11 general and redistricting.

And I told him I'd be happy to do

12 that, and I went and met with him.
13 Q

Would you share with the Court what you shared with

14 Senator Rucho on that occasion.
15 A

April 25th of --

16 Q

2011?

17 A

-- 2011.

That was in April, you said?

I went to Raleigh with my district director and

18 met with what we were told was going to be Senator Rucho and
19 Representative Lewis, but Representative Lewis never showed up
20 for the meeting.

There was a staff person who came with

21 Senator Rucho, so it was the four of us.
22

And by that time, I had looked at the numbers.

My

23 Congressional District, the 12th Congressional District, was
24 approximately 2800 people over what the one person, one vote
25 mandate would have required.

And so I suggested to Senator

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1 Rucho that we -- that because the district had gone through so
2 much litigation historically, and because the Supreme Court had
3 finally approved the district, that the wise thing to do would
4 be to do what I called a minimal change district for the 12th
5 Congressional District.
6

And I suggested to him he wait to do that by dropping

7 a couple of precincts that, for various reasons, I had felt
8 like I had not served as well as I had the rest of the
9 district, and by adding some smaller precincts to get to the
10 magic number of people in the Congressional District.
11 Q

Anything else occur at that meeting that you recall?

You

12 simply provided him your views about your district?
13 A

No.

He seemed receptive to the idea, and there were no

14 maps exchanged at that time.

I identified, I think, the

15 precincts that I suggested might be taken out.

I'm not even

16 sure I identified necessarily the precincts that would be put
17 in, the smaller precincts.

But the meeting was cordial and I

18 thought -- I thought constructive.
19 Q

Had you known Senator Rucho before?

20 A

I had.

21 Congress.

Senator Rucho was my orthodontist before I went to

I still have some of his work in my mouth.

22 considered him a friend.

And I

And so, in a sense, I mean, it was --

23 I thought he was asking me to give him advice because he was
24 telling me that he was going to be the -- or had been appointed
25 by that time as the Chair of the Redistricting Committee, and

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1 was seeking my advice as a friend.
2 Q

Would those changes to those two or three precincts have

3 significantly affected the African-American population in that
4 district?
5 A

No, I don't think so.

I don't think so.

Basically, what

6 I suggested to him was my Congressional District, throughout
7 its history, had oriented generally up Interstate 85.
8 initially, a part of it went up Interstate 77.

And

And at some

9 point, if you went up Interstate 77, you'd get the towns of
10 Huntersville, Cornelius, Davidson where Davidson College is,
11 and my district actually went all the way into Iredell County,
12 one of the iterations of it, until it got shot down.
13

Well, in 2000 -- based on the 2000 Census, when the

14 districts were drawn, the folks in Davidson around Davidson
15 College wanted to stay in my Congressional District, and the
16 rest of the district was going to be oriented up Interstate 85.
17 So they kept Davidson in my Congressional District by going
18 across the Cabarrus County line to pick it up.

And it was just

19 inconvenient to get up there to serve the people in Davidson -20 in Davidson, North Carolina, not Davidson County.
21 Q

Okay.

So when you left that meeting, you had no sense

22 that the population in -- the African-American population in
23 the district would be significantly increased?
24 A

No.

In fact, I was suggesting to him that a minimal

25 change district would comply with the law.

And I didn't see

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1 any need to increase African-American percentage in my

2 Congressional District because I was getting 65 percent of the
3 vote.
4 Q

Did you subsequently learn that Senator Rucho planned, in

5 fact, to increase the African-American population in the
6 district significantly?
7 A

I learned that later.

He called me one weekend when I was

8 in Charlotte and asked me if I would meet with him again, and I
9 said, yes, but I don't want to drive all the way to Raleigh to
10 do it.

Both of us live here in Mecklenburg County; why don't

11 we do it here in Charlotte?
12

And he invited me to his home.

And I went to his home on a Monday morning, and we

13 had a meeting at his home.

It was kind of an interesting

14 meeting because when he called me on the phone, I was expecting
15 him to show me maps and tell me specifically how they planned
16 to draw the district because it was later in the process by
17 that -- by the time of that meeting.
18 Q

Was this in June?

19 A

I think it was in June.

And I got to the meeting, and it

20 really was kind of an uneventful meeting in the sense that
21 there were no maps.

And at some point, I mean, I could sense

22 that Senator Rucho was not very comfortable.

And at some

23 point, he said to me that his leadership had told him that he
24 had to ramp the minority percentage in my Congressional
25 District up to over 50 percent to comply with the Voting Rights

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1 Law.

And I said -- I laughed.

And I think his discomfort was

2 because his leadership had told him that he was going to have
3 to go out and justify that to the African-American community.
4

So I chuckled and said, Bob, you won't be able to

5 justify this to the African-American community.
6 the Voting Rights Act does not require it.
7 it.

It is not --

It does not mandate

And the African-American community will laugh at you

8 because I'm getting 65 percent of the vote in a 40 percent
9 black district.

If you ramp my Congressional District

10 African-American percentage up to over 50 percent, I'll
11 probably get 80 percent of the vote, and -- and that's not what
12 the Voting Rights Act was designed to do.
13 Q

Just a matter of curiosity, what percentage vote did you

14 get in 19 -- I'm sorry, in 2012 in the newly redrawn 12th
15 District?
16 A

In the newly redrawn district, I got about 80 percent of

17 the vote, just like I had predicted to him I would.
18 Q

Did you express your concerns about this decision to the

19 North Carolina legislature?
20 A

I did.

21 Q

And did you ask Senator Graham to read a letter into the

22 record of the debates of the North Carolina General Assembly
23 about this matter?
24 A

I did.

I addressed a letter to Senator Rucho and

25 Representative Lewis as chairs of the committee, and I copied

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1 that letter to a number of other people.

And Senator Graham --

2 State Senator Graham was a friend of mine, and I asked him if
3 he would read it into the record first at the hearing that they
4 were having, not on the legislative floor.

And then,

5 subsequently, I did a second letter that I asked him to read on
6 the floor of the Senate, I guess it was.
7 Q

Okay.

Congressman, would you turn to your tab in the

8 notebook in front of you.
9 A

I don't think I have a notebook in front of me.

I'm

10 sorry.
11

MR. SPEAS:

If I may approach the witness, Your

THE COURT:

You may.

12 Honor.
13

14 BY MR. SPEAS:
15 Q

Turning to Congressman Watt tab, and I'd like for you,

16 Congressman, to turn to tab 30 in that notebook.

And I would

17 ask you if that is the transcript of the proceedings of North
18 Carolina Senate on July 25, 2011, at which Senator Graham read
19 your remarks into the record?
20 A

It appears to be, yes, it does.

21 Q

And your remarks begin on page 38 of -- I'm sorry, they

22 begin on page 37 of Exhibit 30.

Do you see where your remarks

23 begin?
24 A

I do, yes.

25 Q

Okay.

And I would like for you, Congressman, if you

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1 would, to turn with me over to page 38 of your remarks, and we
2 have this up on the screen.

I'd like for you to read for the

3 Court the comments in your letter beginning at line 6 on
4 page 38 and continuing to line 23.
5 A

It says, Plan 1, propose to increase the African-American

6 population in the 12th District from approximately 40 percent
7 to over 50 percent.

I have repeatedly expressed to Senator

8 Rucho my belief that increasing the African-American population
9 in the 12th District is not required, justified, or sanctioned
10 by the Voting Rights Act.
11

The Voting Rights Act, which I was instrumental as a

12 member of the House Judiciary Committee and as Chairman of the
13 Congressional Black Caucus to get Congress to reauthorize and
14 extend, was designed to counteract the ethnic and racially
15 repolarized voting and level the playing field for
16 African-American candidates and voters.

It was not, as several

17 Court decisions have indicated, designed to create racial
18 ghettos in which African-American candidates are given
19 inordinate and unreasonable election advantages.
20 Q

Do you stand by those words today?

21 A

I absolutely do.

22

MR. SPEAS:

Thank you.

No more questions.

23

THE COURT:

Cross-examination?

And just for the

24 record, I don't know, ultimately, in terms of the official
25 record whether these books will be a part of it, so I do think

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Watt - Direct

1 when you have him turn to a tab, you probably ought to note the
2 actual exhibit number.
3

MR. SPEAS:

You understand what I'm --

And it's exhibit -- it's Plaintiff's

4 Exhibit 30.
5

THE COURT:

This one will be -- looks like

6 Defendant's 30.
7

MR. SPEAS:

There is a version in our record of --

8

THE COURT:

Okay.

9

MR. SPEAS:

-- Plaintiff's 30.

There is also in

10 their record at 30.
11

MR. FARR:

May I make a suggestion to my learned

12 colleague?
13

THE COURT:

Make it to me and we'll see what he

14 thinks of it.
15

MR. FARR:

16 this is a good idea.

All right.

Perhaps the Court might think

I don't know why we couldn't just put an

17 exhibit sticker on this notebook, like a class exhibit sticker.
18

THE COURT:

Whatever.

In terms of an official

19 record, I just want to make sure that ultimately at the end of
20 the day, it's not confusing.

So, for now, it's Plaintiff's 30?

21

MR. SPEAS:

Plaintiff's 30.

22

MR. FARR:

23

THE COURT:

Defendant's 30.

24

MR. SPEAS:

Defendant's 30.

25

THE COURT:

All right.

Defendant's 30?

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1

MR. SPEAS:

Thank you.

2

THE COURT:

Defendant's 30.

3

MR. SPEAS:

It has a plaintiff's number.

Okay.

4 Thank you.
5

THE COURT:

6

MR. FARR:

7 I'd like to do.
8

All right.

Cross-examination?

Yes, Your Honor.

I have a couple things

I would like to approach Congressman Watt.

Congressman Watt, may I address you as Congressman

9 Watt?
10

THE WITNESS:

11

MR. FARR:

I've been called worse.

Thank you, sir.

Yes.

I'd like to approach

12 Congressman Watt and give him a copy of exhibit -- Defendant's
13 Exhibit 126, which is the map notebook which I handed up to the
14 Court previously.
15

THE COURT:

16

MR. FARR:

All right.
And I'd also like to have an easel up

17 there so I could put some blowups of the map up so the Court
18 and Congressman Watt could see some blowups of a couple of
19 these maps, if that would be all right.
20

THE COURT:

This is Defendant's Exhibit 126?

21

MR. FARR:

22

THE COURT:

All right.

24

MR. SPEAS:

No, Your Honor.

25

THE COURT:

All right.

Yes, sir.
Any objection to Defendant's

23 126?

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1

(Discussion regarding placement of exhibits.)

2

MR. SPEAS:

Your Honor, may I stand here?

3

THE COURT:

You may.

4

CROSS-EXAMINATION

5 BY MR. FARR:
6 Q

Okay.

Congressman Watt, I want to go through the

7 historical maps of the 12th District, and that's what
8 Exhibit 126 is, so could you just turn in Exhibit 126 to Tab 1?
9 Do you see Tab 1?
10 A

Yes.

11 Q

Now, does Tab 1 include a map of the original version of

12 the 1st Congressional District as it was enacted in 1991?

You

13 can stay at the exhibit because there's a session log attached
14 at the beginning of it.
15 A

If you're asking me if I know whether this is the map, the

16 answer is no.

I mean, I take your word for it that it is, but

17 I -- I mean, it's been a lot of water under the bridge since
18 this map was drawn.

And I was -- you should also know that I

19 was not really involved in the drawing of any of these maps.

I

20 was the -- my district was the subject of some of them, and I
21 represented the district throughout, but I was not -- in the
22 state legislature, I was not actively participating in the
23 drawing of maps.
24 Q

Okay.

But the -- is my memory correct, Congressman Watt,

25 that you were the first person to run in Congressional District

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1 12?
2 A

Yes.

3 Q

Okay.

And do you recall that in '91, the General Assembly

4 passed a map that only had one majority-black district, and the
5 Justice Department objected to that under Section 5?
6 A

I remember that, yes.

7 Q

Okay.

And there have been a bunch of cases about

8 Congressional District 12, and are you familiar with those
9 cases?
10 A

Generally, yes.

11 Q

Like the Shaw case.

12 A

Generally, yes.

13 Q

You're familiar with Cromartie case?

14 A

Generally, yes.

15 Q

Okay.

You're familiar with that?

Now, do you recall that when the Justice Department

16 objected to the first Congressional Plan, that they suggested
17 that the State create a majority-minority coalition district
18 running from Mecklenburg County to Wilmington?
19 A

I don't have any personal knowledge of that other than

20 what I read in the newspaper.

I mean, I was not involved in

21 that process, to be quite honest.
22 Q

Well, do you recall that that was what the objection from

23 the Justice Department said?
24 A

I recall that's what I read in the newspaper, yes.

25 Q

And did the General Assembly enact a second majority-black

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Watt - Cross
1 district running from Charlotte to Wilmington?
2 A

I don't recall whether they did or not.

3 Q

Okay.

Well, let's turn to Tab 2.

And can you recognize

4 that as the 1992 Congressional Plan that first created the 12th
5 District?
6 A

This is the one that appears to run from Gastonia and

7 Charlotte on the south to Durham on the north.

Is that the one

8 you're referencing?
9 Q

Right.

10 A

Yes.

11 Q

And this was the district that was the subject of the Shaw

12 litigation; is it not?
13 A

I think that's correct.

14 Q

And in the Shaw litigation, there was no ruling on the

15 legality of the 1st Congressional District as it appears in
16 this map; is that correct?
17 A

I have no idea, to be quite honest with you.

18 Q

Okay.

And in the Shaw case, the second time it went to

19 the Supreme Court, the Supreme Court ruled this version of
20 District 12 to be an illegal racial gerrymander; is that
21 correct?
22 A

I think that's correct, yes.

23 Q

All right.

And then, if you turn to Tab 3, do you

24 recognize this, that this was the plan that the General
25 Assembly enacted after the Shaw case?

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1 A

I know that this is a plan that was adopted.

I don't know

2 whether this is the plan that was adopted after the Shaw case.
3 I mean, my problem is I was not involved in the litigation.

I

4 mean, I was running in these districts after the cases were
5 decided, after the districts were drawn, but I was not actively
6 involved in the drawing of any of the districts.
7 Q

All right.

But do you recall running in a district that

8 looked like this in -9 A
10 Q

Yes --- the 2000 general election?

11 A

Yes, I do recall that.

12 Q

Okay.

And is it fair to say that in this district,

13 you're -- the 12th District in this case does not go into Union
14 County?
15 A

Is that fair to say?

Does it go into Union County?

No, it has never gone into

16 Union County that I'm aware of.
17 Q

Okay.

And it didn't go into Cabarrus County, either; did

18 it?
19 A

No.

20 Q

And the 8th Congressional District in this plan did not go

21 into Mecklenburg County; is that correct?

This '97

22 House/Senate Plan A, the 8th District does not go into
23 Mecklenburg County?
24 A

The 8th District is the -- is what's in blue.

It appears

25 to go into Mecklenburg County, but I may be misreading.

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1 Q

I think that's the 9th District.

I think the color is

2 blending.
3 A

Oh, okay.

4 8th District?

I see what you're saying.

So what color is the

I'm not sure.

5 Q

It's the light blue.

6 A

It's what?

7 Q

The light blue.

It's in Union County, in Catawba, and

8 Stanly, and Hanson, and so forth.
9 A
10 Q

Okay.
So that -- the 12th District didn't go into Cabarrus

11 County under this plan?
12 A

I'm sorry?

Would you --

13 Q

The 12th District was not pushed into Cabarrus County --

14 A

That's correct, yes, not in this plan, right.

15 Q

-- in this plan?

And the 8th District was not pushed into

16 Mecklenburg County?
17 A

Based on what you say, yes --

18 Q

Okay.

19 A

-- that appears to be correct.

20 Q

Now, turning to Tab 4, did you ever run in the 12th

21 District as a representative by this plan?
22 A

I don't know the answer to that.

I ran in a 12th District

23 that appeared similar to this, but I don't know whether it was
24 this plan or not, to be quite honest.
25 Q

All right.

Did you -- the district that you talked about

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Watt - Cross
1 where you won with 55 percent of the vote.
2 A

Is that this district?

3 Q

That's what I'm going to ask you.

4 A

Okay.

5 Q

I think it is.

6 A

I don't know, because I can't look at a map like this and

I think it is.

7 really tell what's included.
8 detail.

I want to know --

I mean, there's not enough

This is just a picture.

So I'll take your word that

9 this is the -- this is the district that drew the minority
10 percentage down to -- but, I mean, you're asking me to testify
11 about it, and I don't know the answer to that.
12 Q

Okay.

You ran one time in a district that had a minority

13 population in the 30 percent range?
14 A

That's correct.

15 Q

Was that in 1998?

16 A

That's correct.

17 Q

And then, that district went away and you never had an

18 election in that again?
19 A

That's correct.

20 Q

In 2000, is it not true that you -- your district that you

21 ran in was the one that is represented under Tab 3, the '97
22 House/Senate Plan A.
23 A

I'm not trying to avoid your question.

I just can't look

24 at these maps and tell you for certain that what you're saying
25 is correct.

I mean, I don't have any reason to dispute what

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Watt - Cross
1 you're saying, but I suppose you're not testifying.

So, you're

2 trying to get me to confirm it, and I don't have the ability to
3 do that based on looking solely at these -- at the map.
4 Q

Okay.

Well, do you recall the counties that your district

5 was in?
6 A

Yes.

7 Q

And so, in the 2000 election, what counties was your

8 district in?
9 A
10 Q

Part of Mecklenburg.

Is that Tab 3?

I'm looking at the 2000 election, which we're looking at

11 Tab 3.
12 A

Okay.

According to this map, it would be Mecklenburg --

13 part of Mecklenburg, part of Iredell, part of Rowan, part of
14 Davidson, and part of Forsyth, and part of Guilford.
15 Q

Okay.

And then, if you turn to Tab 5, do you recall

16 whether or not Guilford County was in the district that you ran
17 in in '98?
18

MR. SPEAS:

19 questioning.

Your Honor, I object to this line of

Mr. Farr has lots of witnesses over there who can

20 testify from their own knowledge about what map is what.

This

21 witness simply does not have that information.
22

And I think what we've got here is Mr. Farr is

23 testifying, not the witness, so I object to this.
24

THE COURT:

I can sort through what's comments by

25 counsel and what Senator Watt is testifying to.

But in terms

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Watt - Cross
1 of the substantive objection, response?
2

MR. FARR:

Any response?

Well, your Honor, he testified at length

3 about all the elections that he ran in from '92 to 2010 in this
4 district, so I think it's fair game for me to ask him about the
5 districts he ran in.
6

THE COURT:

All right.

I'm going to overrule the

7 objection and allow the question to continue.

Now, I

8 understand your issue in terms of if he doesn't identify the -9 or doesn't know what the map is, a lot of colloquy from counsel
10 about what it is may not advance things.

But in terms of

11 asking him about the districts in which he ran, I think this is
12 fair, and I'll overrule.
13

Do you remember what the question was?

14

THE WITNESS:

15

THE COURT:

16

MR. FARR:

No, sir.

I didn't.
I don't, either, Your Honor, so I'll start

17 with another one.
18

THE COURT:

Let's start back over.

I think you were

19 moving -20 BY MR. FARR:
21 Q

Actually, what I want to do now is I want to turn to the

22 Congressional Zero Deviation Plan which is under Tab 5, and may
23 I go to my exhibit now, Your Honor?
24

So Congressman Watt, Tab 5 is the plan that was

25 enacted in 2001 that you -- the 12th District that you ran in

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Watt - Cross
1 was in the Congress Zero Deviation Plan?
2

THE COURT:

You're welcome to stand there, Mr. Farr,

3 but when you move away from the microphone, you need to raise
4 your voice.
5

MR. FARR:

Okay.

6

THE COURT:

7

THE WITNESS:

If you could ask that question again.
I have to take your word for it.

I

8 can't -- I mean, I can't look at this map and tell you that it
9 is or is not the map that was passed.

I mean, but if you say

10 it is, I don't have any reason to dispute that.
11 BY MR. FARR:
12 Q

Okay.

Do you recall what county your 2001 district was

13 located in?
14 A

Part of Mecklenburg, part of Cabarrus, part of Rowan, part

15 of Davidson, part of Forsyth, and part of Guilford.
16 Q

And looking at this map, you see the light blue that's the

17 8th District on this exhibit over here, Congressman Watt?
18 A

Yes.

19 Q

Okay.

Now, I think we looked at the map.

The map seemed

20 to indicate that the 8th District was not in Mecklenburg County
21 under the 97 Plan, and this map seems to indicate it was pushed
22 into Mecklenburg County under the 2001 Plan.

Do you know why

23 that happened?
24 A

I don't have any idea.

25 Q

Okay.

Now, in 2000, was there a Republican incumbent

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Watt - Cross
1 elected from the 8th District named Robin Hayes?
2 A

I served with Robin Hayes.

I'm not sure which years he

3 served.
4 Q

And during the 2000 era, was he not defeated in District 8

5 by Congressman Kissell?
6 A

He was defeated by Congressman Kissell at some point, yes.

7 Q

Okay.

And let's look at Congressional District 13.

We

8 got a new Congressional District in 2001; is that correct?
9 A
10 Q

That's correct.
And do you recall who the Chairman of the Senate

11 Redistricting Committee was in 2001?
12 A

I understand there was Representative Brad Miller, but I

13 mean, I didn't know that at the time.
14 Q

So he was the Chairman of the Senate Redistricting

15 Committee in 2001?
16 A

That's what I understand, yes.

17 Q

And he played a role, then, in drawing District 13?

18 A

I don't know the answer to that.

I assume he did if he

19 was chair of the committee.
20 Q

Okay.

And District 13 runs from Raleigh and goes up

21 through Randall County, Pearson, Caswell, and then this arm
22 that reaches down into Alamance County; do you see that?
23 A

Yes.

24 Q

And then it goes over to Pearson, splits Pearson, and then

25 kind of squiggles down into Greensboro; do you see that?

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Watt - Cross
1 A

Yes, I see it on the map.

2 Q

Okay.

Do you recall, in Greensboro, what happened to your

3 97th District, the district you ran in in 2000, how did that
4 change in Greensboro under this Congressional Zero Deviation
5 Plan?
6 A

Some of the precincts on the northern -- the most northern

7 end of the district went out of my Congressional District and
8 into the 13th District.
9 Q
10 A

Right, and those were pretty heavily Democratic precincts?
I assume they were.

Greensboro is pretty heavily

11 Democratic in most of the precincts.
12 Q

And do you know the racial composition of the precincts

13 that were taken out of your '97 version of the 12th District
14 and put in the 2001 version of District 13?
15 A

I probably did at some point, but I don't -- I don't have

16 a recollection of what they were.
17 Q

All right.

And from 2002 through 2010, who was elected to

18 District 13?
19 A

Brad Miller.

20 Q

Right, the guy who was the Chairman of the Senate

21 Redistricting Committee; is that right?
22 A

Well, he was, yeah, I guess.

Yeah.

23 Q

Before I leave, let's put up -- just to make this point.

24 So, Congressman Watt, this is a blowup of the 2011
25 Congressional Plan.

And there's a copy of it, I believe, in

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Watt - Cross

1 Tab 12 of the notebook that I've given you, and I just have a
2 couple of questions about this.

Now --

3 A

Is this the one that was approved finally?

4 Q

It is.

5 A

Okay.

6 Q

You say you met with Senator Rucho twice?

7 A

Yes.

8 Q

The first time you met with him was in where?

9 A

In Raleigh at the state legislative building.

10 Q

All right.

11 A

I don't recall.

12 meeting.

And do you recall someone named Brent Woodcox.
I know there was a staff person in the

Is that who you're talking about?

13 Q

Yes.

14 A

I know -- I never got his name, I don't think.

15 Q

Yes, sir.

And during that meeting -- excuse me for that.

16 I didn't mean to hit you with the spotlight here.

During that

17 meeting, did you ask the staff person to stop taking notes of
18 the meeting?
19 A

I don't recall that I did.

I don't believe I did.

20 Q

Okay.

21 A

I don't know how I would have had any authority over

22 Senator Rucho's staff person.
23 Q

Okay.

So you don't recall telling this staff person that

24 you didn't want him to take notes in the meeting?
25 A

I don't recall it, but, you know, in context, this was a

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Watt - Cross

1 meeting of friends, so I wasn't sure exactly what purpose even
2 having staff people there was.

But I don't recall giving him

3 any such instruction, no.
4 Q

All right.

Now, Congressman Watt, I think -- do you

5 recall that back in the days of Shaw, there had a been
6 suggestion from the Justice Department that the 2nd
7 majority-black District should start in Charlotte and run to
8 the east?
9 A

Do you remember your testimony on that?

You mean my testimony today on that?

10 Q

Yeah, we talked about that.

11 A

I don't think I've testified about that because I don't

12 have any real knowledge of that district.
13 Q

Okay.

Did you recall that the Justice Department had made

14 an objection?
15 A

Yes, I do remember they made an objection and said draw a

16 second voting rights district.
17 Q

All right.

And did you -- at the time, did you talk to

18 any of the congressmen that were in office right at that point
19 in time to discuss the political impact on the incumbent
20 Democratic congressman if districts had been drawn from
21 Charlotte all the way to Wilmington?
22 A

I don't recall having any conversations with anybody along

23 those lines.

I recall having some conversations with some

24 people that suggested that running a district from Charlotte,
25 an urban city, through -- down 74 would not create any district

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Watt - Cross
1 that had any sensibilities to it.

And I thought and I've

2 expressed on a number of occasions that the urbanness of the
3 12th Congressional District was one of the -- one of the
4 defining criteria that was important.
5

That's where you had all of your historically black

6 colleges and universities.

That's where you had urban

7 residents in Charlotte, Greensboro, Winston-Salem, all the way
8 up to Durham, so -- but I don't recall having any discussion
9 with anybody about the politics of what impact it would have
10 politically.
11 Q

Okay.

In your discussions with Senator Rucho, was there

12 any discussion about -- in 2011, the possibility of drawing
13 your district from Charlotte right up to the east?

Did that

14 ever come up in your meetings with Senator Rucho?
15 A

I don't recall that it did, but if it did, I probably

16 would have suggested the same thing that I suggested a number
17 of times before, that running a district in that way would just
18 not make any sense in terms of cohesiveness of the district.
19 Q

Okay.

And do you recall having any discussion with

20 Senator Rucho about whether or not native Americans in the
21 Robeson County area would be cohesive with African-Americans in
22 Mecklenburg if a district was drawn in that direction?
23 A

I recall having a discussion with him about Representative

24 McIntyre's representation of native Americans and
25 African-Americans, and -- let me see how I can put this

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Watt - Cross
1 politely.

I thought that Representative McIntyre missed a

2 number of opportunities to coalesce African-American voters and
3 native American voters into a single bloc as opposed to
4 dividing them constantly on a number of issues.
5

I don't recall any other conversation, and it

6 certainly wasn't in the context of them being in the 12th
7 Congressional District.
8 Q

Okay.

9 second.

All right.

Now, I'll put this back up for a

This is the 2001 Plan Congressional Zero Deviation?

10 A

Which tab is that?

11 Q

I can't remember.

It might be 6.

There's two tabs for

12 Congressional Zero Deviation.
13

THE COURT:

Try 5.

14

MR. FARR:

15

THE COURT:

16

MR. FARR:

17

THE COURT:

18

THE WITNESS:

Five, I believe, is the 2000 Census -Five and six.
-- and 6 is the 2010 Census.
All right.
So I'm looking at 6, that's what this

19 is?
20

MR. FARR:

Yeah.

21

THE WITNESS:

Okay.

22 BY MR. FARR:
23 Q

So I just wanted to ask you this question.

The folks in

24 Guilford County that were in the 13th District, do you know
25 whether any of those voters had previously been in your 12th

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Watt - Cross
1 District?
2 A

I'm pretty sure some of them were, yes.

3 Q

Okay.

And so, under the 2001 plan, they were in the

4 13th District.

Would you agree that was a strong Democratic

5 district for Congressman Miller?
6 A

You know, I never really looked that closely at

7 Congressman Miller's district.

I knew that it was making my

8 travel time shorter because it was making -- it was taking the
9 most northern part of my Congressional District out.

And by

10 that time, I accepted the notion that it was better to have
11 more compactness, because while I started out advocating that
12 it was fine to go all the way to Durham, I also knew that my
13 experience was that it put a lot of miles on your car and a lot
14 of miles on your body to travel that distance to represent
15 people.
16 Q

Okay.

Did you have any discussions with Senator Rucho

17 about Section 5 and how that applied to voters in Guilford
18 County?
19 A

I told him I understood that Greensboro -- that Guilford

20 County was a Section 5 district, and that I thought that to
21 retrogress might be a problem legally, but I also made it clear
22 to him that to ramp up the percentage of African-Americans was
23 not required based on my understanding of what the Voting
24 Rights Act and the case law was saying.
25 Q

Did you ever say that you thought there would be a

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Watt - Cross
1 Section 5 objection if the new plan didn't take care of the
2 voters in Guilford County?
3 A

I think I said that there might be a problem if he

4 retrogressed from the percentages that existed.

But I also was

5 very clear that increasing the minority percentage in this
6 district was just bordering on insanity, because, as I told
7 him, you know, I'm getting 65 percent of the vote.

You're

8 going to give me a district in which I get 80 percent or more
9 of the vote, and that's not justified nor mandated by the
10 Voting Rights Act.
11 Q

Okay.

But isn't it true you -- you testified at trial,

12 Congressman Watt, you stated that you know a little bit about
13 Section 5; do you recall that?
14 A

Yes, I do.

15 Q

And are there ever any Section 5 objections raised when

16 the black community is fractured into different districts?
17 A

I don't know the answer to that question.

I know

18 something about Section 5, but I don't know whether -- every
19 objection that might get raised.
20 Q

Okay.

Now, looking at that Congress Zero Deviation, it

21 starts in Mecklenburg, it goes to Rowan, Davidson, Forsyth, and
22 Guilford County; correct?
23 A

Yeah.

You skipped over Cabarrus.

24 Q

I skipped Cabarrus, that's right.

So that's six counties;

25 correct?

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1 A

Yes.

2 Q

And they're all divided?

3 A

Yes.

4 Q

There's not a single whole county in that district?

5 A

That's correct.

There never has been a single whole

6 county in the 12th Congressional District throughout its entire
7 history.

Well, actually, I take that back.

There was one

8 iteration where -- that I saw, I'm not sure I ever ran in that,
9 where all of Rowan County was in the 12th Congressional
10 District.
11 Q

But the ones that were enacted were based on divided

12 counties?
13 A

I can't remember whether I ran in that or whether it was

14 just a proposal that never got passed.
15 Q

All right.

Well, if it's a whole county, if there was a

16 whole county in one of these districts you ran in, it would be
17 the 98th District, and we've gone over that map, and I won't do
18 that again.
19

But what I want to do now is this is the 2011 plan.

20 And this plan is -- this is one that was enacted in 2011, and
21 it's in a portion of Mecklenburg, Cabarrus, Rowan, Davidson,
22 Forsyth, and Guilford; is that correct?
23 A

Which tab is it?

24 Q

This would be 12.

25 A

Twelve.

Yes, that's the same six counties -- parts of the

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1 same six counties, but I assume a different configuration.
2 Q

Okay.

But the 2011 12th District is in portions of the

3 same six counties -4 A

That's correct.

5 Q

-- that were included in the 97th District in which you

6 ran in the 2000 election?
7 A

That's correct.

8 Q

Now, Congressman Watt, when you met with Senator Rucho on

9 April 25th with the staff person, did he tell you he was going
10 to do what you asked him to do?
11 A

No, he didn't, but he seemed receptive to what I was

12 suggesting.
13 Q

So he was friendly?

14 A

Yes.

15 Q

But he never said he was going to do what you requested?

16 A

That's correct.

17 Q

And did you have any discussions with him about how your

Well, he's always been friendly.

I mean --

18 district related to the other districts that adjoined the 12th
19 District?
20 A

No.

I mean, obviously, if you move precincts, it's going

21 to have some impact, but my suggestion was a minimal degree of
22 change which would result in minimal impact on the surrounding
23 districts.
24 Q

So minimal change would have resulted in the 8th District

25 remaining in Mecklenburg County?

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1 A

I don't know, because I was looking at it from the 12th

2 Congressional District, and what I was suggesting to him was
3 how he could minimally change the 12th Congressional District.
4 I wasn't having discussions with him about the 8th or other
5 Congressional Districts.

I mean, I knew it would have some

6 impact, but we were not at that level of detail.
7 Q

Okay.

So you had no discussions with Senator Rucho about

8 the political impact of how District 12 would be drawn in 2011
9 on other Congressional Districts?
10 A

I can't swear that I didn't have some discussion with him

11 about political impact.

I recall saying to him that my

12 impression was that members of the delegation were happy with
13 their general districts and were not lobbying to change
14 substantially.

That would be a political statement of sorts.

15 But I don't think I was in a position to really talk about much
16 other than the 12th Congressional District, which is what I
17 thought the meeting was designed to talk about.
18 Q

Okay.

I want to ask you about your meeting with Senator

19 Rucho in -- at his house.
20

THE COURT:

Let me ask you a question.

How much

21 longer do you have with this witness on cross, Mr. Farr?
22

MR. FARR:

23

THE COURT:

I would say 15, 20 minutes.
This is a good point, I think, to take a

24 lunch recess.
25

MR. SPEAS:

Your Honor, Congressman Watt has some

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Watt - Cross
1 plans and obligations.

If we could finish before lunch, it

2 would be very helpful.
3

THE COURT:

All right.

We'll continue.

Let's move

4 it along.
5

MR. FARR:

All right.

Thank you, Your Honor.

6 BY MR. FARR:
7 Q

So, Congressman Watt, when you met with Senator Rucho at

8 his house, when was that again?
9 A

It was a month or two after the meeting in Raleigh.

I

10 didn't have -- I don't have a specific date for it, but I think
11 it was in June.
12 Q

Okay.

Was anyone else present for that meeting?

13 A

Senator Rucho's wife came in briefly, and Representative

14 Samuelson was there for a part of the meeting.
15 Q

Was Representative Samuelson there when you arrived?

16 A

I think she was, but I'm not positive.

17 Q

Was she there at the time you left?

18 A

I'm not positive of that, either, but I think most of the

19 conversations I had with Senator Rucho, I got the impression he
20 wasn't trying to have it in front of Representative Samuelson
21 because he was embarrassed that he was being called on to do
22 something that he didn't appear to be comfortable with.
23 Q

All right.

So what room did you meet Senator Rucho in his

24 house?
25 A

In his kitchen.

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1 Q

And was --

2 A

We stood around.

I mean, he had he donuts and coffee, and

3 we stood around a little island in his kitchen.
4 Q

And did you go to any other room during the time you were

5 there?
6 A

I think he may have taken me on a tour of parts of his

7 house, but we didn't -- I don't think we met in those rooms.
8 Q

When he took you on a tour of his house, did you have any

9 discussion about redistricting, or did that occur in the
10 kitchen?
11 A

You're taxing my memory to a point that I couldn't swear

12 to it, to be quite honest.
13 Q

All right.

So was the discussion that you've testified

14 about, did that occur in the kitchen, about ramping up the
15 district?
16 A

You know, I have searched my mind because my recollection

17 is that it actually occurred as we were leaving.

And Senator

18 Rucho appeared to want to show me the way back out of his
19 community and used that as an excuse to go out front.

And my

20 recollection is that that's where the conversation -- there
21 wasn't much discussion about congressional redistricting in
22 this meeting.

I mean, I can't -- one of the things that

23 surprised me was that he would call me at home on a weekend,
24 ask me to meet with him.

I thought he was going to show me

25 maps.

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1

There were no maps.

And he appeared not very

2 comfortable having much discussion in front of Representative
3 Samuelson.

I'm not even sure how she got to the meeting.

I

4 didn't know she was coming to the meeting.
5

But at some point, he told me that his leadership had

6 told him that they were going to ramp -- or he must ramp up
7 these districts to over 50 percent African-American, both the
8 1st and the 12th, and that it was going to be his job to go and
9 convince the African-American community that that made sense.
10

And I said, Bob, that's just -- you're not going to

11 be able to do that, and I'm not going to be able to support you
12 if you do that because I know that it does not make sense.

And

13 so, it is not required by the Voting Rights Act, it's not
14 mandated, it's not justified.

And for you to say that you're

15 going to go and try to convince the black community that this
16 is in their interest is just not going to fly, and I'm not
17 going to sit idly by and say that this makes sense because I
18 don't think it makes sense.
19 Q

So you said you wouldn't sit idly by?

20 A

Well, I don't know if I used those exact words, but I

21 mean, you know, the essence of what I was saying was, look, I'm
22 not going to support you if you go out and say that this is in
23 the interests of the African-American community because I don't
24 think it is.
25 Q

All right.

Now, do you know for sure where that

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1 conversation took place?
2 A

I don't know for sure where that conversation took place.

3 I've already testified about that.
4 Q

And do you know for sure whether or not Representative

5 Samuelson was present when the conversation -6 A

I don't think she was present when that conversation took

7 place, no.
8 Q

You can remember she's not present, but you can't remember

9 where the conversation took place?
10 A

Well, I can remember -- I can remember that I believed

11 that she was not present because it appeared to me that Bob was
12 going out of his way not to have her present.

It seemed to me

13 that she was -- she invited herself to that meeting, it
14 appeared to me.
15

Now, you know, that's -- I can't swear to that,

16 either, but it did not appear to me that he was interested in
17 having this conversation in front of her.
18 Q

So, Congressman Watt, you were the first person to serve

19 in the 12th District, and you've testified that you were
20 familiar with the Shaw litigation and the Cromartie case;
21 correct?
22 A

Yes, generally.

23 Q

Right.

And you're aware that in a case like this, if the

24 plaintiff proves that race is the predominant motive, that the
25 district's subject to a more heightened level of scrutiny than

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1 if race is not the predominant motive?

Don't you understand

2 that?
3 A

I think that there's some case law to that effect, yes.

4 Q

Okay.

And you were against a district that would draw the

5 black population above 50 percent in your district; correct?
6 A

Wasn't so much that I was against it.

I mean, from my

7 electoral advantage, it would've been a much, much easier
8 district to run in.

But, you know, I just participated in the

9 judiciary committee, in reauthorizing the Voting Rights Act,
10 and I knew that the Voting Rights Act didn't stand for what he
11 was suggesting he was planning to do.
12 Q

Okay.

That's your understanding of the Voting Rights Act?

13 A

Beg your pardon?

14 Q

That's your understanding of the Voting Rights Act, and

15 you thought what Senator Rucho wanted to do violated your
16 understanding of the Voting Rights Act?
17 A

That's correct, yes.

18 Q

Okay.

19

MR. FARR:

Now, may I approach the witness, Your

20 Honor?
21

THE COURT:

22

MR. FARR:

You may.
I have some exhibits I'd like to hand up

23 to the Court.
24 BY MR. FARR:
25 Q

Now, Congressman Watt, I've handed you Defendant's

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Watt - Cross
1 Exhibit 28.

Do you remember this exhibit?

2 A

Yes.

3 Q

Was this a statement that you prepared?

4 A

I did, yes.

5 Q

And did you send this to Senator Graham to have him read

6 this at a committee hearing?
7 A

I did, yes.

8 Q

And so, this statement was prepared after you had your

9 meeting with Senator Rucho at his house?
10 A

That's correct.

11 Q

And, by the way, when you say the 12th District is drawn

12 over 50 percent, what census category are you relying on?
13 A

I'm sorry, would you repeat that?

14 Q

Do you know the different types of census categories for

15 African-Americans?
16 A

I don't, no.

17 Q

Okay.

Now -- so this was a statement that you prepared to

18 have Senator Graham read at a committee hearing, and this was
19 prepared after you had told Senator Rucho that drawing your
20 district over 50 percent did not comply with the Voting Rights
21 Act; correct?
22 A

That's correct.

23 Q

And your understanding was that if Senator Rucho intended

24 to draw the district over 50 percent, that could be used as
25 evidence that race was the predominant motive for Congressional

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Watt - Cross
1 District 12; is that correct?
2 A

I don't know that I ever thought about it in that context

3 until you suggested it, but it probably would be, but that
4 didn't have anything to do with what I was doing.
5 Q

All right.

Now, in reading Defendant's Exhibit 28, which

6 was going to be read to the General Assembly pursuant to your
7 instructions, is there anything in this statement that you
8 prepared, Congressman Watt, disclosing this conversation you
9 say you had with Senator Rucho where he told you that
10 leadership was requiring him to ramp up the district over
11 50 percent?
12 A

No.

13 Q

And don't you think that would have been important

14 information for the General Assembly to have?
15 A

Well --

16 Q

Just yes or no, and then you can explain.

17 A

It probably would be important information.

But these

18 statements, until Senator Rucho started talking about them
19 publicly, I was treating as confidential conversations between
20 me and Senator Rucho.

When he started to misrepresent what I

21 had said publicly, then that's when I started to say there's
22 some sinister motivations taking place here, so the answer to
23 your question is, no, it's not in here, but in a subsequent
24 letter, I put that in context.

The idea that it was read on

25 the floor of the legislature puts it in context.

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1 Q

Okay.

We'll get to that in a second, Congressman Watt.

2 But -- so this statement was designed to refute public
3 statements by Senator Rucho that she thought he had
4 misrepresented what she had said; is that correct?
5 A

Yes.

6 Q

Did Senator Rucho ever make a public statement saying that

7 you were the person who was responsible for drawing the
8 district over 50 percent?
9 A

I think there are public statements that imply that, yes.

10 Q

Not imply it.

Did he ever say it?

Did he ever say --

11 A

I mean, I -- the last thing I'm going to do is go and look

12 at every statement that Senator Rucho has made on this subject.
13 I mean, that's just not something I -14 Q

Have you ever seen the statement by Senator Rucho where he

15 stated that he drew the district up over 50 percent because you
16 wanted it that way?
17 A

I've seen a statement where he was very close to saying

18 that, yes.
19 Q

What do you mean by "very close"?

20 A

Well, he was making it sound like this was my idea to ramp

21 these minority percentages up, and I just knew that that was
22 not the case.
23 Q

Do you have a copy of that statement?

24 A

I'm sure -- I'm sure I would somewhere, but I don't have

25 it here on the witness stand with me.

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1 Q

Okay.

2 A

I think if you read some of the exhibits where public

3 statements were being made, they were making it sound like,
4 somehow, this was my idea and Representative Butterfield's
5 idea, and I just thought that was a ludicrous thing to suggest.
6 Q

Okay.

7 A

Because I knew it wasn't my idea, and I didn't think it

8 was Representative Butterfield's idea, either.
9 Q

All right, Congressman Watt, looking, again, at

10 Defendant's Exhibit 28, you wrote this to correct the record
11 for misrepresentations that you thought Senator Rucho made; is
12 that right?
13 A

Yes.

14 Q

Okay.

15 A

That's what the first paragraph says.

I wish to submit

16 this statement for the public record to provide additional
17 context to the selective and misleading characterizations of my
18 opinions that the chairs of North Carolina's Legislative
19 Redistricting Panel have entered into the record.
20 Q

Okay.

21 A

Yes.

22 Q

And in this exhibit, you do not make -- you do not say in

23 this exhibit that Senator Rucho had publicly stated incorrectly
24 that you were the person responsible for having the district
25 drawn over 50 percent?

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1 A

Well --

2 Q

Is that yes or a no, and then you can explain your answer.

3 A

No, I do not -- well, I do say that because when I say to

4 provide additional context to the selective and misleading
5 characterizations of my opinions, what I'm saying is that he
6 has misrepresented what I've said.

And to the extent that he

7 is either saying or implying that it was my idea to ramp these
8 districts up to 50 percent, he's just -- he's just out and out
9 not telling the truth.
10 Q

Okay.

But you give -- you give -- in this statement, you

11 give specific examples of statements you thought Senator Rucho
12 had misrepresented what you told him; right?

Aren't there some

13 specific examples in this statement?
14 A

The next to the last paragraph says, the chairs are

15 incorrect in implying that I, at any time, endorse their
16 configuration, which shifts large numbers of precincts in and
17 out of the 12th District in an apparent effort to increase the
18 African-American population in the district.

If Senator Rucho

19 and Representative Lewis were really interested in
20 accommodating my preference by agreeing to model the new 12th
21 District after the current 12th District, as they profess on
22 page 5 of their July 1, 2011, statement, shifting four
23 precincts rather than the substantial number of precincts the
24 2011 plan proposes to shift would have been much more
25 accommodating as well as much more consistent with the criteria

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Watt - Cross
1 they outlined.
2

I don't know how I can be anymore direct in

3 counteracting what they were doing.
4 Q

But you don't say in here that Senator Rucho has

5 misrepresented that I was the one who asked for the district to
6 be drawn over 50 percent.
7 A

That's not in here; is it?

The first paragraph says that they've taken out of context

8 and selectively misused the characterizations of my -- of what
9 I told him.

I don't know what else I can tell you on that,

10 sir.
11 Q

I don't know what else you can tell me, either,

12 Congressman Watt.
13

MR. FARR:

14

THE COURT:

May I approach the witness?
You may.

15 BY MR. FARR:
16 Q

Congressman Watt, I've handed you Defense Exhibit 27.

Do

17 you have that in front of you?
18 A

Yes, sir.

19 Q

And is that a letter you prepared?

20 A

It is, yes.

21 Q

That's dated July 8?

22 A

Yes.

23 Q

And it's addressed to who?

24 A

Oh, I'm sorry, to senator Rucho and Representative Lewis,

25 and copied to a number of people in the state legislature.

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 Watt - Cross
1 Q

Okay.

145

And the people who received the copies of this

2 letter were members of the Legislative Black Caucus?
3 A

Yes.

4 Q

And I see Senator Blue got a copy of this letter?

5 A

Yes.

6 Q

And this letter was prepared after your meeting with

7 Senator Rucho and Representative Samuelson at Senator Rucho's
8 house?
9 A
10 Q

Yes.
In this letter, did you report that Senator Rucho had told

11 you that he'd been ordered by leadership to ramp up the black
12 percentage in the district to over 50 percent?
13 A

I didn't specifically mention that, no.

14 Q

Okay.

And did you state in this letter that Senator Rucho

15 had falsely or incorrectly stated publicly that it was your
16 idea to draw the district over 50 percent?
17 A

Well, the second sentence says, I'm writing to correct

18 statements that you attributed to me in Claim 2 of the
19 statement that you earlier misconstrued or misrepresented.
20 Q

And then, in the bottom part, the first page, you list

21 some of the things that you claim Senator Rucho didn't state
22 correctly; right?
23 A

Some of them, yes.

24 Q

Okay.

And in the part of this letter where you gave the

25 list of the items that Senator Rucho had inappropriately

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Watt - Cross
1 attributed to you, you did not say that Senator Rucho had
2 stated publicly that you were the person who wanted the
3 district ramped up over 50 percent.
4 A

I'm sorry.

Would you repeat the question?

I'm trying to

5 read -- read what I said -6 Q

Okay, sure.

Sure.

7 A

-- because I haven't seen it in a while.

8 Q

In that letter, you've got a list of items that you are

9 telling Senator Rucho and Representative Lewis, and two, four,
10 six, seven members of the Legislative Black Caucus, you've got
11 a list of items that you claim that Senator Rucho had
12 misrepresented as far as what you'd said to him; correct?
13 A

Yes.

14 Q

And the list of items that you have in this letter about

15 what Senator Rucho publicly misrepresented does not include a
16 statement by Senator Rucho where he had publicly said you were
17 the person responsible or in favor of drawing the district over
18 50 percent?
19 A

That's correct, but of course, this is responding to Claim

20 2 of a particular statement, which is what the letter was
21 intended to do.
22 Q

Okay.

And I'm looking at the notebook that Mr. Speas gave

23 you, this white notebook that doesn't have an exhibit sticker
24 yet.

And in that notebook, under Tab 30, there's a document

25 listed as Defendant's Exhibit 30.

Could you find that?

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Watt - Cross
1 A

I have it, yes.

That's the floor statement.

2 Q

Yes, sir.

3 A

Yes.

4 Q

Tell us again what this was.

5 A

Beg your pardon?

6 Q

This was a statement that you prepared?

7 A

It was the statement that was read into the record at --

8 in the legislative session by Senator Graham, yes -9 Q

Okay.

10 A

-- that starting at page -- I guess --

11 Q

I'm on 37 --

12 A

-- 37.

13 Q

-- is where I think it starts.

14 A

Do I have the right statement?

Maybe that's Congressman

15 Butterfield's statement.
16

MR. FARR:

May I assist the witness, Your Honor?

17

THE COURT:

18

THE WITNESS:

You may.
Yes.

Starting at page 37 is the letter

19 that I -- or statement I submitted.
20 BY MR. FARR:
21 Q

Now, this statement was read during the session where the

22 redistricting plans were actually enacted?
23 A

I don't know that I can verify that, but I understood it

24 was read on the floor during part of the debate, yes.
25 Q

Okay.

If you turn -- don't lose your place on 37, but if

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Watt - Cross

1 you turn to the front of that Exhibit 30, this indicates it's a
2 transcript that was prepared on July 25, 2011 -3 A

Yes.

4 Q

-- is that right?

5 A

Yes, I see that.

6 Q

Okay.

So you had prepared a statement that you asked

7 Senator Graham to read for you at a session of the legislature
8 on July 25, 2011; is that right?
9 A

Yes.

10 Q

Okay.

Now, at the time that you wrote this statement, had

11 you had any discussions about how the politics of the proposed
12 plan would change the Congressional Districts?

Had anyone

13 talked to you about that?
14 A

I don't remember having any specific conversations about

15 any political consequences of any of these things.
16 Q

So you never had anyone tell you that this new plan was a

17 Republican gerrymander?
18 A

I don't recall anybody telling me that.

Maybe if you told

19 me who you were talking about telling me, that might jog my
20 memory.
21 Q

Okay.

Now, when you submitted this statement, you knew

22 your district was going to be drawn over 50 percent in at least
23 one census category?
24 A

I knew that that's what they were proposing.

It had not

25 been adopted.

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1 Q

Okay.

2 A

And I was trying to express my opinion that it should not

3 be adopted.
4 Q

So you were -- you would have favored not adopting the

5 plan that was ultimately adopted?
6 A

That's -- yes, I think that's correct.

I would have

7 favored not adopting it, yes.
8 Q

Okay.

And this statement that was read on July 25th

9 during the legislative session that you prepared, anywhere in
10 this statement do you report your conversation with Senator
11 Rucho where he told you that his leadership had ordered him to
12 ramp your black percentage in your district over 50 percent?
13 A

Probably not.

14 Q

And anywhere in the statement that you prepared, did

15 you -- that was read on July 25th, did you state that Senator
16 Rucho had publicly misrepresented that you were the person
17 responsible for ramping the district up over 50 percent?
18 A

Well, I've already been on record a couple of times about

19 that already.

I don't know whether there's -- I mean, without

20 going through and reading it again, I haven't looked at this in
21 quite a while, but I don't know the answer to your question
22 without going all the way through the statement and reading.
23 Q

Well, please do so, because it's only three pages.

24 A

At the bottom of page 37, I say, and I want to make it

25 clear that my statement -- any statement or implication that

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Watt - Cross
1 either plan was drawn to accommodate the wishes that I
2 expressed is inaccurate and untrue.
3 Q

Okay.

Anything else?

4 A

In the middle of page 39, I say, to maintain as a joint

5 statement of Senator Rucho and Representative David -6 Representative Lewis regarding the release of the Rucho-Lewis
7 Congress 2 does, that maintaining the 12th District as a very
8 strong Democratic district will make adjoining districts more
9 competitive for Republican candidates is seriously in error.
10

So, yeah, there were a couple of places where I took

11 issue with what he was saying.

But if you're asking did I --

12 did I try to embarrass Senator Rucho publicly, the answer is
13 no.
14 Q

Okay.

And I'm glad you pointed out that statement,

15 because I want to ask you some questions about that on page 39.
16 When you said that maintaining the 12th District as a very
17 strong Democratic district will make adjoining districts more
18 competitive for Republican candidates is seriously in error,
19 what did you mean by that?
20 A

Well, if you pack all the black people into one

21 Congressional District, you'll make my election a lot easier,
22 and you'll make adjoining Republican elections a lot easier for
23 them.

It won't make them more competitive.

It won't make my

24 district more competitive, and it won't make their district
25 more competitive.

It'll make both districts easier.

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1

And for them to be representing to the public that

2 this was designed to make Congressional Districts more
3 competitive, which is what they had said in their statement,
4 was inaccurate.
5 Q

Did they say more competitive or more competitive for

6 Republicans?
7 A

You say here, more competitive for Republicans.

Well, more competitive for Republicans.

8 that coin is less competitive for Democrats.

The flip side of
And more

9 competitive for Democrats is -- the flip side of that coin is
10 less competitive for Republicans.

I don't know how you can --

11 I mean, they're opposite sides of the same coin.

I'm not sure

12 what you're driving at.
13 Q

But you agree that drawing the district the way your

14 district was drawn in 2011 benefited Republican candidates in
15 adjoining districts?
16 A

Benefited me politically by making my district less

17 competitive.

I would win at over 80 percent of the vote, which

18 I did, and it would make adjoining Republican districts less
19 competitive because they would -- they would find it easier to
20 win.
21 Q

Okay.

Well, what's -- well, I've got -- I'll finish up

22 with these questions, Congressman Watt, then I'll be done.
23

What about in 2010, Congressman Miller was a Democrat

24 and was elected in the 13th District.

Does that jar with your

25 memory?

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Watt - Cross
1 A

Yeah, that's correct.

2 Q

Okay.

And in 2012, under the New Congressional Plan, was

3 Congressman Miller elected in the 13th District?
4 A

I don't think he was, no.

5 Q

And wasn't George Holding elected?

6 A

That's correct.

7 Q

And isn't he a Republican?

8 A

That's correct.

9 Q

And in the 8th District in 2010, which adjoins the

10 12th District -- in 2010, wasn't Congressman Kissell elected?
11 A

That's correct.

12 Q

And in 2012 under the 2011 Congressional Plan, Congressman

13 Kissell lost to a Republican?
14 A

That's correct.

And by taking black votes and packing

15 them into my Congressional District, he made all the districts
16 less competitive, yes.

So I don't know how that's inconsistent

17 with what I've said.
18 Q

So by drawing the district the way that they drew it, it

19 made many other districts more favorable for Republicans; is
20 that right?
21 A

It probably did; less competitive.

22

MR. FARR:

No further questions, Your Honor.

23

THE COURT:

Redirect?

24

MR. SPEAS:

Couple of very quick, clarifying

25 questions, Your Honor.

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Watt - Redirect
1

REDIRECT EXAMINATION

2 BY MR. SPEAS:
3 Q

Congressman Watt, you were asked -- handed Exhibit J,

4 Defendant's Exhibit No. 27, which is your July 8, 2011, letter.
5 Do you have that?
6 A

Yes.

7 Q

And in that, do you refer to a statement made by Senator

8 Rucho and Representative Lewis regarding June 23's public
9 hearing in the first paragraph?
10 A

Yes.

11 Q

And in the third paragraph, do you refer to Claim 2 of

12 that letter or that public statement?
13 A

That's correct.

14

MR. SPEAS:

May I approach the witness quickly, Your

15 Honor?
16 BY MR. SPEAS:
17 Q

Congressman Watt, I'm placing in front of you -- I'll try

18 to get the exhibit numbers right, Your Honor -- Defendant's
19 Exhibit D-5.1, which is the collection of public statements
20 issued by Senator Rucho and Representative Lewis.

And I am

21 turning to -22

THE COURT:

Which tab, so we can find it?

23

MR. SPEAS:

June 22, 2011, statement is entitled,

24 Statement by Representative Bob Rucho and Representative David
25 Lewis regarding proposed VRA exhibits.

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Watt - Redirect
1

Have you found that, Your Honor?

2

THE COURT:

Just a second, let me catch up.

MR. SPEAS:

It's Tab 5.

June 22,

3 you said?
4

5 statement.

It's the June 22, 2011,

It's in the upper right-hand corner.

6

THE COURT:

Okay.

Handwritten up there --

7

MR. SPEAS:

Handwritten.

8

THE COURT:

-- 6-22?

Okay.

9 BY MR. SPEAS:
10 Q

Let me show you that, Representative Watt, and ask you if

11 you know whether a Congressional Plan had even been released
12 on -- as of that date, June 22, 2011?
13 A

The question is, again, what?

14 Q

Does that statement, the June 22 statement, concern only

15 the State House and State Senate Plans and not the
16 Congressional Plan?
17

MR. SPEAS:

Your Honor, if I may approach the

THE COURT:

You may.

18 witness.
19

20 BY MR. SPEAS:
21 Q

Congressman, if you would look at the 96 document in this

22 ledger, it's the July 1 statement by Representative Lewis and
23 Senator Rucho.

And it concerns relating to the Proposed

24 Congressional Plan; is that correct?
25 A

That's what the title says, yes.

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Watt - Redirect
1 Q

So, from that document, it appears that the Congressional

2 Plans weren't even made public until July 2011?
3 A

I don't know the answer to that.

4 tracking the timing of any of this.
5

MR. SPEAS:

I mean, I wasn't

I'm sorry.

Thank you very much.

I don't have any

6 other questions.
7

MR. FARR:

No questions, Your Honor.

8

THE COURT:

9

THE WITNESS:

All right.

You may step down.

Do I leave these here?

10

MR. SPEAS:

Please.

11

MR. SPEAS:

Your Honors, Congressman Watt needs to

12 pursue other business.
13

THE COURT:

I assume he's able to.

Any objection to excusing Congressman

14 Watt?
15

MR. FARR:

16

THE COURT:

No, we're happy to excuse him.
All right.

You may be excused.

We'll

17 stand in luncheon recess until quarter to three.
18

(At 1:26 p.m., break taken.)

19

(At 2:47 p.m., break concluded.)

20

THE COURT:

All right.

Where are we?

Are the

21 plaintiffs ready to proceed with their next witness?
22

MR. SPEAS:

Yes, Your Honor.

The plaintiffs would

23 call Representative Butterfield to the stand.
24

(Witness sworn by the clerk.)

25

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Butterfield - Direct
1

G.K. BUTTERFIELD,

2

PLAINTIFF'S WITNESS SWORN AT 2:48 p.m.

3

DIRECT EXAMINATION

4 BY MR. SPEAS:
5 Q

Would you state your name for the record, please.

6 A

GK Butterfield.

7 Q

Would you tell the Court a little bit about where you grew

The G is for George, the K for Kenneth.

8 up and where you went to school?
9 A

I'm a native of Wilson, North Carolina, born in 1947, and

10 went to the public schools there in my home community, both
11 elementary and high school.

Graduated from high school in

12 1965.
13

During those years, I was very active in what we now

14 refer to as the Civil Rights Movement, as was my father before
15 me.

After high school, I went on to North Carolina College at

16 Durham, later to become known as North Carolina Central
17 University.
18

After my third year in college, I was drafted into

19 the US Army.

I served two years in the Army, discharged from

20 the Army in 1970, and returned to Durham to complete my
21 undergraduate work, and then went on to the law school there at
22 North Carolina Central University, graduating in 1974.
23

Did not pass the bar exam in 1974.

I worked for a

24 law firm in Warren County called Clayton & Ballance.

And the

25 following year, 1975, I took the bar exam and passed it and was

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Butterfield - Direct
1 admitted to the practice of law.
2 Q

Tell us a little bit about your legal career.

3 A

Well, my legal career, in earnest, started in 1975, even

4 though I had one year working with a law firm prior to that as
5 a lawyer in a small town with another lawyer, lifelong friend
6 named Milton F. Fitch, Jr. now Superior Court Judge Fitch.
7

The two of us started -- and Quentin Sumner, who is

8 also a Superior Court Judge, we started a law firm known as
9 Fitch, Butterfield & Sumner.

And we continued under that

10 arrangement for several years.
11

After that, Judge Sumner withdrew from the firm and

12 started his own firm with his spouse, and Milton Fitch and I
13 continued the law practice.

And later, a man named James A.

14 Wynn, Jr. joined the law firm to be known as Fitch, Butterfield
15 & Wynn.

I continued to practice law until I was elected to the

16 bench some years later.
17 Q

Okay.

And you served on the North Carolina Superior Court

18 bench?
19 A

I did serve on the bench.

Prior to getting elected as a

20 superior -- resident Superior Court Judge, I was a typical
21 small-town lawyer.

In the early years, I handled the speeding

22 tickets and the misdemeanor district court cases and the like,
23 and then graduated and became a personal injury lawyer.

And I

24 began to do some probate work, and enjoyed that very much.
25

And then, in 1982, the US Supreme Court changed

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Butterfield - Direct
1 the -- what is required for a Section 2 violation from the
2 intent standard to the results, or effects, standard.

And so I

3 developed an interest in voting rights litigation, primarily
4 because my father, in 1957, had become the victim of a
5 miscarriage of justice when he served on the Board of Aldermen
6 in my hometown.
7

While my family was on vacation in March of 1957, the

8 City Council abruptly changed the method of election from
9 district elections to at-large election.

And my dad had been

10 the first African-American to serve on the board in its
11 history.

And when we returned from our vacation, we found that

12 the method of election had been changed, and he was soundly
13 defeated in 1957.

I was 10 years of age and remember it very

14 vividly.

And there was a challenge to the election system.

15

Also, there was a provision enacted that prohibited

16 single-shot voting.

So not only did it dissolve a district

17 election system, but it also created a requirement, a full
18 slate requirement which prevented single-shot voting.

And that

19 really angered the African-American community, as you can
20 imagine.
21

In 1959, another gentleman in the community ran, my

22 pastor, and he was soundly defeated in 1959.
23 point, the NAACP took the litigation.

And at that

And the case went to the

24 US Supreme Court -- well, the Supreme Court denied cert in the
25 case, but it was lost at every level.

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Butterfield - Direct
1

And so, as a young -- impressionable young man, I

2 noticed all of this and didn't quite fully understand it, but
3 that forced me to want to not only become a lawyer, but to go
4 into the political arena.

And so, my law practice evolved into

5 a voting rights practice because I wanted to try to remedy some
6 of the past miscarriages of justice.

So I did voting rights

7 litigation for some years.
8

The legislature created, as a result of litigation

9 under the Voting Rights Act, eight opportunity districts for
10 black lawyers to get elected to the Superior Court bench.
11 was settled; it was not a verdict by the Court.

It

It was settled

12 by the legislature, and eight seats were created -- eight
13 opportunities were created across the state.

And I ran in one

14 of those districts in 1988 and was elected and sworn into
15 office as resident Superior Court Judge January 1st of 1989,
16 and served the next 11 years as a Superior Court Judge.
17

In 2001, Governor Easley appointed me to the State

18 Supreme Court.

I. Beverly Lake, Jr., had defeated Chief

19 Justice Henry Frye in the election of 2000, thereby creating a
20 vacancy.

When Lake moved from Seat 7 to Seat 1, there was a

21 vacancy in Seat No. 7, and Governor Easley, one of his first
22 acts as governor was to appoint me to the State Supreme Court.
23

I stayed on the Court for nearly two years, and I was

24 defeated in the November 2002 election because we, as you
25 certainly recall, had partisan election judges.

And even

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Butterfield - Direct
1 though my opponent was not known and did not do any

2 fundraising, did not do very much campaigning, he beat me by a
3 margin of 50 to 48 because of the straight ticket voting for
4 then candidate Elizabeth Dole.
5

And so, after serving nearly two years on the Supreme

6 Court, Governor Easley re-appointed me, this time as a Special
7 Superior Court Judge, and that's where I stayed until I was
8 elected to Congress.
9 Q
10 A

And you first ran for Congress in 2004?
I ran in 2004 in a Special Election.

Around March of

11 2004, my predecessor in this office announced he was not
12 running for re-election, and then two weeks later announced
13 that he was actually vacating the seat.
14 for the House.

That created a vacancy

There had to be a Special Election under the

15 law, and Governor Easley set both the regular primary and the
16 election for the remainder of the term, two elections on the
17 same ballot on the same day.

It was a little confusing.

But I

18 was elected on July 20th of 2004 and continue in that position
19 today.
20 Q

And you have been re-elected to Congress in 2006, 2008,

21 2010, 2012, and 2014?
22 A

That is correct.

23 Q

Okay.

Tell the Court a little bit about your work in

24 Congress.
25 A

Well, believe it or not, I'm now considered a senior

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Butterfield - Direct
1 member of Congress.
2 last 10 years.

There's been a tremendous turnover in the

I went in as Member No. 435, and now I'm No.

3 140 in order of seniority in the House on the Democratic Side.
4 I am a Democrat.

On the Democratic side, I am a Chief Deputy

5 Whip of the House Democratic Caucus, and I'm also honored to be
6 the chairman -- as was Congressman Mel Watt some years ago,
7 Chairman of the Congressional Black Caucus.
8 Q

Okay.

Now --

9 A

And served on the Energy & Commerce Committee in the House

10 of Representatives.
11 Q

Now, let's turn just a few minutes to the districts from

12 which you were elected prior to the 2011 redistricting that is
13 at issue here.

Do you recall the approximate African-American

14 voting-age population in your district from 2004 through the
15 2010 election?
16 A

It was in the 47 percent range, I believe.

17 Q

Okay.

18 A

Forty-seven, yes.

19 Q

And like Representative Watt, do you remember your margins

20 of victory in those districts?
21 A

They were comfortable margins of victory, and I can refer

22 to the documentation to give you the exact margins.
23 Q

If you would, please.

24 A

Yes.

In 2004, 63.88 percent.

25 In 2008, 70.28 percent.

I was unopposed in 2006.

In 2010, 59.31 percent.

That was my

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Butterfield - Direct
1 lowest tabulation in all of my years.

In 2012, 75, that was

2 after the new map went into effect, 75.32.

And in 2014,

3 73.38 percent.
4 Q

Okay.

5 in 2011.

Let's talk about the redrawing of Congressional 1

What were the differences in the district from 2010

6 until redrawn in terms of the percentage of African-American
7 voters?
8 A

Well, I was expecting an insignificant change.

9 had to pick up 97,500 new citizens in the district.
10 aware of that.

I knew we
I was

But I thought it could be done without much

11 disruption to the core district that I was familiar with.

And

12 that's what my expectation was.
13 Q

Okay.

And did the new district divide more counties than

14 the prior -- did the new plan divide more counties than the
15 prior plan?
16 A

Well, in the prior district -- I said this in all of my

17 speeches until I -- and I remember it so well, 23 district -18 23 counties in the district, 13 whole counties, 10 parts of
19 counties.

That was the division between whole and parts of

20 counties.
21

And after the redrawing of the districts, I only had

22 five whole counties out of 24, 19 portions of counties.
23 Q

So the present district is composed of five whole counties

24 and 19 pieces of counties?
25 A

Five out of 24 counties are whole counties.

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1 Q

Okay.

Now, at some point, were you approached by

2 representative -- excuse me, Senator Rucho -3 A

Yes.

4 Q

-- and Representative Lewis with respect to the plan?

5 A

Yes, I had more interaction with Senator Rucho than I did

6 Representative Lewis, but I did see both of them on at least
7 one occasion.
8 Q

Okay.

And would you describe to the Court those

9 conversations.
10 A

Mr. Speas, I've been trying to recall those events with

11 accuracy so that I could be completely accurate in my
12 testimony.

I've gone back and researched my calendar from the

13 year 2011.

It appears to me, and I have a calendar entry with

14 me today in case it is in dispute, but on April 21, at
15 2:30 p.m, I met with Senator Rucho in Room 300A there in -- I
16 think that's his conference room in his office building.
17

Yes.

I was requested to come to Raleigh to meet with

18 Senator Rucho and Representative Lewis, and I did.

After

19 talking with Representative Watt, I determined that I was
20 probably the first to be called forward to have these
21 confidential meetings, and I went ahead of Mr. Watt.
22

And so I traveled to Raleigh and had a -- I met

23 Senator Rucho for the very first time.
24 talk.

He's a dentist.

He and I had small

My dad was a dentist for 50 years, and

25 so we had that conversation.

And then, it evolved into the

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Butterfield - Direct

1 conversation that was relevant, and that was the redistricting
2 plan.
3

I might say, Mr. Speas, that my chief of staff at the

4 time was named Tonya Williams.
5 very distinguished lawyer.

Tonya Williams is and was a

For five years, she worked for the

6 Senate President Pro Tem, Mark Basnight.

She was his legal

7 counsel, and as such, she was his legal counsel during the
8 prior round of redistricting.
9

And as I was preparing to go to Raleigh to meet Rucho

10 and Lewis, I was admonished dozens of times -- not just a
11 couple of times, but dozens of times -- by my chief of staff to
12 be extremely circumspect and careful in how I had the
13 conversations with these two men, these two chairmen in the
14 legislature, because she explained to me, you know, her
15 experience when she served as legal counsel, and that any
16 little thing that you say could be taken out of context and
17 could be exploited if there was a motive to do that.

And so

18 she admonished me so much, that I was tired of hearing her say
19 it, but she admonished me severely to do very little talking
20 and to allow these gentlemen to do most of the talking.
21 Q

Did you take her advice?

22 A

Absolutely, I did.

That's why I believe my testimony

23 today may be a little less valuable than the other two
24 witnesses, yes.
25 Q

At some point, did you see the proposed new version of

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Butterfield - Direct
1 Congressional District 1?
2 A

Mr. Speas, prior to going to Raleigh -- of course, all of

3 us have friends in the legislature, and I informally talked
4 with many of the colleagues of these two gentlemen.

And I was

5 told that there was a serious conversation afoot about adding
6 Guilford County to the 1st Congressional District.

And I

7 thought the source of that was mistaken.
8

And after hearing it four or five times, I then gave

9 credibility to the assertion that Guilford County was being
10 considered as an addition to the 1st Congressional District.
11 And I just absolutely could not imagine how Guilford County,
12 where we sit today, could be a part of the 1st District, which
13 extends all the way to Elizabeth City, North Carolina.

And I

14 was told that it was probably because Guilford County is a
15 Section 5 county, and there was a wish on the part of the map
16 drawers, the committee chairs, to include Section 5 counties
17 within the new 1st District.
18

And so when I got to Raleigh and met with Senator

19 Rucho and Representative Lewis, my recollection is that
20 Representative Lewis did not stay in the meeting very long, but
21 he did extend a hand of friendship to me, and we chatted for a
22 few minutes.

But at the end of the day, it was Senator Roucho

23 and myself in this meeting.
24

Senator Rucho had a map available for me, and it was

25 a very large map.

And I'd seen redistricting maps many times

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Butterfield - Direct
1 before.

I was, as I said, a voting rights attorney, and so

2 I've seen those.

I was the spokesman for the class.

You may

3 may not know this, Mr. Speas, but I was the spokesman for the
4 class in the Gingles case.

I was not an attorney of record,

5 but I was the spokesman for the class.

I'm the one that

6 presented the single-member district redistricting map to the
7 North Carolina legislature and was laughed at because it
8 eliminated multi-member districts, but now it's the law of
9 North Carolina.
10

But I looked at this very large map on the table, and

11 I found it -- and Senator Rucho told me that because of the
12 population deficit, that they had to find roughly 100,000 new
13 citizens to come into the district, and I acknowledged that I
14 understood that.

He said that it would probably be difficult

15 to get a mass of people in my traditional district and to meet
16 the one person, one vote goals, and that it needed to be a zero
17 deviation district, which I never understood, still don't
18 understand to this day because I think there can be -- I think
19 there is some tolerance in deviation.

But the legislature has

20 adopted this zero tolerance formula.
21

But I told him that I really wanted my traditional

22 district, and if we could sort of enlarge it around the edges
23 and find 97,000 people, it would be great.

But he mentioned to

24 me that we needed an urban community in order to make the
25 numbers work.

And I didn't dispute that, even though I --

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Butterfield - Direct

1 because I didn't have the resources to draw the map on my own.
2

And so I began to probe and ask him, well, what does

3 that mean?

And he said, well, Raleigh's a possibility,

4 Durham's a possibility.

And I said, well, I've heard about

5 Greensboro, you know, is Greensboro on the table?

And he

6 acknowledged that there had been a conversation, but it
7 probably it would not be -- would not make the final map.
8

And so, I did not want to get into a situation

9 whereby it would be reported in the media that I was choosing
10 one urban area over another.

I have hundreds of friends in

11 both communities and would do -- politically, I would do very
12 well in either community.

And so I did not -- I went to

13 college in Durham and know a lot of people there.
14 I'm right at home in Raleigh as well.

But Raleigh,

And so, I was very

15 careful, extremely careful not to intimate in any way that I
16 preferred one community over another.
17

I basically said to Senator Rucho, you have the

18 computers, you have the experts.

What I'm hoping for and

19 expecting is a lawful map that protects minority voting
20 strength in the district.
21

And then, as we perused the map, I honed in on Wake

22 County because that would be a new area in the district.

And

23 in order to get my bearings, I asked where was Shaw University.
24 And Senator Rucho did not know where Shaw University was.
25 Didn't expect him to know; he's from Charlotte.

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Butterfield - Direct
1

And so, he got on the phone and he summoned one of

2 his staff members to the room, or he may have already been in
3 the room, I'm not sure about that.

But the staff member and I

4 leaned over the table to try to identify the campus of Shaw
5 University, because if I were to get Wake County, certainly, I
6 wanted the HPCUs.

There are two in Raleigh.

7 College is the other.

St. Augustine's

I wanted those two campuses to be in the

8 Congressional District.
9

And so, as we got our bearings and I figured out what

10 I was looking at, I said, okay, this is Shaw, this is the state
11 capitol, this is St. Augustine's College, this is South
12 Raleigh.

I have my bearings now, and I see what you're talking

13 about -- what you're talking about.
14 well, do you like it?
15 opinion, you know.

And Senator Rucho said,

And I said, I'm not giving you an

I see what you're proposing.

I don't have

16 an opinion one way or another about whether I want it or
17 whether I don't want it.

I didn't tell him that Tanya told me

18 to be quiet, but I was certainly following her advice to the
19 tee.

And I was very proactive not to, even in my body

20 language, to try to suggest that I preferred one map over the
21 other.

So the meeting came to a cordial end, we shook hands,

22 and we departed.
23

I returned to Washington and told my staff and all of

24 my confidants about it.

And I was mentally preparing to pick

25 up Wake County because I thought that's the way it was going to

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Butterfield - Direct
1 be.

I began politically accumulating mailing lists and all of

2 the other things that politicians do in Wake County, and
3 Senator Rucho and I had exchanged cell phone numbers.
4

One day, I received -- and it wasn't but a few days,

5 I received a telephone call from Senator Rucho indicating that
6 everything that we had talked about in his conference room was
7 off the table.

Just wipe the slate clean, forget the

8 conversation ever happened, it's going to start over.

And he

9 continued to indicate to me that the majority minority
10 districts, under the law, under Strickland, had to exceed
11 50 percent.

And while I had been out of voting rights

12 litigation for many years, because as a judge, you don't get
13 involved in voting rights litigation, at least at the state
14 level.

These gentleman certainly do.

But I lost track of

15 jurisprudence of voting rights for the 15 years that I was on
16 the bench.
17

And so, he told me that their lawyers were telling

18 him that minority districts had to exceed 50 percent.
19 said, wow, I did not know that, you know.
20 anything about Strickland.

And I

I don't know

I remember Gingles, but I don't

21 know very much about Strickland.
22

And so I just said, you know, that's what the law

23 requires, then that's what it has to be.

But I didn't believe

24 it then, and I don't believe it now.
25

And so, after the telephone call, then I'm anxiously

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Butterfield - Direct

1 awaiting what the new map will look like, and that's when I saw
2 Senator Floyd McKissick, Jr., one day.

And Floyd said, you

3 know, how would you feel if Durham were added to your district?
4 And I said, I don't know.

I was very coy with Floyd as well.

5 And he says, well, that's the conversation now.

And I said,

6 well, I look forward to the final maps.
7

And sure enough, the final maps were being readied

8 for public display.

And my records show that on June 21, 2011,

9 at 2:00 in the afternoon in Room 328 of the legislative office
10 building, I again met with someone, and I think the someone was
11 Senator Rucho.

My notes say that it was.

I don't believe

12 Representative Lewis came to that meeting, but I may be in
13 error on that.
14

But that's when I was told that Durham would be in

15 the district.

But that was -- that the law mandated that

16 50 percent of the district must be greater than 50 percent in
17 African-American voter age population, that it had to be a zero
18 tolerance in the deviation, and there needed to be communities
19 of interest and compactness, to the degree that it could be
20 compact, and that this was the best map they could come up
21 with.
22

And I didn't say very much, and I left the meeting.
And a few days later, my chief of staff stormed into

23 my room and wanted to know why I would agree to the
24 inclusion -- that I would say that I would prefer one county
25 over another.

And I assured Tonya that that absolutely did not

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Butterfield - Direct
1 happen.

And she said, well, Senator Rucho has put it in his

2 report, that you made these statements to him, and that your
3 statements were a motivating reason why the district was drawn
4 the way it was.

And I was very upset about that then and

5 continue to be today.
6 Q

At some point, did you come to write a letter to Senator

7 Rucho with regard to your concerns?
8 A

I certainly did.

And I --

9 Q

And if you would, Representative Butterfield, turn to the

10 Butterfield tag in the notebook in front of you, and then turn
11 to the single exhibit which is there, which is labeled
12 Defendant's Exhibit D19.

And I would ask you if that is a

13 letter you wrote on July 22, 2011, to Senator Rucho and
14 Representative Lewis?
15 A

I authored the letter dated July 22, 2011, which is

16 Exhibit No. D19.
17 Q

And was this letter read on the floor of Senate by Senator

18 Ed Jones?
19 A

I am informed that the letter was, indeed, read by the

20 late Senator Ed Jones at my direction.
21 Q

And was Senator Jones an African-American member of the

22 North Carolina Senate?
23 A

He was, and a constituent.

24 Q

And a constituent.

And would you read for the Court your

25 final paragraph in that letter.

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1 A

The final paragraph reads as follows.

2

Quote:

"Using the Voting Rights Act as justification

3 to advance partisan goals in the rest of the state is
4 unconscionable and mocks the very spirit and purpose of the
5 law.

The voters in District 1 and the citizens of our great

6 state deserve better.

I urge the committee and the members of

7 the North Carolina General Assembly to heed the concerns
8 expressed by the public and honor legal protections designed
9 and enforced to protect minority voters."
10 Q

All right.

End of quote.

You've spent a lifetime in Eastern North

11 Carolina.
12 A

I have.

13 Q

And over those years, in lots of capacities, have you

14 developed an understanding of the voting patterns in that area
15 of the state?
16 A

I don't think there's anyone in Eastern North Carolina

17 more uniquely equipped to evaluate the voting patterns in
18 Eastern North Carolina.

I don't do it scientifically, but I

19 have experienced it in one way or the other since 1968.
20 Probably since 1957, when my dad was defeated.
21 child then, so I will pick it up in 1968.

But I was a

I've been involved

22 in every election in Eastern North Carolina beginning in 1968.
23 Q

And the present African-American voting-age population in

24 your district is in excess of 52 percent; is that correct?
25 A

Currently, my records suggest that the black VAP is

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1 52.65 percent.
2 Q

Okay.

And based on your years in electoral politics in

3 Eastern North Carolina, is that number necessary to allow
4 African-American citizens to elect their candidate of choice -5 A

No, it's not necessary.

6 unnecessary.

It's excessive.

It's

When the black voting-age population was

7 47 percent, I did quite well.

And with 52 percent, you can see

8 a marked increase in my electoral success.

And I can tell you

9 that 52 percent is not necessary in order for not just me, but
10 any African-American candidate or any candidate who is the
11 choice of the African-American community to win, 47 percent is
12 sufficient.
13 Q

And I believe you testified a few moments ago that after

14 the redistricting, you won in 2012 by 75 percent?
15 A

Yes, sir.

It went from 59 percent in 2010 to 75 percent

16 in 2012.
17 Q

And this past time, it was 73 or so percent?

18 A

73.38 percent.

19 Q

Okay.

Based on your many years in politics and public

20 life, tell the Court what you -- your view of the level of the
21 extent to which white citizens in Eastern North Carolina will
22 vote for black citizens.
23 A

Mr. Speas, there has been racially polarized voting all

24 across North Carolina since the beginning of our democracy.
25 That is not in dispute.

What may be somewhat in dispute is the

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1 severity of the polarization.
2

And what needs to also be a part of this conversation

3 is what region of the state are you addressing the polarization
4 question, because no one size fits all.
5 Q

Is Charlotte different than Wilson?

6 A

I was listening to Senator Blue's testimony today, and

7 there's no resemblance between voting behavior among white
8 citizens east of Interstate 95 as opposed to the urban areas of
9 Wake and Mecklenburg County.

It's regrettable, but that is a

10 fact.
11 Q

In Eastern North Carolina, what is your judgment as to the

12 level of white voting?
13 A

My judgment is not scientific, Mr. Speas.

14 Q

I understand.

15 A

But it is based on 40-plus years of direct voter

16 participation.

I round it off just for discussion purposes.

I

17 would say that most African-American candidates -- and there
18 are exceptions.

Most African-American candidates and most

19 candidates who are the choice of the African-American community
20 generally can never depend on two out of three white voters.
21 In other words, 66 percent of white voters, in my opinion, will
22 never vote for an African-American candidate for most
23 positions.
24

And as I said, there have been exceptions, and I

25 acknowledge that.

But the converse of that is also true.

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Butterfield - Cross
1 About 33 to 35 percent of white voters will vote for a

2 qualified candidate who is African-American or the choice of
3 the African-American community if they prove their metal.
4

MR. SPEAS:

5 Butterfield.

Okay.

Thank you very much, Congressman

I have no more questions at this point.

6

THE COURT:

7

MR. PETERS:

8

Good afternoon, Congressman Butterfield.

9 Alec Peters.
10 Office.

Cross-examination?
Thank you, Your Honor.
My name's

I'm with the North Carolina Attorney General's

And I do have a few questions for you.

11

CROSS-EXAMINATION

12 BY MR. PETERS:
13 Q

First, I noted that you took some notes up with you to the

14 stand.
15 A

And may I ask you what it was you took up with you?

You can.

It's a table that I had personally typed in my

16 office just for reference purposes, and you're certainly
17 welcome to view it.
18

I have my black voter age population figures both

19 before and after 2011.

I have the dates on which I met with

20 Senator Rucho, and I have some what we call in Washington
21 talking points, one size fits all.
22 make sense.

Minority percentages don't

The other is polarized voting is severe in Eastern

23 North Carolina.
24

The other talking point, and maybe that's not a good

25 way to describe it.

The other point is two out of three white

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Butterfield - Cross
1 voters will not vote for the choice of the African-American
2 community.
3

The next point is only one of three white voters will

4 consider voting for an African-American candidate.
5

And the other is basically a restatement of the law,

6 which says when race is a predominant factor, then the remedy
7 must be narrowly tailored.
8

And then I have 13 whole counties and five whole

9 counties.

And then I have the names of three judges so I would

10 not get in trouble with the Court.
11

MR. SPEAS:

Thank you, Congressman.

I'll ask

12 plaintiff's counsel if we can have a copy of that provided to
13 us, please?
14

THE WITNESS:

Certainly, you can.

15

THE COURT:

I'm sorry.

16

MR. SPEAS:

May I approach the witness?

Would you

17 like to view it now?
18

MR. PETERS:

Sure.

19

THE WITNESS:

Let me look at it now.

And Mr. Peters, I have your name up

20 here as well.
21

MR. SPEAS:

22

THE COURT:

May I approach?
You may.

23 BY MR. PETERS:
24 Q

Congressman Butterfield, I want to thank you for letting

25 me look at that because there were a couple of times my hand

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Butterfield - Cross

1 was not keeping up with me as I tried to take notes, and you've
2 helped me out.
3

You testified, I believe, earlier about the margins

4 of victory in your various races.

And I believe I wrote down

5 that in 2004, it was around -- I'm going to round here -6 63 percent?
7 A

Yes.

8 Q

And in 2006, you were unopposed?

9 A

Yes.

10 Q

All right.

In 2008, it was over 70 percent; is that

11 correct?
12 A

Yes.

13 Q

And then in 2010, it was 59?

14 A

Yes.

15 Q

Then in 2012, over 75 percent?

16 A

Yes.

17 Q

In 2014, it was just over 73 percent?

18 A

Correct, right.

19 Q

So of the five elections in which you had an opponent,

20 three of them had a margin of over 70 percent; is that correct?
21 A

Three of the five had margins greater than -- yes, greater

22 than 70 percent.
23 Q

All right.

And one of those was under the 2001 Plan,

24 wasn't it, not under the 2011 Plan?
25 A

That is correct -- no, that is not correct.

Ask the

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Butterfield - Cross
1 question again.
2 Q

One of those margins of victory that was over 70 percent,

3 the one in 2008, would have been under the 2001 Congressional
4 District -5 A

That's correct.

6 Q

-- Congressional Plan; correct?

7 A

Yes.

8 Q

Okay.

Thank you.

One other thing I wanted to pick up on,

9 you mentioned -- and you may have answered this, but I want to
10 make sure it's clear.
11

You said you had heard that there might be some

12 discussion about drawing the 1st District into Guilford County?
13 A

Yes.

14 Q

Do you remember who you heard that from?

15 A

I don't.

It was a member of the legislature, I would

16 guess a member of the State Senate.

So it would have either

17 been Senator Ed Jones or Senator McKissick, probably one of
18 those two, yes.
19 Q

And I believe you said you did discuss that with Senator

20 Rucho -21 A

Yes.

22 Q

-- when you met?

23 A

He dismissed it when I brought it up, yes.

24 Q

All right.

25 A

He acknowledged -- he acknowledged that it had been a

And his -- excuse me.

Go ahead.

When you say he dismissed it --

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Butterfield - Cross

1 conversation, but I got the impression that it was not likely
2 to happen.
3 Q

Thank you.

4 A

Yes.

5 Q

Now, you commented that you were careful, based on

6 Ms. Williams' advice, not to state a preference for Wake or
7 Durham County when you were meeting with Senator Rucho and
8 Representative Lewis; did I get that right?
9 A

That is correct.

10 Q

And why was it you didn't want to state a preference?

11 A

Two reasons.

One was political.

I did not want the

12 voters of the county that I did not choose to feel that they
13 would be unwanted, you know, in a district that I would
14 represent.
15

Secondly, because I know how litigation works.

16 spent 30 years in a courtroom, and I know how it works.

I
And I

17 know the less you say, the better you are.
18 Q

Would I be correct in saying you didn't want to say

19 something you would be unhappy to hear repeated back, say, in
20 court today?
21 A

Yes.

22 Q

All right.

Let me ask you to look at the white notebook

23 that Mr. Speas had you looking at.

Behind the tab with your

24 name on it, there's a tab that says 19?
25 A

Yes.

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Butterfield - Cross
1 Q

Do you see that?

2 A

I do.

3 Q

And that's the letter that you wrote to Senator Rucho and

4 Representative Lewis; correct?
5 A

It is.

6 Q

And it's marked down at the bottom left-hand corner

7 Defendant's Exhibit 19?
8 A

Yes.

9 Q

All right.

Let me ask you a few questions about that.

10 Let me ask you to look at the second paragraph, which -- let me
11 just ask you to read the first sentence of the second
12 paragraph.
13 A

Yes, and this is refreshing my memory.

I'm glad you

14 directed my attention to this.
15

Quote:

"It is regrettable that you would use the

16 Voting Rights Act and my objection to the removal of Gates,
17 Washington, Beaufort, Craven, Jones, and Wayne Counties to
18 justify wholesale changes to the proposed congressional map."
19

Should I continue?

20 Q

That's fine.

Thank you.

21 A

Yes.

22 Q

Why were you objecting to the removal of Gates,

23 Washington, Beaufort, Craven, Jones, and Wayne Counties?
24 A

I felt it was unnecessary.

It was too much of a radical

25 change to the core district that I knew so well.

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Butterfield - Cross
1

Secondly, these were Section 5 counties that I

2 believe needed the protection of and the ability to elect a
3 member of Congress of their choosing.

And I just thought that

4 it was absolutely unnecessary to take these counties out of the
5 mix when there were many other ways that a legal district could
6 have been configured.
7 Q

Why did the fact that they were Section 5 counties make

8 you think they should be kept part of District 1?
9 A

Because Section 5 counties, by definition, are counties

10 that have histories of voter discrimination and
11 disenfranchisement.

And we have been trying to remedy past

12 discrimination in Section 5 counties -- all counties, but
13 particularly all the Section 5 counties for generations.

And

14 to see those counties just absolutely removed from a majority
15 minority district and submerged into the adjoining district, I
16 felt, was unneeded, unnecessary, and unfair to the citizens of
17 those counties.
18 Q

All right.

Were any of those counties or portions of any

19 of those counties put back in District 1 by the time the
20 district was actually enacted?
21 A

Yes, all except Jones County.

22 Q

All except Jones?

23 A

Yes.

24 Q

So Gates -- at least a portion of Gates, Washington,

25 Beaufort, Craven, and Wayne were put back in your district?

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1 A

Well, we call the Gates County area the Albemarle region.

2 The counties in the Albemarle region are Gates, Chowan,
3 Perquimans, and Pasquotank.

And, traditionally, I have always

4 represented those four counties.

My two predecessors have

5 likewise represented those four.
6

And so, even though these four were in the final map,

7 only the black communities of these four counties were in the
8 final map.

The white communities were -- and the more

9 Republican-leaning communities were excluded from the final
10 map.

And that was very confusing to me why the map drawers

11 would actually go into the Albemarle region and just cherrypick
12 African-American communities and leave those in my district,
13 and to allow the remaining communities to go into the 3rd
14 Congressional District.
15

It was very hard to comprehend.

In fact, I even drew a map of it just for my own

16 edification over the weekend.

And as I look at it today, it

17 just makes no sense to me at all.
18 for example.

I look at Beaufort County,

I have represented six precincts -- six voting

19 precincts in Beaufort County, which is the town of Washington,
20 Your Honors, as the county seat.

And now I've been reduced

21 from six precincts to three precincts, and those are the
22 African-American precincts in the town of Washington.

And it's

23 obvious to me that this is partisan, racially motivated
24 gerrymandering, and it's offensive.

It's offensive to me.

25 It's offensive to the people that I represent.

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 Butterfield - Cross
1 Q

Thank you.

183

But I believe my question was, am I correct

2 that the enacted version of Congressional District 1 does
3 include a portion of Gates, Washington, Beaufort, Craven, and
4 Wayne Counties?
5 A

You didn't use "portion" in your first question.

6 Q

If I didn't, that was my mistake.

7 A

You did not.

8 explanation.
9 Q

That's why I went through all the lengthy

But yes, that is true.

Thank you.

10 A

Yes.

11 Q

And the first iteration of the Congressional Plan and the

12 final iteration of the Congressional Plan that was enacted does
13 include portions of Chowan, Perquimans, Pasquotank?
14 A

Portions.

And I will again repeat those portions are

15 predominantly -- overwhelmingly African-American communities.
16 Q

In your letter of July 22nd, you did not say anything

17 about Chowan, Perquimans, or Pasquotank; did you?
18 A

I did not, no.

19 Q

Thank you.

And, now, in the first iteration of the

20 Congressional District, it's correct, isn't it, that your -21 the 1st Congressional District was drawn into Wake County?
22 A

Wake County?

Yes, sir.

23 Q

Yes, sir.

24 A

That is correct.

25 Q

And I believe you said you were looking at the map, trying

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Butterfield - Cross

1 to figure out where St. Augustine's and Shaw would be in that?
2 A

Yes.

3 Q

But the version that was enacted went into Durham County

4 rather than Wake County; is that right?
5 A

That is correct.

6 Q

All right.

And the original version of the 1st District

7 enacted in 1991 also went into Durham County, didn't it, or do
8 you recall?
9 A

You're taking me back a long ways.

I don't think so.

I

10 think District 12 went into Durham County, and District 1 went
11 into New Hanover County.
12 Q

Let me see if this helps a little bit, Congressman.

You

13 should have a black notebook up there that on the front says,
14 "Historical Congressional Maps 1991 to 2011."
15 A

Yes.

16 Q

And there's an exhibit sticker down at the bottom,

17 Defendant's Exhibit 126.

And let me ask you to look at

18 district -- at Tab 1, which is taken from the submission for
19 the 1991 Congressional Plan.

If you look at the third page of

20 that, you can see a closeup of District 1.
21 A

I do now recall, Counselor.

I do now recall.

It did go

22 into Durham.
23 Q

Thank you.

24 A

Because Ken Spaulding and Mickey Michaux ran for Congress,

25 I believe.

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Butterfield - Cross
1 Q

Thank you.

2 A

No, I stand corrected on that.

3 pre-'91.

Now, looking back at your letter -Michaux and Spaulding ran

So please continue your line.

4 my memory.

I'm trying to refresh

Yes.

5 Q

That's fine.

I realize it was sometime ago.

6 A

Yes.

7 Q

Looking back at your letter, in that second paragraph, the

8 last sentence reads:
9

Additionally, the amended plan -- let me, before I

10 start.

Do you have that letter back in front of you?

11 A

Yes.

12 Q

The last sentence reads:

13

Additionally, the amended plan unnecessarily, quote,

14 "packs," closed quote, new African-American voters from
15 counties not covered by Section 5 of the Voting Rights Act into
16 District 1.
17

Did I read that correctly?

18 A

No.

Are we still on the July 22nd letter?

19 Q

Yes, sir, the second paragraph, the last sentence of the

20 second paragraph.
21 A

The last sentence of the second paragraph.

22 Q

I'm sorry.

23 A

All right.

24 Q

In that sentence, what do you mean by the word "packs"?

25 A

To pack a community, to me, means to encompass a voting

Additionally -- I'm with you, yes.

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Butterfield - Cross
1 bloc of people and to unnecessarily attach those people to

2 another community to achieve a goal that is not mandated by law
3 or necessary.
4 Q

So in your understanding, does the term "pack" have

5 anything to do with how many people are included in the
6 district, whether it's a supermajority or a bare majority?
7 A

There are degrees of packing, certainly.

But any time you

8 have a district that's already 47 percent African-American, and
9 continuously, for more than a decade, has elected a candidate
10 who is the choice of the African-American community, to then
11 scoop up additional communities of African-American voters, and
12 to add those voters to the existing majority minority district,
13 is -- meets the definition, in my view, of "packing."

It's

14 putting too many into a community in order to achieve a result.
15 Q

All right.

Looking a little further down in this letter,

16 and this has been mentioned earlier today, it's correct, isn't
17 it, that as of the 2010 Census, the 1st Congressional District
18 was underpopulated by over 97,000 people?
19 A

That is accurate.

20 Q

Do you have a sense, based on your knowledge of Eastern

21 North Carolina, how that came to be why the 1st Congressional
22 District came to be so underpopulated compared to, say, the
23 12th that I believe Congressman Watt testified earlier was
24 overpopulated by just a couple thousand?
25 A

I think I know.

North Carolina has been allocated 13

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Butterfield - Cross

1 representatives based on the census, and that went unchanged
2 after the 2010 Census.

But in the meantime, the population of

3 our state increased to 9 million people, which was about 1-1/2
4 million people more than the prior decade.

And so, by

5 definition, the districts had to increase in ideal size.
6

And, at the same time, concurrent with that was a

7 loss of population in rural communities.

And so the growth of

8 the state coupled with the loss of population in rural
9 communities resulted in a 97,500-person deficit.

And I

10 recognized that clearly when we had these conversations.

I

11 knew we had to find 90-plus-thousand people.
12 Q

Right.

Now, going back to the margins of error that you

13 mentioned -- excuse me -- the margins of victory that you
14 mentioned in your elections, in 2008, when you had a margin of
15 receiving 70.28 percent of the vote, I think is what I have
16 written down, and would I be correct that that means your
17 opponent received 29 point -18 A

Seventy-two.

19 Q

-- 72 percent of the votes?

20 A

Yes, sir.

21 Q

Right.

22 A

Oh, I would have to use pencil and paper to figure that

23 out.

Do you know what that translates into in numbers?

Probably between 250 and 300,000 votes, I suppose.

24 There's 730,000 people in the district.

Probably 300,000 are

25 registered voters -- 300-plus-thousand are registered voters.

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Butterfield - Cross

1 And so 10 percent would be -- it probably says that my opponent
2 probably received 80 or 90,000 votes.
3 Q

Compared to your --

4 A

Well in excess of 100,000.

5 Q

Okay.

Do you know if that margin was more or less -- the

6 97,500 more or less than the amount by which the district had
7 become underpopulated?
8 A

And if you don't know that --

I'm doing the math.

I'm doing the math, yes.

I don't

9 know.
10 Q

All right.

Thank you.

11 A

I don't want to guess at it.

12 Q

All right.

13 A

Yeah.

14 Q

I believe you testified earlier that the African-American

I don't know.

Thank you.

15 population of the district as it existed in the 2000s, so in
16 other words, the 2001 Congressional District after the 2000
17 Census, I believe you testified that was around 47 percent?
18 A

My records show 47.66.

19 Q

Do you recall whether that is total black population,

20 voting-age population, or -21 A

Eighteen and over voting-age population.

22 Q

Do you recall whether it is total black or single-race

23 black, people who -- do you -- I'll put it a different way.
24

Do you recall whether that is limited only to the

25 people who identified themselves on the census as being black,

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 189

Butterfield - Cross

1 or does it also include the people who identified themselves as
2 being part black?
3 A

I know what you're asking, and I don't know.

I've seen

4 these cross-tabs on the census data, and I don't know if BVAP
5 also includes these multiple categories.
6 Q

All right.

I don't know.

And that was -- that 47 percent was under the

7 2000 Census; is that correct?
8 A

Correct.

9 Q

Would you agree that the census is a snapshot of what a

10 population looks like as of the time it's taken?
11 A

Yes, they do.

The American Community Surveys, you know,

12 during the midterm -13 Q

Right.

14 A

-- and for that very reason.

15 Q

All right.

16 A

Yes.

17 Q

Let me ask you to pull out the black notebook again, which

18 is Defendant's Exhibit 126.

And let me ask you to look at Tab

19 5.
20 A

All right, sir.

21 Q

And do you see that that says, Congress Zero Deviation?

22 A

Yes, sir.

23 Q

Do you recall whether or not that was the name of the 2001

24 Congressional Plan?
25 A

Yes, it is.

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Butterfield - Cross
1 Q

All right.

And that's marked as Defendant's Exhibit 4.4A

2 up in the upper right corner of that map?
3 A

Yes.

4 Q

Let me ask you to turn a few pages back to the page that

5 at the top says, voting-age population by race?
6 A

You said "back."

Do you mean forward or back?

7 Q

It would be behind that map, and it's going to be one,

8 two, three, four pages behind that map.
9 A

The map that I'm looking at is the first document under

10 Tab 5.
11 Q

Correct.

12 A

So it would be after the map?

13 Q

After that map, yes, sir.

14 A

After the map, I see Exhibit 4, which is the fourth

15 affidavit of Dan Frey.
16 Q

Right.

Then go three more pages behind that.

17 A

Yes, sir.

18 Q

And you should see one that says, district attributes,

19 Congress Zero Deviation, voting-age pop by race.
20 A

I have it.

21 Q

All right.

And do you see where District 1 is noted in

22 the left-hand margin?
23 A

Yes.

24 Q

And if you go over three columns, do you see the one that

25 says, VA: black?

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1 A

Yes.

2 Q

And what does it note for the percentage for District 1 in

3 that column?
4 A

And I realize some of these numbers are small.

They are, and the copies are not as clear as they probably

5 could be.

It appears -- I'm going to go across with you.

6 seeing District 1, total is 457,936.
7 Black is 218,732.

I'm

VA white is 223,452.

Native would be 3,273.

And then I guess

8 Asian/Pacific Islanders would be the next, 2370.

I don't see a

9 percentage.
10 Q

If you look at the line under that, you see that number

11 translated into a percent?
12 A

I do.

47.76 percent.

13 Q

Is that the 47 percent number you've been talking about?

14 A

Absolutely.

15 Q

Now, if you look over in the last column, do you see VA:

16 multi-race?
17 A

Yes.

18 Q

And what's the number and the percentage there?

19 A

.71 percent, less than 1 percent.

20 Q

All right.

Now, let me ask you to look at Tab 6, which is

21 Defendant's Exhibit 4.5A.

And I'll represent to you this is

22 the same map but with data based on the 2010 Census.

And I'm

23 afraid these numbers are going to get even smaller.
24

If you look one page behind that map, you'll see it

25 says, Exhibit 5, fourth affidavit of Dan Frey, Congress Zero

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Butterfield - Cross
1 Deviation 2010 Census.
2 A

Yes.

3 Q

All right.

And that's Defendant's Exhibit 4.5?

Now, let me ask you to go to two sheets behind

4 that, and you'll have to turn the page sideways.

And do you

5 see a page that says, stat pack report of total population by
6 race and ethnicity, Congress Zero Deviation?
7 A

Yes.

8 Q

And do you see the column and line for District 1?

9 A

Yes.

10 Q

All right.

Now, let me ask you to follow that line over

11 to the column that says, percent black.

And can you tell me

12 what that number is?
13 A

49.65 percent.

14 Q

All right.

15

Now, let me ask you to keep going.

THE COURT:

Hold on just a second.

16 we're on the right page.

I'm not sure

Down at the bottom of the page on the

17 CM/ECF filings -18

MR. PETERS:

19

THE COURT:

20

MR. PETERS:

21

THE COURT:

Yes, sir.
-- 28 of 45, what page are you on?
It says 27 of 45.
You said that was 49.65?

Okay.

And you

22 may continue.
23 BY MR. PETERS:
24 Q

Now, let me ask you to keep going over to -- do you see a

25 column that says, (MR) black?

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1 A

Yes, sir.

2 Q

All right.

3 A

1.00 percent.

4 Q

All right.

And what is that percentage?

And if you go over two more columns, do you

5 see a column that says, total percent black?
6 A

Yes, sir, 50.65 percent.

7 Q

All right.

Now, let me ask you to look at the next page.

8 And this would be the one I think Judge Osteen was on a minute
9 ago, 28 out of 45.
10

And we'll look at the same things.

Do you see in the line for District 1 a column that

11 says, percent black?
12 A

Yes, sir.

13 Q

And what does it say?

14 A

48.07 percent.

15 Q

All right.

Do you see a column a ways down that says,

16 percent multi-race black?
17 A

Yes, sir, 1.04 percent.

Yes, that is correct.

"MR" means

18 multi-race, yes.
19 Q

All right.

Keep going two more columns, and you'll see

20 one that says -21 A

Multi-race black, yes.

22 Q

Right.

23 A

It appears to be .56 percent, less than 1 percent.

24 Q

And then two more columns, do you see, total percent

And what is that number?

25 black?

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1 A

Yes, sir.

2 Q

And can you read that?

3 A

48.83 percent.

4 Q

So, at least based on this -- these numbers from the 2010

5 Census, the voting-age population of District 1 had actually
6 gone up -- the black proportion of the voting-age population in
7 District 1 had gone up since 2000; had it not?
8 A

That's what this document reveals, and it seems reasonable

9 that that would be correct.
10 Q

Now, let me ask you to look at the next page where it

11 says, Stat Pack Report of Voter Registration by Party and Race,
12 Congress Zero Deviation.

Do you see that?

13 A

Yes.

14 Q

And I'm going to just ask you to look for the line for

15 District 1, and then look all the way over in the last block of
16 columns where it says, Registration by Race Without Regard to
17 Party.
18 A

Yes, sir.

19 Q

And do you see the percent black figure given there?

20 A

It's a smudgy copy, but I'm going to say that it appears

21 to be 50 -- 50.66 percent.
22 Q

That's what it appears to be to me as well.

23 not an ideal copy.

I agree it's

But -- so based on these numbers, according

24 to this data, the majority of the registered voters in District
25 1 as of the 2000 Census were African-American -- identified as

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Butterfield - Cross
1 African-American; is that correct?
2 A

Yes, as of 2011.

3 Q

Now, let me ask you, are you familiar with how the census

4 counts Hispanics in -- when it does its counting?
5 A

I know the US Census Bureau makes a very deliberate effort

6 to try to accurately take the count, and I know there are
7 various methodologies that are used.

I know there's a lot of

8 advertising in Hispanic communities to encourage an accurate
9 count, and I know the census enumerators literally go into the
10 communities, knock on the doors, and do everything within their
11 power to get an accurate number.
12 Q

What I was -- I didn't -- I don't think I phrased that

13 particularly well.
14

Are you aware whether, in the census, a distinction

15 is drawn between race and ethnicity?
16 A

Yes.

17 Q

And what is that distinction as you understand it?

18 A

I'm not sure I fully understand it because it has evolved

19 over the years.

But ethnicity would be a description of the

20 individual's heritage or lineage and how the person
21 self-identifies.

And so, if a person identifies as black,

22 obviously, the ethnicity would be African-American.

If they

23 identify as mixed race or a -- I forgot the categories, but
24 there are two or three different categories.

But I think all

25 of these are lumped into one category of ethnicity being

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Butterfield - Cross
1 African-American.
2 Q

All right.

Do you -- well, let me try it this way.

If

3 you still have the notebook in front of you, the one with the
4 plans in it.

And we were on the page that at the bottom says

5 page 29 of 45.
6 A

Yes.

7 Q

And the next page would be page 30 of 45.

8 A

Yes.

9 Q

And at the top, it says, Stat Pack Report of Voter

10 Registration by Gender, Age, and Ethnicity.

Do you see that?

11 A

Yes.

12 Q

And if you look at the last column there, do you see it

13 makes a distinction, simply, Voter Registration By Ethnicity;
14 it makes a distinction between Hispanic and non-Hispanic?
15 A

Yes.

16 Q

Let me ask you to turn back forward to the page that at

17 the bottom is marked page 27 of 45.
18 A

I'm there.

19 Q

All right.

Look at the very last column there -- well,

20 the last two columns.

And do you see columns that say, white,

21 non-Hispanic, and percent white non-Hispanic?
22 A

Yes.

23 Q

In that last column, percent white non-Hispanic, what's

24 the number there?
25 A

270,686.

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1 Q

And what's the percentage?

2 A

42.58 or either 56.

3 Q

All right.

And if you look back at the beginning, the

4 early columns in that, where you see white and percent white?
5 A

Yes.

6 Q

The total percentage of white there is shown as

7 44.19 percent; isn't it?
8 A

That is correct.

9 Q

But of those, according to this chart at least,

10 42.58 percent are non-Hispanic whites.
11 A

That is correct.

I suppose because some Hispanics

12 identify as white and some don't.
13 Q

Right.

14 A

Yes.

15 Q

And by the same token, some blacks could identify as

16 Hispanic, and some others might not; is that correct?
17 A

There may be incidence of that, but probably less

18 prevalent as opposed to the other way.
19 Q

And again, on page 28, the one that says 28 of 45, which

20 is the next page.

If you look in the column that says, percent

21 white, for District 1, it says 46.92 percent; is that correct?
22 The column that just says, percent white.
23 A

Percent white is 46.92 percent.

24 Q

Right.

25 A

Yeah.

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1 Q

And if you look at the very last column, the percent white

2 non-Hispanic is 45.59 -3 A

That is correct.

4 Q

-- is that correct?

5

Excuse me one second, Your Honor.

Congressman, let me ask you to look at that page

6 again, the one that's 28 of 45.
7 this is clear for the record.

And I just want to make sure

Up at the top of that page, does

8 it say it's voting-age population by race and ethnicity?
9 A

Yes.

The header says, report -- Pack Report of Voting-Age

10 Population By Race and Ethnicity.
11 Q

And the page ahead of it, the one that at the bottom says

12 27 of 45, that one is headed, Stat Pack Report of Total
13 Population By Race and Ethnicity.
14 A

Yes.

Page 27 of 45 is delineated as total population, and

15 28 is delineated as voting-age population.
16 Q

Now, Congressman Butterfield, Mr. Speas asked you some

17 questions about voting in Northeastern North Carolina, and I
18 think you kind of shorthanded it as east of I-95, what the
19 voting patterns would be, and comparing it to what Senator Blue
20 had testified to this morning.
21

Is it your testimony that racially polarized voting

22 still exists in many places east of I-95?
23 A

It does.

When I did voting rights litigation, it was

24 extremely severe, and there were numerous studies conducted
25 that were accepted by the Court that concluded that with the

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Butterfield - Cross

1 racially polarized voting as it existed then, with multi-member
2 districts for the state legislature, that it was nearly
3 impossible -- I think the Court may have said 1 out of 100,000,
4 that was the Gingles Court, Judge Phillips presiding, 1 out of
5 100,000 chances of being elected.
6

And so, as recently as 30 years ago, voting was so

7 polarized that it was nearly impossible for the preferred
8 candidate to get elected.

That has improved over the years.

9 But I still believe that two out of three white voters in
10 Eastern North Carolina, particularly in Northeastern North
11 Carolina, which I feel that I'm expert enough to testify
12 regarding because I've been there all of my life, have been
13 into every town, village and hamlet and crossroads in
14 Northeastern North Carolina, know thousands of people.

I

15 firmly believe that the preferred candidate of the
16 African-American community probably can expect to get one out
17 of -- if qualified, and we all have different definitions of
18 "qualification," but I think we can probably agree on what
19 "qualification" means, that a qualified -- a qualified
20 candidate who is the preferred candidate of the
21 African-American community, for planning purposes or for
22 strategic purposes, can count on getting one out of three white
23 votes in Northeastern North Carolina.
24

And that means that two out of three will probably

25 not vote for that candidate.

There have been exceptions, I'm

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Butterfield - Cross
1 proud to report.
2 Q

So just so I'm clear, though, it is your belief that

3 racially polarized voting still exists -4 A

It still exists without question.

5 Q

-- in Northeastern North Carolina?

6 A

It still does exist without question.

7 Q

All right.

8 the 1st

I'm sorry?

Did you believe it was necessary, in drawing

District, to maintain an African-American population

9 sufficiently high to ensure that African-Americans could elect
10 their candidate of choice?
11 A

I think it was important that the legislature look at

12 voting behavior and past electoral success and failures to
13 determine what is the appropriate level of minority -- of
14 African-American voter registration and voting-age population
15 in order to level the playing field to give the preferred
16 candidate an equal opportunity to get elected.

And I don't

17 believe that an unofficial number, such as greater than
18 50 percent, is suitable because it should be area specific,
19 maybe not county specific, but certainly regional -- region
20 specific, because what -- the coalition politics of Mecklenburg
21 and Wake County unfortunately don't exist in Northeastern North
22 Carolina.
23

And so, the preferred candidate, usually the

24 African-American candidate, must go out and walk the delicate
25 balance between the interests of the white community and the

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Butterfield - Cross

1 interests of the African-American community, and that's very
2 difficult.
3 Q

And I believe your testimony has been that you believed

4 that the 47.76 percent African -- white voting-age population
5 accomplished what you're describing?
6 A

Without question.

Not just for me personally, and I

7 continue to tell anyone who's willing to listen this -- listen
8 to this.

It's not about my electability, because I am unique,

9 if I must say that about myself, because I've been out there in
10 the trenches for 45 years, served as a judge in most of the
11 counties that I now represent in Congress.

And so, I have some

12 political advantages that other candidates probably will not
13 have in the future.
14

And so, while I'm concerned about my own electoral

15 success, I'm also concerned about the success of those who
16 follow me.

And I believe that 47 percent is a suitable number

17 that in a qualified candidate who is the choice of the
18 African-American community can be competitive in the 1st
19 Congressional District.
20 Q

Do you believe a suitably qualified African-American

21 candidate in the 1st District who is the candidate of choice of
22 African-American voters could be elected if the black
23 voting-age population was reduced from 47.76 percent?
24 A

Conceivably, yes.

25 Q

How far do you think it could be reduced?

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Butterfield - Cross
1 A

I wouldn't take it below 45.

2 Q

So you think if it went under 45, then that would call --

3 A

I think the playing field is level at 47.

I think at 46,

4 it gets to be a little bit more difficult; 45, it gets more
5 difficult, but still competitive.

And I think the law should

6 just guarantee the ability to compete fairly, and so, I feel
7 most comfortable with 47.
8 Q

All right.

And do you have an understanding of whether

9 the 1st Congressional District -- well, let me approach it this
10 way.
11

Let me ask you to look one more time at the white

12 notebook, Tab 19 behind your name, the third paragraph that
13 begins at the bottom of page 1 with the words, "from the
14 beginning..."
15 A

Yes, sir.

16 Q

Could you read that first sentence, please.

17 A

Okay.

Quote:

"From the beginning, I simply ask that you

18 start with my current district and add 97,500 people to comply
19 with one person, one vote requirements in a manner that would
20 comply with the Voting Rights Act."
21 Q

And when you say "in a manner that would comply with the

22 Voting Rights Act," which parts of the Voting Rights Act were
23 you -- did you have in mind?
24 A

Section 2, principally, that is, that the minority -- that

25 the African-American vote not be diluted to such an extent that

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Butterfield - Cross

1 the vote -- the voters would be unable to influence the outcome
2 of an election.
3 Q

And it's true, isn't it, that District 1 was initially

4 drawn to comply with Section 2 of the Voting Rights Act?
5 A

It was.

I remember it very well.

6 Q

Despite the fact that it also happens to include many

7 counties that were at the time covered by Section 5?
8 A

A substantial number of District 1 counties are Section 5

9 counties, and there are historical reasons for that.
10 Northeastern North Carolina was the venue for most of the slave
11 plantations in North Carolina during the period of slavery.
12 And when slavery ended 150 years ago, many African-Americans
13 continue to live on the soil.
14

And they, through the years, have began to have

15 families and to multiply, and the population -- the population
16 of African-American communities continues to be high as
17 compared to the white communities.
18 example, majority-black.
19 African-American.

In Ward County, for

Halifax County, majority

Northampton County, Hertford County, Bertie

20 County, all of these counties are majority African-American and
21 there are historical reasons for it.
22 Q

And when you said here, "comply with the Voting Rights

23 Act," you specifically had in mind Section 2?
24 A
25

Yes.
MR. PETERS:

All right.

I have no further questions.

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Butterfield - Redirect
1 Thank you very much.
2

THE COURT:

Redirect?

3

MR. SPEAS:

Just a couple of clarifying questions.

4 Thank you, Congressman Butterfield.
5

REDIRECT EXAMINATION

6 BY MR. SPEAS:
7 Q

You were asked a series of questions about the 2001 Plan

8 measured both by Census 2000 data and then by Census 2010 data;
9 correct?
10 A

Yes.

11 Q

When a legislature enacts -- when the legislature enacted

12 the 2001 Plan, it only had the 2000 Census data; correct?
13 A

That would seem to be logical.

It was the following year,

14 yes.
15 Q

And it did not have any 2010 Census data to submit to the

16 Department of Justice for Section 5 preclearance purposes?
17 A

That is correct.

18 Q

And only by peering into some crystal ball could the

19 General Assembly in 2001 guess what the numbers would be in
20 2010?
21 A

That would be correct.

22 Q

Okay.

Now, one final question.

All the years you've

23 spent in voting rights litigation, it is your understanding
24 that each district must be narrowly tailored to meet the
25 requirements of Section 2?

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Butterfield - Redirect
1 A

One size fits all does not work in North Carolina, and I

2 don't believe would work in any southern state whatsoever.

In

3 order to draw a fair map that meets the requirements of the
4 Constitution and the State Constitution, I believe that you
5 have to perhaps maybe not look at county-specific data, but at
6 least regional data.
7

Look at the north -- look at -- because even the

8 voting behavior between Durham and the other part of the
9 district is different.
10 Durham.

There's a lot of coalition building in

That was alluded to earlier.

Polarization is -- I'm

11 not going to say nonexistent in Durham, but it's not as -- at
12 the level that it is in Halifax County.

And so I believe that

13 any responsible map drawer should look at regional data in
14 order to determine the severity of the polarization in voting
15 and to narrowly tailor that map to meet that data.
16 Q

Would it be accurate, Congressman Butterfield, that

17 Congress -- that Congressional District 1, as now configured,
18 includes a county, Durham County, where racially polarized
19 voting is probably among the least in the state; and at the
20 same time, Bertie County, for example, where racial polarized
21 voting may be higher?
22 A

That's a good example, Mr. Speas.

Durham County, which is

23 the county I spent many years of my formative life in as a
24 college student and as a law student, black leaders in Durham
25 fought some real tough battles over the years.

And it grew out

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Butterfield - Cross
1 of that a sense of working together in the political arena.
2

And even though there continue to be differences in

3 Durham between the racial groups, there is cohesion on many of
4 the political issues.

And we don't have, in Bertie County of

5 Eastern North Carolina, that degree of cooperation.
6 African-Americans and whites like each other and get along, but
7 when it comes to the voting booth, their behavior is in stark
8 contrast.
9 Q

To Durham?

10 A

Sir?

11 Q

To Durham County?

12 A

In stark contrast to Durham County, yes.

13

MR. SPEAS:

14

THE WITNESS:

15

MR. PETERS:

16

Thank you very much, Congressman.
Yes.
Your Honor, just one or two questions.
RECROSS-EXAMINATION

17 BY MR. PETERS:
18 Q

Congressman Butterfield, Mr. Speas asked you about the

19 census data -- the 2000 Census data when the 2001 Plan was
20 adopted, and the General Assembly not having a crystal ball to
21 see what things were going to look like come the 2010 Census.
22 But would you agree that the 2000 -- applying the 2010 Census
23 to the 2001 District is useful in seeing what the population of
24 the district actually looked like by the end of the decade?
25 A

It's good for an analysis.

It's probative of reaching

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Butterfield - Cross
1 what a fair district should look like.

I would agree with

2 that, that the 2010 data when compared to the 2001 data is
3 probative in reaching a result, yes.
4 Q

Do you know which census data the United States Justice

5 Department would have used in evaluating the benchmark for
6 Section 5 submission?
7 A

I don't know.

8

MR. PETERS:

I have nothing further, Your Honor.

9 Thank you.
10

MR. SPEAS:

No questions, Your Honor.

11

THE COURT:

You may step down.

12

(At 4:07 p.m., witness excused.)

13

MR. SPEAS:

Thank you.

May Congressman Butterfield

14 be excused?
15

THE WITNESS:

16

THE COURT:

Should I leave these exhibits?

Any objection to Congressman Butterfield

17 being excused?
18

MR. PETERS:

Oh, no, Your Honor.

We appreciate

19 Congressman Butterfield him being here and wish him safe
20 travels.
21

THE WITNESS:

Thank you, Your Honor.

22

THE COURT:

All right.

23

MR. SPEAS:

Your Honor, we would call our first

24 expert witness, Dr. David Peterson.

Dr. Peterson, if you would

25 come around, please, and be sworn.

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Peterson - Direct
1

(Witness sworn by the clerk.)

2

MR. SPEAS:

Your Honor, if I may, I have a collection

3 of witness notebooks.
4

THE COURT:

All right.

5

MR. SPEAS:

If I may, this notebook contains

6 documents that Dr. Peterson will be talking about.
7 have them in better order this time, Your Honor.

I hope I

There's three

8 of those for the judges and one for Mr. Farr, and the remainder
9 for the clerks.

Oh, you need one.

May I approach the witness,

10 Your Honor?
11

THE COURT:

You may.

12

DAVID PETERSON,

13

PLAINTIFF'S WITNESS SWORN AT 4:09 p.m.

14

DIRECT EXAMINATION

15 BY MR. SPEAS:
16 Q

Dr. Peterson, would you state your name for the record,

17 please.
18 A

Yes, my name is David West Peterson, P-E-T-E-R-S-O-N.

19 Q

And would you review for the Court your educational

20 background?
21 A

Yes.

I have a bachelor's degree from the University of

22 Wisconsin, and master's and Ph.D. degrees from Stanford
23 University, all in electrical engineering.
24 Q

And would you describe for the Court your work experiences

25 after receiving your Ph.D?

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Peterson - Direct
1 A

Yes.

After I got my Ph.D, I went into the Army for a

2 couple of years where I served at the Institute for Exploratory
3 Research at Fort Monmouth, New Jersey, doing basic research.
4 And then I took a faculty position at Northwestern University,
5 where I taught in the School of Management subjects,
6 statistics, operations, research, generally-applied
7 mathematics, computer applications, that sort of thing.
8

And then I took a professorship at Duke University,

9 where -- in the School of Business there.

And I continue to

10 teach operations research, statistics, applied mathematics,
11 computer applications, and that sort of thing.

And after I had

12 been there half dozen years or so, I got involved with
13 attorneys doing consulting work and helping with statistical
14 aspects of their cases, which led to the formation of a small
15 consulting firm.
16

We did consulting and software development.

The firm was called PRI Associates.

And in working

17 with them, I worked, I suppose, with 1,000 or so different
18 legal teams on various statistical issues, such as employment
19 discrimination, political redistricting, jury selection,
20 high-tech intellectual property disputes, and so forth.
21 Q

Are you the author of any scholarly articles in

22 professional and academic journals?
23 A

I'm coauthor of a book called Use of Statistics in EEO

24 Litigation.

I'm sole author of another book on the use of

25 statistics and litigation, and I'm the author of several dozen

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Peterson - Direct

1 articles that have appeared in professional journals, refereed
2 professional journals.
3 Q

And are your books about statistics and litigation now

4 in -- they've been out in a number of versions; is that
5 correct?
6 A

Yes.

My first book on the subject came out in -- I think

7 it was 1978, or thereabouts, and it's now in something like its
8 30th edition.
9 Q

Okay.

And have you qualified -- been qualified and

10 testified as an expert in any lawsuits?
11 A

I have, in both state and federal courts.

12 Q

And do you have an estimate of the number?

13 A

Hard to say, but certainly at least 50 cases, and most

14 likely more.
15 Q

And were you qualified and testified as an expert in the

16 Cromartie litigation concerning Congressional District 1 that
17 was litigated back in the 1990s?
18 A

Yes.

19 Q

Dr. Peterson, if you would turn to Tab 1 in the notebook

20 in front of you.

Let me ask you if, at the -- toward the end

21 of Tab 1, there appears Appendix A, which is a longer version
22 of your qualifications and experience than you just described?
23 A

Yes.

24 Q

And is that accurate?

25 A

It is, even though it bears a date from a couple of years

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Peterson - Direct
1 ago, it's essentially up to date.
2 last couple of years.

I've been mostly retired.

3 Q

Tree farming, I believe?

4 A

Tree farming, yes.

5

MR. SPEAS:

I haven't done much in the

Your Honors, I would tender Dr. Peterson

6 to the Court as an expert in the field of applied mathematics.
7

MR. STRACH:

8

THE COURT:

No objection, Your Honor.
All right.

Dr. Peterson then may testify

9 as an expert in the field of applied mathematics.
10 BY MR. SPEAS:
11 Q

Dr. Peterson, would you describe for the Court the

12 analysis that you undertook for the plaintiffs in this case?
13 A

Yes.

I examined the 1st Congressional District and the

14 12th Congressional District, as presently constituted, and
15 addressed the issue of whether the borders of each appear to
16 have been constructed more for the purpose of collecting
17 Democrats within, or more for the purpose of collecting blacks
18 within.
19 Q

And what conclusion did you reach with respect to those

20 two districts?
21 A

Well, I did something that I call a segment analysis.

And

22 what the segment analysis shows is that race better accords
23 with each of the two boundaries than does political party
24 preference.
25 Q

In other words, race more than politics accounts for the

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1 boundaries of Congressional 1 and 12?
2 A
3

Yes, that's correct.
MR. SPEAS:

My colleague, Mr. Hamilton, has informed

4 me that the document that Dr. Peterson is speaking from is
5 Plaintiff's Exhibit 15.

I apologize for that.

Thank you,

6 Mr. Hamilton.
7 BY MR. SPEAS:
8 Q

Would you, Dr. Peterson, talk to the Court a little bit

9 about the concept of a segment analysis?
10 A

Sure.

11 of thought:

What are you doing?

A segment analysis arises from the following line
Let's suppose someone hands us a map with a

12 hand-drawn line on it along with a question of is there some
13 objective way that you could determine why that line was drawn
14 the way that it was?

And if the line was drawn, let's say, as

15 an attempt at a contour line, we would expect that if we walk
16 along the path on the ground traced out by that line, that we
17 could reasonably expect to see that, most of the time at least.
18 The land is higher on the one side of the path than it is on
19 the other side of the path.

And if we observe that that's the

20 case, that gives us some confidence that maybe the purpose
21 behind that line was that it was an attempt at drawing a
22 contour line.
23

Alternatively, if, as we walk along the path traced

24 out by that line, we see that, oh, say, the property on one
25 side of the line is under different ownership than property on

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1 the other side of the line, that would give us some confidence
2 that perhaps the line was drawn as a boundary line depicting
3 ownership or separating ownership of the land.
4

The question that was posed to me, basically, was

5 here's the boundary of a political district.
6 about why it was placed just where it was?

What can you say

And, in particular,

7 can you say anything about whether it seems to have, built the
8 way it was -- have been built the way that it was for the
9 purposes of collecting blacks within; or does it seem -- is the
10 evidence stronger that it was built, perhaps, with the purpose
11 of collecting Democrats within?

So that's the question that a

12 segment analysis attempts to address.
13

I'm going to walk along the boundary, at least in

14 concept, and basically look, first, at the issue of whether the
15 line seems to have been drawn for the purpose of collecting
16 Democrats inside.

And if that's the case, what we should

17 expect to see as we walk along the line is that the
18 representation of Democrats on the inside of the path is
19 greater than the representation of Democrats on the outside.
20

On the other hand, if the line was drawn for the

21 purpose of collecting blacks within, we would expect to see as
22 we walk along that the representation of blacks on the inside
23 is greater than the representation of blacks on the outside.
24 And what a segment analysis does is, basically, go around the
25 boundary of each of the two districts and -- twice; once

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1 looking at the representation of blacks inside and out, and

2 once looking at the representation of Democrats inside and out.
3 Q

And Dr. Peterson, behind Tab 1, does there appear your

4 second affidavit marked Plaintiff's Exhibit 15; and I would ask
5 you whether or not that is the -- sets forth your results of
6 your segment analysis for Congressional District 12?

Tab 1,

7 second affidavit.
8 A

Yes, that is a description of my analysis -- my segment

9 analysis of the 12th District.
10 Q

Would you, Dr. Peterson, walk the Court through that --

11 A

Sure.

12 Q

-- and explain it to them.

13 A

Sure.

A segment analysis, under the present

14 circumstances, is rather limited by the availability of data.
15 What we have at hand is precinct-by-precinct data on the
16 representation of Democrats among the population, and we have
17 precinct-by-precinct data on the representation of blacks
18 within the population.

And as it happens, the boundary of the

19 12th District -- let me talk first about the 12th District -20 pretty much follows precinct lines, so that as one walks along
21 the border of the 12th District, there is an inside precinct
22 and then an immediately adjacent outside precinct.
23

And as we progress along the boundary a little ways,

24 eventually, one of the precincts changes, either the inside
25 precinct changes or the outside precinct changes, and we enter

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1 upon a new segment of the district boundary, the voting
2 district boundary.
3

And it happens, going precinct by precinct, the

4 boundary of the 12th District breaks into a total of 330
5 segments, each segment characterized by an inside precinct and
6 an outside precinct.

And for each precinct, we can measure the

7 representation of blacks in that precinct, inside and outside,
8 and compare the two and determine which is greater.
9

And we can also compare the representation of

10 Democrats on the inside precinct and the outside precinct,
11 compare the two, and determine on which side of the path the
12 representation is greater.
13

The segments on which the -- for which the

14 representation of blacks on the inside is greater than on the
15 outside, I call Type B -- B for black -- segments.

And the

16 segments for which the representation of Democrats on the
17 inside is greater, I call Type D segments, Democrat segments.
18

And as it happens, not too surprisingly, most of the

19 segments, most of the 330 segments are Type B segments, and
20 most are also Type D segments.

And, in fact, most segments are

21 both Type B and Type D.
22

But the question here is, really, can one determine

23 whether there is more support, whether there's more evidence
24 that the boundary was placed for the purpose of collecting
25 blacks within or for the purpose of collecting Democrats

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Peterson - Direct
1 within.

And to examine that issue, we have to look at the

2 segments which are not both Type B and Type D.
3

For example, if we have a segment that's Type B, but

4 not Type D, that is, blacks are represented inside to a greater
5 extent than they are represented outside, but Democrats are
6 represented outside to a greater extent than they are
7 represented inside, such a segment is consistent with the
8 hypothesis that race, to an extent, greater than political
9 considerations accounts for the placement of that segment or
10 that portion of the boundary of the 12th District.

A segment

11 like that supports what I call the race hypothesis, that race
12 was more important than political affiliation in accounting for
13 the placement of that particular segment of the 12th District.
14

On the other hand, a segment might be such that the

15 representation of Democrats on the inside is greater than the
16 representation on the outside, but the representation of blacks
17 on the outside is greater than on the inside.

And such a

18 segment I call a Type P segment because it supports the party
19 hypothesis more than it supports the race hypothesis.
20

And what I do, then, in a segment analysis is go

21 around and count up the number of Type B segments -- the number
22 of Type R segments, sorry, the ones that support the race
23 hypothesis, and the number of Type B segments, the ones that
24 support the party hypothesis over the race hypothesis.
25 results of those counts are shown in Table 1.

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And the

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Peterson - Direct
1 Q
2

I'll put Table 1 up on the screen.
MR. SPEAS:

And Table 1, Your Honors, is on page 6 of

3 Exhibit 26 -- Exhibit 15 under Tab 1.

Table 1, Tables of

4 District 12 Segments By Race and Party Type.
5 A

And I would like to direct the Court's attention, first,

6 to the first pair of numbers.
7 Q

Is your pointer working?

8 A

Well, no, actually.

9 Q

Technical flaw.

10 A

We'll try using words instead.

Here we go.

In the

11 northwest corner there, there's a pair of numbers, 6 and 8.
12 And those represent the results of one segment analysis.

In

13 that particular analysis, there were six segments that were of
14 the race type; that is, they supported the race hypothesis over
15 the political hypothesis; and there were eight segments that
16 did just the opposite, supported the party hypothesis over the
17 race hypothesis.
18

But in doing that segment analysis, I used the entire

19 black population for purposes of measuring the race within each
20 precinct; that is, I noted the proportion of the entire
21 population associated with each precinct that were blacks.
22 Now, there are other ways, as has been brought out already
23 today in testimony, of measuring the representation of blacks.
24 One could use, for example, a black voting-age population.
25 Well, that's covered in the next line down.

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1

If we use black voting-age population as a basis for

2 doing a segment analysis, in the first column there, the pair
3 of numbers, 7 and 7, show up underneath the first two that we
4 talked about.

And that reflects the fact that for that

5 particular segment analysis, there were seven segments that
6 supported the race hypothesis and seven segments that supported
7 the political hypothesis.

Same number of segments in each

8 case.
9

But as there are different ways of measuring the

10 representation of blacks, so, too, are there different ways of
11 measuring the representation of Democrats.

And what was done

12 in the first column there is to base the representation of
13 Democrats on the percentage of registered voters in each
14 precinct who are registered as Democrats.
15

The next column over -- in fact, the next three

16 columns over are all based not on just voter registration party
17 identities, but rather, on behaviors of voters in actual
18 elections.

So the next column over pertains to the 2008

19 gubernatorial election in North Carolina.

The next column over

20 pertains to the 2008 presidential election in North Carolina.
21 And the final column -- ah, we have a cursor on the screen here
22 that may help -- thank you very much, Stacy.

In the 2010

23 election, we have the senatorial election in North Carolina.
24

So we have four different ways of measuring the

25 representation of Democrats coupled with three different ways

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Peterson - Direct
1 of measuring the representation of blacks for a total of 12

2 different studies, 12 different segment analyses, the results
3 of all of which are presented in this one table.
4 Q

Clarifying point, Dr. Peterson.

So it's -- Table 1 sets

5 forth the results of not a single segment analysis, but 12
6 segment analyses?
7 A

That's correct, yes.

8 Q

Thank you.

9 A

The same analysis repeated using different measures of

10 racial representation and different measures of representations
11 of Democrats.
12

I should mention that the final line in the table is

13 all based on the representation of blacks among registered
14 voters.

That's the third way that I measured black

15 representation.
16

If you look over in the rightmost two columns, you'll

17 see going down there that, in every case, the number of
18 segments supporting the race hypothesis exceeds the number of
19 segments supporting the party hypothesis.
20

Looking at the first column on the left under the one

21 that we started at up in the northwest corner, we see that in
22 that instance, the race hypothesis is supported by six
23 segments, whereas the party hypothesis is supported by eight
24 segments.

So, looking at the overall balance just with that

25 one study, there's more support in the segment analysis for the

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Peterson - Direct
1 party hypothesis, that the boundary was drawn for political
2 reasons rather than race.
3

The next line down, we noticed the balance was just

4 even, so there's a tie.

The next line down, we know that,

5 again -- we see again that the balance tips in favor of the
6 political hypothesis.
7

Moving over to the next column, we see the same

8 pattern again.

The top entry favors the political hypothesis.

9 The next entry down, there's an even balance.

The third line

10 down, again, the balance tips in favor of the political
11 hypothesis.

But in the last two columns in every single case,

12 the balance tips in favor of the race hypothesis.

And

13 furthermore, it tips more extremely in favor of the race
14 hypothesis in each of those six cases than in any of the cases
15 in which it tips in favor of the political hypothesis.
16

Viewed as a whole, Table 1 indicates that there's

17 more support for the race hypothesis than for the political
18 hypothesis.
19 Q

Thank you, Dr. Peterson.

For just a minute, I'd like you

20 to focus on the segment analysis, comparing the 2008
21 presidential results with three different measures of the black
22 population.

Is it true that in every one of those analyses,

23 the race hypothesis better explains the boundary of the
24 district than the party hypothesis?
25 A

Yes, that is true.

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Peterson - Direct
1 Q

Okay.

Now, Dr. Peterson, did you repeat this segment

2 analysis for Congressional District 1?
3 A

Yes, same analysis, but, of course, different data.

4 Q

And if you would turn to page 2 of the notebook in front

5 front of you, there appears your fourth statistical report
6 marked Plaintiff's Exhibit 16.

And I would ask you,

7 Dr. Peterson, if that sets out your segment analysis for
8 Congressional District 1?
9 A

Yes, it does.

10 Q

And would you describe for the Court that study.

11 A

Yes.

This is the same analysis that I did for the 12th

12 District, except I did it for the 1st District.
13 Q

And are the results of your study for Congressional

14 District 1 set forth in Table P5.1 -15 A

Yes.

16 Q

-- appearing on page 6 of Plaintiff's Exhibit 16 and now

17 on the screen?
18 A

Yes, that is correct.

19 Q

Okay.

And would you review with the Court the results set

20 forth in Table P5.1 on page 6?
21 A

Yes.

The -- again, there wasn't just one segment analysis

22 that was done.

There were 12 analyses done using three

23 different measures of racial representation -- of black
24 representation, rather, and four different measures of the
25 representation of Democrats.

And what you see there is that in

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Peterson - Direct

1 the first column, in every single instance, the race hypothesis
2 is more strongly supported than the political hypothesis.
3

And in the last column, in every single case, the

4 race hypothesis is supported more strongly than the political
5 hypothesis.

And in the bottom row, which overlaps the first

6 and last columns, the same is true.
7

Only for the four studies sort of in the middle upper

8 central part of the table is there a departure from this
9 pattern.

And, in the second column, the top pair of numbers, 8

10 and 9, show that there's slightly more support for the
11 political hypothesis than for the race hypothesis.
12

And the next one down, the 7 and the 8, show that,

13 again, there's slightly more support for the political
14 hypothesis than for the race hypothesis.
15

And then moving over to the next column, looking at

16 the first two rows, we see there are two ties there; in the
17 first instance, eight segments supporting the race hypothesis
18 over the political hypothesis, and eight segments supporting
19 the political hypothesis over the race hypothesis.

And the

20 next line down is 6 and a 6.
21

So, overall, there are eight instances in which the

22 segment analysis comes out more strongly in favor of the race
23 hypothesis than the party hypothesis, two instances in which
24 there's a tie, and two instances in which the political
25 hypothesis is ever so slightly favored over the race

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Peterson - Direct
1 hypothesis.

Again, in every instance in which the race

2 hypothesis has more support than the political hypothesis, the
3 degree of imbalance is greater than in any instance in which
4 the political hypothesis has more support than the race
5 hypothesis.
6

Overall, I think you have to say that Table P5.1, the

7 segment analyses, are more strongly supportive of the race
8 hypothesis than they are of the political hypothesis.
9 Q

So is it correct, Dr. Peterson, that based on your segment

10 analysis for Congressional District 1 and Congressional
11 District 12, as enacted by the defendants in 2011, you conclude
12 that the race hypothesis better accounts for the boundary of
13 both districts than the political hypothesis?
14 A

Yes, that is correct.

And I should point out, I think,

15 that this is not the first time I've ever done a segment
16 analysis.
17 Q

I wanted to talk just a little bit about that.

You did

18 this once before, I believe?
19 A

I have, yes.

20 Q

And could you explain to the Court the circumstances under

21 which you undertook to do a segment analysis and what you
22 found?
23 A

I did this in connection with a Cromartie litigation in

24 the Wake of the 1990 Census.

And again, it was the 12th

25 District which was being challenged.

And the results that I

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Peterson - Direct

1 found in that instance were just the opposite of what I found
2 this time.

So I found that there was more support for the

3 political hypothesis than for the race hypothesis.
4 Q

And do you -- are you aware of the black voting-age

5 population percentage in the version of Congressional District
6 12 you were examining in the Cromartie legislation -7 litigation?
8 A

No.

9 Q

Okay.

Now, Dr. Hofeller, I believe, undertook to respond

10 to your segment analysis for Congressional District 12; is that
11 correct?
12 A

Yes.

13 Q

And is that set out at Tab 3 of of your witness notebook,

14 which is the affidavit of Thomas Hofeller, or the portion of it
15 that Mr. Hofeller filed in the Dickson matter on January 9,
16 2012?
17 A

Yes.

18 Q

And can you describe for the Court the response

19 Dr. Hofeller made to your analysis of Congressional 12?
20 A

Yes.

Dr. Hofeller responds just to my second affidavit,

21 the one that addresses District 12.

So far as I'm aware, he

22 has made no response to my analysis of District 1.
23

His response to my analysis begins on page 17 of his

24 affidavit, in paragraph 45, and pretty much runs to the end of
25 that affidavit.

And it seems to me that the real meat of his

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Peterson - Direct
1 response is contained in his paragraph 59 on page 21.

And his

2 paragraph 59 rests on an analysis of the data shown in his
3 Appendix 2.
4 Q

And can we put Appendix 2 on the -- thank you.

5

Is this Appendix 2 from --

6 A

Yes, it is.

7 Q

-- Mr. Hofeller's response?

8 A

Yes.

9 Q

And can you use that to explain his response?

10 A

Sure -- well, yes, as best I understand it.

What

11 Dr. Hofeller does is to distinguish three different geographic
12 areas.

There's a geographic area that is in both the old

13 version of District 12 and in the new.

It's what he refers to

14 as -- well, an area in the new and the old 12th.

You might

15 think of it, I suppose, as some sort of core area.
16

And then there's an area that is only in the old 12th

17 District but not in the new, so it was taken out of the 12th
18 District in the process of forming the new.

And then there's

19 an area that's only in the new, something which was not in the
20 old, but now it's in the new.
21

And for each of these areas, in Appendix 2,

22 Dr. Hofeller supplies some data, on the one hand, the
23 representation of blacks in that area; and on the other, the
24 representation of Democrats based on the 2008 presidential
25 election.

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1

And what he does is to note in a central column here

2 that the representation of black voting -- representation of
3 blacks among the voting-age population in the first of these
4 districts, the core district, the part that's in the old 12th
5 District and also in the new, that the representation of blacks
6 among the voting-age population is 54.22 percent.

And then

7 underneath that, that the representation of blacks among the
8 voting-age population only in the old 12th District, but not in
9 the new, is 22.77 percent.

And then underneath that, that the

10 representation of blacks only in the new portion of the 12th
11 District but not in the old is 43.24 percent.

And then

12 underneath that, he shows 20.47 percent, which is the
13 difference between the 43.24 percent and the 22.77 percent.
14

So we'll hold that thought and move on to the

15 analogous data here for the representation of Democrats.

And

16 what he shows in this table is that in the core area, the
17 representation of Democrats as measured by the presidential
18 election in 2008 was 79.92 percent.

The representation of

19 Democrats only in the old 12th District was 53.01 percent.

And

20 that the representation of Democrats in the new part of the
21 12th District is 75.39 percent.

And, again, underneath that,

22 there is a percentage shown, 22.38 percent, which is the
23 difference between 75.39 percent and 53.01 percent.
24

Now, by some process, which is not entirely clear to

25 me, Dr. Hofeller reaches the conclusion stated in the last

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Peterson - Direct
1 sentence of his paragraph 59, which is, quote:
2

"The only political decision which one can perceive

3 by the desire to place the lower performing VTDs into the 12th
4 District is an attempt to submerge Republican vote in a safe
5 Democrat seat."
6

I have to confess, I don't see how he gets there from

7 the data in Appendix 2.

And, indeed, I don't even understand

8 what that conclusion means, but -9 BY MR. SPEAS:
10 Q

Did you undertake to examine Dr. Hofeller's response to

11 your Congressional 12 affidavit?
12 A

Well, as I interpret Appendix 2, it was meant for us

13 somehow to look at the 20.47 percent and the 22.38 percent and
14 come to some sort of conclusion.

And the only conclusion that

15 leaps out at me is that, in taking out part of the
16 12th District and replacing it with a new piece of North
17 Carolina not previously in the 12th District, this had the
18 effect of increasing the representation of blacks by this
19 20.47 percent.
20

That's really not a percentage increase, but it's a

21 difference in the two representations that I've already
22 described the calculation of.

But it also had the effect of

23 changing the representation of Democrats in the 12th District.
24 And the difference calculated, analogously, is 22.38 percent.
25

And it seems to me that the comparison that's invited

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Peterson - Direct
1 here is the 22.38 percent against the 20.47 percent.

And

2 maybe, what we're supposed to observe here is that the
3 22.38 percent being greater than the 20.47 percent, we should
4 infer that it was politics more than race that influenced the
5 creation of the new 12th District.
6

And if that is the right interpretation, that's a

7 false conclusion for reasons which I hope presently to
8 demonstrate.
9 Q

And do you explain why that is a false conclusion in your

10 third affidavit, which appears after Tab 4, and which is marked
11 as Defendant's Exhibit D118?
12 A

Yes.

13 Q

And would you explain for the Court what is set forth in

14 that third affidavit?
15 A

It may be most expeditious to look at Table P3.1 at least

16 briefly.
17 Q

And that's now on the screen.

And Table P3.1 appears in

18 that report as -- at the end as immediately following your
19 signature page; correct?
20 A

Yes, immediately following page 7.

21 Q

Could you explain what appears on Table P3.1?

22 A

Yes.

What appears on -- one of the things that we learned

23 from the segment analyses, both of the 1st District and the
24 12th District, is that it makes a difference how you measure
25 black representation or how you measure the representation of

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Peterson - Direct
1 Democrats in a precinct.
2

And so what I've done in Table P3.1 is just to take

3 Dr. Hofeller's Appendix 2 table, which measures race only one
4 way and measures Democrat percentages only one way, and expand
5 it to measure race three different ways, the three ways that
6 were used in the segment analysis, and political affiliation
7 four ways, the four ways that are used in the segment analysis,
8 instead of just the one way that's used in Appendix 2.
9

And the reason why I said maybe we'll just look at

10 Table P3.1 briefly is that it's a mess.

There's a lot of data

11 there, and it's very difficult to pick stuff out.

So I suggest

12 we segue to Table P3.2, which is now on the screen, and which
13 appears immediately after P3.1 in your affidavit.
14 A

Yes.

15 Q

Can you describe for the Court --

16 A

Yes.

In Table P3.2, what I've done is, essentially, 12

17 different versions or 12 different variations on the study that
18 I think Dr. Hofeller presents in his Appendix 2.
19

So, once again, there are 12 entries there

20 corresponding to the three different ways of measuring the
21 representation of blacks and the four different ways of
22 measuring the representation of Democrats that we encountered
23 previously in connection with segment analyses.
24

And, in each case, in the body of the table, I've

25 entered a P if the comparison afforded by the -- by parallel

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Peterson - Direct
1 analysis of Dr. Hofeller's Appendix 2 supports the party
2 hypothesis over the race hypothesis.

And I've entered an R

3 where the opposite is true, where doing the type of analysis
4 that I attribute to Dr. Hofeller, in his Appendix 2, it turns
5 out that the comparison of the two percentages is such as to
6 favor the race hypothesis over the political hypothesis.

And

7 the percentages being compared are shown in that table across
8 the top there, the 16.49 percent, the 22.38 percent, the
9 19.64 percent, and the 25.31 percent, all being percent -10 percent representations of Democrats.
11

And going down the left side of the table, the

12 21.46 percent, the 20.48 percent, and the 25.17 percent being
13 the representations -- changes in the representations of
14 blacks.

And the comparison of the percentages shown in the

15 column headings and the percentages shown in the row headings
16 gives rise to the R or P in the body of the table.
17

And, as we look across this table, we see that in

18 five instances, there are Ps, and in seven instances, there are
19 Rs, which is to say the -- on balance, the evidence here would
20 seem to tip in favor of the race hypothesis over the political
21 hypothesis.
22 Q

And what, Dr. Peterson, is displayed in Table P3.3

23 immediately below?
24 A

Well, that's another analysis of almost the same type,

25 except that if we could go back to -- if we could go back to

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1 Appendix 2 for a minute, I want to point something out.
2 Q

Do we have -- Appendix 2 is now on the screen.

3 A

Here we are.

Okay.

And what I would like to point out is

4 that when we were calculating the difference in representation
5 of blacks, what we did was to -- in that table and looking at
6 the column pretty much in the middle of the table, what we did
7 was to subtract 22.77 percent from 43.24 percent, coming up
8 with the 20.47 percent.

Well, that's one way of measuring the

9 differences between two percentages, but there's lots of other
10 ways.
11

And one of the most common is to take the ratio.

12 Suppose we divide the 43.24 percent by 22.77 percent and see
13 what percentage there has been an increase in the
14 representation of blacks.
15 with respect to Democrats.

And suppose we do the same thing
In the rightmost column, what we'll

16 do is instead of subtracting one percentage from the other,
17 we'll take the ratio of the 75.39 percent to 53.01 percent and
18 use that as a measure of the difference between those two
19 percentages.
20 Q

And are the results of that --

21 A

And if you -- if you repeat the analysis that I reported

22 on in Table P3.2, using percentage increases instead of simple
23 difference increases, you get Table 3.3.
24 Q

And it's back on the screen -- okay.

It's back on the

25 screen.

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1 A

And it's back on the screen now.

Again, the percentages

2 are arrayed across the top and down the left side of the table.
3 You compare those two at a time, and register a P or an R in
4 the body of the table depending as the percentage in the row is
5 greater or less than the percentage in the column.

And, my

6 goodness, in every single case, the race hypothesis is -- has
7 more support than the political hypothesis.
8 Q

Dr. Peterson, at the end of the day, after analyzing --

9 conducting this analysis of Congressional District 12, the
10 segment analysis, in the application of your expertise in
11 applied mathematics, what is your view with regard to the
12 question whether race or politics better accounts for the
13 boundary of Congressional 12?
14 A

Well, the segment analysis shows that with respect both to

15 the 1st District and to the 12th District, that there is more
16 evidence that -- there's a better correlation with race than
17 with political considerations in the placement of the boundary.
18

The -- my re-analysis of Dr. Hofeller's Appendix 2

19 indicates, in the first instance, the 12 studies that are
20 reported in Table 3.2, that on balance, there's more support
21 for the race hypothesis than the political hypothesis.

And in

22 Table P3, which reports on another dozen analyses based on
23 Dr. Hofeller's Appendix 2, that, once again, race better
24 accounts for the boundary than the political hypothesis.
25

MR. SPEAS:

Thank you, Dr. Peterson.

No more

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1 questions at this time.
2

THE COURT:

3

MR. STRACH:

Cross-examination?
Thank you, Your Honor.

Good afternoon,

4 Dr. Peterson.
5

THE WITNESS:

6

MR. STRACH:

Mr. Strach.
Yes, Phil Strach for the defense.

We've

7 met, it's been several years now, in your deposition; is that
8 correct?
9

THE WITNESS:

10

MR. STRACH:

That's right, yes.
I've got just a few questions for you

11 about your analysis.
12

CROSS-EXAMINATION

13 BY MR. STRACH:
14 Q

I want to focus, first of all, though, on making it clear

15 in my mind what you are not concluding.
16 A

Okay.

17 Q

Based on a review of your reports, you are not saying, are

18 you, that if race, quote:

"Better accounts for the boundary"

19 of the 12th or the 1st, that therefore, race predominated or
20 was the motivating factor for the district?
21 A

That's correct, I am not saying that.

22 Q

All right.

And it's also fair to say, isn't it,

23 Dr. Peterson, that you're not drawing any conclusions about a
24 causal effect between what the map drawer was doing and what
25 was -- and the motive.

You're drawing a correlation, not

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1 causation; is that correct?
2 A

That's right.

What I'm looking at is an effect.

I'm not

3 opining as to why that happened the way that it did.
4 Q

All right.

Now -- and that's important, I think, because

5 it's true, isn't it, Dr. Peterson, that you've never actually
6 drawn a redistricting map; isn't that right?
7 A

I have participated in the redistricting process, but not

8 at the point of actually drawing districts.
9 Q

All right.

And at least as of the time that we had our

10 deposition together, you were not familiar with a computer
11 program called Maptitude; is that correct?
12 A

Not familiar enough to be able to use it.

I may have seen

13 it on a lab visit that I made, but I'm not -- I'm not familiar
14 with it to the point that I could actually use it.
15 Q

Okay.

And is it your understanding that, at least in this

16 particular case, it was the computer program Maptitude that was
17 used by Dr. Hofeller to draw these districts?
18 A

I don't have an understanding on that point.

19 Q

All right.

And let me make sure I understand the way you

20 conduct your segment analysis.

If I am correct, your analysis,

21 as you said, walks around the boundary of the district; is that
22 right?
23 A

Conceptually, yes.

24 Q

All right.

And you understand, don't you, Dr. Peterson,

25 that when a map drawer draws a district, they do not draw it in

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1 a sequential manner like that?
2 A

Well, yes and no.

The person who constructed both the

3 12th District and the 1st District was obviously working with
4 precinct-sized chunks of North Carolina, because the
5 boundaries, in so many instances, follow precinct lines, not
6 all instances, but in many instances.

So it's pretty clear

7 that precincts figured in the creation both of the 12th and of
8 the 1st District, but I can't say that the focus of the person
9 who was constructing the map was on segments and their inside
10 and outside precincts.
11 Q

In other words, it's probably pretty unlikely that the map

12 drawer or a map drawer would draw one segment of a district and
13 then analyze it for race versus party, and then proceed to the
14 next district and so forth in drawing the district.
15 A

Not exactly that way.

I think it's more likely that the

16 voting district drawer would consider the inclusion of a
17 precinct within or perhaps consider exchanging it with another
18 precinct or something like that.

I think precincts loomed

19 large in the decision process, but exactly how they were used,
20 I can't say.
21 Q

And your analysis looks at each -- I think what you called

22 inside precinct, and then compares it to the precinct
23 immediately on the outside of the boundary; correct?
24 A

Yes.

25 Q

But when someone's drawing a map, they may very well pick

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Peterson - Cross

1 one precinct at the southern part of the district in exchange
2 for a precinct at the top part of the district?
3 A

They might, yes.

4 Q

So when a map is actually being drawn, it's not

5 necessarily a one-to-one inside versus outside choice?
6 A

That's correct.

7 Q

And your analysis assumes a binary choice for the map

8 drawer when selecting the precinct?
9 A

Not really.

What it's looking at is an overall pattern.

10 And, in that sense, it's much like the calculation of a
11 correlation.
12

MR. STRACH:

Okay.

Your Honor, I'm about to go into

13 another line that could take us a while, and I'm happy to do
14 that at your -15

THE COURT:

One second.

MR. STRACH:

All right.

Keep on going for a while

16 longer.
17

Thank you, Your Honor.

18 BY MR. STRACH:
19 Q

Dr. Peterson, could you explain to the Court the concept

20 of -- we talked about this at your deposition, called -- let me
21 find it in my notes here, Forensic Decision Analysis?
22 A

Sure.

I wrote a book about Forensic Decision Analysis.

23 And it's a -- it's an approach to trying to figure out why
24 decisions were made the way they were after the fact.
25 Q

Is your segment analysis a species of this Forensic

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Peterson - Cross
1 Decision Analysis?
2 A

It is, but it's -- but it's a better illustration of the

3 kind of compromise sometimes one has to make with a good
4 Forensic Decision Analysis to apply it in practical
5 circumstances.

It's not a very good example of a Forensic

6 Decision Analysis or at least an ideal Forensic Decision
7 Analysis.
8 Q

Right.

And that's because with a Forensic Decision

9 Analysis, ideally, you're able to account for all of the
10 alternative decisions that were available to a decision-maker
11 in evaluating what motivated the decision; is that right?
12 A

Yes.

13 Q

And in your segment analysis, it's not possible for you to

14 have accounted for all the many other factors or variables that
15 a map drawer had to think about when choosing to select or
16 deselect a particular precinct?
17 A

That's correct.

And part of the difficulty is the

18 unavailability of data.
19 level.

We have data only at the precinct

And even what's available at the precinct level is

20 pretty much in summary form.

So there's a limit to how close

21 we can actually get to the decision process in a segment
22 analysis.
23 Q

All right.

So, for instance, if the map drawer with

24 respect to, say, District 12 is trying to accomplish a
25 political result in four or five of the surrounding districts

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Peterson - Cross

1 to that district, your segment analysis can't perfectly capture
2 the extent to which that political goal factored into the
3 boundary?
4 A

That's correct.

5 overall correlation.

All I'm doing is measuring sort of an
I'm looking at the result, not the

6 process.
7 Q

Okay.

Let's talk about -- well, let me actually go back

8 to the Cromartie case and your analysis in the Cromartie case.
9 I want to make sure that this is clear to the Court.

In the

10 Cromartie case, you were hired by the State -11 A

Yes.

12 Q

-- at that point in time; right?

13 A

Yes.

14 Q

And the State, in that case, was trying to defend the 12th

15 District from a racial gerrymandering claim much like this one;
16 correct?
17 A

That's correct.

18 Q

And you were hired -- were you hired by Mr. Speas in that

19 case?
20 A

I don't recall who actually hired me, but I worked with

21 Mr. Speas in that case.
22 Q

All right.

In that case, your analysis produced a result

23 that was favorable to the position Mr. Speas's client was
24 taking in the case?
25 A

Yes.

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Peterson - Cross
1 Q

And that particular conclusion was that race couldn't have

2 predominated because politics was a, quote, "better explanation
3 for the district"?
4 A

Yes.

5 Q

All right.

6 A

Well, I don't know that I reached the conclusion that race

So --

7 couldn't have predominated.

What I showed was that, according

8 to a segment analysis, politics was a better explanation for
9 the boundary than was race.
10 Q

And in that case, you understood that the burden was on --

11 the State simply had to show that something else better
12 explained the district in that case; is that correct?

In other

13 words -14 A

Could you rephrase the question?

15 Q

You were working on this side of the aisle in that case --

16 A

Right, that's true.

17 Q

-- right?

18 on the State.
19

And so, what you had to show, the burden wasn't
You just simply had to show --

MR. SPEAS:

Your Honor, objection.

He's questioning

20 him about a legal matter.
21

THE COURT:

Yeah, I agree.

Let's rephrase the

22 question.
23

MR. STRACH:

24

THE COURT:

All right.
I think it's getting a little confusing

25 in terms of an applied mathematics expert talking about burdens

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Peterson - Cross
1 of proof in a courtroom.
2

THE WITNESS:

3

THE COURT:

4

THE WITNESS:

5

THE COURT:

Right.

I'm not a lawyer.

Hold on just a second.
Sure.

I'm not sure a foundation's been laid

6 enough to get into something along this -7

MR. STRACH:

8

THE COURT:

All right.

Thank you, Your Honor.

-- at least as the question was framed.

9 BY MR. STRACH:
10 Q

I think -- so I'll just leave it at in that particular

11 case, though, you were working on the behalf of the State; is
12 that correct?
13 A

Yes.

14 Q

And in this particular case, though, you were working on

15 behalf of the challengers challenging the claim -16 A

That's correct, yes.

17 Q

-- is that correct?

All right.

Thank you.

All right.

18 Let's look at District 12, Dr. Peterson.
19 A

Okay.

20 Q

I want to focus on that.

And I want to look at, first of

21 all, you mentioned in your testimony with regard to the 12th
22 District, I believe that the way you call it in your report is
23 there's 330 pairs?
24 A

Well, 330 segments, which means 330 pairs of precincts.

25 Q

Okay.

And out of those 330 segments, sort of going around

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1 the 12th District, you could only use 29; is that correct?
2 A

I don't have a figure in mind, but that's about right.

3 Q

All right.

And that's because in the vast majority of

4 those pairs or those segments, you couldn't make a
5 determination of race versus party based on the data you had?
6 A

That's right.

There was a lot of -- most of the pairs, 80

7 to 90 percent of the pairs were both type -- what I call Type B
8 and Type D pairs; that is, the representation of blacks was
9 greater inside than outside, and the representation of
10 Democrats was greater inside than outside for most of the way
11 around both of those boundaries.
12 Q

And Dr. Peterson, are you familiar with a concept called

13 multicollinearity?
14 A

I am, but I don't see how that applies under these

15 circumstances.
16 Q

Do you agree with me that, in North Carolina, there's a

17 high correlation between race, including black, and
18 registration in the Democratic Party?
19 A

I believe there is, yes.

20 Q

And also voting behavior, there's a high correlation

21 between race being black and voting for Democrat candidates?
22 A

Yes.

23 Q

All right.

And so, is it likely that you could only look

24 at 29 out of the 330 segments because there's such a high
25 correlation of multicollinearity between race and party in

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Peterson - Cross
1 North Carolina with respect to blacks and Democrats that it

2 significantly reduced the population of segments that you could
3 look at?
4 A

To me, "multicollinearity" means something quite different

5 from that.

But, I think, just put in simple words, it is true

6 that for most of the way around the boundary, both the 12th
7 District and the 1st District, blacks are represented more
8 heavily inside than outside, and so, too, are Democrats.
9 Q

All right.

So in your second affidavit, which, I believe,

10 is P15, which I think is behind Tab 1 in your notebook,
11 Dr. Peterson, if you could pull that out.
12 A

Sure.

13 Q

I want to take a look at your chart in paragraph 14.

14 we, in your direct testimony -- are you there?

And

Tab 1, it

15 should be page 6.
16 A

Yes.

17 Q

And in that chart, you tallied up the results of the 12

18 studies; correct?
19 A

Yes.

20 Q

And so, there are 12 results, and each result is either a

21 P, or an R, or it's tied; is that correct?
22 A

In effect, yes.

I didn't actually record Ps and Rs here,

23 but -24 Q

Right.

And that's what I want to -- I want to look at the

25 Ps -- I know they're not in your report, but I want to look at

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Peterson - Cross
1 the actual number of Ps and Rs.
2 A

Sure.

Let's do it.

3 Q

Okay.

So, when I look at this chart, I tally up -- and

4 you tell me if I'm wrong -- that there are six Rs all together?
5 A

Yes, that's right.

6 Q

Okay.

So six studies in which you would contend that race

7 was the better hypothesis?
8 A

Yes, there's more support for the race hypothesis than the

9 political hypothesis.
10 Q

All right.

And then, of the 12, as I count them, there

11 are four Ps; is that correct?
12 A

Yes, that's correct.

13 Q

And then, there are two that are neutral, or tied?

14 A

Yes.

15 Q

All right.

So, in all of the 12 studies for the 12th

16 District and your segment analysis, what you have actually are
17 six in which the race hypothesis, you say, is -- better
18 accounts for it, but six where race was not the better
19 hypothesis; is that correct?
20 A

That is true.

21 Q

All right.

And then, Dr. Peterson, if you would explain

22 to the Court -- there's a paragraph in your affidavit here
23 about it.

Would you explain to the Court what you mean by an

24 unequivocal pair?
25 A

Yes.

There are some segments that no matter how you

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Peterson - Cross

1 measure race and no matter how you measure party affiliation,
2 turn out to be either Type R segments, that is, they support
3 the race hypothesis over the political hypothesis; or they turn
4 out to be Type P, they support the political hypothesis over
5 the race hypothesis.

But their number is very small; there's

6 one of each.
7

So, in common with all 12 of these studies, there is

8 one segment in the 12th District which is, in every study, a
9 Type R segment, and there is one segment which is, in every
10 single study, a Type P segment.
11 Q

Okay.

One of each.

So in those instances, the data is unequivocal as

12 to one or the other?
13 A

I'm -- well, I would say they are equivocal with respect

14 to the two hypotheses.
15 Q

Okay.

There's equal support for the two.

And that's the point.

So, where you look only at

16 the unequivocal pairs, one being a P and one being an R, then
17 you would have to conclude with respect to those that race and
18 party are equal explanations?
19 A

If that was the only thing I knew about it, that is the

20 conclusion I would reach -21 Q

All right.

22 A

-- but I happen to know more.

23 Q

Right.

Okay.

And let's look at some of the more.

Let's

24 look at your third affidavit, which is -- I believe it's behind
25 Tab 4.

And, in particular, I want to look at Table 3.2 that

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Peterson - Cross
1 you looked at with Mr. Speas.
2 A

I've got it.

3 Q

Got it?

All right.

Are you aware, Dr. Peterson, of

4 testimony by Dr. Hofeller in the Dickson case, the State case,
5 that when the 12th District was being drawn, the data that was
6 being used to draw that was voting -- black voting -- or
7 voting-age population and the percent of Obama-McCain vote?
8 A

I don't know that I'm acquainted with that testimony, but

9 that is the import, I think, of his Appendix 2.
10 Q

Right.

Okay.

That being that when one looks at the

11 percentage of Obama vote in the selected precincts that -- in
12 his Appendix 2, the percentage of Obama -- the Obama percentage
13 was higher than the race percentage; correct?
14 A

Yes --

15 Q

Okay.

16 A

-- in Table P3.2, not in Table P3.3.

17 Q

Right.

Now, in Table P3.2, I'm not sure it was shaded on

18 the version that was on the computer earlier, but in the actual
19 affidavit, Dr. Peterson, I believe you shaded a particular unit
20 on Table P3.2; is that correct?
21 A

I did, and it hasn't come through on the copies, but I can

22 tell you what should have been shaded, what, in fact, was
23 shaded.
24 Q

All right.

The one that should have been -- was shaded in

25 your original report was the bloc that is the intersection of

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Peterson - Cross
1 the row of voting-age population and the column of percent
2 Obama; correct?
3 A

Yes, that is correct.

4 Q

And in that particular bloc, your study concluded that

5 party was the better indicator?
6 A

Well, I would attribute the study to Dr. Hofeller, but,

7 yes.
8 Q

So when you look at the data that Dr. Hofeller said that

9 he looked at in drawing the 12th District, then your data shows
10 that party is the better explanation; is that true?
11 A

In the Table P3.2 analysis, not in the Table 3.3 analysis.

12 Q

All right.

And now, let's look at Table 3.3.

In Table

13 3.3, what you did was you converted Dr. Hofeller's data to
14 ratio; is that correct?
15 A

Yes, as an alternative way of measuring the difference

16 between two numbers.
17 Q

All right.

And what evidence do you have that converting

18 those numbers to ratios is more reliable or valid?
19 A

There's -- I can't say that one is more reliable or valid

20 than the other.

They're just two different ways of looking at

21 the same data.
22 Q

All right.

And the way you did the data happened to

23 support your theory of the case; correct?
24 A

It happened to.

I didn't know it was going to before I

25 did it.

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1 Q

All right.

Let's focus for a moment on the 1st District.

2 Let's turn back to your fourth affidavit, which, again, I
3 believe -- well, it's a different one.

I believe that's under

4 Tab 2 in your notebook, Dr. Peterson?
5 A

Yes.

6 Q

And in particular, I want to look again -- first of all,

7 let's talk about those unequivocal pairs again, segments.
8 A

Yes.

9 Q

Isn't it true that with regard to the 1st District, again,

10 you found two unequivocal pairs, and one was P and one was R?
11 A

I have to look at the affidavit to see because --

12 Q

Sure.

13 A

Paragraph 16, right.

14 Q

Okay.

If you look at paragraph 16 -Yes.

One of each.

So as with the 12th District, with the 1st

15 District, when you looked only at the data that was segments
16 that were unequivocal, they basically cancelled each other out,
17 race versus party?
18 A

That's right, yes.

19 Q

All right.

20

Okay.

MR. STRACH:

And then let's look at -Excuse me for a moment, Your Honor.

21 Okay.
22 BY MR. STRACH:
23 Q

If we look, Dr. Peterson, at -- this is your fourth

24 affidavit, page 6.

And, again, this is your Table P5.1 on

25 page 6.

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1 A

Got it.

2 Q

All right.

So, again, if you try to find the intersection

3 here in this chart, the study that represents the intersection
4 between voting-age population and votes for the -- in the
5 presidential race; right?
6 A

Yes.

7 Q

Black voting-age population is in the middle, 2008

8 president is a column second from last.

And if you trace the

9 intersection of those two pieces of data, that study showed
10 that race and politics were tied; is that correct?
11 A

Yes.

12 Q

Dr. Peterson, let me talk a little bit about the mechanics

13 of -- and in particular, talking about the 12th Congressional
14 District, talk about the mechanics of constructing the
15 district.

When I -- if I use the term "Transit VTD," do you

16 have any idea what that means?
17 A

Not exactly, but as you talk, I may develop an

18 understanding.
19 Q

All right.

So, if you have a population in the district

20 in the north and a population in the district in the south,
21 you've got to connect the two somehow; is that correct?
22 A

If they're going to be in the same district, yes.

23 Q

Right.

And that goes back to the fact that, sometimes,

24 decisions up here affect decisions down here, and then you've
25 got to connect the two; is that fair?

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1 A

Yes.

2 Q

Do you -- did you attempt to do any analysis or does your

3 segment analysis account at all for decisions that have to be
4 made in terms of which -- choosing a corridor or transit VTDs
5 to go from one population to another?
6 A

No, it just looks at the overall result, doesn't look at

7 the process.
8 Q

All right.

And then, when you were deciding which VTDs or

9 segments would be a P versus an R, you actually started by
10 looking at which segments, which would be a B versus a D -11 A

Yes, that's correct.

12 Q

-- black versus Democrats; is that right?

And as I

13 understand the analysis, you decided whether it was a B or a D
14 by adding up, say, the number of Democrats inside -- the inside
15 VTD and subtracting the number of Democrats from outside the
16 VTD; is that fair?
17 A

No, that's not right.

18 Q

Explain to the Court how you did that.

19 A

Sure.

What I did was to look to the inside to see what

20 the representation of Democrats was; that is, among, let's say,
21 registered voters, what percentage of people residing in the
22 inside precinct were registered as Democrats among the totality
23 of voters who were registered.
24
25 precinct.

And then, I did a similar thing for the outside
And I compared those two percentages, the two

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Peterson - Cross
1 representations, degrees of presence of Democrats.

And then I

2 did the analogous thing for blacks.
3 Q

And you looked at which one was higher?

4 A

And I just looked at which one was higher, yes.

5 Q

Okay.

6 A

And determined which of the numbers was greater, inside or

And you just looked at the raw numbers; correct?

7 outside.
8 Q

It didn't matter if it was even greater just by one?

9 A

That's right.

10 Q

So even by one person could determine --

11 A

Well, one -- one percentage say.

12 Q

Okay.

One percentage could determine a segment's fate of

13 being labeled a B versus a D?
14 A

Yes, that's true.

15 Q

All right.

And you could have -- if you had wanted to,

16 you could have weighted the percentages instead of taking the
17 raw data; correct?
18 A

Could have done?

I can't think of any reason why the

19 results would be more meaningful or reliable than the results
20 obtained the way I did it.
21 Q

But you didn't do a weighted percentage?

22 A

I told you everything I did.

23 Q

All right.

I didn't do anything else.

Now, your segment analysis is also not able to

24 take into account decisions that are made by the map drawers
25 with regard to protecting incumbents?

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Peterson - Cross
1 A

That's right.

Again, I didn't look at process.

What I've

2 done is just look at the overall result.
3 Q

And you don't try to account for the impact of under or

4 overpopulation in a district?
5 A

Well, not explicitly.

Again, I assume some account was

6 taken of over or underpopulation in the choice of precincts to
7 include or exclude.

But, again, I didn't look at process.

The

8 segment analysis looks only at overall result.
9 Q

All right.

You don't make any attempt to try to control

10 for things like under or overpopulation?
11 A

That's right.

I didn't try to reconstruct the decision

12 process in its detail.
13 Q

Okay.

And it's also true, Dr. Peterson, that you did not

14 do any segment analysis for the alternative or competing plans
15 that were introduced in the legislature for -- certainly for
16 Congressional Districts?
17 A

That's right.

The only segment analysis I've done in

18 connection with this litigation are the two on which I have
19 reported.
20 Q

All right.

So we have no frame of reference in terms of

21 other plans and how they might have fared with the 12th and 1st
22 Congressional District?
23 A

Would you repeat the question, please?

24 Q

So we don't have a frame of reference for how the enacted

25 plans might have fared compared to a segment analysis of other

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Peterson - Redirect
1 competing plans?
2 A

Right.

The only comparison I can offer is the one that I

3 mentioned already in connection with the 12th District as it
4 existed in the 1990s.
5

MR. STRACH:

That's all I have, Your Honor.

6

THE COURT:

Redirect.

7

MR. SPEAS:

Three or four quick questions, Your

8 Honor.
9

REDIRECT EXAMINATION

10 BY MR. SPEAS:
11 Q

Dr. Peterson, would you turn to, I believe, the last --

12 next to the last page of Tab 1 where -- your second affidavit,
13 Plaintiff's Exhibit 15.

And is that a map of Congressional

14 District 12?
15 A

I have it.

16 Q

And the yellow color signifies what?

17 A

Those would be inside border precincts.

Those are

18 precincts which were involved in the segment analysis of the
19 12th District on the inside.
20 Q

Is this district a single precinct wide for much of the

21 way?
22 A

For much of the way, it is a single precinct wide, yes.

23 Q

And there are interior precincts only in the city of

24 Charlotte, the city of Greensboro, and the city of
25 Winston-Salem?

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Peterson - Redirect
1 A

Yes, I believe that -- well, actually, there's a third --

2 there are four areas in which there are inside precincts.
3 Q

Okay.

So, while you did not examine the core precincts in

4 your segment analysis -5 A

If the pinkish ones are termed "core precincts."

6 Q

Yes.

The truth is, most of the precincts in Congressional

7 12 were examined?
8 A

It looks like most of them did get included in the segment

9 analysis, yes.
10 Q

And that's because it's a single precinct wide through

11 much of its -12 A

That's right, so they got included on the left side and on

13 the right side.
14 Q

All right.

And now, you -- Mr. Strach asked you about a

15 number of issues about your methodology that you used here.
16 A

Yes.

17 Q

Did you use precisely the same methodology in Cromartie

18 that you used here?
19 A

I know of no differences.

My intent was to use exactly

20 the same, and I believe I did use exactly the same.
21 Q

Okay.

And the strength of the Cromartie analysis are

22 reflected here, the weaknesses of the Cromartie analysis are
23 reflected here?
24 A

Yes.

25 Q

And at the end of the day, in your professional opinion as

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Peterson - Redirect

1 an expert in applied mathematics, do you still conclude that
2 race, not politics, on balance, accounts better for the
3 boundary of the district?
4 A
5

That is true, yes.
MR. SPEAS:

One final question.

May I approach the

6 witness, Your Honor?
7

THE COURT:

You may.

8 BY MR. SPEAS:
9 Q

I'm going to place in front of you, Dr. Peterson, the

10 historical congressional map book labeled Defendant's
11 Exhibit 126.

And I would ask you, Dr. Peterson, just to turn

12 Tab 3 of that document.

And I would ask you if that is the

13 1997 Congressional Plan that included Congressional 12
14 litigated in Cromartie?
15 A

I don't know.

It might be.

I'm, at this point, not as

16 familiar with the old District 12 as once I was.
17 Q

Assuming it is --

18 A

All right.

19 Q

-- would you look, then, at the third page, has -- it said

20 the voting-age population or that version of Congressional
21 District 12.

And what is it?

22 A

It says here 43.36 percent.

23 Q

Okay.

And if you could look quickly at Tab 12 in

24 Exhibit 126, and is that the current plan?
25 A

Again, I don't know.

It might well be.

I don't know that

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Peterson - Redirect
1 it's not.
2 Q

Assuming it is, would you turn to the voting-age

3 population for that district and tell me what the voting-age
4 population for Congressional 12 might be?
5 A

We need to specify a page for the Court, it seems to me.

6 How can we do that?
7 Q

Will you read page --

8 A

Page 3 of 9.

9 Q

And what is the voting-age population there?

10 A

It appears to be 50 point --

11 Q

Sixty-six?

12 A

-- sixty-six.

Could be.

Could be 88.

But in any event,

13 it's over 50 percent.
14 Q

Would it be -- if these numbers are correct, then, in the

15 version of Congressional District 12 that you examined in
16 Cromartie, the black voting-age population was 6 percent lower
17 than the black population in the version of Congressional
18 District 12 you have examined here?
19 A

That appears to be the case.

20

MR. SPEAS:

No other questions.

21

THE COURT:

Anything in response?

22

MR. STRACH:

Nothing in response.

23

THE COURT:

You may step down.

24

MR. SPEAS:

May Dr. Peterson --

25

THE COURT:

Any objection to Dr. Peterson being

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1 excused?
2

MR. STRACH:

No, Your Honor.

3

THE COURT:

4

THE WITNESS:

5

(At 5:28 p.m., witness excused.)

6

THE COURT:

All right.

He may be excused.

Thank you.

All right.

7 some air conditioning tomorrow.

So, hopefully, we'll have
Should we start right in with

8 your other expert or will there be other evidence?
9

MR. HAMILTON:

No, Your Honor.

Our last witness.

10 Will be Dr. Steven Ansolabehere, and we'll start with him right
11 at 9:00.
12

THE COURT:

All right.

Very good.

And then you all

13 will be ready to move along with your evidence tomorrow as
14 well?
15

MR. FARR:

16

THE COURT:

Yes, Your Honor.
All right.

Then, anything we need to

17 take up before we recess?
18

MR. FARR:

19

THE COURT:

Not from the defendants, Your Honor.
All right.

20 morning, then, at 9:00.

We'll see everybody in the

We'll be in recess until tomorrow

21 morning at nine.
22

(At 5:29 p.m., proceedings adjourned.)

23
24
25

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* * * * *

2

C E R T I F I C A T E

3

I certify that the foregoing is a correct transcript
from the proceedings in the above-entitled matter.

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Date: 10/19/2015

________________________________
Joseph B. Armstrong, RMR, FCRR
United States Court Reporter
324 W. Market Street
Greensboro, NC 27401

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Exhibit 3

 

 

Case Document 5-3 Filed 10/14/19 Page 1 of 45

EXPERT REPORT OF JOWEI CHEN, Ph.D.
I am an Associate Professor in the Department of Political Science at the University of
Michigan, Ann Arbor. I am also a Faculty Associate at the Center for Political Studies of the
Institute for Social Research at the University of Michigan as well as a Research Associate at the
Spatial Social Science Laboratory at Stanford University. In 2007, I received a M.S. in Statistics
from Stanford University, and in 2009, I received a Ph.D. in political science from Stanford
University. I have published academic papers on political geography and districting in top
political science journals, including The American Journal of Political Science and The
American Political Science Review, and The Quarterly Journal of Political Science. My
academic areas of expertise include spatial statistics, redistricting, gerrymandering, the Voting
Rights Act, legislatures, elections, and political geography. I have unique expertise in the use of
computer algorithms and geographic information systems (GIS) to study questions related to
political and economic geography and redistricting.
I have provided expert reports in the following redistricting court cases: Missouri
National Association for the Advancement of Colored People v. Ferguson-Florissant School
District and St. Louis County Board of Election Commissioners (E.D. Mo. 2014); Rene Romo et
al. v. Ken Detzner et al. (Fla. 2d Judicial Cir. Leon Cnty. 2013); The League of Women Voters
of Florida et al. v. Ken Detzner et al. (Fla. 2d Judicial Cir. Leon Cnty. 2012); Raleigh Wake
Citizens Association et al. v. Wake County Board of Elections (E.D.N.C. 2015); Corrine Brown
et al. v. Ken Detzner et al. (N.D. Fla. 2015); City of Greensboro et al. v. Guilford County Board
of Elections, (M.D.N.C. 2015). I have testified at trial in the following cases: Raleigh Wake
Citizens Association et al. v. Wake County Board of Elections (E.D.N.C. 2015); City of
Greensboro et al. v. Guilford County Board of Elections (M.D.N.C. 2015). I am being
compensated $500 per hour for my work in this case.

Research Question and Summary of Findings
The attorneys for the plaintiffs in this case have asked me to analyze North Carolina’s
current congressional districting plan, as created by Session Law 2016-1 (Senate Bill 2).
Specifically, I was asked to analyze: 1) Whether partisan considerations were the predominant
factor in the drawing of the 2016 enacted Senate Bill 2 (SB 2) districting plan; and 2) The extent

Legislative Defendants Trial

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Ex.244

 to which the enacted SB 2 plan conforms to the February 16, 2016 Adopted Criteria of the Joint
Select Committee on Congressional Redistricting (The “Adopted Criteria”).
In conducting my academic research on legislative districting, partisan and racial
gerrymandering, and electoral bias, I have developed various computer simulation programming
techniques that allow me to produce a large number of valid, non-partisan districting plans in any
given state, county, or municipality using either Voting Districts (“VTDs”) or census blocks as
building blocks. This simulation process is non-partisan in the sense that the computer ignores all
partisan and racial considerations when drawing districts. Instead, the computer simulations are
programmed to optimize districts with respect to various traditional districting goals, such as
equalizing population, maximizing geographic compactness, and preserving county boundaries
and VTD boundaries. By generating a large number of drawn districting plans that closely follow
and optimize on these traditional districting criteria, I am able to assess an enacted plan drawn by
a state legislature and determine whether partisan goals may have motivated the legislature to
deviate from these traditional districting criteria.
More specifically, by holding constant the application of non-partisan, traditional
districting criteria through the simulations, I am able to determine whether the enacted plan
could have been the product of something other than the explicit pursuit of partisan advantage. I
determined that it could not.
I use this simulation approach to analyze the North Carolina General Assembly’s enacted
SB 2 congressional districting plan in several ways. First, I conduct 1,000 independent
simulations, instructing the computer to generate valid congressional districting plans that strictly
follow all of the non-partisan criteria enumerated in the Adopted Criteria. I then measure the
extent to which the enacted SB 2 plan deviates from these simulated plans with respect to the
Adopted Criteria. The simulation results demonstrate that the enacted plan failed to minimize
county splits and was significantly less geographically compact than every single one of the
1,000 simulated districting plans. By deviating from these traditional districting criteria, the SB 2
plan also managed to create a total of 10 Republican-leaning districts out of 13 total districts. By
contrast, the simulation results demonstrate that a map-drawing process respecting non-partisan,
traditional districting criteria generally creates either 6 or 7 Republican districts. Thus, the
enacted plan represents an extreme statistical outlier, creating a level of partisan bias never
observed in any of the 1,000 computer simulated plans. The enacted plan creates 3 to 4 more

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 Republican seats than what is generally achievable under a map-drawing process respecting nonpartisan, traditional districting criteria. The simulation results thus warrant the conclusion that
partisan considerations predominated over other non-partisan criteria, particularly minimizing
county splits and maximizing compactness, in the drawing of the General Assembly’s enacted
plan.
Having found that partisan considerations predominated over the General Assembly’s
drawing of its enacted plan, I then consider a series of possible alternative explanations for the
extreme partisan bias in the enacted plan. The Adopted Criteria calls for the drawing of
congressional districts in a manner that avoids double-pairing of any of the incumbent members
of Congress. I thus conduct a second set of 1,000 simulations to see if following this mandate
would somehow alter the partisan composition of valid districting plans.
This second set of simulation results demonstrates that the Adopted Criteria’s provision
for protecting House incumbents does not explain the extreme partisan bias of the enacted plan.
Among the 1,000 simulated plans protecting all 13 of North Carolina’s House incumbents, not a
single simulation creates 10 Republican-leaning districts; once again, most of the simulations
contain either 7 or 8 Republican districts. These simulation results clearly reject any notion that
an effort to protect incumbents might have warranted the extreme partisan bias observed in the
General Assembly’s enacted plan. I also found that the enacted plan did not succeed entirely in
protecting incumbents, as two congressional incumbents were in fact paired under the enacted
plan.
Additionally, even though the enacted plan failed to fully minimize county splits and
protect incumbents, I evaluated whether the General Assembly’s specific decision to split 13
counties and to protect exactly 11 incumbent House members under the enacted plan could have
possibly explained the extreme partisan bias of the plan. Hence, I conducted a third set of 1,000
simulations in which the computer intentionally split 13 counties and protected only 11
incumbents, while otherwise optimizing on the other non-partisan criteria set forth in the
Adopted Criteria. Once again, the simulation results demonstrate that even with these particular
benchmarks for county splits and protected incumbents, a non-partisan simulated districting
process never achieves the outcome of 10 Republican districts that is produced by the enacted
plan. Hence, the drawing of the enacted SB 2 plan can only be explained as a process in which

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 partisan goals were predominant and subordinated the non-partisan, traditional districting criteria
included in the Adopted Criteria.
This report proceeds as follows. First, I explain the logic of using computer-generated
districting simulations to evaluate the partisan bias of a districting plan. I then present three sets
of computer simulations of valid districting plans, as described above. Next, I explain how the
results of these districting simulations demonstrate that partisan concerns predominated
significantly over other factors in the drawing of the General Assembly’s enacted map. Finally, I
present additional robustness checks of my calculations of the enacted and simulated plans’
partisanship using alternative measures of partisan electoral bias.

The Logic of Redistricting Simulations
Once a districting plan has been drawn, academics and judges face a difficult challenge in
assessing the intent of the map-drawers, especially regarding partisan motivations. The central
problem is that the mere presence of partisan bias may tell us very little about the intentions of
those drawing the districts. Whenever political representation is based on winner-take-all
districts, asymmetries between votes and seats can emerge merely because one party’s supporters
are more clustered in space than those of the other party. When this happens, the party with a
more concentrated support base achieves a smaller seat share because it racks up large numbers
of “surplus” votes in the districts it wins, while falling just short of the winning threshold in
many of the districts it loses. This can happen quite naturally in cities due to such factors as
racial segregation, housing and labor markets, transportation infrastructure, and residential
sorting by income and lifestyle.
When tallying votes in recent statewide races such as those for U.S. President, U.S.
Senator, or Governor, it is clear that North Carolina’s statewide electorate is roughly evenly
divided between Democratic and Republican voters. Yet Republicans currently hold a very
significant 10-3 advantage over Democrats in control over North Carolina’s U.S. congressional
seats.
The crucial question is whether, due to underlying patterns of political geography, the
distribution of partisan outcomes created by the General Assembly’s enacted districting plan
could have plausibly emerged from a non-partisan districting process. In order to make informed
and precise inferences about the presence or absence of partisan intent during the redistricting

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 process, it is necessary to compare the General Assembly’s enacted districting plan against a
standard that is based on a non-partisan districting process following the traditional redistricting
criteria outlined in the Adopted Criteria.
The computer simulations I conducted for this report have been created expressly for the
purpose of developing such a standard. Conducting computer simulations of the districting
process is the most statistically accurate strategy for generating a baseline against which to
compare an enacted districting plan, such as the SB 2 plan. The computer simulation process
leaves aside any data about partisanship or demographic characteristics other than population
counts, and the computer algorithm generates complete and legally compliant districting plans
based purely on the traditional districting criteria outlined in the Adopted Criteria.
After a simulated districting map has been created in complete ignorance of partisanship,
I then overlay past results from recent elections, sum them over the simulated districts, and then
calculate the number of seats that would be won by Democrats and Republicans under this
districting plan, using two different sets of political data to measure partisan performance.
Instead of generating only one such plan, the algorithm allows for the generation of thousands of
such plans. Each plan combines North Carolina’s census blocks together in a different way, but
always in compliance with the non-partisan portion of the Adopted Criteria. The simulations
thus produce a large distribution of valid non-partisan districting plans. For each simulated plan,
I sum up recent past election results across the 13 districts and calculate the number of seats that
would have been won by Democrats and Republicans.
I also perform the same calculations for the enacted SB 2 plan drawn by the General
Assembly. One should expect that if the SB 2 plan had been drawn without partisanship as its
predominant consideration, the enacted plan’s partisan breakdown of seats will fall somewhere
roughly within the normal range of the distribution of simulated, valid non-partisan plans. If the
plan produced by the legislature is far in the tail of the distribution, or lies outside the distribution
altogether—meaning that it favors one party more than the vast majority or all of the simulated
plans—then such a finding provides strong indication that the enacted plan was drawn with an
overriding partisan intent to favor that political party, rather than to follow non-partisan,
traditional districting criteria.
By randomly drawing districting plans with a process designed to optimize on traditional
districting criteria, the computer simulation process thus gives us a precise indication of the

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 range of districting plans that plausibly and likely emerge when map-drawers are not motivated
primarily by partisan goals. By comparing the enacted plans against the range of simulated plans
with respect to various partisan measurements, I am able to precisely determine the extent to
which a map-drawer’s deviations from traditional districting criteria, such as geographic
compactness and county splits, was motivated by partisan goals.
In simulating plans for North Carolina’s congressional districts, the computer algorithm
follows five traditional districting criteria, all of which are mandated by the Adopted Criteria.
1) Population Equality: North Carolina’s 2010 Census population was 9,535,483, so
districts in the 13-member plan have an ideal population of 733,498.7. Specifically, then, the
computer simulation algorithm is designed to populate each districting plan such that precisely
nine districts have a population of 733,499, while the remaining four districts have a population
of 733,498.
2) Contiguity: The computer simulations require districts to be geographically
contiguous. As described in the Adopted Criteria, water contiguity is permissible.
3) Minimizing County Splits: The simulation process attempts to avoid splitting any of
North Carolina’s 100 counties, except when doing so is necessary to avoid violating one of the
aforementioned criteria. Furthermore, as mandated by the Adopted Criteria, the computer always
avoids splitting a county into more than two simulated districts. In practice, the simulation
process is able to always create valid districting plans by splitting only 12 counties, in contrast to
the 13 counties split by the enacted SB 2 plan.
4) Minimizing VTD Splits: North Carolina is divided into 2,692 VTDs. The computer
simulation algorithm attempts to keep these VTDs intact and not split them into multiple
districts, except when doing so is necessary for creating equally-populated districts. In practice,
the simulated plans always split either 11 or 12 VTDs into two districts.
5) Geographic Compactness: The simulation algorithm prioritizes the drawing of
geographically compact districts whenever doing so does not violate any of the aforementioned
criteria. After completing the computer simulations, I then compare the compactness of the
simulated plans and the enacted plans using two different measures:
First, I calculate the average Reock score of the districts within each plan. The Reock
score for each individual district is calculated as the ratio of the district’s area to the area of the
smallest bounding circle that can be drawn to completely contain the district. The General

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 Assembly’s enacted districting plan has an average Reock score of 0.3373 across its 13 districts.
As described later, the computer simulation process is able to always generate plans that are
significantly more compact than the enacted SB 2 plan, as measured by average Reock score.
Second, I calculate the average Popper-Polsby score of each plan’s districts. The PopperPolsby score for each individual district is calculated as the ratio of the district’s area to the area
of a hypothetical circle whose circumference is identical to the length of the district’s perimeter.
The General Assembly’s enacted districting plan has an average Popper-Polsby score of 0.2418
across its 13 districts. As described later, the computer simulation process is able to always
generate plans that are significantly more compact than the enacted SB 2 plan, as measured by
average Popper-Polsby score.
Beyond these five traditional districting criteria, the Adopted Criteria also call for the
congressional plan to protect incumbents by requiring “reasonable efforts…to ensure that
incumbent members of Congress are not paired with another incumbent in one of the new
districts constructed.” Although such incumbency protection may not be explicitly partisan, this
criterion may nevertheless potentially cause indirect partisan electoral consequences. Thus, I
address this criterion in two ways: One set of 1,000 simulations pays no attention to the
protection of incumbents, while a second, separate set of 1,000 simulations deliberately protects
incumbents by assigning each of North Carolina’s 13 incumbents from the 114th Congress to a
separate district with no pairing of incumbents. I then evaluate these two sets of simulations
separately.
Figure 1 illustrates an example of one of the simulated districting plans produced by this
computer algorithm. The simulated map in Figure 1 was produced within this second set of
simulations, in which the computer sought to adhere as closely as possible to the non-partisan
traditional criteria in the Adopted Criteria. Thus, it was able to split fewer counties, protect more
incumbents, and draw significantly more geographically compact districts than the enacted SB 2
plan.

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 Figure 1:

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 Measuring the Partisanship of Districting Plans
I use two different sets of political data to measure the partisan performance of the
simulated and enacted districting plans in this report. Each of these two measures enables me to
calculate the number of Republican and Democratic-leaning districts within each plan, thus
allowing me to determine whether or not the partisan distribution of seats in the enacted plan
could reasonably have arisen from a districting process respecting the various traditional criteria
set forth in the Adopted Criteria.
The Hofeller Formula: Attorneys for the plaintiffs shared with me a document which
describes in detail the formula for measuring voter partisanship employed by Tom Hofeller,
whom plaintiffs’ counsel described as being involved in the General Assembly’s drawing of the
SB 2 plan. The Hofeller formula describes the partisanship of any given constituency of North
Carolina voters by aggregating together, with equal weights, the partisan results from seven
recent elections: The 2008 Gubernatorial, US Senate, and Commissioner of Insurance elections;
the 2010 US Senate election; the 2012 Gubernatorial and Commissioner of Labor elections; and
the 2014 US Senate election.
Applying the Hofeller formula to the SB 2 districting plan reveals that the enacted plan
contained 10 Republican-majority districts and 3 Democratic-leaning districts. Throughout this
report, I also apply the Hofeller formula to all simulated districting plans, allowing for a direct
comparison of the partisanship of the enacted and the simulated districting plans.
The Adopted Criteria Elections: The Joint Select Committee’s Adopted Criteria state
that when evaluating the political composition of congressional districts, the General Assembly
shall consider “election results in statewide contests since January 1, 2008, not including the last
two presidential contests.” Since this set of elections is significantly broader than the election
results considered in the Hofeller formula, I use this broader set of elections as a second measure
for evaluating the partisanship of the enacted and simulated districts in this report.
Specifically, I evaluate districts by counting up the total number of Republican and
Democratic votes cast in the 20 statewide, non-presidential elections held from November 2008
to November 2014, as described by the Adopted Criteria. Much like the Hofeller formula, I
weight each election equally and count whether each district contains more Republican than
Democratic voters, aggregated over all 20 elections. I find that, using the results of these 20
elections, total Republican voters outnumbered total Democratic voters in 10 of 13 districts in

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 the enacted plan. Throughout this report, I apply the same formula for evaluating all of the
simulated plans, allowing for yet another direct comparison of the partisanship of the enacted
and the simulated districting plans.

Simulation Set 1:
Optimizing on Traditional Districting Criteria with No Incumbent Protection
I conducted a first set of 1,000 computer simulations in which plans were drawn to
optimize on the five non-partisan, traditional districting criteria described previously: population
equality, contiguity, minimizing county splits, minimizing VTD splits, and geographic
compactness. Table 1 details how the simulated plans perform with respect to these various
districting criteria.
Figure 2 compares the partisan breakdown of the simulated plans to the partisanship of
the enacted SB 2 plan. The left diagram in Figure 2 illustrates the number of Republican-leaning
districts created by the 1,000 simulated plans, while the right diagram illustrates the same
quantity using the 20 statewide elections described in the Adopted Criteria. Applying the
Hofeller formula (left diagram in Figure 2), the simulated plans all create from 5 to 9 Republican
districts out of 13 total districts. Moreover, the vast majority of simulations create 6, 7, or 8
Republican districts; even 9 Republican districts are created in only 1% of the simulations.
Hence, the enacted SB 2 plan’s creation of 10 Republican districts is an extreme statistical
outlier, as it is an outcome never achieved by a single one of the 1,000 simulations. We are thus
able to conclude with overwhelmingly high statistical certainty that the enacted plan created a
pro-Republican partisan outcome that would never have been possible under a districting process
adhering to the non-partisan traditional criteria mandated by the Adopted Criteria.
Analysis of the simulations and the enacted plan using the 20 statewide elections (right
diagram in Figure 2) yields similarly strong conclusions. The enacted plan creates 10 districts in
which Republican votes outnumbered Democratic votes across these 20 statewide elections. Yet
the simulated plans all create only 3 to 8 Republican-leaning districts, with most simulations
resulting in 5, 6, or 7 Republican districts. Hence, it is clear that not only is the enacted plan an
extreme partisan outlier when compared to valid, computer-simulated districting plans, but the
net effect of the enacted plan’s partisan efforts was the creation of at least 2 or 3 additional

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 Republican seats beyond what would normally have been achievable under a non-partisan,
legally complaint districting process.
Did the enacted SB 2 plan comply with the non-partisan districting criteria mandated by
the Adopted Criteria? Once again, the computer simulations are illuminating because they offer
insight into the type and range of plans that would have emerged had reasonable efforts been
made to adhere to the Adopted Criteria. First, as detailed in Table 1, each of the 1,000 simulated
plans in this first set splits 12 counties; hence, it is clear that drawing a valid plan with only 12
counties split can be easily accomplished without difficulty and without sacrificing other nonpartisan districting criteria, such as equal population. By contrast, the enacted SB 2 plan split 13
counties, thus falling short of the 12-county benchmark that the computer simulations found to
be very reasonably attainable in all 1,000 of the simulated plans. Hence, it is clear that the SB 2
plan failed to adhere to the Adopted Criteria’s mandate of reasonably minimizing split counties.
Did the enacted plan make reasonable efforts to draw compact districts? In Figure 3, the
left diagram illustrates the compactness of the 1,000 simulated plans, compared against the
compactness of the enacted SB 2 plan. In this diagram, the horizontal axis depicts the average
Reock score of the districts within each plan, while the vertical axis depicts the average PopperPolsby score. Each black circle in this diagram represents one of the 1,000 simulated plans, while
the red star denotes the enacted SB 2 plan. Figure 3 illustrates that all of the simulated plans are
more geographically compact than the SB 2 plan, as measured both by average Reock and
average Popper-Polsby scores. Hence, it is clear that the SB 2 plan did not seek to draw districts
that were as geographically compact as reasonably possible.
Why did the enacted SB 2 plan fall short of the Adopted Criteria’s mandates on
geographic compactness and minimizing county splits? As the right diagram in Figure 3
illustrates, the SB 2 plan was entirely outside the range of the simulated maps with respect to
both geographic compactness and the partisan distribution of seats, in addition to splitting one
additional county than was necessary. Collectively, these findings suggest that the SB 2 plan was
drawn under a process in which a partisan goal – the creation of 10 Republican districts –
predominated over adherence to traditional districting criteria, The predominance of this extreme
partisan goal thus subordinated the two non-partisan, traditional districting considerations of
minimizing county splits and achieving geographic compactness.

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 Table 1: Summary of Three Sets of Simulated Districting Plans and Enacted SB 2 Plan

Senate Bill 2:

Description:

Simulation Set 1:

Simulation Set 2:

Simulation Set 3:

Maps protect all 13
incumbents and
otherwise follow
traditional districting
criteria

Maps intentionally
match SB 2 plan on 13
county splits and 11
protected incumbents

1,000 simulations

1,000 simulations

1,000 simulations

Simulated maps only
General Assembly’s
follow traditional
Enacted Plan
districting criteria

Total Number of
Simulated Plans:

Number of Split
Counties:

13

12 (1,000 simulations)

12 (1,000 simulations)

13 (1,000 simulations)

Number of Split
VTDs:

12

12 (1,000 simulations)

12 (1,000 simulations)

12 (1,000 simulations)

Incumbents
Protected:

11

2 to 11

13 (1,000 simulations)

11 (1,000 simulations)

Average Reock
Score
(Compactness):

0.3373

0.372 to 0.480

0.371 to 0.466

0.347 to 0.453

Average PopperPolsby Score
(Compactness):

0.2418

0.253 to 0.332

0.250 to 0.316

0.244 to 0.313

10

5 (32 simulations)
6 (324 simulations)
7 (456 simulations)
8 (177 simulations)
9 (11 simulations)

5 (9 simulations)
6 (194 simulations)
7 (529 simulations)
8 (258 simulations)
9 (10 simulations)

4 (1 simulation)
5 (33 simulations)
6 (267 simulations)
7 (530 simulations)
8 (160 simulations)
9 (9 simulations)

Number of
Republican Districts
(Hofeller Formula):

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 Figure 2:

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 Figure 3:

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 Simulation Set 2: Maximizing the Protection of Incumbents
The first set of 1,000 simulations ignored any considerations regarding the protection of
incumbent House members or the pairing of incumbents within the same district. I initially
ignored this portion of the Adopted Criteria because even though incumbency protection is not
an overtly partisan goal, the protection of North Carolina’s 13 incumbents as of November 2016
could have indirect partisan electoral consequences.
Ten of North Carolina’s thirteen incumbents in November 2016 were Republicans. These
incumbents were elected from the previously partisan-gerrymandered 2011 congressional
districting map. Thus, making efforts to place each of the 13 incumbents into separate districts
would, in general, encourage the drawing of a plan with districts that geographically overlap with
and share borders similar to the districts from the previous 2011 plan. In this sense, attempts to
protect incumbents in the new congressional plan could indirectly distort the partisan distribution
of voters across districts. Hence, I conducted the first set of simulations with no efforts at
incumbency protection in order to analyze the range of plans that could emerge from strict
adherence to the apolitical portion of the Adopted Criteria.
Moreover, I analyzed the SB 2 plan and found that the enacted congressional districts do
not protect all 13 of North Carolina’s incumbents as of the November 2014 election. Eleven of
the 13 incumbents are placed into separate districts, but the remaining two incumbents – David
Price (Democrat) and George Holding (Republican) – are paired into a single district. This
particular outcome of protecting only 11 of 13 incumbents was within the range observed among
the first 1,000 of computer-simulated plans. Thus, I did not detect any extreme efforts by the
General Assembly to protect incumbents at the expense of other traditional districting criteria.

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 Figure 4:

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 Figure 5:

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 Nevertheless, it is worth exploring whether reasonable efforts could have been made to
avoid pairing any of the 13 incumbent House members, and whether such efforts could somehow
be a valid explanation for the extreme outcome of creating a 10-3 Republican advantage in North
Carolina’s congressional districts. To answer these questions, I conducted a second, separate set
of 1,000 simulations in which the computer algorithm was programmed to intentionally
guarantee that each of the 13 incumbents resided in a separate district, thus avoiding any pairing
of incumbents. Beyond this intentional incumbent protection, the simulation procedure otherwise
prioritized the same five non-partisan traditional districting criteria followed in the first set of
simulations and ignored other political considerations.
Descriptions of this second set of 1,000 simulated congressional plans appear in the third
column of Table 1. All 1,000 of these simulated plans were able to separate all 13 of the
incumbents into 13 separate districts, thus avoiding pairing any incumbents. Moreover, this
complete level of incumbency protection was achieved without any increase in the number of
split counties or VTDs and with only slight decreases in the geographic compactness of the
simulated districts. As illustrated in Figure 5, all 1,000 of the simulations in this second set are
still significantly more compact than the enacted SB 2 plan on both the Reock and PopperPolsby measures. Hence, these simulation results suggest that the Adopted Criteria mandate of
not pairing multiple incumbents in districts can be achieved with very reasonable effort and
without noticeably subordinating any of the non-partisan traditional districting criteria listed in
the Adopted Criteria.
Does the protection of all 13 House incumbents make the creation of a 10-3 Republican
advantage in the congressional districting plan a plausible outcome? Figure 4 illustrates the
distribution of partisan seats across the 1,000 simulated plans, with partisanship measured using
the Hofeller formula (left diagram of Figure 4) and using the 20 elections specified in the
Adopted Criteria (right diagram). This Figure illustrates that the partisan distribution of seats
under these simulations is nearly identical to the first set of simulations, which ignored
incumbency protection. When all 13 incumbents are protected in separate districts, the
simulation procedure almost always produces a plan with 6, 7, or 8 Republican districts, as
measured by the Hofeller formula. The enacted plan’s creation of 10 Republican districts is an
outcome never achieved in a single one of the 1,000 simulations. Hence, we are able to conclude
with overwhelmingly high statistical certainty that even the strictest adherence to the Adopted

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 Criteria’s mandate of protecting incumbents, combined with adherence to the other non-partisan
portions of the Adopted Criteria, would not explain the creation of a congressional map with a
10-3 Republican advantage.
Simulation Set 3:
Matching the Enacted Plan’s County Splits and Protected Incumbents
The first two sets of simulations thus far have intentionally produced districting maps
optimized for adherence to various requirements specified in the Adopted Criteria. However, the
General Assembly’s enacted SB 2 plan failed to adhere quite as strictly to these various criteria,
splitting 13 counties instead of 12 achieved in the simulations and protecting only 11 incumbents
rather than 13.
Hence, one might wonder whether the General Assembly’s choice to draw a less-thanoptimal plan with respect to these two criteria might somehow account for the creation of a 10-3
Republican advantage in the partisan control of districts. To address this possibility, I conduct a
third set of 1,000 simulations in which the computer algorithm is instructed to specifically match,
but not exceed, the enacted plan’s achievement of 13 county splits and 11 protected incumbents.
Beyond these two criteria, the simulation algorithm otherwise seeks to achieve optimal
compliance with respect to all of the other traditional districting criteria described earlier,
including minimizing VTD splits and maximizing geographic compactness.
If the General Assembly’s choice to split exactly 13 counties and protect exactly 11
incumbents were the cause of the enacted plan’s pro-Republican partisan advantage, then we
would expect that a partisan-neutral districting algorithm requiring 13 split counties and 11
protected incumbents would also sometimes create a similar level of Republican partisan
advantage. If such a districting algorithm does not frequently create plans similar level of
Republican partisan advantage, then we may reject the notion that the General Assembly’s
specific goals with respect to county splits and protected incumbents was responsible for the
extreme pro-Republican partisanship of the enacted plan. As noted previously, the enacted plan
achieves suboptimal level of incumbency protection and county preservation, as the first two set
of simulations in this report demonstrate that splitting as few as 12 counties and protecting all 13
incumbents is quite easily achievable while still drawing a more compact plan than the SB 2
plan. Hence, the purpose of this set of simulations is to determine whether we can accept or

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 reject the possibility that the unusual partisan performance of the enacted plan can somehow be
attributed to the plan’s failure to fully minimize county splits and maximize incumbency
protection.
The fourth column of Table 1 presents descriptions of this third set of 1,000 simulated
congressional plans. All 1,000 of these simulated plans were able to split exactly 13 counties and
protect exactly 11 incumbents, thus matching the enacted SB 2 plan on these criteria. Figure 7
illustrates the geographic compactness of this third set of simulated plans, showing that the
intentional splitting of a 13th county comes at only a minimal cost to overall plan compactness.
Does the unique combination of splitting 13 counties and protecting 11 incumbents
explain the creation of a plan with 10 Republican districts? The simulation results displayed in
Figure 6 clearly reject this notion. This set of simulated districting plans contain anywhere from
4 to 9 Republican districts, and the simulated plans most commonly contain 6, 7, or 8 Republican
districts, as measured by the Hofeller formula. Hence, it is clear that merely an effort to create a
map with 13 county splits and 11 protected incumbents alone would not naturally result in a plan
with a 10-3 Republican partisan advantage. Instead, the simulation results demonstrate that a 103 Republican advantage could have resulted only from a deliberate attempt to draw a map with
partisan advantage as the predominant goal.
Furthermore, as the Reock compactness measurements in Figure 7 illustrate, such a
deliberate attempt would have also required the subordination of district compactness, in
addition to splitting more counties and protecting fewer incumbents than was reasonably
possible. The diagrams in Figure 7 illustrate that all 1,000 of the simulations in this set, which
matched the enacted plan’s splitting of 13 counties and protection of 11 incumbents, were
significantly more geographically compact than the enacted plan. Together, these findings
demonstrate that none of the enacted plan’s unique characteristics with respect to non-partisan
districting criteria could have justified the plan’s creation of a 10-3 Republican advantage.
Instead, such an extreme level of pro-Republican advantage in congressional seats could not
have emerged from following these districting criteria, if not for the General Assembly’s explicit
pursuit of Republican partisan advantage.

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 Figure 6:

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 Figure 7:

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 Robustness Checks Using Alternative Measures of Partisanship
The previous section of this report has laid out the main simulation analysis and
comprehensive, statistically valid measures of the partisanship of the simulated and enacted
districting plans. In particular, the Hofeller formula and the 20 elections from 2008-2014
identified in the Adopted Criteria are broad, durable, and sufficient measurements of districting
plan partisanship, particularly given that these measurements represent the General Assembly’s
actual and stated efforts to measure the partisanship of constituencies in North Carolina.
What follows in the remainder of the report, then, is a completely separate set of analyses
in which I examine the simulated plans and the enacted SB 2 plan using alternative measures of
partisanship and electoral bias that other scholars of redistricting have proposed. These
alternative measures are presented as robustness checks, and the conclusions reached in the
previous sections do not depend on these robustness checks. Nevertheless, I introduce these
alternative measures of districting plan partisanship in order to illustrate the findings of my
simulation analysis in more relatable ways and to demonstrate the robustness of these findings.
Specifically, in this section, I re-analyze the simulated plans and the enacted SB 2 plan
using two types of alternative measures of partisan electoral bias. These two measures –
efficiency gap analysis and analysis of predicted election results using regression modeling –
have been increasingly used by political scientists and other academics in studying redistricting,
and they provide a robustness check for the partisan calculations presented thus far in this report.

Efficiency Gap of the Enacted and Simulated Plans:
To calculate the efficiency gap of the enacted SB 2 plan and of each simulated plan, I
first determine the partisan leaning of each simulated district and each SB 2 district, as measured
by the Hofeller formula. Using the Hofeller formula as a simple measure of district partisanship,
I then calculate each districting plan’s efficiency gap using the method outlined in Partisan
Gerrymandering and the Efficiency Gap1. Districts are classified as Democratic victories if,
across the seven elections included in the Hofeller formula, the sum total of Democratic votes in
the district during these elections exceeds the sum total of Republican votes; otherwise, the
district is classified as Republican. For each party, I then calculate the total sum of surplus votes
Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency
Gap, 82 University of Chicago Law Review 831 (2015).
1

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 in districts the party won and lost votes in districts where the party lost. Specifically, in a district
lost by a given party, all of the party’s votes are considered lost votes; in a district won by a
party, only the party’s votes exceeding the 50% threshold necessary for victory are considered
surplus votes. A party’s total wasted votes for an entire districting plan is the sum of its surplus
votes in districts won by the party and its lost votes in districts lost by the party. The efficiency
gap is then calculated as total wasted Republican votes minus total wasted Democratic votes,
divided by the total number of two-party votes cast statewide across all seven elections.
Thus, the theoretical importance of the efficiency gap is that it tells us the degree to
which more Democratic or Republican votes are wasted across an entire districting plan. An
extremely positive efficiency gap indicates far more Republican wasted votes, while an
extremely negative efficiency gap indicates far more Democratic wasted votes.
In addition to calculating the efficiency gap using each district’s votes from the Hofeller
formula, as described above, I also separately calculate the efficiency gap using the combined
results from the 20 statewide 2008-2014 elections, as identified by the Adopted Criteria. As
before, I sum up the total Democratic votes and total Republican votes from across the 20
elections and calculate a single efficiency gap for each simulated and enacted districting plan
using these combined partisan vote counts.
Figure 10 illustrates the efficiency gap, using both sets of election results, of the 1,000
districting plans from Simulation Set 2. This is the set of plans produced under a districting
algorithm that guarantees incumbents are never paired with one another within the same district
while otherwise maximizing compliance with the five traditional districting criteria in the
Adopted Criteria. Each black circle in Figure 10 represents a simulated districting plan, with its
efficiency gap measured along the horizontal axis. The red star in each diagram represents the
enacted SB 2 plan. The vertical axis measures the compactness of each districting plan, as
measured by the plan’s average Reock score.
The left diagram in Figure 10 shows the efficiency gap calculations using the Hofeller
formula, while the right diagram in Figure 10 shows the efficiency gap calculations using the 20
statewide elections from 2008-2014. Using either formula, the two diagrams in Figure 10 both
illustrate three important findings.
First, both diagrams reveal that the simulated districting plans are reasonably neutral with
respect to electoral bias. Specifically, 53% of the simulated plans (529 of the 1,000 simulations)

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 exhibit an efficiency gap within 2% of zero, indicating de minimis electoral bias in favor of
either party. In fact, 31% of the simulations produce an efficiency gap between -1.0% and
+1.0%. These simulated plans with nearly zero efficiency gap are all plans that contain exactly
seven Republican and six Democratic-leaning districts. These patterns illustrate that a nonpartisan districting process strictly following the traditional districting criteria mandated by the
Adopted Criteria very commonly produces a neutral congressional plan in North Carolina with
minimal electoral bias as measured by efficiency gap.
Second, it is also important to note that the simulations produce plans with both slightly
positive and negative efficiency gaps. But the broader, more striking finding in this analysis is
that over one-half of the simulated plans produced by the partisan-neutral simulation algorithm
strictly following traditional districting criteria are within 2% of a zero efficiency gap. Hence, it
is clearly not difficult to create an electorally unbiased map when one strictly follows the nonpartisan criteria from the Adopted Criteria. To produce a map with significant electoral bias
deviating by over 10% from a zero efficiency gap, however, would require more extraordinary
and deliberate map-drawing efforts beyond following the non-partisan guidelines set forth in
the Adopted Criteria.
Third, the enacted SB 2 plan, denoted in each Figure 10 diagram as a red star, produces
an efficiency gap that is extremely inconsistent with and outside of the entire range of the 1,000
computer-simulated plans. The enacted plan creates an efficiency gap of -24.2% using the
Hofeller Formula and -30.4% using the 20 statewide elections from 2008-2014, indicating that
the plan results in significantly more wasted Democratic votes than wasted Republican votes.
As Figures 9 and 11 show, results are similar when we analyze the efficiency gap of plans in
Simulation Sets 1 and 3 as well. Thus, the level of electoral bias in the SB 2 enacted plan is not
only entirely outside of the range produced by the simulated plans, the enacted plan’s efficiency
gap is far more biased than even most biased of the 1,000 simulated plans. The improbable
nature of the enacted plan’s efficiency gap allows us to conclude with overwhelmingly high
statistical certainty that neutral, non-partisan districting criteria, combined with North
Carolina’s natural political geography, could not have produced a districting plan as electorally
skewed as the enacted SB 2 plan.

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 Predicted Election Results Using Regression Modeling:
An additional method commonly used by political scientists for analyzing the partisan
performance of districting plans involves using regression modeling to estimate the partisan
election results for any given congressional district. The underlying statistical intuition behind
this approach is that analyzing a districting plan using the results from any legislative election
contest inherently introduces some degree of error. The results from any given legislative
election may deviate from the long-term partisan voting trends of the district’s voters due to such
factors as incumbency advantage, the presence or absence of a quality challenger, anomalous
difference between the candidates in campaign efforts or campaign finances, candidate scandals,
and coattail effects. These factors can even differ across different districts within the state of
North Carolina, thus making it statistically unreliable to combine and directly compare election
results from different congressional districts when evaluating a new districting plan.
Thus, a more robust approach is to statistically model the congressional elections voting
patterns of any given constituency – such as a VTD, county, or congressional district – using the
results from a statewide, federal election contest, such as a US presidential election. I then apply
this statistical model to predict the likely level of future partisan voting in congressional elections
for an enacted congressional district or a computer-simulated congressional district. Applying
this model to an enacted district, for example, can give us a statistical prediction of the likely
level of electoral support for a future Democratic congressional candidate. This prediction also
allows me to account for the presence of either a Democratic or Republican incumbent in the
district. I am thus able to compare the predicted partisan breakdown of districts within the
simulated districting plans and the enacted SB 2 districting plan, and these predictions are able to
account for the presence of the various 13 congressional incumbents (as of November 2016)
across North Carolina.
The first statistical model I use is a VTD-level regression analysis that predicts
Republican candidates’ vote share in the November 2012 congressional elections. The regression
model predicts Republican vote share using Mitt Romney’s (Republican) vote share in each
VTD in November 2012. As Figure 12 demonstrates, at the VTD-level in North Carolina,
presidential election votes for Obama and Romney were extremely highly correlated with
partisan votes in the November 2012 congressional elections. Thus, presidential voting is a quite
accurate and useful predictor for this regression model. Additionally, the model includes control

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 variables accounting for the presence of a Democratic incumbent or a Republican incumbent
House member in the district and the voter turnout in the 2012 presidential election, expressed as
the number of presidential votes cast, divided by the voting age population (VAP) of the VTD.
The second statistical model I estimate is a VTD-level regression predicting the voter
turnout rate in the 2012 congressional elections, expressed as the number of congressional votes
cast divided by VAP. This model predicts congressional election turnout using 2012 presidential
election turnout as a predictor, in addition to all of the predictors from the first model. Hence,
there are two separate models with the following full regression model specifications:
Republican Congressional Vote Sharei =
α + β1* Republican Presidential Vote Sharei
+ β3*Republican Incumbenti + β4*Democratic Incumbenti + β5*VAPi
+ β6*Presidential Election Turnout + εi
Congressional Election Turnout Ratei =
α + β1* Republican Presidential Vote Sharei
+ β3*Republican Incumbenti + β4*Democratic Incumbenti + β5*VAPi
+ β6*Presidential Election Turnout + εi
These two models explain the partisan results in the 2012 congressional elections in each
VTD of North Carolina as a function of three factors: The underlying partisanship of the VTD,
as measured by presidential voting, the presence of Democratic or Republican incumbents in the
district in which the VTD is located, and the presidential election turnout in the VTD. Table 2
presents both full estimated regression models.
The two models have an R-squared of 0.985 and 0.992, indicating that the models are
able to predict the results of the November 2012 congressional elections with very high statistical
accuracy. In particular, the estimated model coefficients reveal that partisan support for
congressional candidates in 2012 was largely explained by voters’ underlying partisanship, as
measured by their presidential voting behavior: In general, Obama voters also supported
Democratic congressional candidates, while Romney voters supported Republican congressional
candidates. Additionally, the presence of incumbents has a small effect on election results as
well: The presence of a Republican incumbent in a VTD’s district increases electoral support for
the Republican congressional candidate by about 3.1%, while the presence of a Democratic
incumbent boosts the Democratic congressional candidate’s vote totals by approximately 3.2%.
The presence of an incumbent of either party also boosts the overall voter turnout rate.

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 Next, I apply these two regression models to each of the simulated plans and the enacted
plan in order to calculate the predicted partisanship of each district within each plan and the
overall efficiency gap of each plan. As before, the motivation of this analysis is to determine
whether the enacted plan’s partisanship could possibly have arisen from a non-partisan mapdrawing process respecting traditional districting criteria. I conduct this analysis using two
different approaches:
Predicted Congressional Election Results with Incumbency Advantage: First, I used the
regression model to evaluate the partisanship of the simulated and enacted plans, accounting for
all 13 House incumbents in North Carolina as of the November 2016 congressional elections.
Specifically, I geocoded the residential locations of North Carolina’s 13 incumbent House
members from the 114th Congress. I then overlaid the incumbents’ locations onto the enacted
map and each of the 1,000 simulated maps, thus identifying which district each incumbent
resides in within each of these plans. I use this information to apply the appropriate incumbency
advantage adjustment, as estimated in the two regression models in Table 2, for each districting
plan. This incumbency advantage adjustment, as estimated in the regression models, effectively
boosts Republican vote share by 3.1% when the district contains a Republican incumbent.
Meanwhile, Democratic vote share increases by 3.2% when the district contains a Democratic
incumbent.
To predict the partisanship of each district using the two regression models, I generate
predicted Republican and Democratic congressional vote share estimates for each district. For
example, District 1 of the enacted plan supported Mitt Romney at a 31.47% rate, and 62.76% of
the voting age population cast presidential ballots in November 2012. Additionally, District 1
contains a Democratic incumbent (G.K. Butterfield). Applying the two regression models to this
information regarding District 1 generates the following predictions: Assuming an election race
with a Democratic incumbent and no Republican incumbent, District 1 would support the
Republican congressional candidate at a 27.90% rate, while 61.90% of the voting age population
would cast congressional election ballots. Thus, the two models collectively predict District 1 to
be a clearly Democratic-leaning district, and the models make a prediction not only about the
level of partisan support for Republican and Democratic candidate, but also the total number of
congressional election votes cast in each district.

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 I use this approach to generate predictions regarding the partisanship of all districts in the
enacted plan and in the 1,000 plans in Simulation Set 2. This is the set of simulated plans
produced under a districting algorithm that guarantees incumbents are never paired with one
another within the same district while otherwise maximizing compliance with the five traditional
districting criteria in the Adopted Criteria.
The predicted partisanship of these 1,000 simulated plans appears in the left diagram of
Figure 13. The calculations in Figure 13 show that the vast majority of the 1,000 simulated plans
contain 6, 7, or 8 districts that are predicted to favor Republican congressional candidates. Only
1.3% of plans ever create 9 predicted Republican districts, and no simulated plan ever contains
more than 9 such districts.
By contrast, I find that the enacted SB 2 plan contains three districts predicted to favor
Democratic candidates: Districts 1, 4, and 12. The remaining 10 districts are predicted to favor
Republican candidates. This prediction of a 10-3 split in the partisan control of the enacted plan’s
seats confirms my earlier calculations regarding the enacted plan’s partisanship using the
Hofeller formula and using the 20 elections specified by the Adopted Criteria.
Finally, I calculate the efficiency gap of the enacted plan and the simulated plans using
the predicted congressional election votes. The regression models I estimated predict not only the
Republican vote share for congressional elections, but also the voter turnout level. Hence, the
model effectively makes a prediction about the total number of Republican and Democratic votes
cast in a congressional election in any given district. I thus use these total partisan vote
predictions to calculate each plan’s efficiency gap.
These efficiency gap calculations appear in the right diagram of Figure 13. In this
diagram, the horizontal axis reports the efficiency gap of the plan, with lower efficiency gaps
indicating more wasted Democratic votes than wasted Republican votes. The vertical axis
measures the average Reock score for each plan. These calculations broadly confirm the earlier
findings regarding the efficiency gap of the SB 2 plan. A districting process following the nonpartisan criteria listed in the Adopted Criteria would have very easily achieved drawing a plan
with zero efficiency gap, as measured by predicted congressional votes. In fact, 603 of the 1,000
simulated plans had an efficiency gap within 2% of zero. However, the enacted SB 2 plan’s
efficiency gap of -24.4%, as indicated in Figure 13 by a red star, is once again well outside of the
entire range of efficiency gaps produced by the 1,000 simulations.

29
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LEGISLATIVE DEFENDANTS TX244-29

 Together, these findings again confirm the main conclusion of this report described
earlier: The enacted plan’s creation of 10 Republican-leaning districts is an outcome that could
not have emerged from a non-partisan map-drawing process adhering to the traditional districting
criteria in the Adopted Criteria. Instead, the enacted plan could have been created only through a
process in which the explicit pursuit of partisan advantage was the predominant factor, thus
subordinating the traditional districting criteria from the Adopted Criteria.

Predicted Congressional Election Results with No Incumbents: Next, I apply the
regression model to the simulated and enacted plans by asking a slightly different question: What
would be the likely partisanship of each of the simulated and enacted districts if all districts were
open seats with no incumbents? In other words, this analysis specifically focuses on predicting
whether a Democratic or Republican would win each district in a hypothetical congressional
election in which North Carolina has no incumbents, and all seats are therefore open races.
To predict the partisan voting patterns of each district in an open-seat election, I use the
same regression model and predictive approach as before, but with one change: I assume that
each of the 13 districts in each plan contains no incumbents. Thus, I intentionally compute no
predicted incumbency advantage for either party when applying the regression models to data
regarding each districting plan. Once again, I use this approach to analyze the 1,000 plans in
Simulation Set 2, the set of simulated plans seeking to guarantee incumbents are never paired
with one another within a district while otherwise maximizing compliance with the five
traditional districting criteria in the Adopted Criteria.
The predicted partisanship of these 1,000 simulated plans appears in the left diagram of
Figure 14. The calculations in Figure 14 show that over 90% of the 1,000 simulated plans
contain 5 to 7 districts predicted to favor Republican congressional candidates. Fewer than 5% of
the simulations produce 8 Republican districts, and only one simulation reaches 9 Republican
districts. Once again, not a single plan contains ten or more Republican districts. As well, I
evaluate the enacted SB 2 plan using the same hypothetical situation of 13 open seats with no
incumbents. I found, once again, that 10 of the enacted districts out of 13 are predicted to favor
Republicans, while only Districts 1, 4, and 12 favor Democratic candidates. Hence, under the
assumption of elections with no incumbents, the enacted plan continues to exhibit a 10-3 split in

30
Case 5:19-cv-00452-BO Document 5-3 Filed 10/14/19 Page 31 of 45
LEGISLATIVE DEFENDANTS TX244-30

 the partisan control of its districts, placing it completely outside the entire range of outcomes
observed in the 1,000 simulations.
The right diagram in Figure 14 presents calculations of the efficiency gap of the 1,000
simulated plans and the enacted plan using predicted congressional votes under the assumption
of no incumbents. Under this measure of partisanship, the enacted plan has an efficiency gap of
-26.2%, which is very significantly outside of the entire range of the efficiency gaps for the
simulated plans. Together, these findings provide further confirmation of this report’s main
conclusions. The enacted plan’s creation of 10 Republican-leaning districts is not an outcome
that could have plausibly emerged from a non-partisan map-drawing process respecting
traditional districting criteria.

31
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LEGISLATIVE DEFENDANTS TX244-31

 Figure 9:

32
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 Figure 10:

33
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 Figure 11:

34
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 Figure 12:

35
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LEGISLATIVE DEFENDANTS TX244-35

 Figure 13:

36
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 Figure 14:

37
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LEGISLATIVE DEFENDANTS TX244-37

 Table 2:
VTD-Level Regression Models
Predicting 2012 Congressional Election Results and Turnout
Model 1:
Dependent Variable:
Republican Vote Share in
Congressional Elections
(Nov 2012)

Model 2:
Dependent Variable:
Turnout Rate for Nov 2012
Congressional Elections
(Votes / Voting Age Pop.)

Republican (Romney) Presidential Vote
Share, November 2012

0.911***
(0.004)

0.007***
(0.002)

Precinct’s Congressional District has a
Republican Incumbent

0.031***
(0.003)

0.006***
(0.001)

Precinct’s Congressional District has a
Democratic Incumbent

-0.032***
(0.002)

0.008***
(0.001)

Turnout Rate for Nov 2012 Presidential
Elections (Votes / Voting Age Pop.)

0.009
(0.005)

0.978***
(0.002

County Fixed Effects

Included

Included

Constant

0.026
(0.006)

-0.004
(0.003)

N

2,692

2,692

Adjusted R-squared

0.985

0.992

Independent Variables:

*p<.05; **p<0.01, ***p<0.001

38
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LEGISLATIVE DEFENDANTS TX244-38

 The foregoing is true and correct to the best of my knowledge.

Jowei Chen
March 1, 2017

39
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LEGISLATIVE DEFENDANTS TX244-39

 Jowei Chen
Curriculum Vitae
Department of Political Science
University of Michigan
5700 Haven Hall
505 South State Street
Ann Arbor, MI 48109-1045
Phone: 917-861-7712, Email: jowei@umich.edu
Website: http://www.umich.edu/~jowei
Academic Positions:
Associate Professor (2015-present), Assistant Professor (2009-2015), Department of Political
Science, University of Michigan.
Faculty Associate, Center for Political Studies, University of Michigan, 2009 – Present.
W. Glenn Campbell and Rita Ricardo-Campbell National Fellow, Hoover Institution, Stanford
University, 2013.
Principal Investigator and Senior Research Fellow, Center for Governance and Public Policy
Research, Willamette University, 2013 – Present.
Education:
Ph.D., Political Science, Stanford University (June 2009)
M.S., Statistics, Stanford University (January 2007)
B.A., Ethics, Politics, and Economics, Yale University (May 2004)

Publications:
Chen, Jowei and Neil Malhotra. 2007. "The Law of k/n: The Effect of Chamber Size on
Government Spending in Bicameral Legislatures.”
American Political Science Review. 101(4): 657-676.
Chen, Jowei, 2010. "The Effect of Electoral Geography on Pork Barreling in Bicameral
Legislatures."
American Journal of Political Science. 54(2): 301-322.
Chen, Jowei, 2013. "Voter Partisanship and the Effect of Distributive Spending on Political
Participation."
American Journal of Political Science. 57(1): 200-217.
Chen, Jowei and Jonathan Rodden, 2013. “Unintentional Gerrymandering: Political Geography
and Electoral Bias in Legislatures”
Quarterly Journal of Political Science, 8(3): 239-269.
Chen, Jowei and Tim Johnson, 2015. "Federal Employee Unionization and Presidential Control
of the Bureaucracy: Estimating and Explaining Ideological Change in Executive Agencies."
Journal of Theoretical Politics, Volume 27, No. 1: 151-174.

Case 5:19-cv-00452-BO Document 5-3 Filed 10/14/19 Page 41 of 45
LEGISLATIVE DEFENDANTS TX244-40

 Bonica, Adam, Jowei Chen, and Tim Johnson, 2015. “Senate Gate-Keeping, Presidential
Staffing of 'Inferior Offices' and the Ideological Composition of Appointments to the Public
Bureaucracy.”
Quarterly Journal of Political Science. Volume 10, No. 1: 5-40.
Bradley, Katharine and Jowei Chen, 2014. "Participation Without Representation? Senior
Opinion, Legislative Behavior, and Federal Health Reform."
Journal of Health Politics, Policy and Law. 39(2), 263-293.
Chen, Jowei and Jonathan Rodden, 2015. “Redistricting Simulations and the Detection Cutting
through the Thicket: of Partisan Gerrymanders.”
Election Law Journal. Volume 14, Number 4: 331-345.
Chen, Jowei, 2014. "Split Delegation Bias: The Geographic Targeting of Pork Barrel Earmarks
in Bicameral Legislatures."
Revise and Resubmit, State Politics and Policy Quarterly.
Chen, Jowei and David Cottrell, 2016. "Evaluating Partisan Gains from Congressional
Gerrymandering: Using Computer Simulations to Estimate the Effect of Gerrymandering in the
U.S. House."
Forthcoming 2016, Electoral Studies.
Chen, Jowei, 2016. “Analysis of Computer-Simulated Districting Maps for the Wisconsin State
Assembly.”
Forthcoming 2017, Election Law Journal.

Research Grants:
Principal Investigator. National Science Foundation Grant SES-1459459, September 2015 –
August 2017 ($165,008). "The Political Control of U.S. Federal Agencies and Bureaucratic
Political Behavior."
"Economic Disparity and Federal Investments in Detroit," (with Brian Min) 2011. Graham
Institute, University of Michigan ($30,000).
“The Partisan Effect of OSHA Enforcement on Workplace Injuries,” (with Connor Raso) 2009.
John M. Olin Law and Economics Research Grant ($4,410).

Invited Talks:
September, 2011. University of Virginia, American Politics Workshop.
October 2011. Massachusetts Institute of Technology, American Politics Conference.
January 2012. University of Chicago, Political Economy/American Politics Seminar.
February 2012. Harvard University, Positive Political Economy Seminar.

Case 5:19-cv-00452-BO Document 5-3 Filed 10/14/19 Page 42 of 45
LEGISLATIVE DEFENDANTS TX244-41

 September 2012. Emory University, Political Institutions and Methodology Colloquium.
November 2012. University of Wisconsin, Madison, American Politics Workshop.
September 2013. Stanford University, Graduate School of Business, Political Economy
Workshop.
February 2014. Princeton University, Center for the Study of Democratic Politics Workshop.
November 2014. Yale University, American Politics and Public Policy Workshop.
December 2014. American Constitution Society for Law & Policy Conference: Building the
Evidence to Win Voting Rights Cases.
February 2015. University of Rochester, American Politics Working Group.
March 2015. Harvard University, Voting Rights Act Workshop.
May 2015. Harvard University, Conference on Political Geography.
Octoer 2015. George Washington University School of Law, Conference on Redistricting
Reform.

Conference Service:
Section Chair, 2017 APSA (Chicago, IL), Political Methodology Section
Discussant, 2014 Political Methodology Conference (University of Georgia)
Section Chair, 2012 MPSA (Chicago, IL), Political Geography Section.
Discussant, 2011 MPSA (Chicago, IL) “Presidential-Congressional Interaction.”
Discussant, 2008 APSA (Boston, MA) “Congressional Appropriations.”
Chair and Discussant, 2008 MPSA (Chicago, IL) “Distributive Politics: Parties and Pork.”

Conference Presentations and Working Papers:
“Ideological Representation of Geographic Constituencies in the U.S. Bureaucracy,” (with Tim
Johnson). 2016 APSA.
“Incentives for Political versus Technical Expertise in the Public Bureaucracy,” (with Tim
Johnson). 2016 APSA.
"Racial Gerrymandering and Electoral Geography." Working Paper, 2016.
“Does Deserved Spending Win More Votes? Evidence from Individual-Level Disaster
Assistance,” (with Andrew Healy). 2014 APSA.
“The Geographic Link Between Votes and Seats: How the Geographic Distribution of Partisans
Determines the Electoral Responsiveness and Bias of Legislative Elections,” (with David
Cottrell). 2014 APSA.
“Gerrymandering for Money: Drawing districts with respect to donors rather than voters.” 2014
MPSA.
“Constituent Age and Legislator Responsiveness: The Effect of Constituent Opinion on the Vote
for Federal Health Reform." (with Katharine Bradley) 2012 MPSA.

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LEGISLATIVE DEFENDANTS TX244-42

 “Voter Partisanship and the Mobilizing Effect of Presidential Advertising.” (with Kyle Dropp)
2012 MPSA.
“Recency Bias in Retrospective Voting: The Effect of Distributive Benefits on Voting
Behavior.” (with Andrew Feher) 2012 MPSA.
“Estimating the Political Ideologies of Appointed Public Bureaucrats,” (with Adam Bonica and
Tim Johnson) 2012 Annual Meeting of the Society for Political Methodology (University of
North Carolina)
“Tobler’s Law, Urbanization, and Electoral Bias in Florida.” (with Jonathan Rodden) 2010
Annual Meeting of the Society for Political Methodology (University of Iowa)
“Unionization and Presidential Control of the Bureaucracy” (with Tim Johnson) 2011 MPSA.
“Estimating Bureaucratic Ideal Points with Federal Campaign Contributions” 2010 APSA.
(Washington, DC).
“The Effect of Electoral Geography on Pork Spending in Bicameral Legislatures,” Vanderbilt
University Conference on Bicameralism, 2009.
"When Do Government Benefits Influence Voters' Behavior? The Effect of FEMA Disaster
Awards on US Presidential Votes,” 2009 APSA (Toronto, Canada).
"Are Poor Voters Easier to Buy Off?” 2009 APSA (Toronto, Canada).
"Credit Sharing Among Legislators: Electoral Geography's Effect on Pork Barreling in
Legislatures,” 2008 APSA (Boston, MA).
“Buying Votes with Public Funds in the US Presidential Election,” Poster Presentation at the
2008 Annual Meeting of the Society for Political Methodology (University of Michigan).
“The Effect of Electoral Geography on Pork Spending in Bicameral Legislatures,” 2008 MPSA.
“Legislative Free-Riding and Spending on Pure Public Goods,” 2007 MPSA (Chicago, IL).
“Free Riding in Multi-Member Legislatures,” (with Neil Malhotra) 2007 MPSA (Chicago, IL).
“The Effect of Legislature Size, Bicameralism, and Geography on Government Spending:
Evidence from the American States,” (with Neil Malhotra) 2006 APSA (Philadelphia, PA).

Reviewer Service:
American Journal of Political Science
American Political Science Review
Journal of Politics
Quarterly Journal of Political Science

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LEGISLATIVE DEFENDANTS TX244-43

 American Politics Research
Legislative Studies Quarterly
State Politics and Policy Quarterly
Journal of Public Policy
Journal of Empirical Legal Studies
Political Behavior
Political Research Quarterly
Political Analysis
Public Choice
Applied Geography

Case 5:19-cv-00452-BO Document 5-3 Filed 10/14/19 Page 45 of 45
LEGISLATIVE DEFENDANTS TX244-44

  

Exhibit 4 

Case Document 5-4 Filed 10/14/19 Page 1 of 13

 

 

Chen District Plan Simulations:
Percent Black Voting Age Population (BVAP) by District for Plans with At Least One 40%+ BVAP District (262 plans found)
District
Simulation District
Run
Plan

Adams Butterfield
District
District

1

2

3

4

5

6

7

8

9

10

11

12

13

1

16

6

11

4.11%

9.66%

30.59%

14.59%

10.93%

24.74%

17.62%

27.67%

21.14%

29.09%

40.22% 21.35%

17.68%

1

24

6

9

3.91%

9.87%

25.88%

20.50%

14.38%

27.83%

20.48%

22.95%

40.78%

28.66%

21.38% 21.17%

11.55%

1

31

6

10

3.87%

10.43%

30.32%

16.31%

22.82%

29.15%

17.07%

27.64%

14.66%

40.44%

14.31% 22.06%

20.15%

1

32

6

11

3.87%

9.92%

25.55%

20.85%

14.01%

23.61%

25.56%

19.09%

27.18%

17.71%

41.44% 19.48%

21.65%

1

49

7

12

3.94%

9.97%

30.50%

16.12%

10.15%

23.06%

20.05%

27.88%

20.54%

24.69%

20.88% 40.39%

21.26%

1

70

5

9

3.91%

10.12%

7.53%

23.42%

20.41%

20.68%

23.96% 30.23% 41.30%

21.07%

18.69% 27.11%

21.27%

1

71

7

12

3.94%

8.94%

27.17%

18.42%

16.47%

18.58%

19.03%

29.24%

22.16%

24.83%

18.01% 42.22%

20.65%

1

78

6

10

4.09%

9.37%

28.90%

16.61%

13.00%

28.31%

21.37%

15.23%

21.58%

40.82%

21.37% 17.91%

31.07%

1

84

5

8

3.88%

10.37%

7.53%

17.48%

26.54%

20.40%

23.24% 40.43%

24.21%

19.19%

27.49% 16.86%

32.21%

1

91

5

8

3.59%

10.71%

10.11%

17.77%

25.26%

21.33%

26.36% 40.20%

20.66%

18.23%

28.91% 30.48%

15.85%

1

102

7

9

3.92%

9.86%

30.59%

16.18%

8.77%

20.58%

23.26%

14.85%

27.79%

41.25%

25.37% 18.29%

28.64%

1

103

8

11

4.08%

9.35%

27.81%

18.93%

28.19%

17.85%

26.82%

21.48%

21.22%

11.46%

41.82% 20.71%

19.90%

1

105

7

10

4.10%

8.96%

26.12%

19.26%

18.12%

12.86%

22.09%

29.80%

18.05%

26.44%

18.18% 24.10%

41.34%

1

106

10

11

3.99%

9.61%

25.70%

20.88%

20.78%

27.43%

20.57%

16.05%

24.19%

18.31%

40.28% 22.56%

19.40%

1

154

8

11

3.86%

9.16%

26.95%

19.45%

24.64%

27.93%

19.15%

19.15%

28.19%

7.96%

40.13% 22.73%

20.45%

1

163

7

10

3.89%

8.90%

26.42%

19.34%

17.22%

16.12%

20.45%

14.29%

27.58%

41.60%

21.26% 22.44%

29.94%

1

167

6

12

4.59%

19.45%

27.79%

15.79%

5.06%

25.45%

18.07%

25.67%

21.78%

19.71%

21.73% 40.14%

24.36%

1

185

6

11

4.00%

11.65%

30.78%

18.32%

18.12%

24.60%

20.96%

22.55%

26.03%

9.87%

41.07% 21.49%

20.42%

1

186

5

8

3.86%

11.64%

5.28%

25.46%

19.43%

21.64%

25.83% 40.73%

20.73%

22.98%

23.85% 18.75%

29.64%

1

192

9

11

3.92%

9.98%

21.98%

21.03%

12.71%

27.85%

18.30%

25.37%

26.15%

19.79%

40.65% 22.14%

19.51%

1

199

4

8

4.07%

8.77%

15.75%

25.53%

12.19%

20.58%

25.57% 40.41%

21.64%

17.59%

29.88% 19.79%

27.80%

1

207

5

9

3.89%

11.09%

6.88%

22.17%

23.93%

20.74%

27.22%

42.20%

24.02%

18.99% 18.80%

32.14%

District plans based on census block assignments provided by Chen, file date 2/7/2017.
Incumbent residence information as provided by Chen.
All BVAP percentages of 30% or greater are highlighted.
BVAP percentages based on 2010 census values for single race black population.

17.93%

DEFENDANT'S EXHIBIT
Page 1 of 12

Case 5:19-cv-00452-BO Document 5-4 Filed 10/14/19

Case No. 16cv1026
16cv1164
Page 2 of 13
Exhibit No. 5038

NCGA - ISD 5/30/2017

 Chen District Plan Simulations:
Percent Black Voting Age Population (BVAP) by District for Plans with At Least One 40%+ BVAP District (262 plans found)
District
Simulation District
Run
Plan

Adams Butterfield
District
District

1

2

3

4

5

6

7

8

9

10

11

12

13

1

220

4

8

3.69%

10.59%

9.64%

29.72%

25.48%

22.09%

23.74% 40.07%

21.76%

19.94%

14.47% 27.15%

21.23%

1

234

7

9

3.95%

7.61%

27.68%

19.32%

16.48%

18.40%

19.49%

14.66%

29.14%

41.13%

24.58% 18.34%

28.72%

1

270

7

9

3.89%

9.25%

26.48%

20.85%

17.05%

16.74%

19.02%

17.38%

25.66%

40.87%

25.50% 18.26%

28.53%

1

277

7

10

3.89%

9.58%

31.72%

14.73%

9.36%

22.25%

21.87%

21.23%

24.20%

40.07%

21.97% 20.88%

27.56%

1

289

12

7

4.07%

10.34%

29.22%

17.10%

26.61%

15.59%

28.41%

19.47%

22.75%

42.63%

15.22% 24.46%

13.97%

1

290

7

13

4.08%

8.57%

24.13%

21.16%

10.62%

19.76%

24.87%

22.01%

22.15%

27.95%

19.91% 23.84%

40.47%

1

300

7

13

3.97%

9.36%

31.86%

14.79%

9.29%

22.64%

22.23%

21.08%

22.99%

27.11%

20.04% 24.03%

40.06%

1

325

9

11

3.70%

10.52%

9.10%

30.22%

18.58%

28.51%

21.60%

22.35%

21.34%

20.53%

40.52% 21.64%

21.10%

1

330

7

13

3.89%

10.13%

17.14%

26.55%

15.74%

15.17%

26.59%

20.88%

22.63%

28.46%

19.95% 21.90%

40.44%

1

347

4

8

3.87%

7.65%

14.35%

27.12%

13.27%

30.15% 18.97% 40.53%

26.80%

26.01%

20.69% 22.20%

18.08%

1

373

8

11

3.88%

10.04%

30.47%

16.31%

28.05%

18.31%

25.15%

24.08%

18.96%

11.90%

40.74% 22.87%

18.65%

1

374

6

10

3.91%

10.28%

8.75%

32.99%

15.30%

23.90%

19.88%

17.96%

26.64%

40.96%

26.74% 21.24%

20.89%

1

384

6

11

3.87%

8.98%

27.92%

18.47%

17.70%

23.55%

13.19%

23.93%

32.47%

21.80%

40.30% 16.53%

20.75%

1

397

7

10

3.87%

9.36%

27.90%

18.15%

11.82%

16.08%

24.66%

28.25%

16.15%

28.39%

41.82% 21.49%

21.22%

1

405

7

11

3.99%

9.20%

27.90%

18.15%

14.84%

15.30%

22.54%

21.73%

23.47%

32.23%

40.97% 17.54%

21.64%

1

423

7

10

3.97%

9.48%

30.99%

14.51%

13.91%

21.19%

17.94%

21.21%

29.69%

40.21%

27.17% 21.86%

17.24%

1

424

7

10

3.97%

6.94%

24.65%

22.38%

15.28%

20.35%

18.76%

22.27%

26.97%

40.21%

27.05% 23.87%

16.88%

1

429

6

10

3.89%

9.75%

26.38%

20.16%

13.93%

23.55%

15.48%

24.60%

22.08%

42.06%

19.81% 20.75%

27.02%

1

437

4

7

3.91%

9.19%

17.49%

25.45%

12.76%

19.59%

28.69% 40.47%

25.43%

28.00%

18.52% 23.97%

16.23%

1

475

4

8

3.87%

8.97%

15.76%

25.11%

20.56%

22.16%

28.92% 41.21%

21.06%

20.52%

15.28% 20.14%

25.91%

1

479

7

13

3.97%

9.02%

26.21%

19.44%

15.01%

14.92%

28.31%

27.53%

18.40%

24.53%

19.68% 21.60%

40.67%

1

487

8

11

3.88%

10.04%

30.50%

16.28%

28.04%

18.28%

25.18%

26.06%

9.73%

19.03%

40.95% 21.79%

19.52%

District plans based on census block assignments provided by Chen, file date 2/7/2017.
Incumbent residence information as provided by Chen.
All BVAP percentages of 30% or greater are highlighted.
BVAP percentages based on 2010 census values for single race black population.

Page 2 of 12

Case 5:19-cv-00452-BO Document 5-4 Filed 10/14/19 Page 3 of 13

NCGA - ISD 5/30/2017

 Chen District Plan Simulations:
Percent Black Voting Age Population (BVAP) by District for Plans with At Least One 40%+ BVAP District (262 plans found)
District
Simulation District
Run
Plan

Adams Butterfield
District
District

1

2

3

4

5

6

7

8

9

10

11

12

13

1

511

6

13

3.89%

9.90%

30.62%

16.09%

18.17%

19.97%

15.49%

20.80%

22.47%

28.79%

20.82% 20.30%

42.08%

1

522

6

10

3.99%

9.79%

30.60%

16.11%

17.38%

24.59%

12.10%

20.27%

23.75%

40.88%

21.51% 20.41%

27.97%

1

529

7

10

3.89%

9.89%

30.59%

15.01%

14.84%

17.30%

20.81%

20.38%

25.01%

40.47%

21.77% 20.65%

28.69%

1

533

9

12

4.04%

10.32%

20.54%

26.04%

26.57%

21.56%

25.02%

20.56%

24.66%

14.15%

13.84% 40.96%

21.37%

1

557

7

11

3.99%

10.35%

28.51%

18.68%

9.18%

22.28%

21.01%

27.10%

23.76%

22.30%

40.49% 21.87%

20.08%

1

576

8

11

3.89%

10.29%

29.23%

17.17%

24.65%

20.16%

26.65%

23.44%

17.45%

14.45%

40.57% 22.14%

19.53%

1

577

4

13

3.88%

10.53%

11.36%

26.46%

14.15%

21.56%

22.17%

22.57%

33.83%

20.20%

18.65% 23.84%

40.25%

1

585

6

11

4.05%

11.68%

33.10%

13.92%

20.84%

22.86%

27.36%

21.90%

21.70%

9.83%

40.87% 21.90%

19.50%

1

586

7

10

3.92%

9.54%

31.74%

13.82%

12.69%

20.90%

19.60%

21.68%

23.34%

42.17%

20.92% 19.90%

29.12%

1

610

5

7

4.02%

10.45%

7.18%

21.90%

21.89%

15.16%

27.91% 40.56%

25.97%

18.75%

27.41% 20.07%

28.31%

1

628

9

12

3.94%

9.97%

30.50%

16.28%

28.82%

20.57%

22.97%

21.84%

26.05%

11.11%

15.79% 40.03%

21.53%

1

635

9

11

3.99%

9.48%

31.17%

15.51%

10.09%

29.21%

18.73%

25.38%

25.44%

16.96%

41.22% 21.76%

20.38%

1

663

8

11

3.87%

10.05%

31.63%

15.15%

24.63%

18.17%

28.16%

23.78%

21.85%

8.74%

41.33% 21.48%

20.52%

1

681

8

11

3.68%

10.37%

27.82%

19.82%

23.64%

26.99%

19.99%

25.43%

18.76%

10.61%

40.28% 24.48%

17.75%

1

703

7

11

3.89%

7.37%

25.88%

22.29%

12.27%

21.41%

22.67%

29.50%

22.72%

15.82%

40.58% 28.39%

17.07%

1

709

4

8

3.92%

9.14%

15.52%

20.40%

27.64%

26.07%

14.58% 40.94%

19.54%

22.44%

22.17% 20.68%

25.88%

1

724

7

13

3.91%

9.27%

27.93%

19.84%

13.31%

14.08%

25.27%

23.44%

23.21%

27.39%

19.68% 22.03%

40.22%

1

740

7

10

3.99%

9.44%

31.94%

14.86%

14.13%

19.77%

17.74%

24.55%

23.06%

41.99%

20.61% 26.28%

20.95%

1

744

7

13

3.88%

7.90%

31.20%

14.90%

18.28%

16.35%

20.40%

24.46%

19.93%

28.17%

19.96% 23.84%

40.25%

1

758

7

11

3.89%

10.03%

31.78%

14.87%

15.88%

15.27%

22.11%

27.90%

18.27%

29.40%

40.57% 23.29%

16.23%

1

759

10

11

3.86%

9.56%

26.64%

20.10%

11.83%

29.11%

22.75%

18.64%

14.38%

27.96%

42.53% 21.88%

20.35%

1

768

4

9

4.28%

10.26%

9.99%

23.28%

22.37%

17.49%

26.77%

18.85%

40.02%

23.64%

19.21% 32.25%

21.23%

District plans based on census block assignments provided by Chen, file date 2/7/2017.
Incumbent residence information as provided by Chen.
All BVAP percentages of 30% or greater are highlighted.
BVAP percentages based on 2010 census values for single race black population.

Page 3 of 12

Case 5:19-cv-00452-BO Document 5-4 Filed 10/14/19 Page 4 of 13

NCGA - ISD 5/30/2017

 Chen District Plan Simulations:
Percent Black Voting Age Population (BVAP) by District for Plans with At Least One 40%+ BVAP District (262 plans found)
District
Simulation District
Run
Plan

Adams Butterfield
District
District

1

2

3

4

5

6

7

8

9

10

11

12

13

1

777

6

8

3.97%

9.81%

31.73%

14.99%

13.88%

27.79%

12.17%

27.57%

30.79%

20.68%

21.62% 42.33%

12.51%

1

780

6

10

3.97%

9.81%

25.81%

20.59%

13.93%

23.43%

23.61%

15.83%

25.71%

40.82%

20.38% 23.54%

21.95%

1

802

10

11

3.88%

10.53%

6.33%

33.62%

12.79%

27.03%

22.81%

24.42%

27.82%

20.09%

40.78% 22.43%

16.86%

1

804

6

9

3.92%

10.39%

33.50%

14.65%

13.83%

27.79%

25.58%

19.95%

28.20%

17.68%

11.38% 42.02%

20.96%

1

808

11

10

3.89%

10.03%

30.47%

16.31%

29.66%

21.24%

22.79%

20.55%

21.81%

40.28%

24.48% 13.47%

14.44%

1

815

6

11

3.91%

9.66%

26.10%

20.53%

13.93%

23.69%

25.55%

24.37%

21.29%

18.05%

41.37% 23.65%

17.74%

1

817

7

11

3.87%

8.97%

25.84%

21.74%

17.20%

15.41%

20.76%

27.38%

21.65%

24.27%

40.82% 22.30%

19.51%

1

820

9

11

3.99%

9.44%

31.25%

16.14%

11.17%

26.64%

17.07%

26.44%

27.25%

17.59%

41.57% 19.34%

21.50%

1

836

5

10

3.87%

10.33%

27.64%

20.35%

23.90%

13.42%

15.68%

20.36%

23.07%

41.30%

20.47% 21.46%

27.55%

1

845

9

11

3.86%

10.18%

8.93%

32.33%

16.62%

28.88%

21.20%

22.64%

23.30%

18.48%

40.60% 22.47%

20.30%

1

887

10

11

3.89%

10.03%

30.50%

15.24%

30.68%

22.48%

21.30%

8.73%

22.50%

20.81%

40.96% 21.83%

20.52%

1

914

4

8

3.89%

10.31%

9.42%

26.89%

18.01%

22.80%

23.92% 40.28%

21.40%

21.45%

22.78% 27.21%

21.16%

1

944

6

12

4.08%

8.71%

26.41%

19.22%

18.68%

23.29%

13.28%

23.92%

27.25%

20.32%

22.33% 40.86%

21.08%

1

955

9

11

3.91%

11.62%

6.06%

29.47%

19.55%

27.65%

23.09%

21.35%

20.81%

22.98%

40.30% 18.79%

24.26%

1

967

6

11

3.91%

8.47%

27.16%

20.37%

17.41%

26.57%

18.66%

20.66%

26.28%

17.77%

40.70% 21.99%

19.57%

1

971

6

12

3.91%

9.72%

25.70%

20.29%

15.03%

23.60%

22.63%

19.61%

23.91%

17.77%

28.19% 40.32%

18.76%

1

975

12

11

3.87%

7.95%

27.66%

18.53%

10.80%

12.83%

23.08%

28.98%

21.82%

21.15%

40.66% 33.82%

18.07%

1

983

5

8

3.89%

10.41%

9.55%

27.98%

16.96%

20.02%

25.45% 40.96%

20.94%

22.94%

23.91% 26.70%

19.99%

1

984

6

10

3.88%

8.96%

25.83%

21.41%

11.87%

30.08% 15.22%

27.92%

14.21%

40.09%

23.98% 18.51%

27.97%

2

10

7

11

3.97%

8.84%

27.27%

18.06%

11.49%

16.02%

27.25%

22.90%

22.51%

22.16%

40.54% 19.04%

29.30%

2

20

12

11

3.89%

10.30%

7.23%

29.07%

18.01%

27.63%

20.17%

18.44%

26.15%

21.31%

41.51% 24.01%

21.93%

2

27

4

9

4.09%

8.73%

15.84%

26.03%

11.52%

21.95%

22.99%

22.16%

40.70%

18.97%

29.93% 18.93%

27.80%

District plans based on census block assignments provided by Chen, file date 2/7/2017.
Incumbent residence information as provided by Chen.
All BVAP percentages of 30% or greater are highlighted.
BVAP percentages based on 2010 census values for single race black population.

Page 4 of 12

Case 5:19-cv-00452-BO Document 5-4 Filed 10/14/19 Page 5 of 13

NCGA - ISD 5/30/2017

 Chen District Plan Simulations:
Percent Black Voting Age Population (BVAP) by District for Plans with At Least One 40%+ BVAP District (262 plans found)
District
Simulation District
Run
Plan

Adams Butterfield
District
District

1

2

3

4

5

6

7

8

9

10

11

12

13

18.49%

22.47%

21.15% 40.45%

21.52%

2

28

5

12

3.92%

10.39%

11.10%

24.32%

16.88%

30.21% 17.77% 31.03%

2

33

4

8

3.88%

10.04%

8.52%

25.20%

19.55%

20.40%

23.94% 40.93% 30.36%

18.47%

27.32% 19.21%

21.86%

2

43

4

8

3.97%

8.89%

15.81%

26.10%

11.45%

26.27%

19.95% 40.31%

21.91%

18.08%

29.91% 18.94%

27.80%

2

59

11

12

3.87%

8.91%

27.27%

18.96%

28.90%

20.68%

23.10%

21.15%

14.61%

15.96%

24.43% 40.33%

21.40%

2

71

5

12

3.89%

10.27%

9.16%

23.00%

21.02%

23.66%

21.87% 30.69%

18.31%

21.86%

23.87% 40.52%

21.72%

2

90

7

12

3.92%

10.11%

27.79%

19.21%

13.20%

24.15%

15.25%

29.77%

18.16%

22.67%

23.20% 41.01%

21.19%

2

91

7

11

3.87%

9.01%

28.41%

16.94%

14.70%

18.84%

21.18%

20.58%

25.02%

40.51%

21.88% 17.64%

30.87%

2

96

9

10

3.88%

10.04%

27.40%

18.70%

11.75%

20.43%

23.11%

25.08%

17.41%

40.20%

24.26% 17.72%

29.70%

2

102

5

12

3.91%

11.76%

5.60%

22.35%

22.62%

23.49%

23.34% 30.69%

18.10%

22.71%

23.16% 41.03%

21.28%

2

116

5

12

3.88%

10.54%

8.54%

24.82%

17.75%

29.24%

19.97% 30.31%

20.25%

22.93%

19.74% 40.00%

21.87%

2

121

5

12

3.91%

11.67%

7.08%

23.74%

21.03%

23.67%

21.88% 30.66%

18.16%

22.69%

23.19% 40.66%

21.57%

2

123

5

12

3.87%

11.63%

6.89%

24.86%

19.09%

24.10%

22.64% 30.86%

17.96%

22.71%

23.19% 41.22%

21.09%

2

125

7

11

3.89%

8.88%

27.30%

18.40%

14.25%

17.92%

22.28%

23.08%

23.03%

21.70%

40.30% 19.06%

29.40%

2

128

10

12

3.92%

10.27%

8.71%

31.60%

17.02%

29.19%

20.22%

23.19%

20.33%

20.79%

22.27% 40.91%

21.38%

2

130

5

12

3.89%

10.38%

8.03%

30.93%

11.29%

32.87% 19.08%

24.54%

22.89%

17.48%

23.81% 40.33%

24.35%

2

147

7

12

3.88%

10.04%

27.37%

17.20%

14.32%

17.30%

23.06% 30.25%

18.12%

22.61%

23.21% 40.42%

21.78%

2

156

11

12

3.89%

8.89%

27.31%

18.92%

27.09%

20.07%

22.96%

20.65%

11.21%

15.62%

32.02% 40.09%

20.69%

2

157

9

10

3.91%

11.63%

7.44%

31.54%

18.45%

20.46%

22.42%

23.13%

20.50%

40.26%

24.17% 16.45%

29.60%

2

170

7

12

3.97%

9.94%

32.09%

15.81%

10.40%

17.62%

25.17%

28.32%

18.16%

22.71%

23.16% 40.38%

21.88%

2

183

7

11

3.97%

9.94%

27.30%

17.52%

15.92%

17.19%

20.89%

23.18%

23.11%

21.60%

40.62% 19.04%

29.32%

2

186

10

12

3.91%

10.30%

8.77%

31.56%

18.23%

28.55%

19.16%

23.00%

21.02%

19.62%

23.39% 40.76%

21.55%

2

192

9

12

3.89%

8.88%

27.30%

18.93%

30.87%

19.36%

22.44%

21.28%

23.32%

14.93%

16.70% 40.70%

21.09%

District plans based on census block assignments provided by Chen, file date 2/7/2017.
Incumbent residence information as provided by Chen.
All BVAP percentages of 30% or greater are highlighted.
BVAP percentages based on 2010 census values for single race black population.

Page 5 of 12

Case 5:19-cv-00452-BO Document 5-4 Filed 10/14/19 Page 6 of 13

NCGA - ISD 5/30/2017

 Chen District Plan Simulations:
Percent Black Voting Age Population (BVAP) by District for Plans with At Least One 40%+ BVAP District (262 plans found)
District
Simulation District
Run
Plan

Adams Butterfield
District
District

1

2

3

4

5

6

7

8

9

10

11

12

13

2

195

4

13

3.91%

11.69%

6.91%

18.14%

26.55%

20.95%

22.59%

18.87%

30.98%

27.45%

17.81% 23.99%

40.12%

2

202

6

10

3.87%

8.69%

24.19%

21.16%

14.86%

24.71%

16.01%

23.04%

23.00%

41.88%

21.26% 17.42%

29.61%

2

225

10

12

3.89%

10.03%

9.37%

31.22%

17.73%

28.80%

19.92%

20.03%

24.59%

24.01%

18.06% 40.04%

21.91%

2

226

5

9

4.05%

11.73%

8.16%

23.43%

29.27%

11.02%

22.83%

20.58%

42.02%

19.45%

28.78% 20.03%

28.32%

2

229

7

12

3.89%

7.28%

28.95%

18.02%

12.10%

24.08%

19.64%

29.48%

18.17%

21.85%

23.86% 40.88%

21.40%

2

248

5

8

3.89%

10.52%

8.78%

24.75%

20.19%

23.38%

23.60% 40.12%

21.52%

18.19%

29.85% 26.43%

18.62%

2

260

7

12

3.88%

10.04%

32.09%

16.70%

10.67%

17.78%

24.81%

26.88%

18.57%

22.70%

23.18% 40.24%

21.97%

2

267

7

10

3.89%

10.03%

27.33%

17.22%

14.34%

17.18%

23.57%

22.31%

23.11%

40.60%

21.70% 18.97%

29.29%

2

271

5

12

3.89%

11.55%

13.32%

20.79%

17.03%

30.21% 17.78% 31.01%

18.50%

22.66%

21.27% 40.16%

21.54%

2

283

5

12

3.91%

11.61%

6.83%

25.04%

18.88%

23.48%

23.32% 30.67%

18.14%

22.72%

23.16% 40.99%

21.23%

2

291

6

11

4.10%

9.82%

28.68%

14.77%

15.98%

19.32%

22.82%

20.46%

22.75%

22.03%

40.30% 18.89%

29.64%

2

293

11

12

3.88%

8.94%

27.29%

18.89%

29.19%

20.40%

23.10%

20.95%

23.44%

9.45%

22.04% 40.02%

21.91%

2

297

7

12

3.88%

10.16%

27.79%

19.06%

8.53%

22.60%

22.99%

28.24%

18.75%

22.75%

22.60% 41.42%

20.79%

2

303

5

13

3.91%

11.61%

7.46%

30.21%

12.27%

23.81%

22.72%

19.09%

27.62%

30.83%

18.20% 21.38%

40.85%

2

314

10

11

3.87%

9.23%

28.19%

16.85%

11.15%

21.30%

22.34%

21.82%

26.44%

18.58%

40.52% 18.14%

31.12%

2

317

12

9

3.89%

8.96%

10.35%

12.52%

28.64%

27.40%

20.14%

29.70%

21.91%

21.46%

17.31% 26.76%

40.45%

2

328

7

12

3.89%

10.03%

28.51%

16.02%

17.36%

13.62%

23.40% 30.64%

18.15%

22.71%

23.17% 41.06%

21.25%

2

337

5

12

3.89%

10.73%

10.77%

25.33%

15.01%

32.83% 16.82%

29.84%

19.96%

22.93%

19.77% 40.82%

21.03%

2

352

9

11

3.97%

8.80%

27.34%

18.89%

31.31%

19.86%

17.72%

22.59%

14.99%

40.49% 23.29%

16.15%

2

356

4

8

3.88%

8.93%

15.87%

24.11%

23.18%

22.46% 40.32% 22.56%

17.60%

31.66%

13.41% 17.63%

27.80%

2

368

12

9

3.89%

10.42%

8.66%

31.57%

17.00%

29.30%

17.86%

20.63%

41.52%

21.37%

24.03% 20.05%

23.55%

2

378

7

12

3.89%

10.03%

28.51%

16.04%

17.40%

13.57%

23.89% 30.14%

18.29%

21.88%

23.84% 40.70%

21.57%

District plans based on census block assignments provided by Chen, file date 2/7/2017.
Incumbent residence information as provided by Chen.
All BVAP percentages of 30% or greater are highlighted.
BVAP percentages based on 2010 census values for single race black population.

24.23%

Page 6 of 12

Case 5:19-cv-00452-BO Document 5-4 Filed 10/14/19 Page 7 of 13

NCGA - ISD 5/30/2017

 Chen District Plan Simulations:
Percent Black Voting Age Population (BVAP) by District for Plans with At Least One 40%+ BVAP District (262 plans found)
District
Simulation District
Run
Plan

Adams Butterfield
District
District

1

2

3

4

5

6

7

8

9

10

11

12

13

2

385

7

12

3.88%

8.99%

28.33%

17.02%

11.94%

15.81%

26.53% 30.15%

18.71%

22.69%

23.19% 40.53%

21.74%

2

400

5

12

3.89%

10.52%

11.13%

24.77%

15.58%

23.09%

19.16%

29.88%

28.03%

20.32%

21.09% 40.46%

21.79%

2

422

9

12

3.97%

7.63%

25.14%

21.16%

11.09%

12.78%

27.09%

23.55%

20.73%

40.41%

23.73% 21.31%

31.08%

2

429

8

11

3.97%

8.85%

27.27%

18.92%

29.65%

13.68%

27.33%

27.05%

12.76%

20.44%

23.91% 14.67%

40.84%

2

440

10

12

3.97%

10.25%

8.09%

32.11%

16.64%

27.84%

18.84%

19.53%

24.82%

18.28%

26.68% 41.46%

21.24%

2

450

7

12

3.89%

10.42%

8.45%

31.26%

17.33%

29.02%

17.31%

26.77%

21.18%

23.94%

18.09% 40.29%

21.93%

2

467

6

12

3.89%

9.30%

27.94%

18.62%

15.95%

21.44% 31.23% 20.21%

19.45%

24.56%

14.52% 40.55%

21.78%

2

471

9

12

3.87%

8.90%

27.32%

18.91%

28.90%

20.70%

23.08%

21.02%

23.14%

11.95%

19.97% 40.50%

21.21%

2

478

13

11

4.10%

9.84%

8.84%

31.73%

18.23%

27.98%

20.16%

23.21%

19.63%

21.14%

41.19% 21.41%

22.31%

2

500

10

12

3.91%

10.28%

7.07%

26.24%

21.06%

31.48% 22.09%

22.12%

20.89%

23.17%

22.55% 40.68%

18.35%

2

502

7

10

3.89%

8.98%

28.34%

17.05%

12.77%

23.22%

17.33%

24.28%

22.55%

40.72%

21.38% 17.92%

31.08%

2

503

4

13

3.92%

11.54%

7.03%

18.94%

25.82%

20.35%

26.60% 40.13%

28.27%

20.74%

27.61% 18.05%

20.67%

2

507

6

12

4.07%

10.34%

29.78%

17.14%

18.15%

24.91%

28.13%

22.97%

21.68%

11.92% 40.84%

21.19%

2

523

4

13

3.89%

10.69%

7.76%

24.54%

20.35%

20.41%

23.74% 30.66% 30.47%

18.43%

19.21% 19.32%

40.11%

2

538

5

11

3.92%

11.54%

10.46%

24.61%

16.02%

29.65%

18.24%

28.85%

21.32%

25.65%

40.49% 20.79%

18.12%

2

541

7

12

3.87%

10.05%

32.09%

15.82%

10.10%

19.80%

23.80%

27.02%

19.39%

22.75%

22.61% 41.08%

21.21%

2

548

4

7

3.89%

8.95%

16.41%

25.13%

18.15%

28.24% 40.82% 26.74%

18.67%

15.46%

28.08% 17.83%

21.19%

2

550

5

12

3.92%

10.31%

7.02%

23.21%

21.31%

24.95%

21.66% 30.82%

18.24%

21.25%

24.92% 41.25%

21.03%

2

557

7

10

3.97%

8.90%

28.36%

16.97%

16.03%

15.91%

21.19%

26.40%

23.14%

40.58%

19.50% 18.45%

30.30%

2

562

7

12

3.88%

9.01%

28.34%

16.92%

13.66%

20.52%

21.31%

29.17%

19.07%

22.67%

22.60% 40.89%

21.44%

2

563

5

12

3.88%

10.39%

7.05%

23.60%

21.26%

23.50%

23.31% 30.67%

18.27%

21.88%

23.87% 40.77%

21.50%

2

565

5

12

3.89%

10.01%

8.18%

23.15%

22.13%

26.98%

20.89%

18.19%

19.74%

27.31% 40.09%

21.03%

District plans based on census block assignments provided by Chen, file date 2/7/2017.
Incumbent residence information as provided by Chen.
All BVAP percentages of 30% or greater are highlighted.
BVAP percentages based on 2010 census values for single race black population.

18.52%

28.17%

Page 7 of 12

Case 5:19-cv-00452-BO Document 5-4 Filed 10/14/19 Page 8 of 13

NCGA - ISD 5/30/2017

 Chen District Plan Simulations:
Percent Black Voting Age Population (BVAP) by District for Plans with At Least One 40%+ BVAP District (262 plans found)
District
Simulation District
Run
Plan

Adams Butterfield
District
District

1

2

3

4

5

6

7

8

9

10

11

12

13

2

574

7

10

3.87%

10.08%

30.72%

16.59%

9.25%

21.20%

23.31%

22.83%

22.84%

40.08%

22.14% 19.13%

27.47%

2

575

6

10

3.88%

10.44%

15.11%

31.90%

14.97%

13.76%

22.94%

22.91%

22.53%

41.78%

21.84% 16.90%

30.66%

2

580

7

10

3.89%

8.89%

27.37%

18.21%

16.35%

16.75%

21.90%

21.27%

26.75%

40.05%

20.35% 18.29%

29.42%

2

596

5

12

3.92%

10.31%

6.76%

22.57%

22.69%

23.42%

23.37% 30.04%

18.72%

22.70%

23.17% 41.47%

20.87%

2

603

13

7

3.88%

10.31%

8.65%

24.41%

21.05%

23.24% 40.03% 19.58%

29.45%

23.35%

17.11% 29.31%

19.50%

2

604

5

12

4.11%

10.45%

9.88%

26.53%

15.08%

25.94%

20.72% 30.82%

18.31%

21.86%

23.85% 40.96%

21.35%

2

606

7

13

3.89%

10.37%

29.15%

17.52%

13.67%

18.84%

28.55%

22.09%

15.57%

29.90%

15.89% 23.86%

40.23%

2

620

12

11

3.91%

9.99%

9.43%

32.92%

16.22%

30.24% 21.38%

22.28%

18.99%

21.90%

40.09% 22.33%

20.03%

2

629

7

12

3.88%

9.00%

28.36%

16.98%

14.69%

21.24%

18.76% 30.88%

18.33%

20.01%

25.12% 40.06%

22.12%

2

632

5

12

3.87%

10.33%

8.52%

23.01%

22.76%

20.37%

24.81% 30.35%

17.83%

20.57%

26.71% 40.13%

20.70%

2

644

10

13

3.87%

9.33%

14.23%

24.54%

23.55%

22.88%

27.29%

19.14%

16.68%

26.14%

19.99% 21.58%

40.25%

2

670

5

12

3.92%

10.27%

11.12%

25.05%

16.52%

29.26%

18.32% 30.70%

19.44%

23.04%

18.41% 42.05%

21.77%

2

674

5

12

3.89%

10.01%

8.33%

25.34%

18.20%

30.16% 18.78%

28.44%

19.79%

22.91%

22.33% 40.88%

20.86%

2

676

12

9

3.88%

10.28%

7.05%

26.26%

21.05%

30.78% 17.67%

21.73%

40.59%

24.04%

21.00% 20.21%

25.34%

2

696

7

10

3.88%

10.04%

27.35%

17.47%

11.25%

15.73%

26.92%

23.19%

23.10%

40.35%

21.89% 19.46%

28.80%

2

698

7

12

3.86%

9.16%

28.09%

18.63%

8.27%

27.34%

18.59%

28.13%

19.97%

22.91%

22.38% 40.86%

21.42%

2

712

5

12

3.89%

10.69%

7.12%

22.04%

22.47%

23.44%

23.30% 30.68%

18.29%

19.35%

26.38% 40.51%

21.65%

2

721

4

7

3.97%

8.86%

15.09%

24.98%

21.69%

23.49% 40.60% 23.31%

16.16%

30.84%

27.58% 18.45%

14.48%

2

722

12

11

3.91%

10.36%

9.08%

32.48%

16.35%

28.86%

22.37%

17.58%

23.45%

40.71% 25.37%

18.27%

2

735

5

12

4.08%

10.22%

10.99%

25.84%

15.23%

31.09% 17.59% 30.57%

18.50%

22.47%

21.17% 40.29%

21.72%

2

736

7

12

3.88%

10.04%

27.32%

17.52%

15.39%

17.22%

21.89%

29.51%

21.34%

22.46%

21.49% 40.58%

20.99%

2

746

10

12

3.86%

11.67%

6.03%

29.02%

18.00%

30.85% 19.59%

21.86%

21.84%

21.56%

23.89% 40.44%

21.36%

District plans based on census block assignments provided by Chen, file date 2/7/2017.
Incumbent residence information as provided by Chen.
All BVAP percentages of 30% or greater are highlighted.
BVAP percentages based on 2010 census values for single race black population.

21.02%

Page 8 of 12

Case 5:19-cv-00452-BO Document 5-4 Filed 10/14/19 Page 9 of 13

NCGA - ISD 5/30/2017

 Chen District Plan Simulations:
Percent Black Voting Age Population (BVAP) by District for Plans with At Least One 40%+ BVAP District (262 plans found)
District
Simulation District
Run
Plan

Adams Butterfield
District
District

1

2

3

4

5

6

7

8

9

10

11

12

13

2

754

7

12

4.08%

9.82%

28.34%

18.91%

8.95%

21.78%

21.78%

29.15%

18.89%

21.86%

23.85% 41.34%

20.96%

2

763

6

10

3.91%

11.78%

28.38%

18.84%

17.92%

25.24%

21.27%

22.28%

10.74%

40.11%

23.12% 17.95%

28.16%

2

772

7

10

3.89%

10.02%

27.35%

17.19%

17.35%

13.61%

22.35%

23.91%

22.52%

40.42%

21.83% 18.76%

30.50%

2

790

7

13

3.97%

9.94%

8.56%

32.17%

18.29%

28.38%

23.10%

21.38%

21.25%

22.07%

40.64% 19.26%

20.70%

2

798

7

11

3.89%

8.96%

28.39%

16.91%

17.17%

14.05%

23.22%

22.68%

23.03%

21.97%

40.12% 19.02%

30.29%

2

804

7

11

3.89%

10.03%

21.05%

23.57%

13.91%

23.16%

19.40%

20.40%

22.96%

23.82%

40.17% 17.63%

29.71%

2

809

4

10

3.91%

11.61%

8.45%

16.63%

26.62%

20.87%

22.59% 33.55%

16.09%

40.46%

21.34% 19.64%

27.90%

2

825

4

13

3.89%

10.37%

8.63%

24.17%

20.11%

20.94%

22.62%

19.09%

29.85%

28.46%

17.61% 23.77%

40.32%

2

828

8

10

3.89%

10.53%

8.40%

31.73%

18.41%

13.91%

29.40%

20.00%

23.58%

40.01%

21.86% 18.61%

29.66%

2

835

7

12

3.91%

10.36%

29.13%

17.26%

14.12%

26.75%

13.31%

28.20%

18.44%

21.88%

23.86% 40.82%

21.45%

2

848

7

10

3.89%

10.19%

33.35%

14.48%

11.06%

16.05%

25.45%

21.72%

23.35%

40.63%

22.28% 17.44%

29.72%

2

881

7

12

3.88%

10.04%

32.09%

14.50%

11.75%

22.02%

19.47%

29.17%

18.57%

22.69%

23.20% 41.09%

21.21%

2

912

10

12

3.91%

11.63%

5.75%

26.30%

21.03%

29.34%

20.39%

22.98%

20.99%

23.98%

21.80% 40.11%

21.69%

2

915

7

11

3.87%

10.04%

27.36%

17.19%

12.58%

15.09%

26.41%

23.05%

24.05%

21.37%

40.80% 20.42%

27.27%

2

918

7

11

3.87%

10.05%

28.56%

16.02%

17.33%

13.62%

22.06%

23.86%

23.04%

20.96%

41.24% 18.88%

30.28%

2

922

11

12

3.86%

10.37%

8.57%

31.75%

18.45%

28.41%

19.20%

22.69%

20.47%

20.86%

22.77% 41.22%

21.17%

2

924

7

12

3.91%

10.26%

28.37%

18.26%

13.83%

26.49%

13.90%

27.96%

18.34%

22.70%

23.19% 40.01%

22.22%

2

933

7

10

3.88%

8.99%

28.38%

17.00%

11.93%

15.71%

27.69%

22.22%

23.10%

40.46%

21.79% 20.62%

27.63%

2

939

5

8

3.89%

10.70%

7.26%

23.16%

20.76%

20.08%

26.57% 40.17%

21.64%

18.28%

30.44% 20.67%

26.27%

2

940

5

12

3.89%

10.02%

10.50%

28.72%

11.44%

32.75% 19.88%

27.51%

17.95%

22.48%

15.95% 40.37%

28.10%

2

946

10

13

3.89%

8.89%

27.33%

18.91%

29.45%

13.83%

14.92%

16.82%

22.74%

40.83% 22.11%

22.25%

2

948

5

12

3.91%

11.69%

9.75%

25.87%

15.05%

31.18% 17.20% 30.37%

19.15%

22.47%

21.08% 40.19%

21.88%

District plans based on census block assignments provided by Chen, file date 2/7/2017.
Incumbent residence information as provided by Chen.
All BVAP percentages of 30% or greater are highlighted.
BVAP percentages based on 2010 census values for single race black population.

27.43%

Page 9 of 12

Case 5:19-cv-00452-BO Document 5-4 Filed 10/14/19 Page 10 of 13

NCGA - ISD 5/30/2017

 Chen District Plan Simulations:
Percent Black Voting Age Population (BVAP) by District for Plans with At Least One 40%+ BVAP District (262 plans found)
District
Simulation District
Run
Plan

Adams Butterfield
District
District

1

2

3

4

5

6

7

8

9

10

11

12

13

2

958

5

12

3.89%

10.47%

8.09%

22.04%

21.30%

25.08%

21.54% 30.98%

19.64%

22.89%

22.33% 40.57%

21.15%

2

965

5

12

3.91%

11.61%

9.91%

25.76%

15.43%

30.19% 17.81% 30.36%

19.14%

22.49%

21.19% 41.47%

20.58%

2

978

7

10

3.88%

10.07%

8.16%

32.37%

17.75%

20.49%

23.29%

23.68%

22.70%

42.04%

20.05% 18.03%

27.28%

2

991

7

10

3.88%

10.04%

27.35%

17.49%

11.38%

16.01%

26.93%

21.33%

26.91%

41.08%

19.32% 18.30%

29.41%

2

992

9

12

3.89%

8.89%

27.32%

18.90%

30.96%

19.87%

22.66%

20.78%

22.31%

20.98%

10.71% 41.17%

21.17%

2

997

9

12

3.94%

8.71%

24.29%

20.96%

11.69%

13.47%

28.43%

16.01%

28.12%

40.03%

21.58% 22.21%

30.16%

3

19

11

12

3.89%

8.88%

27.28%

18.97%

28.73%

20.86%

23.91%

14.27%

20.80%

21.85%

19.32% 41.21%

19.57%

3

52

7

11

3.89%

8.93%

27.27%

18.26%

17.35%

16.99%

19.85%

23.63%

22.10%

22.22%

40.66% 31.41%

17.01%

3

68

12

7

3.87%

9.18%

16.95%

13.38%

20.42%

22.48% 40.22% 24.62%

16.46%

29.63%

26.13% 24.04%

22.45%

3

83

6

13

3.91%

11.71%

32.95%

14.22%

17.19%

25.14%

19.24%

24.87%

9.32%

40.48%

27.73% 18.57%

24.12%

3

88

11

12

3.86%

10.44%

8.67%

31.56%

18.37%

24.11%

16.24%

27.61%

21.68%

19.17%

26.35% 41.60%

19.91%

3

91

4

11

3.88%

10.98%

7.44%

24.87%

21.33%

20.67%

23.88%

29.25%

17.34%

21.56%

40.77% 29.58%

18.28%

3

106

4

8

3.91%

11.55%

6.42%

18.76%

26.55%

21.15%

23.20% 40.54%

29.87%

30.49%

19.19% 19.38%

18.65%

3

117

3

12

3.87%

9.25%

18.84%

24.17%

12.57%

26.80%

28.00%

18.72%

29.34%

22.28%

19.80% 42.27%

13.88%

3

118

13

12

3.91%

11.01%

5.80%

27.80%

18.86%

28.98%

14.94%

27.51%

28.11%

21.28%

20.17% 43.64%

17.86%

3

148

11

12

3.89%

10.03%

28.51%

16.06%

11.59%

13.58%

29.59% 33.47%

21.32%

17.15%

25.44% 42.01%

16.76%

3

153

5

11

3.89%

11.56%

6.21%

22.80%

20.96%

20.42%

24.13% 32.16%

14.29%

21.29%

40.53% 21.35%

30.02%

3

171

4

13

3.91%

10.67%

7.87%

18.14%

26.54%

20.87%

22.66%

28.35%

21.43%

27.86%

19.66% 21.23%

40.62%

3

175

6

12

3.89%

9.33%

27.90%

18.63%

20.59%

23.02%

15.30%

22.51%

29.29%

19.38%

23.73% 43.32%

12.74%

3

185

6

13

3.88%

10.30%

29.26%

12.15%

20.78%

21.73%

22.34%

22.86%

15.82%

28.97%

19.74% 21.74%

40.10%

3

198

7

13

3.86%

10.52%

22.68%

24.28%

14.59%

25.02%

19.94%

23.79%

31.18%

9.18%

41.20% 18.40%

25.08%

3

199

5

10

3.88%

11.66%

7.42%

30.17%

12.45%

22.84%

21.92%

27.20%

19.46%

40.41%

21.75% 20.99%

29.57%

District plans based on census block assignments provided by Chen, file date 2/7/2017.
Incumbent residence information as provided by Chen.
All BVAP percentages of 30% or greater are highlighted.
BVAP percentages based on 2010 census values for single race black population.

Page 10 of 12

Case 5:19-cv-00452-BO Document 5-4 Filed 10/14/19 Page 11 of 13

NCGA - ISD 5/30/2017

 Chen District Plan Simulations:
Percent Black Voting Age Population (BVAP) by District for Plans with At Least One 40%+ BVAP District (262 plans found)
District
Simulation District
Run
Plan

Adams Butterfield
District
District

1

2

3

4

5

6

7

8

9

10

11

12

13

3

200

13

12

3.88%

8.90%

10.52%

13.02%

30.20%

20.48%

18.51%

27.28%

20.96%

31.07%

18.02% 41.03%

25.72%

3

202

6

11

3.88%

10.38%

29.26%

17.15%

21.55%

22.07%

21.58%

23.33%

23.29%

23.68%

20.30% 42.95%

10.20%

3

212

4

9

3.89%

9.05%

18.81%

23.64%

12.21%

23.45%

20.31%

21.29%

40.57%

27.58%

18.10% 21.12%

29.64%

3

244

9

4

3.89%

9.04%

11.06%

24.79%

40.61%

21.26%

26.70%

20.79%

30.50%

13.28%

17.51% 25.97%

23.95%

3

252

4

9

3.89%

10.73%

8.15%

24.32%

19.23%

21.23%

23.06%

21.25%

41.22%

28.27%

20.60% 20.49%

27.26%

3

264

5

8

3.89%

10.69%

8.78%

27.78%

15.34%

22.78%

21.39% 40.61%

23.37%

28.11%

20.90% 26.62%

19.37%

3

275

4

8

3.89%

10.77%

7.71%

18.24%

26.49%

20.50%

22.64% 41.37%

20.51%

33.55%

16.09% 27.12%

20.59%

3

291

10

13

3.89%

8.75%

24.26%

20.96%

10.91%

13.36%

27.69% 30.65%

16.71%

27.54%

40.82% 22.08%

21.91%

3

302

5

11

3.89%

10.03%

8.76%

20.64%

21.80%

28.29%

28.10%

20.87%

24.44%

18.56%

40.01% 22.92%

21.40%

3

330

6

12

3.87%

10.16%

26.25%

20.28%

20.20%

22.21%

23.59%

22.75%

26.33%

21.63%

17.17% 41.20%

13.89%

3

375

13

11

3.97%

8.80%

27.32%

18.92%

30.49%

13.12%

28.27%

15.64%

14.88%

20.47%

24.15% 40.06%

23.49%

3

387

10

11

3.91%

10.35%

20.81%

25.77%

17.39%

18.59%

25.80%

10.15%

25.93%

25.48%

40.32% 19.03%

25.85%

3

407

10

11

3.91%

8.67%

24.38%

20.96%

11.01%

22.59%

22.51%

29.68%

16.70%

27.20%

40.61% 19.26%

21.99%

3

428

6

11

3.88%

9.01%

28.34%

16.92%

11.41%

31.23% 12.46%

22.46%

22.97%

22.18%

41.15% 29.76%

17.79%

3

430

9

12

3.88%

10.03%

29.04%

17.96%

13.51%

26.13%

17.48%

11.63%

25.36%

40.40%

30.52% 24.15%

19.46%

3

438

4

9

4.03%

11.74%

8.07%

17.50%

24.48%

22.75%

21.75%

21.19%

40.75%

29.44%

19.56% 26.56%

21.85%

3

464

5

11

3.91%

11.44%

10.07%

25.78%

14.66%

32.41% 16.84% 31.59%

13.73%

30.13%

40.01% 21.90%

17.26%

3

472

11

8

3.97%

10.06%

26.24%

20.27%

10.18%

17.15%

28.23% 42.31%

21.99%

24.96%

28.54% 15.32%

20.19%

3

495

5

10

3.89%

10.34%

7.59%

21.56%

22.09%

21.43%

22.79%

27.58%

21.34%

41.13%

21.06% 28.04%

20.86%

3

506

4

10

3.86%

8.35%

10.92%

26.42%

18.80%

22.52%

21.05%

26.74%

21.54%

40.79%

18.64% 28.00%

21.61%

3

554

7

11

3.94%

7.23%

28.96%

16.37%

13.33%

22.01%

19.54%

22.66%

24.62%

40.27%

19.86% 20.98%

29.70%

3

572

7

11

3.97%

8.88%

28.36%

17.05%

15.94%

15.13%

23.02%

22.91%

23.03%

21.80%

40.25% 19.02%

30.29%

District plans based on census block assignments provided by Chen, file date 2/7/2017.
Incumbent residence information as provided by Chen.
All BVAP percentages of 30% or greater are highlighted.
BVAP percentages based on 2010 census values for single race black population.

Page 11 of 12

Case 5:19-cv-00452-BO Document 5-4 Filed 10/14/19 Page 12 of 13

NCGA - ISD 5/30/2017

 Chen District Plan Simulations:
Percent Black Voting Age Population (BVAP) by District for Plans with At Least One 40%+ BVAP District (262 plans found)
District
Simulation District
Run
Plan

Adams Butterfield
District
District

1

2

3

4

5

6

7

8

9

10

11

12

13

3

588

10

13

3.89%

8.89%

27.30%

18.93%

14.35%

27.14%

21.91%

24.21%

12.37%

20.14%

29.86% 20.17%

40.34%

3

639

5

8

3.91%

11.61%

5.90%

22.73%

21.55%

20.43%

24.28% 40.94%

21.81%

19.98%

28.40% 18.68%

29.62%

3

676

3

8

3.92%

8.96%

18.94%

23.92%

17.86%

17.07% 30.09% 40.43%

24.67%

26.96%

20.58% 18.10%

18.41%

3

677

5

12

3.89%

9.28%

27.94%

18.60%

19.65%

23.90%

26.17%

26.12%

21.47%

21.24%

21.01% 40.34%

10.27%

3

678

13

12

3.87%

10.71%

6.11%

12.87%

24.45%

22.55%

21.42%

25.92%

33.87%

20.34%

19.56% 40.59%

27.37%

3

693

5

12

3.89%

10.69%

10.70%

24.50%

16.40%

31.22% 17.22% 31.05%

18.61%

22.72%

21.08% 40.88%

20.78%

3

706

5

11

3.97%

9.94%

8.18%

18.78%

24.60%

26.37%

21.22% 30.42%

18.59%

20.54%

40.82% 24.97%

21.28%

3

721

7

13

3.87%

7.30%

28.99%

18.16%

11.95%

23.90%

18.63%

22.25%

22.66%

40.04%

29.98% 17.50%

24.41%

3

755

12

11

3.86%

7.91%

12.13%

26.94%

20.58%

28.88%

21.33%

23.26%

21.51%

18.64%

40.13% 26.81%

17.60%

3

757

7

11

3.89%

10.02%

32.07%

15.68%

12.31%

16.92%

23.58%

20.71%

23.88%

21.86%

40.46% 20.91%

27.17%

3

772

7

13

3.89%

10.03%

27.33%

17.51%

16.69%

16.41%

21.24%

22.97%

25.80%

40.11%

29.43% 17.70%

20.41%

3

775

7

10

3.93%

8.94%

28.34%

16.94%

11.99%

17.06%

24.89%

24.77%

40.51%

21.39%

28.19% 21.64%

20.56%

3

789

6

10

3.87%

10.31%

29.15%

17.35%

22.55%

21.16%

24.22%

22.97%

21.25%

20.74%

24.67% 41.21%

10.27%

3

797

5

12

3.97%

9.14%

10.72%

25.78%

18.88%

23.04%

21.35%

26.10%

24.29%

29.99%

20.64% 43.27%

12.74%

3

861

12

7

3.87%

8.80%

24.28%

20.97%

11.10%

20.79% 41.28% 25.77%

20.94%

19.56%

27.86% 31.08%

13.32%

3

950

6

10

3.97%

9.28%

28.78%

18.69%

12.82%

24.88%

21.12%

23.94%

14.05%

40.48%

21.37% 20.68%

29.35%

3

960

7

10

3.88%

10.04%

27.34%

17.49%

17.08%

13.58%

22.07%

21.08%

23.92%

40.81%

21.31% 20.99%

29.99%

3

962

7

11

3.89%

8.98%

28.38%

17.01%

14.67%

16.90%

22.48%

21.15%

22.97%

20.47%

41.36% 21.08%

30.21%

3

994

7

11

3.89%

8.98%

28.34%

17.03%

11.93%

15.82%

26.92%

20.61%

24.00%

21.11%

41.38% 27.77%

21.58%

3

998

4

12

3.87%

9.24%

17.65%

25.37%

25.56%

18.77%

26.15%

26.02%

20.73%

21.60%

21.57% 40.29%

12.76%

District plans based on census block assignments provided by Chen, file date 2/7/2017.
Incumbent residence information as provided by Chen.
All BVAP percentages of 30% or greater are highlighted.
BVAP percentages based on 2010 census values for single race black population.

Page 12 of 12

Case 5:19-cv-00452-BO Document 5-4 Filed 10/14/19 Page 13 of 13

NCGA - ISD 5/30/2017

 Exhibit 5

Case Document 5-5 Filed 10/14/19 Page 1 of 5

 

 

STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
Case No. 19 CVS 12667

REBECCA HARPER, et al.

)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
REPRESENTATIVE DAVID R. LEWIS , et al.
Defendants.

NOTICE OF FILING OF NOTICE OF REMOVAL
TO:

The Honorable Blair Williams
Clerk of Superior Court of Wake County
316 Fayetteville Street
Raleigh, NC 27601

PLEASE TAKE NOTICE that Defendants have on this 14th day of October, 2019 removed
this case to the United States District Court for the Eastern District of North Carolina, and that the
state court may proceed no further regarding the above-captioned case. Attached hereto is a true
and correct copy of Legislative Defendants' Notice of Removal filed in the United States District
Court for the Eastern District of North Carolina.
To acknowledge receipt of the filing of this Notice to State Court of Removal and Notice
of Removal, please sign and return the enclosed Acknowledgment of Filing.
DATED this the 14th day of October, 2019.
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
By:
Philli

. Strach

Bar No. 29456)

Case 5:19-cv-00452-BO Document 5-5 Filed 10/14/19 Page 2 of 5

 Michael D. McKnight (N.C. Bar No.: 36932)
4208 Six Forks Road, Suite 1100
Raleigh, NC 27609
Telephone: 919.787.9700
Facsimile: 919.783.9412
Phil.strach@ogletree.corn
Michael.mcknight@ogletree.corn
Attorneys for Legislative Defendants

2

Case 5:19-cv-00452-BO Document 5-5 Filed 10/14/19 Page 3 of 5

 CERTIFICATE OF SERVICE
It is hereby certified that the foregoing document was served upon the parties by mailing
a copy thereof to the address indicated below in accordance with the North Carolina Rules of
Civil Procedure:
Burton Craige,
Narendra K. Ghosh
Paul E. Smith
100 Europa Dr., Suite 420
Chapel Hill, NC 27517
(919) 942-5200

R. Stanton Jones
David P. Gersch
Elisabeth S. Theodore
Daniel F. Jacobson
601 Massachusetts Ave. NW
Washington, DC 20001-3761
(202) 942-5000
Stanton.jones@arnoldporter. Com

Counsel for Plaintiffs'
Paul Cox
Stephanie Brennan
North Carolina Department of
Justice
114 W. Edenton St
Raleigh, NC 27603
(919) 716-6932
pcox !,ncdoj.gov

Marc E. Elias
Aria C. Branch
700 13th Street NW
Washington, DC 20005-3960
(202) 654-6200
melias@perkinscoie.com
Abha Khanna
1201 Third A venue
Suite 4900
Seattle, WA 98101-3099
(206) 359-8000

Counselfor the State Board of
Elections

Counselfor Plaintiff's

This, the 14th day of October, 2019
OGLETREE, DEAKINS, NASH
SM AK & STEWART, P.C.

PFiillip J. Stra
N.C. State Bar No. 29456
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Telephone: (919) 787-9700
Facsimile: (919) 783-9412
Attorneys for Legislative Defendants

3
Case 5:19-cv-00452-BO Document 5-5 Filed 10/14/19 Page 4 of 5

 ACKNOWLEDGEMENT OF FILING

Receipt of Defendants Notice to State Court of Filing of Removal and a copy of the Notice
of Removal in the above-entitled action is hereby acknowledged:

This

day of

, 2019.

Clerk/Assistant/Deputy Clerk
Wake County Superior Court

36710014.1

4
Case 5:19-cv-00452-BO Document 5-5 Filed 10/14/19 Page 5 of 5

  

Exhibit 6

 

 

 

Case Document 5-6 Filed 10/14/19 Page 1 of 2

CIVIL COVER SHEET

JS 44 (Rev. 09/19)

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

REBECCA HARPER, et al.
(b)

REPRESENTATIVE DAVID R. LEWIS, in his official capacity...,et al.

County of Residence of First Listed Plaintiff
WAKE
(EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant
NOTE:

( ry

Altorpeys (Firm Name, Addres,s, and Teleph_one Munbei)

Bu on eraige, Patterson Harkavy, LLP., 100 Europa Dr., Suite 420,
Chapel Hill, NC 27517; R. Stanton Jones, Arnold and Porter, LLP., 601
Massachusetts Ave., NW Washington DC, 2001 (202)954-5000
II. BASIS OF JURISDICTION (Place an 'X" in One Box Only)
0 1

U.S. Government
Plaintiff

X3

Federal Question
(U.S. Government Not a Party)

0 2

U.S. Government
Defendant

0 4

Diversity
(Indicate Citizenship of Parties in Item III)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

Phil Strach, Thomas Farr, Michael McKnight, Alyssa Riggins
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 4208 Six Forks
Road, Suite 1100, Raleigh, NC 27609 (919) 789-9700

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Boxfor Plaintiff
(For Diversity Cases Only)
PTF
Citizen of This State
0 1

DEF
0 1

Citizen of Another State

0 2

0

2

Incorporated and Principal Place
of Business In Another State

0 5

71 5

Citizen or Subject of a
Foreign Country

0 3

0

3

Foreign Nation

0 6

0 6

IV. NATURE OF SUIT (Place an "X" in One Box Only)
CONTRACT
0
0
0
0
0

TORTS

0
0
0
0

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veteran's Benefits
160 Stockholders' Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

I .
0
0
0
0
.0
0

REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

0
0

0

V. ORIGIN (Place an
0 1

Original
Proceeding

PERSONAL INJURY
0 310 Airplane
0 315 Airplane Product
Liability
0 320 Assault, Libel &
Slander
0 330 Federal Employers'
Liability
0 340 Marine
0 345 Marine Product
Liability
0 350 Motor Vehicle
0 355 Motor Vehicle
Product Liability
0 360 Other Personal
Injury
0 362 Personal Injury Medical Malpractice
CIVIL RIGHTS
X440 Other Civil Rights
0 441 Voting
0 442 Employment
0 443 Housing/
Accommodations
0 445 Amer. w/Disabilities Employment
0 446 Amer. w/Disabilities Other
0 448 Education

WAKE

(IN U.S. PLAINTIFF CASES ONLY)

FORFEITURE/PENALTY

PERSONAL INJURY
0 365 Personal Injury Product Liability
0 367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
0 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
0 370 Other Fraud
0 371 Truth in Lending
0 380 Other Personal
Property Damage
0 385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
0 463 Alien Detainee
0 510 Motions to Vacate
Sentence
0 530 General
0 535 Death Penalty
Other:
0 540 Mandamus & Other
0 550 Civil Rights
0 555 Prison Condition
0 560 Civil Detainee Conditions of
Confinement

0 625 Drug Related Seizure
of Property 21 USC 881
0 690 Other

LABOR
0 710 Fair Labor Standards
Act
0 720 Labor/Management
Relations
0 740 Railway Labor Act
0 751 Family and Medical
Leave Act
0 790 Other Labor Litigation
0 791 Employee Retirement
Income Security Act

and One Boxfor Defendant)
PTF
DEF
Incorporated or Principal Place
0 4
0 4
of Business In This State

Click here for: Nature of Suit Code Descriptions
BANKRUPTCY
OTHER STATUTES
0 422 Appeal 28 USC 158
0 423 Withdrawal
28 USC 157
PROPERTY RIGHTS
0 820 Copyrights
0 830 Patent
0 835 Patent - Abbreviated
New Drug Application
0 840 Trademark
SOCIAL SECURITY
0 861 HIA (1395f0
0 862 Black Lung (923)
0 863 DIWC/DIWW (405(g))
0 864 SSID Title XVI
0 865 RSI (405(g))

FEDERAL TAX SUITS
0 870 Taxes (U.S. Plaintiff
or Defendant)
0 871 IRS—Third Party
26 USC 7609

IMMIGRATION
0 462 Naturalization Application
0 465 Other Immigration
Actions

0 375 False Claims Act
0 376 Qui Tam (31 USC
3729(a))
0 400 State Reapportionment
0 410 Antitrust
0 430 Banks and Banking
0 450 Commerce
0 460 Deportation
0 470 Racketeer Influenced and
Corrupt Organizations
0 480 Consumer Credit
(15 USC 1681 or 1692)
0 485 Telephone Consumer
Protection Act
0 490 Cable/Sat TV
0 850 Securities/Commodities/
Exchange
0 890 Other Statutory Actions
0 891 Agricultural Acts
0 893 Environmental Matters
0 895 Freedom of Information
Act
0 896 Arbitration
0 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
0 950 Constitutionality of
State Statutes

"X" in One Box Only)

X2 Removed from
State Court

0

3

Remanded from
Appellate Court

0 4 Reinstated or
Reopened

0

5 Transferred from
Another District
(specify)

0 6 Multidistrict
Litigation Transfer

0 8 Multidistrict
Litigation Direct File

Cite the U.S. Civil Statute under which you are filing (Da not cite jurisdictional statutes unless diversity):

VI. CAUSE OF ACTION

28 U.S.C. § 1443(2)

Brief description of cause:

Plaintiffs challenge North Carolina's Congressional Districts

VII. REQUESTED IN
COMPLAINT:
VIII. RELATED CASE(S)
IF ANY

CHECK IF THIS IS A CLASS ACTION
UNDER RULE 23, F.R.Cv.P.

CHECK YES only if demanded in complaint:

DEMAND $

JURY DEMAND:

(See instructions):
JUDGE

DOCKET NUMBER

SIGNET ARE OF ATTORNEY OF RE

DATE

10/14/2019
FOR OFFICE USE ONLY
RECEIPT tt

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Case 5:19-cv-00452-BO Document 5-6 Filed 10/14/19 Page 2 of 2

0 Yes

No

  

Exhibit 7

Case Document 5-7 Filed 10/14/19 Page 1 of 7

 

 

 

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN
DIVISION
No.

REBECCA HARPER, et al.

Plaintiff(s),

v.

SUPPLEMENTAL REMOVAL COVER
SHEET

REPRESENTATIVE DAVID R. LEWIS, IN HIS
OFFICIAL CAPACITY AS SENIOR CHAIR OF THE
HOUSE STANDING COMMITTEE ON
D DTITQTD TOMYKTO_

Defendant(s).

The removing party must complete this Supplemental Removal Cover Sheet and
comply with Local Civil Rule 5.3. Attach separate sheets as necessary to provide complete
responses.
Section A—Plaintiffs
List the full name of each plaintiff from the state court action and indicate whether the plaintiff is
pending (i.e., in case currently), dismissed, or otherwise terminated at the time of removal. If
dismissed or terminated, indicate the date of dismissal/termination

Full Name of Plaintiff

Pending at time
of removal —
Yes/No?

Dismissed or
terminated?
Yes/No?

Rebecca Harper

Yes

No

Amy Clare Oseroff

Yes

No

Donald Rumph

Yes

No

John Balla

Yes

No

Date of
Dismissal or
Termination

Please see pg. 5 "Additional Plaintiffs"

Case 5:19-cv-00452-BO Document 5-7 Filed 10/14/19 Page 2 of 7

 Section B—Defendants
List the full name of each defendant from the state court action and indicate whether the
defendant is pending, dismissed or otherwise terminated at the time of removal. If dismissed or
terminated, indicate the date of dismissal/termination. If known, indicate if and when each
defendant was served with process and whether the defendant joins in the removal.
Dismissed or
terminated?
Yes/No?
(If yes, state
date of
termination)

Has defendant
been served with
process?
Yes/No/Unknown?

If
served
with
process,
date of
service?

Does the
defendant
join in
removal?
Yes/No?

Full Name of Defendant

Pending
at time of
removal?
Yes/No?

Rep. David R. Lewis, in his official capacity as
Sr. Chair of the House Select Committee on
Redistricting

Yes

No

Yes

09/30/201c Yes

Ralph Hise, in his official capacity as Co-Chair of
the Senate Standing Committee on Redistricting

Yes

No

Yes

09/30/201C Yes

Warren Daniel, in his official capacity as CoChair of the Senate Standing Committee on
Redistricting

Yes

No

Yes

09/30/201! Yes

Paul Newton, in his official capacity as Co-Chair
of the Senate Standing Committee on
Redistricting

Yes

No

Yes

09/30/201C

Yes

Yes

No

Yes

09/30/2019

Yes

Speaker of the North Carolina House of
Representatives Timothy K. Moore

Please see "Additional Defendants" on
pg 5

Section C—Removal pursuant to 28 U.S.C. § 1442(d)(1)
Is only art of the state court action being removed pursuant to 28 U.S.C. § 1442(d)(1)?
No
Yes

R1

If "Yes," specify what portion of the state court action is being removed, and then proceed to the
signature page. If "No," proceed to Section D.

2

Case 5:19-cv-00452-BO Document 5-7 Filed 10/14/19 Page 3 of 7

 Section D—Pending State Court Motions as of Date of Removal
Is there currently a temporary restrainin order or preliminary injunction in place in this action
from state court? Yes U
No
List every known motion pending at the time of removal. Indicate the name of the filer, the date
of filing, whether the motion has a supporting memorandum, and whether the motion is time
sensitive, such as a motion for preliminary injunction.

Title of Pending Motion

Name of Filer

Motion for a Preliminary
Injunction

Plaintiffs

Motion to Intervene

Proposed Interveners

Date of
Filing

Time
Memorandum-sensitive?
Yes/No?
Yes/No?

09/30/2019

Yes (included in Motion;

10/09/2019

Yes (included in Motion) No

Yes

Section E—Scheduled State Court Hearings as of Date of Removal

Date and Time of Hearing
10/24/2019 at 10:00 AM

Hearing Type
Hearing on Motion to Intervene and
Plaintiffs Motion for a Preliminary
Injunction

Assigned State Court
Judge
Judges Ridgeway,
Crosswhite, and Hinton

3

Case 5:19-cv-00452-BO Document 5-7 Filed 10/14/19 Page 4 of 7

 Date:

10/14/2019
Signature of At
ey for Removing Party or
Unrepresented Removing Party
Printed Name

Phillip J. Strach

Law Firm Ogletree Deakins
Address

4208 Six Forks Road, Suite 1100

Raleigh, NC 27609
Telephone Number 919-789-9700
Fax Number 979-783-9412

Email Address: phil.strach@ogletree.com
State Bar No. 29456

4

Case 5:19-cv-00452-BO Document 5-7 Filed 10/14/19 Page 5 of 7

 Additional Plaintiffs
Full Name of Plaintiff

Pending at time of
removal Yes/No?

Dismissed or
Terminated?
Yes/No?

Richard R. Crews
Lily Nicole Quick
Gettys Cohen, Jr.
Shawn Rush
Jackson Thomas Dunn
Jr.
Mark S. Peters
Joseph Thomas Gates
Kathleen Barnes
Virginia Walters Brien
David Dwight Brown

Yes
Yes
Yes
Yes
Yes

No
No
No
No
No

Yes
Yes
Yes
Yes
Yes

No
No
No
No
No

Date of Dismissal or
Termination

Additional Defendants
Full Name of
Defendant

President Pro
Tempore of the North
Carolina Senate Philip
E. Berger
The North Carolina
State Board of
Elections
Damon Circosta, in
his official capacity as
Chairman of the North
Carolina State Board
of Elections
Stella Anderson, in
her official capacity as
Secretary of the North
Carolina State Board
of Elections

Has
If served
Pending Dismissed or
with
at time Terminated? Defendant
been
served
process,
of
Yes/No? (if
Yes, state
with
date of
removal?
service?
date
of
process?
Yes/No?
Yes/No/
termination)
Unknown?
Yes
9/30/2019
Yes
No

Does the
Defendant
join in
removal?
Yes/No?

Yes

Yes

No

Yes

9/27/2019

Unknown

Yes

No

Yes

9/27/2019

Unknown

Yes

No

Yes

9/27/2019

Unknown

5

Case 5:19-cv-00452-BO Document 5-7 Filed 10/14/19 Page 6 of 7

 Kenneth Raymond, in
his official capacity as
Member of the North
Carolina State Board
of Elections
Jeff Carmon, in his
official capacity as
Member if the North
Carolina State Board
of Elections
David C. Black, in his
official capacity as
Member of the North
Carolina State Board
of Elections

Yes

No

Yes

9/27/2019

Unknown

Yes

No

Yes

9/27/2019

Unknown

Yes

No

Yes

9/27/2019

Unknown

6

Case 5:19-cv-00452-BO Document 5-7 Filed 10/14/19 Page 7 of 7