No. 417P19

TENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA

******************************************************
COMMON CAUSE; NORTH CAROLINA
DEMOCRATIC PARTY; PAULA ANN
CHAPMAN; HOWARD DUBOSE JR;
GEORGE DAVID GAUCK; JAMES
MACKIN NESBIT; DWIGHT JORDAN;
JOSEPH THOMAS GATES; MARK S.
PETERS; PAMELA MORTON;
VIRGINIA WALTERS BRIEN; JOHN
MARK TURNER; LEON CHARLES
SCHALLER; REBECCA HARPER;
LESLEY BROOK WISCHMANN; DAVID
DWIGHT BROWN; AMY CLARE
OSEROFF; KRISTIN PARKER
JACKSON; JOHN BALLA; REBECCA
JOHNSON; AARON WOLFF; MARY
ANN PEDEN-COVIELLO; KAREN SUE
HOLBROOK; KATHLEEN BARNES;
ANN MCCRACKEN; JACKSON
THOMAS DUNN, JR.; ALYCE
MACHAK; WILLIAM SERVICE;
DONALD RUMPH; STEPHEN
DOUGLAS MCGRIGOR; NANCY
BRADLEY; VINOD THOMAS; DERICK
MILLER; ELECTA E. PERSON;
DEBORAH ANDERSON SMITH;
ROSALYN SLOAN; JULIE ANN FREY;
LILY NICOLE QUICK; JOSHUA
BROWN; CARLTON E. CAMPBELL SR.,
Plaintiffs,

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From Wake County
18-CVS-014001

****************************
MOTION TO RECUSE
JUSTICE EARLS
***************************

 v.
REPRESENTATIVE DAVID R. LEWIS,
IN HIS OFFICIAL CAPACITY AS
SENIOR CHAIRMAN OF THE HOUSE
SELECT COMMITTEE ON
REDISTRICTING; SENATOR RALPH E.
HISE, JR., IN HIS OFFICIAL
CAPACITY AS CHAIRMAN OF THE
SENATE 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 STATE OF
NORTH CAROLINA; THE NORTH
CAROLINA STATE BOARD OF
ELECTION AND ETHICS
ENFORCEMENT; 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
CAORLINA STATE BOARD OF
ELECTIONS; KENNETH RAYMOND,
IN HIS OFFICIAL CAPACITY AS A
MEMBER OF THE NORTH CAROLINA
STATE BOARD OF ELECTIONS; JEFF
CARMON, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
NORTH CAROLINA STATE BOARD OF
ELECTIONS; DAVID C. BLACK, IN HIS
CAPACITY AS MEMBER OF THE
NORTH CAROLINA STATE BOARD OF
ELECTIONS,
ii

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 Defendants.

 





TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................... iv
TABLE OF AUTHORITIES ................. Error! Bookmark not defined.
FACTUAL BACKGROUND ...................................................................... 5
A.

The Covington Litigation ............................................... 6

B.

Other Redistricting Litigation Since 2011 .................... 8

C.

Justice Earls’ Campaign and Election......................... 10

D.

This Litigation.............................................................. 11

LEGAL STANDARD ............................................................................... 13
ARGUMENT ........................................................................................... 15
I.

II.

Justice Earls Served as an Attorney in the Matter in
Controversy ........................................................................... 16
A.

This Case Carries Forward the Covington Litigation . 18

B.

The Narrow Scope of This Appeal Does Not Break
the Nexus With Covington ........................................... 22

C.

Justice Earls’s Other Work in This Cycle’s
Redistricting Litigation Adds to the Appearance of
Partiality ...................................................................... 27

D.

The Participation of Justice Earls Would Violate
Due Process .................................................................. 31

There Is Substantial Evidence of Partiality That Calls
Justice Earls’s Ability To Remain Impartial Into
Substantial Doubt ................................................................. 33

CONCLUSION ........................................................................................ 36

iv

 TABLE OF AUTHORITIES

Page(s)
Cases
Aetna Life Ins. Co. v. Lavoie,
475 U.S. 813 (1986) ............................................................................. 30
Caperton v. A.T. Massey Coal Co.,
556 U.S. 868 (2009) ..................................................................... passim
Common Cause v. Lewis,
2019 WL 4569584 (N.C. Super. 2019) ................................................ 12
Common Cause v. Lewis,
417P19 (N.C.) ...................................................................................... 17
Common Cause v. Rucho,
1:16-cv-1026 (M.D.N.C.) ................................................................. 9, 28
Common Cause v. Rucho,
218 F. Supp. 3d 777 (M.D.N.C. 2018) ................................................. 28
Covington v. North Carolina,
1:15-cv-399 (M.D.N.C. 2017)....................................................... passim
Covington v. North Carolina,
283 F. Supp. 3d 410 (M.D.N.C. 2018) ............................................. 7, 22
Covington v. North Carolina,
316 F.R.D. 117 (M.D.N.C. 2016) ........................................................... 6
Matter of Dale,
37 N.C. App. 680, 247 S.E.2d 246 (1978) ........................................... 30
Dickson v. Rucho,
137 S. Ct. 2186 (2017) ........................................................................... 9

v

 Dickson v. Rucho,
368 N.C. 481, 781 S.E.2d 404 (2015) .................................................... 8
Dickson v. Rucho,
821 S.E.2d 836 (N.C. 2019) ................................................................... 9
Dickson v. Rucho,
No. 201PA12-3 (N.C.).................................................................. passim
In re Faircloth,
153 N.C. App. 565, 571 S.E.2d 65 (2002) ........................................... 15
Hoffenberg v. United States,
333 F. Supp. 2d 166 (S.D.N.Y. 2004) .................................................. 17
In re Letters Rogatory from Supreme Court of Ontario,
Canada,
661 F. Supp. 1168 (E.D. Mich. 1987) .................................................. 17
In re Murchison,
349 U.S. 133 (1955) ............................................................................. 32
N.C. State Conference of NAACP v. McCrory,
831 F.3d 204 (4th Cir. 2016) ............................................................... 10
N. Carolina Nat. Bank v. Gillespie,
291 N.C. 303, 230 S.E.2d 375 (1976) .................................................. 15
NAACP-Greensboro Branch v. Guilford Cty. Bd. of Elections,
858 F. Supp. 2d 516 (M.D.N.C. 2012) ................................................. 10
North Carolina v. Covington,
138 S. Ct. 2548 (2018) ........................................................................... 8
Ponder v. Davis,
233 N.C. 699, 65 S.E.2d 356 (1951) .............................................. 14, 30
Preston v. United States,
923 F.2d 731 (9th Cir. 1991) ......................................................... 16, 17
Rucho v. Common Cause,
139 S. Ct. 2484 (2019) ......................................................................... 10
vi

 Shaw v. Reno,
509 U.S. 603 (1993) ............................................................................... 6
State v. Fie,
320 N.C. 626, 359 S.E.2d 774 (1987) .................................................. 30
State v. Hill,
45 N.C. App. 136, 263 S.E.2d 14 (1980) ............................................. 30
Statutes
28 U.S.C. § 455 ........................................................................................ 17
Canon 3(a), (b) ......................................................................................... 14
N.C.G.S. §§ 1-72.2, 120.32.6(b) ............................................................... 12
Other Authorities
Fourteenth Amendment ............................................................................ 6
North Carolina Constitution ................................................................... 25
U.S. Constitution ......................................................................... 10, 32, 37

vii

 No. 417P19

TENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA

******************************************************
COMMON CAUSE; NORTH CAROLINA
DEMOCRATIC PARTY; PAULA ANN
CHAPMAN; HOWARD DUBOSE JR;
GEORGE DAVID GAUCK; JAMES
MACKIN NESBIT; DWIGHT JORDAN;
JOSEPH THOMAS GATES; MARK S.
PETERS; PAMELA MORTON;
VIRGINIA WALTERS BRIEN; JOHN
MARK TURNER; LEON CHARLES
SCHALLER; REBECCA HARPER;
LESLEY BROOK WISCHMANN; DAVID
DWIGHT BROWN; AMY CLARE
OSEROFF; KRISTIN PARKER
JACKSON; JOHN BALLA; REBECCA
JOHNSON; AARON WOLFF; MARY
ANN PEDEN-COVIELLO; KAREN SUE
HOLBROOK; KATHLEEN BARNES;
ANN MCCRACKEN; JACKSON
THOMAS DUNN, JR.; ALYCE
MACHAK; WILLIAM SERVICE;
DONALD RUMPH; STEPHEN
DOUGLAS MCGRIGOR; NANCY
BRADLEY; VINOD THOMAS; DERICK
MILLER; ELECTA E. PERSON;
DEBORAH ANDERSON SMITH;
ROSALYN SLOAN; JULIE ANN FREY;
LILY NICOLE QUICK; JOSHUA
BROWN; CARLTON E. CAMPBELL SR.,
Plaintiffs,

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From Wake County
18-CVS-014001

****************************
MOTION TO RECUSE
JUSTICE EARLS
***************************

 v.
REPRESENTATIVE DAVID R. LEWIS,
IN HIS OFFICIAL CAPACITY AS
SENIOR CHAIRMAN OF THE HOUSE
SELECT COMMITTEE ON
REDISTRICTING; SENATOR RALPH E.
HISE, JR., IN HIS OFFICIAL
CAPACITY AS CHAIRMAN OF THE
SENATE 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 STATE OF
NORTH CAROLINA; THE NORTH
CAROLINA STATE BOARD OF
ELECTION AND ETHICS
ENFORCEMENT; 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
CAORLINA STATE BOARD OF
ELECTIONS; KENNETH RAYMOND,
IN HIS OFFICIAL CAPACITY AS A
MEMBER OF THE NORTH CAROLINA
STATE BOARD OF ELECTIONS; JEFF
CARMON, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
NORTH CAROLINA STATE BOARD OF
ELECTIONS; DAVID C. BLACK, IN HIS
CAPACITY AS MEMBER OF THE

2

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 NORTH CAROLINA STATE BOARD OF
ELECTIONS,
Defendants.
____________________________________

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 This case is the latest chapter in an inextricably intertwined series
of cases challenging North Carolina’s redistricting plans this decade. As
a lawyer, Anita Earls was a lead player in those prior cases. As a justice,
she should not participate in this one.
One of the lead plaintiffs here, Common Cause, is a former colitigant alongside a client of Justice Earls. Another, the North Carolina
Democratic Party, is her principal campaign donor. It, in fact, gave more
than 40 times the amount of any other donor to her campaign. And the
real party defendant is the Republican-controlled General Assembly,
which has been adverse to Justice Earls in every redistricting dispute
this decade predating her joining this Court. Justice Earls was not shy to
criticize the General Assembly’s leadership in public statements. For
example, before this case was filed, she stated both in court and in public
speeches that the plans challenged in this case are unconstitutional
partisan gerrymanders. Indeed, given the case history, it is likely that,
Lawyer Earls laid the groundwork for this litigation.
For better or worse, the public would have an objective basis to view
Justice Earls as a sure vote against the General Assembly and for
Plaintiffs. Plaintiffs appear to believe this as well. They waited to file this

4

 case until after Justice Earls won election, and this creates an objective
appearance that one of the parties voted waited until their candidate was
elected before they decided to file this case. The integrity of this
proceeding will not be served by Justice Earls’ participation, and the
General Assembly respectfully requests that she be recused from this
case.
FACTUAL BACKGROUND
Before her election to this Court in November 2018, Anita Earls was
a civil-rights attorney affiliated with the Southern Coalition For Social
Justice. In that capacity, lawyer Earls filed multiple cases against
redistricting legislation enacted since 2011 (when the most recent census
data was released) by the Republican-controlled General Assembly.
Also in that capacity, Justice Earls engaged in public commentary
on North Carolina redistricting and voting rights issues. Much of this
rhetoric was highly partisan and was targeted at the General Assembly’s
Republican leadership. Justice Earls stated on Twitter that the “GOP’s
push to suppress vote threatens democracy” and that the “GOP voting
crackdown in NC threatens minorities.” See Exhibit (“Ex.”) 1, Earls

5

 Twitter Excerpts. She referred to Republicans as “Angry White Guys”
and (also on Twitter) exclaimed, “GOP good for women? Please.” Id.
A.

The Covington Litigation

Earls was the lead attorney in Covington v. North Carolina, 1:15cv-399 (M.D.N.C. 2017), a challenge to the 2011 State House and Senate
redistricting plans under the Fourteenth Amendment. The Covington
plaintiffs asserted that majority-minority districts in those plans were
“racial gerrymanders” in violation of the principle the U.S. Supreme
Court announced in Shaw v. Reno, 509 U.S. 603 (1993), and its progeny.
Ultimately, the Covington plaintiffs were successful, a federal court
invalidated 28 House and Senate districts, and the General Assembly
was required to enact new districting maps to remedy the federal
constitutional violations. See generally Covington v. North Carolina, 316
F.R.D. 117 (M.D.N.C. 2016).
The General Assembly conducted a redistricting process in 2017,
enacted new House and Senate plans, and submitted them to the
Covington court for approval. Earls, on behalf of the Covington plaintiffs,
objected to many of the districts, asserting that they did not remedy the

6

 racial-gerrymandering violations. Ex. 2, Covington Plaintiffs’ Objections
at 20–30.
The brief also contained a section called “Partisan Gerrymander
Objection Reserved.” Id. at 42–43. The section alleged that the House and
Senate plans “are unconstitutional partisan gerrymanders.” Id. at 42.
Exhibit 1 to the brief is a letter by Earls to Thomas Farr, Phillip Strach,
and Michael McKnight, counsel to the General Assembly here, citing
statistical evidence in support of her view that the 2017 plans “are in fact,
grossly unconstitutional partisan gerrymanders.” Ex. 3, Earls Letter to
Thomas Farr et al., at 2. But Earls did not ask that the Covington court
throw out the maps on this basis; it instead asserted that “addressing
whether these districts are partisan gerrymanders requires more
evidence” and referenced an intent to file “additional challenges.” Ex. 2
at 43. Earls’s co-counsel in Covington was Edwin Speas, counsel to
Plaintiffs in this case.
The Covington remedial phase resulted in the replacement of some
legislatively enacted districts with districts drawn by a special master, a
federal district court ruling on remedial issues, Covington v. North
Carolina, 283 F. Supp. 3d 410 (M.D.N.C. 2018), and a U.S. Supreme

7

 Court ruling affirming in part and reversing in part, North Carolina v.
Covington, 138 S. Ct. 2548 (2018).
B.

Other Redistricting Litigation Since 2011

Earls was also the lead attorney in Dickson v. Rucho, No. 201PA123 (N.C.), which was a racial-gerrymandering challenge to the same 2011
districts challenged in the Covington case and to North Carolina’s
congressional districts. The case also included a challenge under the
North Carolina Constitution’s Good of the Whole clause, which Earls
argued is “one source of the anti-gerrymandering limitations imposed on
the General Assembly.” Ex. 4, Dickson Appellants’ Br. at 176.1 As in
Covington, Earls litigated alongside Edwin Speas.
This case was decided in the North Carolina Supreme Court against
the Dickson plaintiffs, Dickson v. Rucho, 368 N.C. 481, 781 S.E.2d 404
(2015), but the U.S. Supreme Court vacated the federal-law portions of
the ruling for reconsideration, and the federal-law portions were
ultimately mooted by the Covington decision, see Dickson v. Rucho, 137
S. Ct. 2186 (2017); Dickson v. Rucho, 821 S.E.2d 836, 837 (N.C. 2019).

This Court concluded that the claim was “not based upon a justiciable
standard.” Dickson v. Rucho, 368 N.C. 481, 534, 781 S.E.2d 404, 440
(2015).
1

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 Earls was also the lead attorney in Common Cause v. Rucho, 1:16cv-1026 (M.D.N.C.), a federal partisan-gerrymandering challenge to the
2011 congressional districts. Lawyer Earls represented the League of
Women Voters in a companion case that was consolidated with the case
brought by Common Cause, one of the Plaintiffs here. The cases were
joined into one action, and Lawyer Earls filed briefs alongside Common
Cause. Ordinarily, clients litigating side-by-side in this fashion have a
joint-defense agreement, though Legislative Defendants have no way to
know if one existed in this case. If it did, then communications between
Lawyer Earls, Common Cause, and counsel for Common Cause would
have been privileged, just as if Common Cause were the client of Lawyer
Earls.
In that litigation, Lawyer Earls employed Dr. Jowei Chen, the
expert whose work Plaintiffs advance as the basis for their appeal here.
Ultimately, that case resulted in a U.S. Supreme Court holding that
partisan-gerrymandering

challenges

are

non-justiciable

political

questions under the U.S. Constitution. See generally Rucho v. Common
Cause, 139 S. Ct. 2484 (2019).

9

 Lawyer Earls was involved in other challenges to election laws
passed by the Republican-controlled General Assembly since 2011,
including a challenge to its voter identification requirements, see N.C.
State Conference of NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016)
and a challenge to the General Assembly’s alterations to the Guilford
County Board of Commissioners, see NAACP-Greensboro Branch v.
Guilford Cty. Bd. of Elections, 858 F. Supp. 2d 516, 517 (M.D.N.C. 2012).
C.

Justice Earls’ Campaign and Election

Earls ran in 2018 for a seat on this Court. Her campaign took in
total contributions of $1,575,933.54.2 Of that, $231,964.53, or 14.7%, was
a direct or in-kind contribution from the North Carolina Democratic
Party. 3 North Carolina law allows political parties to make unlimited
contributions to candidates. By contrast, contributions by individual
donors were capped at $5,200.
The election occurred on November 6, 2018. Justice Earls won
approximately 49.6% of the vote, but, because she ran against two

These campaign reports can be found at
https://cf.ncsbe.gov/CFOrgLkup/ReportDetail/?RID=163811&TP=REC and
https://cf.ncsbe.gov/CFOrgLkup/ReportDetail/?RID=163811&TP=SUM
3

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 Republican candidates who split the remaining vote total, she was
elected to office.
D.

This Litigation

Seven days after that election, the plaintiffs, who are petitioners
here (“Plaintiffs”), filed this case. Plaintiffs include the North Carolina
Democratic Party, Earls’s leading campaign donor, and Common Cause.
Plaintiffs are (as noted) represented by Edwin Speas, Earls’s former cocounsel, among other lawyers.
Plaintiffs challenged the 2017 House and Senate plans that
resulted from the Covington litigation. Some of the districts were
redrawn in 2017 as part of the Covington remedial phase; others were
drawn in 2011 and, hence, were challenged in the Dickson case as
violating alleged gerrymandering prohibitions of the Good of the Whole
Clause of the State Constitution—a challenge that ultimately proved
unsuccessful. Whether in Dickson, Covington, or in public advocacy,
Justice Earls is on record as contending that most if not all of these
districts are unconstitutional partisan gerrymanders.4

At a speech in February 2018, Earls stated that the “racially
gerrymandered districts” have “been replaced with partisan
4

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 The General Assembly’s officers, Rep. David Lewis, Sen. Ralph
Hise, House Speaker Timothy K. Moore, and Senate President Pro
Tempore Philip Berger (collectively, “Legislative Defendants” or “the
General Assembly”), were named in their official capacities as
defendants. See N.C.G.S. §§ 1-72.2, 120.32.6(b). Legislative Defendants
undertook the sole defense of the districts; the other defendants took no
position in the case and the North Carolina Attorney General (a
Democrat) filed a brief contending that the House and Senate districts
are unconstitutional.
The three-judge panel below ruled in Plaintiffs’ favor at the liability
phase and invalidated all of the House and Senate districts they
challenged.5 It allowed the General Assembly two weeks to enact new
House and Senate plans. The General Assembly did so. For both the
House and Senate plans, the respective House and Senate Redistricting
Committees drew random maps created by Plaintiffs’ expert, Dr. Jowei

gerrymandered districts.” Recording of Earls February 2018 speech at
appr’x 1:00, available at https://www.youtube.com/watch?v=1k7kcisr08k.
Common Cause v. Lewis, 2019 WL 4569584 (N.C. Super. 2019)
referred to here as “Liability Judgment”) is not reproduced here due to
its size.
5

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 Chen, from a machine provided by the State Lottery Commission to
create “base maps.” From there, the Committees—operating in televised
public sessions—made minor changes to the base maps principally to
unpair incumbents. This was the most transparent and fair redistricting
in North Carolina history.6
That was not good enough for Plaintiffs. They cherry-picked several
House groupings and challenged them as partisan gerrymanders. The
superior court rejected all of their contentions. Dissatisfied with that
result, they brought this appeal and have demanded an emergency
hearing on the merits with this Court. See generally Plaintiffs’ Petition
for Discretionary Review (“PDR”).
LEGAL STANDARD
“It is not enough for a judge to be just in his judgments; he should
strive to make the parties and the community feel that he is just; he owes
this to himself, to the law and to the position he holds.” Ponder v. Davis,
233 N.C. 699, 706, 65 S.E.2d 356, 360 (1951). Accordingly, the Code of

See, e.g., Tyler Dukes, Latest redistricting process led to much fairer
maps,
analysis
shows,
WRAL.com
(Oct.
21,
2019),
https://www.wral.com/latest-redistricting-process-led-to-much-fairermaps-analysis-shows/18703971/.
6

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 Judicial Conduct provides that, “[o]n motion of any party, a judge should
disqualify himself/herself in a proceeding in which the judge’s
impartiality may reasonably be questioned.” NC R CJC Canon 3.
Examples of instances satisfying this standard include when (a) “[t]he
judge has a personal bias or prejudice concerning a party,” and (b) “[t]he
judge served as lawyer in the matter in controversy,” but the recusal
requirement is not limited to these or any other enumerated instances of
real or apparent impartiality. Id. Canon 3(a), (b).
Likewise, due process requires “that a judge must recuse himself
when he has a direct, personal, substantial, pecuniary interest in a case,”
Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009) (quotation
marks omitted), including an interest predicated on campaign donations,
Id. at 882, or the judge’s “participation in an earlier proceeding,” Id. at
880.
It is the movant’s burden to “demonstrate objectively that grounds
for disqualification actually exist.” In re Faircloth, 153 N.C. App. 565,
570, 571 S.E.2d 65, 69 (2002). But, once the movant presents evidence of
“sufficient force” to require findings of fact, the judge whose recusal is
requested should either disqualify herself or refer the matter to another

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 judge to rule on the motion. See, e.g., N. Carolina Nat. Bank v. Gillespie,
291 N.C. 303, 311, 230 S.E.2d 375, 380 (1976).
ARGUMENT
Justice Earls has been, for years, an adverse attorney to the
General Assembly in the redistricting cases, and those cases set the stage
for this case and this appeal. Indeed, this case is the mere continuation
of the Covington litigation, where Justice Earls herself alleged that the
2017 plans are unconstitutional partisan gerrymanders and announced
an intention to challenge them in court. The case is brought by her former
client and principal campaign donor, who are represented by her former
co-counsel in redistricting matters. They waited until Justice Earls won
election to file this case, which may lead a reasonable observer to
conclude they may have never done so had she lost. Justice Earls likely
helped conceive and plan this case, and Plaintiffs placed many aspects of
the Covington case at issue in this case, including at the remedial phase.
The public would “reasonably question[]” Justice Earls’ participation in
litigation stemming from a case where she served as counsel adverse to
the General Assembly.

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 The public would also reasonably question Justice Earls’
impartiality when the North Carolina Democratic Party outspend Earls’s
other donors by orders of magnitude. The Party spent over 40 times what
any other donor could spend, and the timing of this case, filed a mere
seven days after she won a seat on this Court, raises at least the
impression that the Party believed it needed to invest in her win in order
to obtain a favorable ruling in this case.
The participation of Justice Earls would violate the ethical canons
and the Due Process Clause, and she therefore should not participate.
I.

Justice Earls Served as an Attorney in the Matter in
Controversy

Recusal is required here because Justice Earls “served as a lawyer
in the matter in controversy.” NC R CJC Canon 3(C)(1)(b). Canon
3(C)(1)(b) “provides us with a concrete example where the appearance of
partiality suffices to establish a ground for recusal…even absent actual
bias,” and thus is a sufficient basis for recusal. Preston v. United States,
923 F.2d 731, 734 (9th Cir. 1991) (interpreting materially identical
subsection of 28 U.S.C. § 455).
To be sure, Justice Earls has not served as counsel in the case
captioned Common Cause v. Lewis, 417P19 (N.C.), but the Canon
16

 references “matter in controversy,” not “case” or “case number.”
Accordingly, courts interpreting the substantially identical federal rule,
see 28 U.S.C. § 455(b)(2), have held that it is not limited “to cases in which
the judge’s conflict was with the parties named in the suit.” Preston, 923
F.2d at 735. “Rather, the focus has consistently been on the question
whether the relationship between the judge and an interested party was
such as to present a risk that the judge’s impartiality in the case at bar
might reasonably be questioned by the public.” Id. at 735. In other words,
“the definition of ‘matter in controversy’ is not as narrow as the legal
question in the current proceeding.” In re Letters Rogatory from Supreme
Court of Ontario, Canada, 661 F. Supp. 1168, 1174 (E.D. Mich. 1987); see
also Hoffenberg v. United States, 333 F. Supp. 2d 166, 174 (S.D.N.Y. 2004)
(same).
Were the law otherwise, a lawyer could give legal advice to a client
not in connection with any live case and then, as a judge, sit on a laterfiled case and adjudicate the validity of that very advice and the actions
of that very client in reliance on it. The rule, in short, cannot logically be
tied to case captions and other formalities. It instead must necessarily
call for a functional look at the relationship between the judge’s work as

17

 a lawyer and the controversy that later comes before the same person,
sitting as a judge.
A.

This Case
Litigation

Carries

Forward

the

Covington

Under this functional test, the Covington case and this case present
the same controversy over North Carolina’s legislative districts, which
has been raging since the 2011 redistricting. It is a mere continuation of
the Covington case.
1.

It is plausible, if not likely, that Justice Earls was involved in

planning this lawsuit. The 2017 State House and Senate plans
challenged in this case were drawn in the Covington remedial phase.
Justice Earls’s brief objecting to those remedial plans asserted that they
are “unconstitutional partisan gerrymanders” and expressed the
intention of challenging them in court as such. By signing a brief
reserving a partisan-gerrymandering objection, Justice Earls indicated
an intent to bring a partisan-gerrymandering claim. And the fact that
her co-counsel subsequently brought this case indicates that it is, in fact,
the contemplated action.
It is, then, very likely that Justice Earls discussed this partisangerrymandering challenge with Mr. Speas and may well have done work
18

 in preparation for it. Because those discussions are likely protected by
privilege or work-product doctrine, their content cannot be known.7 At a
minimum, Justice Earls’s involvement in this case would raise questions
on whether she would be ruling on a case that she helped develop and
plan. And that in turn creates, at a minimum, the appearance of bias—
since it is natural for an attorney who helped conceive and plan a lawsuit
to root for its success.
2.

Because the plans challenged here were enacted as part of the

Covington litigation, this case saw a substantial overlap of questions of
law and fact stemming from Covington.
The allegation of partisan gerrymandering was leveled in
Covington, and that issue was relitigated here. Although the Covington
plaintiffs technically reserved the issue for later, Earls took positions on
partisan gerrymandering that are equally relevant here. For example, as
an attorney, Earls argued that “[t]he partisan bias in the [2017] districts

For example, the brief and letter signed by Justice Earls assert that
2017 districts violate the federal Constitution, but one might reasonably
assume that, at some point, Justice Earls and Speas discussed a statelaw challenge, which ultimately morphed into this case. It is hardly
plausible that two lawyers who lodged state-law challenges in Dickson
would not have thought of the State Constitution at some point in
planning a partisan-gerrymandering challenge.
7

19

 was not caused by the need to comply with the Whole County provision.”
Ex. 2 at 13. One issue in this case, both at the liability and remedial
phases, is the extent to which any partisan advantage results from the
natural geography of North Carolina and the strict Whole County
provision. Similarly, Earls argued against a criterion that allowed “the
2017 districts [to] protect the incumbents elected under the 2011
districts.” Ex. 2 at 6. Here, Plaintiffs challenge a similar criterion,
approved in the trial court, allowing the General Assembly to protect
incumbents at the remedial phase. See PDR App. 76–77 (citing Covington
for the proposition that incumbency protection improperly maintained
invalid district configuration).
By taking positions on material questions as an attorney on behalf
of clients, Justice Earls handcuffed her ability to be impartial here.
Revisiting those positions with an open mind in this appeal may mean
taking positions contrary to those she took for clients—e.g., that North
Carolina’s Whole County provision does result in partisan advantage or
that incumbency protection is not an improper partisan consideration
that carries forward the effects of a prior unlawful plan. That would
compromise her loyalty to a former client. On the other hand, if she

20

 adheres to that loyalty and stands by the positions she took on behalf of
those clients, she will have achieved a pre-determined position on
matters to be litigated this case. And these are not simply abstract
questions of principle; they concern the application of law to facts.
Indeed, the substantial overlap between this case and Covington
makes it impossible for the court not address matters decided in
Covington. The parties extensively litigated issues that were either
litigated in or arose from Covington:
 The Covington remedial phase resulted in some specialmaster-drawn districts, because Earls successfully challenged
some of the legislatively drawn remedial districts. But some
of those special-master-drawn districts were invalidated in
the Supreme Court on appeal. The impact of the special
master’s districts on the line-drawing was contested in this
case, see PDR App. 159, 199, including at the remedial phase,
see, e.g., Ex. 5, Remedial Order at 16.
 The Covington remedial phase involved litigation over when
the General Assembly’s consultant, Dr. Thomas Hofeller,
prepared the 2017 plans. Earls signed the brief calling into
question the timing of that map-drawing activity, Ex. 6,
Opposition to Motion to Quash at 6, and she signed a
stipulation reaching an answer to that question without
discovery, Ex. 7, Stipulation on Hofeller Map-Drawing.
Plaintiffs placed that question at issue again here and
Legislative Defendants placed the stipulation signed by Earls
at issue in defending this challenge. See Liability Judgment
¶¶ 690–704.
 Covington resulted in an order directing Legislative
Defendants “to implement the Special Master’s recommended
21

 Plans” and to use “the State’s 2017 Plans…in future North
Carolina legislative elections.” Covington v. North Carolina,
283 F. Supp. 3d 410, 458 (M.D.N.C.). The parties litigated the
reach of that order, and the Court ruled on it. Liability
Judgment ¶¶ 150–54.
 Plaintiffs placed at issue the General Assembly’s compliance
with the criteria used in 2017 during the Covington remedial
phase. They contended that the General Assembly violated
the criteria barring the use of racial data and went so far as
to accuse Legislative Defendants and some of their lawyers of
misleading the Covington court on these and related issues.
In short, this case is a mere continuation of Covington and
constitutes the same “matter” and “controversy.” It would, without a
doubt, be subject to reasonable question whether a lawyer who litigated
the Covington matter could act with impartiality in sitting on this case,
when the two are so closely connected.
B.

The Narrow Scope of This Appeal Does Not
Break the Nexus With Covington

The connection between Covington and this matter extends to the
remedial phase, and any contention that recusal is not required because
this appeal concerns the remedial phase, rather than the liability phase,
would lack merit.
1.

The likelihood that Earls participated as a lawyer in

conceiving and planning this case confirms that she should have no part
in it, including at the remedial phase. When planning an action, a lawyer
22

 considers, not only the basis of the claim, but the client’s ultimate goal—
the real-world result the client wants to achieve. Planning a suit for, say,
breach of contract necessarily entails the question of how much can be
obtained in the ultimately recovery. So a lawyer who planned to obtain
$50,000 for a client plainly cannot sit on an appeal of a remedial order
allowing $45,000. The fact that the appeal is narrow and involves only a
small subset of issues in the case does not change the fact that the judge
plainly is on the side of full recovery of the hoped-for amount.
Here, Lawyer Earls took the position that the 2017 plans had a poor
“efficiency gap”—i.e., a gap in the ratio of the predicted seats attainable
based on votes received by the respective major parties. She also took the
position that a more Democratic-favorable gap is attainable and desirable
under North Carolina’s law and political geography. Ex. 2 at 12–13. Even
though Plaintiffs prevailed below, they are dissatisfied with the remedy
and believe it can be more friendly to the Democratic Party. This means
that all that was hoped for at the planning stage did not bear out in the

23

 remedy. Whatever role Earls had in planning cannot be separated from
the effort to bring those plans to full, rather than partial, fruition.8
In any event, the Canon’s concern that a judge’s impartiality be
beyond “reasonabl[e] question[]” clarifies any doubt on recusal here. A
lawyer who states in a brief that a partisan gerrymandering challenge is
forthcoming can be expected to sympathize with that challenge and to do
so until its culmination. The public would reasonably expect that Justice
Earls would be in Plaintiffs’ corner if she were to sit on this case, and any
superficial differences between the liability and remedial phases would
not change that fact. Justice Earls’s impartiality can be reasonably
questioned on this basis alone.
2.

What’s more, this remedial phase—like the liability phased—

carries forward questions of fact and law from the liability phase.
Although the remedial phase will not involve a review of the question of
whether the North Carolina Constitution forbids partisan redistricting
(a principle not challenged and applicable merely as law of the case), it

In particular, the North Carolina Democratic Party has not been shy to
assert that the purpose of this case is to obtain court assistance in
winning a majority of the General Assembly. It seems natural, if not
inevitable, that plans to obtain a majority were discussed at the planning
stage.
8

24

 does involve applying that principle to the facts here, and those facts are
the continuation of facts at issue in Covington.
Most notably, the criteria the three-judge panel imposed and the
General Assembly, in turn, adopted are virtually identical to the
Covington criteria, PDR at 7, Ex. 5 at 10–11, their interpretation was a
core question in the liability phase, and Plaintiffs have placed them at
issue again here. See PDR at 7, 11. Plaintiffs contend, for example, that,
because the superior court found that some criteria “were subordinated
to unpairing incumbents,” partisanship predominated. Id. at 10, 13–15.
Evaluating this argument requires (in part) assessing the meaning of the
incumbency-protection criterion—a criterion at issue in the 2017
remedial phase, addressed by Earls in her remedial brief, and litigated
again at the liability phase here. See Ex. 2 at 6–9. Indeed, the Covington
experience on incumbency protection was re-litigated extensively at the
remedial phase here and was referenced on the floor at the 2019
redistricting. See PDR App 75–77.
The overlap between the liability and remedial phases is further
confirmed in Plaintiffs’ assertion that the remedial districts they
challenge are unlawful because “incumbents restored specific elements

25

 of the prior gerrymander.” PDR at 8. Legislative Defendants intend to
argue (among other things) that the similarities are not material, and
that there are significant differences. To evaluate this argument, the
Court may need to assess (among other things) which aspects of
similarity and differences are meaningful and which are not.9 A lawyer
who litigated the contours of the prior districts will inevitably have a preconceived view on that question, formed by her experience in the
litigation that produced those “prior” districts and “specific elements”
rather than by an impartial view of the facts and arguments presented
in this case.
Likewise, Plaintiffs’ factual assertions are carried forward from the
2011 redistricting that Justice Earls challenged as a lawyer. One of their
core allegations is that the General Assembly must have considered
politics at the remedial phase because it utilized the services of Clark
Bensen, who (they say) “previously assisted Legislative Defendants in

Of course, because Legislative Defendants did not appeal the liability
ruling by the superior court on appeal the Supreme Court is limited to
review of whether the trial court based it’s order on competent evidence.
Therefore, Legislative Defendants’ intend to argue that substantial
deference is owed to the trial court. But Plaintiffs’ attempt to re-litigate
facts will require an impartial Court as to the facts under any standard
of review.
9

26

 gerrymandering districts in North Carolina,” including by providing
“political data for them in drawing the 2011 plans.” App 40, 42. For that
proposition, they cite exhibits produced in the Dickson litigation, which
Earls also spearheaded. The superior court credited Mr. Bensen’s
assertion that his role in the remedial phase was extremely limited and
involved no partisan data or evaluation, Ex. 5 at 8–10, but Earls may
have a different view based on her litigation experience.
C.

Justice Earls’s Other Work in This Cycle’s
Redistricting Litigation Adds to the Appearance
of Partiality

Justice Earls participated in other matters relevant to this case,
and they too should be considered as part of a holistic, functional review
regarding her ability to sit here without so much as the appearance of
impartiality.
1.

In addition to Covington, Earls was the lead attorney in the

Common Cause v. Rucho case, a federal gerrymandering challenge to the
State’s congressional districts, and in the Dickson case, and a
gerrymandering state-court challenge against the 2011 House and
Senate districts—which (as mentioned) adduced evidence Plaintiffs have
cited in the remedial phase. These cases add to the cumulative

27

 involvement of Lawyer Earls in redistricting matters adverse to the
General Assembly and call her ability to remain impartial into further
doubt. In Dickson, Lawyer Earls challenged the 2011 House and Senate
plans as gerrymanders, and many of those districts were carried forward
into this case. In Rucho, Lawyer Earls represented a co-litigant to
Common Cause, one of the Plaintiffs here.
Also in Rucho, Lawyer Earls employed Dr. Jowei Chen as an expert
and

defended

his

mapping-simulation

work

against

multiple

methodological challenges. See Ex. 8, Common Cause v. Rucho Post-Trial
Brief at 22–23; Common Cause v. Rucho, 218 F. Supp. 3d 777, 819–20 &
nn.9–10 (M.D.N.C. 2018). Plaintiffs rely on Dr. Chen heavily in their
appeal. PDR 8–10, 12–13, 15. But the superior court did not find Dr.
Chen’s remedial-phase mapping analysis to be a reliable basis for judging
the remedial districts and. The Court instead found that—although Dr.
Chen simulated 1,000 maps for the groupings Petitions challenge on
appeal—Plaintiffs produced “no alternative map that better achieved”
the General Assembly’s non-partisan criteria. Ex. 5 at 24. In Rucho,
Lawyer Earls argued that Dr. Chen’s method tracks the non-partisan
criteria used by the legislature. Ex. 8 at 16, calling into doubt her ability

28

 to adjudicate what will undoubtedly be an appeal focused on Dr. Chen’s
method.
2.

Of additional relevance are the numerous statements in

public advocacy antagonistic to the General Assembly’s Republican
leadership. The constant refrain of Lawyer’ Earls’s legal and public
advocacy since 2011 has been that the Republican-led General Assembly
“suppress[ed]”

voting

rights

and

“threaten[ed]

democracy”

and

“minorities.” She called Republicans “Angry White Guys” and openly
asserted that the Republican Party could not be “good for women.” On top
of that, in case after case, Earls repeatedly asserted that the General
Assembly engaged in legal wrongdoing. When confronted with prior
gerrymandering by the Democratic Party, Earls responded that “these
cases are not actually troubling.”10 Ex. 8 at 19.11

Those districts have, in fact, been cited as the most egregious since the
days of rotten boroughs.
10

These statements approach the level of bias evident in statements held
to require recusal in precedent. See Ponder v. Davis, 233 N.C. 699, 703,
65 S.E.2d 356, 359 (1951), or expressed an opinion on its merits or about
a litigant in it, see, e.g., State v. Hill, 45 N.C. App. 136, 141, 263 S.E.2d
14, 17 (1980) (holding that statement that a defendant “had implicated
himself” in testimony in another case, “which to a reasonable person
would mean that the judge had formed an opinion against defendant”);
Matter of Dale, 37 N.C. App. 680, 685, 247 S.E.2d 246, 249 (1978) (finding
11

29

 All of this has a cumulative impact. On their own, these facts might
not arise to a level of actual or apparent bias sufficient to require recusal,
but together with the Covington case, they create the objective
impression that Earls is the candidate set to rule against the General
Assembly in any redistricting case. The day this case was filed, an article
asserted that Plaintiffs can expect the “help of civil rights attorney Anita
Earls” in this case. Mark Joseph Stern, Democrats Are Poised to Wipe
Out Republicans’ North Carolina Gerrymander in Time for the 2020
Election, Slate (Nov. 13, 2018).12 The article explained:
As a result, Democrats will soon hold a 5–2
majority on the court. And Earls played a major
role challenging earlier GOP gerrymanders. When
she announced her candidacy, Earls declared that
she sought to shield “the right of all citizens to cast
a ballot that is counted equally,” a clear reference
to partisan gerrymandering. There is no reason to
doubt that she and her Democratic colleagues on
the court will be prepared to invalidate the current

assertion by judge that lawyer had behaved “negligently” was objective
indicia that judge had pre-judged the case); State v. Fie, 320 N.C. 626,
628, 359 S.E.2d 774, 776 (1987) (finding assertions by judge related to
the defendants required recusal). Given the combination of factors, these
statements do not need to be evaluated on their own to establish the
necessity of recusal. See Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821
(1986).
https://slate.com/news-and-politics/2018/11/north-carolinagerrymandering-lawsuit-anita-earls.html
12

30

 legislative maps when this case reaches their
docket.
Id.
Whatever their reality—which is impossible to know, see Caperton
v. A.T. Massey Coal Co., 556 U.S. 868, 883 (2009)—these appearances
cannot be overcome at this late stage. The public assumption will be that
Justice Earls will sign on to Plaintiffs’ position, and, if Plaintiffs’ win,
that the result will have followed from a partisan election, not from the
law and facts applicable to this case. On the other hand, even a ruling in
favor of the General Assembly—and even with the vote of Justice Earls—
cannot be free from questions about ulterior motive, since a judge may
act in a biased manner by overtly trying to avoid the appearance of
partiality and ruling on that basis for the party against whom the judge
is presumed to be biased. This is a no-win situation, and recusal is the
only way out of it.
D.

The Participation of Justice Earls Would Violate
Due Process

That participation by Justice Earls would violate the Code of
Judicial Conduct is a sufficient basis to grant the General Assembly’s
motion. But it bears noting that this case is sufficiently severe as to
violate the higher standards of the Due Process Clause of the U.S.
31

 Constitution. Due process can be violated “because of a conflict arising
from [a judge’s] participation in an earlier proceeding.” Caperton, 556
U.S. at 880. For example, an individual who sits as a de facto prosecutor
at an investigative stage of a proceeding cannot, consistent with due
process, be the judge at a later stage. See In re Murchison, 349 U.S. 133,
137 (1955).
It is no better from a due-process perspective for an individual to
participate in one phase of a legal challenge as a lawyer and, in another,
as a judge. Here, Justice Earls has taken many positions as a lawyer
(adverse to the General Assembly) on matters at the heart of this
litigation; it would deny Legislative Defendants their right to due process
to have an adverse attorney deciding this appeal. The fact that this
appeal involves a narrow subset of issues does not extenuate these dueprocess defects. As discussed above, the issues at the liability and
remedial phases of this case are inextricably intertwined with each other
and with issues raised in Covington and Dickson. It would be
fundamentally unfair for Legislative Defendants to have to argue this
appeal before a Justice who was, in the same string of litigation, an
adverse attorney.

32

 II.

There Is Substantial Evidence of Partiality That Calls
Justice Earls’s Ability To Remain Impartial Into
Substantial Doubt

An independent basis for recusal lies in the fact that Justice Earls,
as a candidate for this Court, received substantial contributions from the
lead Plaintiff in this case, which dwarfed other contributions her
campaign received (or, at least, was allowed to receive). Under the
circumstances, the participation of Justice Earls would violate both the
due-process standard and create reasonable questions about her
impartiality under the Code of Judicial Ethics.
The facts here mirror those of Caperton, the Supreme Court’s
groundbreaking ruling that campaign spending can violate due process.
As in Caperton, several factors together require recusal.
The first is the comparative size of the contribution. See Caperton,
556 U.S. at 873. The North Carolina Democratic Party, a Plaintiff here,
gave $231,964.53 in direct or in-kind contributions. The amount is
problematic on its face, but the comparative worth is staggering.
Contributions by individual donors are capped at $5,200, and political
parties alone are allowed unlimited contributions. As a result, the North

33

 Carolina Democratic Party donated more than 40 times in excess of what
any other donor could give to the Earls campaign.
And, importantly, these are donations directly to the Earls
campaign, not independent expenditures. Thus, the direct and in-kind
contributions fell fully within the control of the campaign, whereas
independent expenditures, though potentially helpful to a candidate, are
not within the candidate’s control and can, as a result, be used in ways
the candidate would prefer they not be used. In that respect, the
donations here are more problematic than the money spent in Caperton,
which overwhelmingly consisted of donations to a 527 independent
group. See id. at 873.
Another factor is the timing of this case. See Caperton, 556 U.S. at
886. The money was spent in the 2018 Supreme Court race, and Plaintiffs
filed their action a mere seven days after the 2018 election. They plainly
had plans to file the case and the timing creates an inference that they
were apparently awaiting the outcome of the election before pulling the
trigger. It was, then, “reasonably foreseeable, when the campaign
contributions were made, that the…case would be before the newly
elected justice.” Id. It was readily apparent to all observers that her

34

 election dramatically increased Plaintiffs’ odds of success. The
appearance of an effort to cash in on a campaign donation is devastating
to public trust in judicial impartiality.
A third factor is that the election was close. Justice Earls did not
receive a majority of the vote and won only because two Republican
candidates split the remaining vote, which constituted a majority of the
total votes cast. Whether the contributions “were a necessary and
sufficient cause” of the victory is unknowable and beside the point. See
id. at 885. What matters is that the race was hotly contested, and the
outsized spending of the North Carolina Democratic Party, a litigant
here, creates “the risk” of “actual bias.” Id.
These factors together qualify this case as “an extraordinary
situation where the Constitution requires recusal.” Id. at 887. But even
if that were not so, it would still qualify as a case requiring recusal under
the lower standards of the Code of Judicial Ethics. The appearance of a
justice ruling in a case brought by a big-money political party donor
demeans the integrity of the process and therefore is a case where the
impartiality of Justice Earls may “reasonably be questioned.”

35

 Indeed, Justice Earls wrote about strikingly similar issues as an
attorney. In representing the Campaign Legal Center and Democracy 21
in defense of North Carolina’s campaign contributions, she observed that
“those who make contributions to a political committee, whose chief aim
is to nominate or elect candidates often do so in an attempt to purchase
influence. Candidates know where large contributions come from,
particularly those that benefit them or harm their opponent.” Ex. 9,
Amicus Br. in N.C. Right to Life v. Leake, at 10–11. Justice Earls is no
exception; she knows the North Carolina Democratic Party paid an
enormous sum to help her attain election to this Court. And, by the same
token, the Party knows why it sought to put her there. That is intolerable
and should be held to violate state law, even if the U.S. Constitution
somehow allows it.
CONCLUSION
Legislative Defendants respectfully submit that Justice Earls
should not participate in this case.
Respectfully submitted,
OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C.

36

 By: /s/ Phillip J. Strach
Phillip J. Strach
N.C. State Bar No. 29456
phil.strach@ogletreedeakins.com
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Telephone: (919) 787-9700
Facsimile: (919) 783-9412
N.C. R. App. P. 33(b) Certification: I
certify that all of the attorneys listed
below have authorized me to list their
names on this document as if they had
personally signed it
OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C.
Thomas A. Farr
N.C. State Bar No. 10871
Michael McKnight
N.C. State Bar No. 36932
Alyssa M. Riggins
N.C. State Bar No. 52366
phil.strach@ogletreedeakins.com
tom.farr@ogletreedeakins.com
michael.mckmight@ogletreedeakins.com
Alyssa.riggins@ogletreedeakins.com
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Telephone: (919) 787-9700
Facsimile: (919) 783-9412
BAKER & HOSTETLER, LLP
E. Mark Braden*
(DC Bar #419915)
Katherine L. McKnight*
37

 (DC Bar #994456)
Trevor M. Stanley*
(VA Bar # 77351)
Richard B. Raile*
(VA Bar # 84340)
mbraden@bakerlaw.com
kmcknight@bakerlaw.com
tstanley@bakerlaw.com
rraile@bakerlaw.com
Washington Square, Suite 1100
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5403
Telephone: (202) 861-1500
Facsimile: (202) 861-1783
Patrick T. Lewis*
(OH Bar # 0078314)
127 Public Square, Suite 2000
plewise@bakerlaw.com
Cleveland, OH 44114-1214
Telephone: (216) 621-0200
Facsimile: (216) 696-0740
Robert J. Tucker*
(OH Bar # 0082205)
rtucker@bakerlaw.com
200 Civic Center Drive, Suite 1200
Columbus, OH 43215-4138
Telephone: (614) 228-1541
Facsimile (614) 462-2616
*pro hac vice motions forthcoming

38

 CERTIFICATE OF SERVICE
This is to certify that pursuant to Rule 26 of the North Carolina
Rules of Appellate Procedure, I hereby certify that the foregoing
document has been filed with the clerk of the North Carolina Supreme
Court by Electronic Submission. I further certify that a copy of this
document has been duly served upon the following counsel of record by
email and U.S. First class Mail:
Edwin M. Speas, Jr.
Caroline P. Mackie
P.O. Box 1801
Raleigh, NC 27602-1801
(919) 783-6400
espeas@poynerspruill.com
Counsel for Common Cause, the
North
Carolina Democratic Party, and
the
Individual Plaintiffs
John E. Branch, III
Nate Pencook
128 E. Hargett St, Suite 300
Raleigh, NC 27601
(919)856-9494
jbranch@shanahanlawgroup.com
Counsel for the IntervenorDefendants

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
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
Counsel for Common and the
Individual Plaintiffs

39

 This 6th day of November, 2019.
By:/s/ Phillip J. Strach
Phillip J. Strach
N.C. State Bar No. 29456

40630402.1

40

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Pick: a side, NC: Dur voting rights are cm the chopping lUti'ler Viewsl

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Anita Earls @Ahitajarls -13 Apr 2013 
Angry White Guys: The ?eets cit Reactic-hary America NetiunofChahge

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Exhibit 2

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NO. 1:15-CV-399
SANDRA LITTLE COVINGTON, et al.,
Plaintiffs,
v.
THE STATE OF NORTH CAROLINA, et al,
Defendants.
PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ REMEDIAL DISTRICTS
AND MEMORANDUM OF LAW

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 1 of 48

 Table of Contents
I. 

INTRODUCTION ........................................................................................................................................... 1 

II. 

STATEMENT OF THE CASE ............................................................................................................... 5 

III. 

STATEMENT OF FACTS ........................................................................................................................ 6 

A. The legislative process for enactment of S.L. 2017-207 and S.L. 2017-208 ........ 6
B. The enacted districts............................................................................................. 15
IV. 

ARGUMENT ................................................................................................................................................... 16 

A. The Court Must Consider Whether the Defendants’ Remedial Districts are
Legally Acceptable ..................................................................................................... 17
B. The Defendants Have the Burden of Proving That the Districts They Drew Fully
Cure the Constitutional Violation ............................................................................... 19
C. Four Districts are Still Racial Gerrymanders ....................................................... 20
1. SD 28………………………………………………………………………......22
2. SD 21………………………………………………………………………......24
3. HD 57………………………………………………………………………......27
4. HD 21………………………………………………………………………......30
5. Defendants' Assertions of Colorblindness Are Not Persuasive Evidence that
Racial Considerations Did Not Predominate in These Four Districts…………....31
D. Certain House and Senate Districts Violate the North Carolina Constitution ..... 33
1. The General Assembly Exceeded the Authority Granted It by This Court's
Orders and Redrew Districts in Violation of the State Constitutional Prohibition
on Mid-Decade Redistricting……………………………………………………..35
2. Remedial House Districts Violate the State Constitutional Whole County
Provision………………………………………………………………………….38
3. A Remedial Senate District Violates the State Constitutional Compactness
Requirement………………………………………………………………………41
E. Partisan Gerrymander Objection Reserved .......................................................... 42
V. 

CONCLUSION ............................................................................................................................................... 43 

ii

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 2 of 48

 Exhibits to Plaintiffs’ Objections and Memorandum of Law
Exhibit 1: Letter from Anita Earls, Counsel for Plaintiffs, to Thomas Farr, et al.,
(August 23, 2017)
Exhibit 2: Public Written Comments Submitted to the General Assembly
Exhibit 3: Campaign Legal Center August 22, 2017 Analysis Submitted to the
General Assembly
Exhibit 4: Campaign Legal Center August 24, 2017 Analysis Submitted to the
General Assembly
Exhibit 5: Declaration of Senator Gladys Robinson
Exhibit 6: Declaration of Anthony E. Fairfax
Exhibit 7: Declaration of William R. Gilkeson, Jr.
Exhibit 8: Declaration of Senator Robert Benjamin Clark, III
Exhibit 9: Senate District Compactness and Incumbent Pairing Data
Exhibit 10: Declaration of Dr. Gregory Herschlag
Exhibit 11: House District Compactness and Incumbent Pairing Data
Exhibit 12: Hofeller Deposition Excerpt in LWV v. Rucho
Exhibit 13: Gimpel Deposition Excerpt in LWV v. Rucho

iii

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 3 of 48

 I.

INTRODUCTION

Following an evidentiary hearing on July 27, 2017 on Plaintiffs’ motions for
additional relief and for a court-ordered timeline for the adoption of new districts to
remedy the constitutional violations found in nine senate districts and nineteen house
districts, this Court allowed the Defendants until September 1, 2017 to enact new House
and Senate districts “remedying the constitutional deficiencies with the Subject
Districts”, Order 8, July 31, 2017, ECF No. 180. Plaintiffs object to the remedial districts
enacted by the General Assembly on two grounds: first, that two of the newly drawn
Senate Districts, (SD 28 and SD 21) and two of the newly drawn House Districts (HD 21
and HD 57) fail to cure the racial gerrymandering violations identified by this Court; and
second, that one Senate District (SD 41) and seven House Districts (HD 10, 36, 37, 40,
41, 83, and 105) cannot be used as remedial districts because they violate the North
Carolina Constitution. The Court has before it all the evidence necessary to make these
determinations and should itself remedy these particular constitutional defects in the
state’s maps.1 See Chapman v. Meier, 420 U.S. 1, 27 (1975) (If the legislative body
responds with a legally unacceptable remedy, “the responsibility falls on the District
Court.”); White v. Weiser, 412 U.S. 783, 797 (1973) (District court should “defer to state

1

Plaintiffs also object to the remedial districts on the grounds that they are an
unconstitutional partisan gerrymander, but as explained below, infra at 42, acknowledge that the
record is not complete on this issue.

1

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 4 of 48

 policy in fashioning relief only where that policy is consistent with constitutional norms
and is not itself vulnerable to legal challenge.”).
It is this Court’s responsibility to fully remedy the constitutional violations
suffered by Plaintiffs. Brown v. Plata, 563 U.S. 493, 571 (2011) (“Once a constitutional
violation is found, a federal court is required to tailor the scope of the remedy to fit the
nature and extent of the constitutional violation.”) (internal citation omitted). At the
same time, “[t]he remedial powers of an equity court must be adequate to the task, but
they are not unlimited,” Whitcomb v. Chavis, 403 U.S. 124, 161 (1971). Therefore
Plaintiffs ask this Court to order the use of Plaintiffs’ proposed remedial districts only in
the areas of the state impacted by the remaining constitutional defects in the Defendants’
districts or alternatively to appoint a special master to draw remedial districts in those
limited areas where the constitutional violations have not been cured or new
constitutional violations exist. See Personhuballah v. Alcorn, 155 F. Supp. 3d 552 (E.D.
Va. 2016) (three judge court) (implementing redistricting plan drawn by special master to
remedy racial gerrymander).
To be clear, this Court originally found constitutional violations in 28 districts. In
order to comply with the Court’s remedial order to correct those violations and remain
consistent with the North Carolina Constitution, the General Assembly altered a total of
116 House and Senate districts. Plaintiffs object to 12 of those newly drawn districts as
violating the federal and state constitutional provisions applicable to legislative
2

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 5 of 48

 redistricting in North Carolina. Those objections, and alternative maps that cured those
problems, were presented to the North Carolina General Assembly by Plaintiff Rev.
Julian Pridgen at the public hearing on August 22, 2017 and by a letter to Counsel for
Defendants dated August 23, 2017, well before the final remedial districts were adopted
on August 31, 2017. See Raleigh Public Hr’g Tr. 143:20-145:23, Aug. 22, 2017, ECF
No. 184-10; Letter from Anita Earls to Thomas Farr, et al. (Aug. 23, 2017) (attached as
Ex. 1). None of the constitutional flaws identified by Plaintiffs were altered in the final
enacted districts.
Plaintiffs do not contend that all 116 newly drawn House and Senate districts must
be rejected, but only that the 12 unconstitutional districts cannot be used and alternative,
constitutionally-compliant districts must be ordered by this Court. The areas impacted by
these districts in each plan are illustrated by the red circles on these maps:

3

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 6 of 48

  

2017 Senate Redistricting Plan

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case Document 187 Filed 09/15/17 Pace 7 of 48

II.

STATEMENT OF THE CASE

On August 15, 2016, this Court issued a Memorandum Opinion holding that
twenty-eight House and Senate districts are racial gerrymanders in violation of the Equal
Protection Clause of the Fourteenth Amendment, and issued an accompanying order
enjoining the state from using those districts in conducting any elections after November
8, 2016. Op., ECF No. 123. In a subsequent remedial order the Court allowed the
General Assembly until March 15, 2017 to enact new districts and required the state to
hold special primary and general elections using those new districts in 2017. Order, ECF
No. 140 (Nov. 29 2016). That Order was stayed by the United States Supreme Court
pending review of the merits of Plaintiffs’ claims. North Carolina v. Covington, 137 S.
Ct. 808 (2017) (mem.).
On June 5, 2017, the Supreme Court summarily affirmed this Court’s judgment on
the merits of the case in favor of Plaintiffs. North Carolina v. Covington, No. 16-649
(U.S. 2017). That same day the Court vacated this Court’s remedial order and remanded
the case for a balancing of the equities and imposition of a remedy. North Carolina v.
Covington, No. 16-1023, slip op. at 2-3 (U.S. June 5, 2017) (per curiam). On July 31, this
Court issued an order allowing the Defendants until September 1, 2017, or up to two
weeks longer if requested, to redraw the unconstitutional districts and submit them to the
Court for review. Order 8, 10, ECF No. 180.

The Defendants did not request an

5

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 8 of 48

 extension of deadlines, enacted remedial districts on August 31, 2017, and filed the newly
enacted plans and related materials with the court on September 7, 2017.
III.
A.

STATEMENT OF FACTS

The legislative process for enactment of S.L. 2017-207 and S.L. 2017208

Redistricting committees adopted faulty criteria.
At the outset of the redistricting process, the House and Senate redistricting
committees adopted map-drawing criteria to be provided to Dr. Thomas Hofeller, whom
the General Assembly again hired to draw its 2017 remedial maps. See Joint Redistricting
Comm. Meeting Tr. 4:23-25, 69:12-16, Aug. 10, 2017, ECF No. 184-9. One of these
criteria directly perpetuated the effects of the unconstitutional 2011 districts by requiring
that, to the extent possible, the 2017 districts protect the incumbents elected under the
2011 districts. Adopted Criteria for House and Senate Plans, ECF No. 184-37. That is,
applying this criterion, the committee cemented the harms created by the state’s 2011
unconstitutional actions in districts that were supposed to remedy the earlier maps’
unconstitutionality.
The committees expressly forbade any consideration of racial data in drawing
district lines. See id. (“No Consideration of Racial Data. Data identifying the race of
individuals or voters shall not be used in the drawing of legislative districts in the 2017
House and Senate plans.” (emphasis in original)). Members of both committees pressed
the chairmen for an explanation of how the General Assembly could ensure the racial
6

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 9 of 48

 gerrymanders in the 2011 maps had been cured if the legislature refused to consider racial
data when adopting remedial maps, in some cases reading directly from this Court’s July
31 remedial order. See, e.g., Joint Redistricting Comm. Meeting Tr. 151:6-154:17,
155:21-156:12, 177:14-19, Aug. 10, 2017, ECF No. 184-9; House Select Comm. on
Redistricting Meeting Tr. 21:22-23:7, Aug. 25, 2017, ECF No. 184-18. Rep. David
Lewis, chairman of the House Select Committee on Redistricting, explained the
legislative leadership’s interpretation of this Court’s August 11, 2016 opinion and July
31, 2017 order as follows:
Despite the voluminous record that was established by the General
Assembly during the 2011 redistricting process, the three-judge panel in the
Covington case said that this did not constitute substantial evidence that
would justify using race to draw districts in compliance with the VRA.
Therefore, we do not believe it is appropriate given the Court’s order in this
case for these committees to consider race when drawing districts.
...
We do not believe, in light of the Covington opinion, that there is
substantial evidence in the record to justify the use of race in drawing
districts. Given the Court’s order in this case, we believe the only way to
comply with the legal requirements regarding the drawing of districts is not
to consider race in that process.
Joint Redistricting Comm. Meeting Tr. 149:4-14, 158:11-18, Aug. 10, 2017, ECF
No. 184-9. An amendment to allow for consideration of racial data was rejected by the
committees in formal votes along political party lines. See Joint Redistricting Comm.
Meeting Tr. 174:24-186:14, Aug. 10, 2017, ECF No. 184-9.

7

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 10 of 48

 While stopping short of explicitly adopting “partisan advantage” as a criterion as
the committee did in the 2016 congressional redistricting process, the committees broadly
provided for “political considerations” to be taken into account in drawing district lines.
Compare 2016 Contingent Congressional Plan Committee Adopted Criteria, N.C.
General

Assembly,

http://www.ncleg.net/GIS/Download/ReferenceDocs/2016/CCP16_Adopted_Criteria.pdf
with Adopted Criteria for House and Senate Plans, ECF No. 184-37.
The proposed criteria were adopted by the redistricting committees within hours of
their introduction, without amendment. See generally Joint Redistricting Comm. Meeting
Tr., Aug. 10, 2017, ECF No. 184-9. The public was afforded no opportunity to comment
on the proposed criteria between their introduction and adoption, but members of the
public, including Plaintiffs, later formally objected to the criteria and called upon the
committees to revise them. 2 See, e.g., Raleigh Public Hr’g Tr. 78:11-80:14, Aug. 22,
2017, ECF No. 184-10 (comments of Plaintiff Channelle James). The committees
declined to revise the criteria in response to public input.

2

A week before the proposed criteria were introduced, the joint redistricting committees
held a meeting to receive public input on criteria for drawing maps. Recurring requests from
members of the public during this meeting included requests that the General Assembly exclude
partisan advantage and incumbency protection as criteria, and consider racial data in a way that
ensured the racial gerrymanders identified by this Court were in fact cured. See, e.g., Joint
Redistricting Comm. Meeting Tr. 29:19-30:23, 58:20-59:11, Aug. 4, 2017, ECF No. 184-8.
Members of the public also repeatedly called for the maps to be drawn by someone other than
the consultant who drew the 2011 maps struck down by this Court. E.g., id. at 33:25-34:2, 44:410, 66:18-67:9.

8

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 11 of 48

 In adopting criteria, the redistricting committees provided no guidance to Dr.
Hofeller as to which of the criteria should take precedence over others, beyond the
requirement that the maps must comply with state and federal law. See House Select
Comm. on Redistricting Meeting Tr. 62:4-6, Aug. 25, 2017, ECF No. 184-18.
Redistricting committees minimized and disregarded public input.
More than a week after redistricting criteria were adopted, the proposed remedial
maps for the House and Senate were released over the weekend of August 19-20, 2017,
ahead of public hearings scheduled at six sites throughout the state on Tuesday, August
22. However, the block assignment files and statistical data associated with the maps,
which were necessary for any meaningful analysis, were not released to legislative
committee members or the public until midday Monday, August 21, the day before the
public hearings.3
The public hearings were held on a weekday afternoon, with six satellite meeting
sites teleconferenced into a central meeting site in Raleigh. Several of the satellite sites
were filled beyond capacity, in part because they were held in locations that held as few

3

Plaintiffs’ counsel sent an email to Defendants’ counsel on Saturday, August 19
explaining that the block assignment files and underlying data were necessary for conducting any
meaningful analysis of the maps. Plaintiffs’ counsel requested that the block assignment files and
underlying data be furnished simultaneously with release of the maps, and further requested an
explanation for why that information was not being provided at the time the maps were released.
Plaintiffs’ counsel received no response to their email.

9

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 12 of 48

 as 25 people in populous areas. 4 From the start, this arrangement was plagued with
technical difficulties, and two and a half hours into the meeting Rep. David Lewis
announced a decision to separate the proceedings into seven concurrent meetings. 5 See
Raleigh Public Hr’g Tr. 111:1-9, Aug. 22, 2017, ECF No. 184-10; see id. at 110:11-16
(announcing that more than 200 people remained signed up to speak as of 6:30 p.m.); see
also House Select Comm. on Redistricting Meeting Tr. 30:10, Aug. 25, 2017, ECF No.
184-18 (acknowledging “technical problems” during the hearings).
Following the public hearings, transcripts of the comments received at the six sites
were not timely furnished to members of the redistricting committee for review. House
Select Comm. on Redistricting Meeting Tr. 29:4-18, Aug. 25, 2017, ECF No. 184-18.
Nor were the more than 4,300 comments submitted in writing via an online portal, and

4

For example, the Guilford County site held 25-30 people, and the Mecklenburg County
site held 45-55 people. Aug. 22, 2017 Redistricting Public Hr’g Sites, N.C. General Assembly,
http://www.ncleg.net/documentsites/committees/house2017-183/8-222017/Sites%20for%20Public%20Comment.pdf; see also House Select Comm. on Redistricting
Meeting Tr. 30:3-8, Aug. 25, 2017, ECF No. 184-18 (“some of the satellite sites weren’t as big
as perhaps we would have chosen if we could go back and do it again”). By contrast, a satellite
site in Caldwell County, in a part of the state where no districts were being redrawn in 2017, was
not full. See Hudson Public Hr’g Tr. 2:5-11, Aug. 22, 2017, ECF No. 184-14.
5
By this time, many people who had signed up to speak but had not yet been called upon
to address the committee had left the meetings. See Raleigh Public Hr’g Tr. 122:13-21, Aug. 22,
2017, ECF No. 184-10 (noting “many individuals have left” and overflow room had been closed
as roll calls go unanswered). The meetings nonetheless lasted well into the night, with the
Raleigh site adjourning shortly before 10 p.m. See House Select Comm. on Redistricting
Meeting Tr. 29:7-8, Aug. 25, 2017, ECF No. 184-18.

10

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 13 of 48

 the redistricting committees had no plan for reviewing those comments.6 See id. at 30:2031 (“I don’t know that anyone was specifically tasked with looking at them.”).
Plaintiffs submitted alternative maps and objections, which were rejected.
Before either redistricting committee convened to consider the proposed maps,
Plaintiffs’ counsel sent a letter to the redistricting committee chairs identifying districts in
the map where the racial gerrymanders identified by this Court had been perpetuated.
Letter from Anita Earls to Thomas Farr, et al. (Aug. 23, 2017). This letter also identified
several districts that had been drawn in violation of the state constitution. Id.; see also
Raleigh Public Hr’g Tr. 143:20-145:23, Aug. 22, 2017, ECF No. 184-10 (comments of
Plaintiff Julian Pridgen). Before either committee debated or voted on the proposed maps,
Plaintiffs provided the committees with alternative House and Senate maps illustrating
how the constitutional violations they had identified could be corrected. See ECF No.
184-28 (Plaintiffs’ House plan, introduced after submission as an amendment by Rep.
Darren Jackson); ECF No. 184-34 (Plaintiffs’ Senate plan, introduced after submission as
an amendment by Sen. Dan Blue); see also Rev. Julian Pridgen Comments and Maps,
Senate

Redistricting

Comm.,

http://www.ncleg.net/gascripts/DocumentSites/browseDocSite.asp?nID=357&sFolderNa
me=\08-22-2017\Submitted%20public%20comments\Rev.%20Julian%20Pridgen

6

(last

As of the time of this filing, those written comments had also not been submitted to this
Court. They are attached here as Ex. 2.

11

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 14 of 48

 visited Sept. 15, 2017). The Plaintiffs’ House and Senate maps were introduced for
consideration in both committees and on the Senate floor, and in each case were rejected
by a formal vote along party lines, in part because racial data had been taken into
consideration in drawing the district lines. See Senate Redistricting Comm. Meeting Tr.
130:18-15, Aug. 24, 2017, ECF No. 184-17; Senate Floor Session Tr. 120:18-20, Aug.
25, 2017, ECF No. 184-19; House Select Comm. on Redistricting Meeting Tr. 112:3117:7, Aug. 25, 2017, ECF No. 184-18. No changes were ultimately made to the enacted
maps in response to any of the Plaintiffs’ suggestions. House Select Comm. on
Redistricting Meeting Tr. 19:17-21, Aug. 25, 2017, ECF No. 184-18.
Partisan impact of enacted maps was made clear to legislators.
During the legislative process, the nonpartisan Campaign Legal Center conducted
an analysis of the political symmetry of the proposed House and Senate plans. That
analysis found a nearly 12% efficiency gap in favor of Republicans in both the House and
Senate maps, among the largest gap of any state legislative plan in the nation and well
beyond the level experts consider presumptively unconstitutional. Memo from Ruth
Greenwood to House Select Comm. on Redistricting & Senate Redistricting Comm.,
Aug. 22, 2017 (attached as Ex. 3) (finding 11.98% efficiency gap in House map and
11.87% efficiency gap in Senate map, and stating that experts consider gaps of 7%
presumptively unconstitutional).

12

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 15 of 48

 Campaign Legal Center formally submitted this analysis to the redistricting chairs
for consideration during the legislative process, and legislators and members of the public
brought the analysis and other politically asymmetrical aspects of the proposed maps to
the committees’ attention. See id.; Raleigh Public Hr’g Tr. 167:13-168:18, Aug. 22, 2017,
ECF No. 184-10 (comments of Bob Hall); Senate Redistricting Comm. Meeting Tr.
26:24-29:12, Aug. 24, 2017, ECF No. 184-17 (Sen. Ben Clark). The partisan bias in the
districts was not caused by the need to comply with the Whole County provision as a
second analysis comparing the legislature’s proposed districts with those submitted by
the Plaintiffs showed that it is possible to remedy the constitutional violations with
districts that have less than a 2% efficiency gap. See Memo from Ruth Greenwood to
House Select Comm. on Redistricting & Senate Redistricting Comm., Aug. 24, 2017
(attached as Ex. 4). No changes were ultimately made to the enacted maps to address the
partisan asymmetry identified by the Campaign Legal Center and others. See generally
Senate Redistricting Comm. Meeting Tr., Aug. 24, 2017, ECF No. 184-17; House Select
Comm. on Redistricting Meeting Tr., Aug. 25, 2017, ECF No. 184-18.
Changes made during the process were minor and largely protected incumbents.
The few amendments made to the maps during the legislative process were minor
and came largely at the request of incumbents with regard to their own districts or other
districts within their county groupings. Senate Redistricting Comm. Meeting Tr. 67:1519, Aug. 24, 2017, ECF No. 184-17 (adjusting boundary between two districts in Wake
13

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 16 of 48

 County at incumbent’s request); id. at 52:5-9 (adjusting boundary between two districts
in Cumberland and Hoke counties at incumbent’s request); House Select Comm. on
Redistricting Meeting Tr. 16:2-18, Aug. 25, 2017, ECF No. 184-18 (amending maps at
request of members in Surry, Richmond, and Bladen county groupings); id. at 16:1817:2, 36:4-16 (renumbering districts in Mecklenburg, Forsyth, and Nash counties); House
Floor Session Tr. 31:19-32:2, Aug. 28, 2017, ECF No. 184-20 (adjusting district
boundaries in Wake County at the request of a county delegation member).
Maps were adopted in largely party-line votes.
All of the African-American legislators in both the House and Senate voted
against the 2017 enacted maps on second reading, as did all of the Democratic
legislators. 7 Aside from a few Republican legislators who voted against one or both
enacted maps because of their opposition to particular district lines or county groupings,
e.g., Senate Floor Session Tr. 59:5-9, Aug. 25, 2017, ECF No. 184-19, all committee and
floor votes to adopt the 2017 enacted maps largely adhered to political party lines.

7

See H.R. Roll-Call Tr. for 2d Reading of H.B. 927, N.C. General Assembly,
http://www.ncleg.net/gascripts/voteHistory/RollCallVoteTranscript.pl?sSession=2017&sChambe
r=H&RCS=924 (last visited Sept. 15, 2017); S. Roll-Call Tr. for 2d Reading of H.B. 927, N.C.
General
Assembly,
http://www.ncleg.net/gascripts/voteHistory/RollCallVoteTranscript.pl?sSession=2017&sChambe
r=S&RCS=548; S. Roll-Call Tr. for 2d Reading of S.B. 691, N.C. General Assembly,
http://www.ncleg.net/gascripts/voteHistory/RollCallVoteTranscript.pl?sSession=2017&sChambe
r=S&RCS=542; H.R. Roll-Call Tr. for 2d Reading of S.B. 691, N.C. General Assembly,
http://www.ncleg.net/gascripts/voteHistory/RollCallVoteTranscript.pl?sSession=2017&sChambe
r=H&RCS=926.

14

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 17 of 48

 B.

The enacted districts

In response to this Court’s July 31 order, ECF No. 180, the General Assembly
redrew 79 of its 120 House districts and 36 of its 50 Senate districts. Compare 2011
House map with Map of 2017 House Redistricting Plan, ECF No. 184-1; 2011 Senate
map with Map of 2017 Senate Redistricting Plan, ECF No. 184-4.
Three of the redrawn districts are majority black:
District

County

HD 57
HD 101
SD 28

Guilford
Mecklenburg
Guilford

Pre-2011
TBVAP%
21.38%
50.60%
44.18%

2011 TBVAP%

2017 TBVAP%

50.69%
51.31%
56.49%

60.75%
50.82%
50.52%

When asked how they would justify adoption of those three majority-black
districts in response to the Court’s July 31 order, legislative leaders responded either by
saying the Court’s order did not permit them to consider race when drawing the maps or
vaguely suggesting that the Court had left the door open to drawing majority-black
districts that were naturally occurring. Joint Redistricting Comm. Meeting Tr. 151:6154:17, Aug. 10, 2017, ECF No. 184-9; Senate Redistricting Comm. Meeting Tr. 101:418, Aug. 24, 2017, ECF No. 184-17.
In addition to the three majority-black districts, nine of the redrawn districts not
composed of whole counties have a total black voting age population of more than 47%:
District

County

HD 31
HD 32

Durham
Granville,
Vance, Warren

Pre-2011
TBVAP%
44.71%
36.22%

2011 TBVAP%

2017 TBVAP%

51.81%
50.45%

49.56%
49.12%

15

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 18 of 48

 HD 38
HD 43
HD 72
HD 99
HD 107
SD 21
SD 38

Wake
Cumberland
Forsyth
Mecklenburg
Mecklenburg
Cumberland,
Hoke
Mecklenburg

31.63%
48.69%
43.40%
28.29%
50.48%
41.00%

51.37%
51.45%
45.02%
54.65%
52.52%
51.53%

48.30%
49.96%
47.51%
49.54%
49.39%
47.51%

47.69%

52.51%

48.46%

As with the three majority-black districts, no explanation was provided during the
legislative process as to why these nine districts were drawn with greater than 47% total
black voting age population. See generally ECF No. 184-17 through -25.
In single-county groupings, the General Assembly redrew all of the districts within
each single-county group, including districts that had not been held unconstitutional and
did not border a district that had been held unconstitutional. See Map of 2017 House
Redistricting Plan, ECF No. 184-1 (HD 26, 37, 40, 41, 105). Twice in groupings with
multiple counties the General Assembly drew districts composed of portions of multiple
counties where the district could have satisfied population requirements while traversing
fewer county lines. See id. (HD 10, 83).
IV.

ARGUMENT

Defendants failed to cure the unconstitutional racial gerrymanders in four districts:
Senate District 21 in Cumberland and Hoke Counties, Senate District 28 in Guilford
County, House District 21 in Wayne and Sampson Counties, and House District 57 in
Guilford County.

Race predominated in the drawing of these district lines, and

Defendants offer no compelling governmental interest to justify those districts.
16

Case 1:15-cv-00399-TDS-JEP Document 187 Filed 09/15/17 Page 19 of 48

 Nothing in any of the court’s orders in this case authorizes or requires the General
Assembly to ignore the dictates of the North Carolina Constitution as it specifically
relates to redistricting.8 However, Senate District 41 in Mecklenburg County, and seven
House Districts in the 2017 enacted plans violate various provisions of the North
Carolina Constitution. Those districts are not legally permissible remedial districts and
cannot be an acceptable remedy for the violations that exist in the 2011 districts.
A.

The Court Must Consider Whether the Defendants’ Remedial Districts
are Legally Acceptable

This Court has both the authority and the responsibility to ensure that the General
Assembly’s 2017 Senate and House redistricting plans are in fact a true and legal remedy.
See Chapman v. Meier, 420 U.S. 1 (1975) (reversing the lower court’s approval of
remedial legislative districts that violated the one-person, one-vote requirement). Indeed,
“while a court must not overreach when fashioning a remedy of its own, it must
determine whether the legislative remedy enacted at its behest is in fact a lawful
substitute for the original unconstitutional plan.” Harris v. McCrory, No. 13-cv-949,
2016 U.S. Dist. LEXIS 71853, at *5 (M.D.N.C. June 2, 2016). The Fourth Circuit’s
seminal precedent on this question is McGhee v. Granville County, 860 F.2d 110 (4th Cir.
8

Indeed, Defendants acknowledge that when redrawing districts to cure the racial
gerrymanders, they needed to change the county grouping configurations in much of the state in
order to comply with the Article II, Sections 3(3) and 5(3) of the North Carolina Constitution
which state respectively that “[n]o county shall be divided in the formation of a senate district”
and “[n]o county shall be divided in the formation of a representative district.” See Notice of
Filing 6, Sept. 7, 2017, Doc. 184 (explaining that ideal county grouping maps were provided to
the Senate and House redistricting committees).

17

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 1988), where the court held that when reviewing a jurisdiction’s proposed remedial
districts, a court must consider “whether the proffered remedial plan is legally
unacceptable because it violates anew constitutional or statutory voting rights.” Id., at
115. See also, Wilson v. Jones, 130 F. Supp. 2d 1315, 1322 (S.D. Ala. 2000), aff’d sub
nom. Wilson v. Minor, 220 F. 3d 1297 (11th Cir. 2000) (“When … the districting plan is
offered as a replacement for one invalidated by the court and will be implemented solely
by virtue of the court’s power, the court has an independent duty to assess its
constitutionality and cannot ignore substantial evidence of improper racial motivation.”).
It is widely understood that a remedial plan which itself fails constitutional muster
is afforded no deference. See, e.g., White v. Weizer, 412 U.S. 783, 797 (1973) (reviewing
court “should defer to state policy in fashioning relief only where that policy is consistent
with constitutional norms”). Courts have appropriately refused to implement legislative
remedies that are themselves unlawful or fail to remedy the original violation. See, e.g.,
Large v. Fremont Cnty, 670 F.3d 1133, 1135 (10th Cir. 2012) (affirming district court’s
order rejecting the county’s proposed remedial plan because it violates state law); Harvell
v. Blytheville Sch. Dist. No. 5, 126 F.3d 1038, 1040 (8th Cir. 1997) (affirming district
court’s rejection of school board’s remedial plan because the plan did not completely
remedy the violation); Buchanan v. City of Jackson, 683 F. Supp. 1537, 1541 (W.D.
Tenn. 1988) (rejecting commissioners’ remedial plan). Here, in the areas of the state
where the General Assembly’s remedial districts do not cure the racial gerrymander, and
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 in other areas where the remedial districts violate the state constitution, those districts
cannot be used and the Plaintiffs alternative districts should be substituted as the proper
remedy.
B.

The Defendants Have the Burden of Proving That the Districts They
Drew Fully Cure the Constitutional Violation

Under equal protection jurisprudence, Defendants bear the burden to prove that
their proposed remedial districts have fully cured the constitutional violation found in this
case. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 26 (1971)
(school authorities proposing desegregation plans “have the burden of showing that such
school assignments are genuinely nondiscriminatory”); Dayton Bd. of Educ. v. Brinkman,
443 U.S. 526, 538 (1979) (school boards have an “affirmative responsibility” to ensure
desegregation efforts and a “heavy burden” of showing that their actions “serve important
and legitimate ends”); Vaughns v. Bd. of Education, 758 F.2d 983, 991 (4th Cir. 1985)
(district court erred in placing the burden of “proving the causal connection between the
prior unconstitutional condition and the need for ancillary relief” upon plaintiffs); Everett
v. Pitt County Bd. of Educ., 678 F.3d 281, 288 (4th Cir. 2012) (it is the inescapable
burden of a school board to demonstrate that an assignment plan works toward
desegregation, “particularly where [the] plan allegedly causes immediate and substantial
adverse effects”).
Similarly, this is the case in other contexts as well. See, e.g., Muhammad v. Giant
Food, 108 Fed. Appx. 757 (4th Cir. 2004) (burden in remedial phase of class action
19

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 employment discrimination suit is on employer); Coleman v. Brown, 938 F. Supp. 2d 955
(E.D. Cal. 2013) (where defendant prison officials were found to have violated the Eighth
Amendment, the burden remained on the defendants to prove constitutional compliance
during the remedial proceedings); Smith v. Bounds, 813 F.2d 1299 (4th Cir. 1987)
(burden of proving compliance with constitutional standards is on department of
corrections after court finds systemic constitutional violations). Defendants must show
that their proposed 2017 districts fully remedy the unconstitutional use of race that
occurred when those districts were initially drawn in 2011.
C.

Four Districts are Still Racial Gerrymanders

Plaintiffs object to SD 21, SD 28, HD 21 and HD 57 because they fail to cure the
constitutional violation originally found by this court to exist in those districts and in the
area of the state where they are located. See Covington v. N.C., 316 F.R.D. 117, 146-48,
155-56, 163 (M.D.N.C. 2016). As a threshold matter, it is important to note that the Court
ordered that Defendants explain “as to any district with a BVAP greater than 50%, the
factual basis upon which the General Assembly concluded that the Voting Rights Act
obligated it to draw the district at greater than 50% BVAP.” Order 9, July 31, 2017, ECF
No. 180. The Defendants’ only explanation is that “[t]o the extent that any district in the
2017 House and Senate redistricting plans exceed 50% BVAP, such a result was naturally
occurring and the General Assembly did not conclude that the Voting Rights Act
obligated it to draw any such district.” Notice of Filing 10-11, ECF No. 184. Thus, the
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 only issue is whether Defendants have demonstrated that race did not predominate in the
drawing of any of the remedial districts, as Defendants offer no compelling governmental
interest to justify these districts.
It is also important to note that Plaintiffs are not objecting to all of the redrawn
districts that are close to or greater than 50% black in voting age population. See supra at
14-15 (of the redrawn districts that are not composed of whole counties, three are
majority-BVAP and nine are greater than 47% in total BVAP). Plaintiffs’ objection to
these four districts is not based solely on the racial composition of the districts but rather
includes circumstantial evidence such as the shapes of the districts and the populations
contained within them. While the implications of this data may be contested, the facts
themselves, the compactness scores, the district lines and the census data, are not
contested.
Additionally, the principles that this Court outlined in its original opinion
concerning the relevance and probative value of this evidence to prove that race
predominated in the drawing of the districts in 2011 is equally applicable to the 2017
districts.

See Covington v. North Carolina, 316 F.R.D. 117, 140 (M.D.N.C. 2016)

(explaining concepts and categories of evidence relevant to a racial gerrymander claim).
Lack of geographic compactness, whether measured mathematically or assessed visually,
repeatedly has been relied upon as a “sign of race predominating,” as has contiguity. Id.,
316 F.R.D. at 141. Similarly, racial demographic data and the race of individuals added
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 to or subtracted from the benchmark district, “may signify whether ‘race was the
predominant factor motiving the legislature’s decision to place a significant number of
voter within or without a particular district.’” Id. (quoting Miller v. Johnson, 515 U.S.
900, 916 (1995)).
1.

Senate District 28

The 2017 enacted version of Senate District 28 is contained wholly within
Guilford County, as were the 2011 and 2003 versions of the district. The benchmark
version of the district before the 2011 redistricting included 47.20% BVAP, which in
2011 was increased to 56.49% BVAP, in part through the inclusion of an arm that
“protrude[d] west, then hook[ed] south” into an area of concentrated black population in
the city of High Point. Op. at 71, ECF No. 123. In the 2017 version of SD 28, the High
Point arm has been cut off at the shoulder by means of a split precinct where incumbent
Sen. Gladys Robinson lives, but the district’s core shape and other features of the racially
gerrymandered 2011 district that this Court found persuasive in 2016 remain. See Map of
2017 Senate Redistricting Plan, ECF No. 184-4; Decl. of Gladys Robinson ¶ 13 (attached
as Ex. 5).
The 2017 version of SD 28 has a total BVAP of 50.52%. Additional Statistics on
2017 Senate Redistricting Plan 22, ECF No. 184-6. To achieve that concentration of
black voters in SD 28, as in the 2011 plan, the map drawers again “outline[d] areas with a
high proportion of African-Americans,” Op. at 73, ECF No. 123, continuing to employ a
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 reverse “L” shape that follows the contours of the black population of Greensboro while
majority-white areas of the city are left out of the district. Decl. of Anthony Fairfax ¶ 21
& Figure 2 (attached as Ex. 6). In the 2017 version of SD 28, every majority-black VTD
in Greensboro falls within the district’s boundaries, id. ¶ 20, and as in 2011 the district
splits Greensboro along racial lines, Op. at 73, ECF No. 123.
In maintaining SD 28 as a majority-minority district, the General Assembly chose
to add whole precincts with significant BVAP levels to the district, while removing
whole precincts with lower BVAP levels. See Robinson Decl. ¶ 23. In at least one case,
the General Assembly departed from its criterion of respecting municipal boundaries to
split a precinct that is home to “several pockets of African-American residents.” Id. ¶ 22.
In adding population to SD 28 to offset the lost High Point arm, the General Assembly
split longstanding communities of interest in Greensboro. Id. ¶¶ 19-20. During the
legislative process for the 2017 plan, the Senate rejected alternative maps that would have
kept communities of interest in Greensboro together while returning SD 28 to its pre2011 BVAP levels. Id. ¶¶ 28-30.
Even without its High Point arm, the 2017 enacted version of SD 28 scores at the
bottom of its class in compactness. Only five of fifty Senate districts have lower PolsbyPopper scores than SD 28’s 0.17, which is 50% lower than the 0.34 mean compactness
score for the 2017 Senate plan as a whole. Measures of Compactness 6-9, Senate
Redistricting

Comm.,
23

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 http://www.ncleg.net/Sessions/2017/s691maps/S691%204th%20Ed.Combined.pdf.

9

Alternative maps introduced during the legislative process illustrate that SD 28 could
have been drawn more compactly while meeting population goals and other race-neutral
redistricting criteria. See ECF No. 184-34 at 23.
As in 2011, the General Assembly’s retention of the core shape of the 2011
version of SD 28, continued use of boundary lines that outline black population and
divide Greensboro along racial lines, selection of heavily black precincts for inclusion in
the district while more heavily white precincts are excluded from the district, and
disregard of communities of interest and municipal boundaries has resulted in a
configuration of SD 28 with greater than 50% total BVAP and substandard compactness
scores. Taken together, these factors demonstrate that race predominated in the
construction of the 2017 enacted version of SD 28.
2.

Senate District 21

In both the 2011 and the 2017 redistricting plans, Senate District 21 is one of two
districts drawn in a two-county cluster that includes Hoke and Cumberland Counties.
Compare Tr. Ex. 2116 with ECF No. 184-8 at 10, and ECF No. 136-1 at 18. In both
plans, SD 21 includes all of Hoke County and must reach in to Fayetteville in
Cumberland County to have enough population to satisfy the one person, one vote
9

Compactness data on the 2017 House and Senate plans is available on the General
Assembly’s website and was available during the legislative redistricting process but as of the
date of this filing had not been submitted to this Court. It and incumbent pairing data also
available during the legislative process are attached as Ex. 9 (Senate) and Ex. 11 (House).

24

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 requirement. Compare Tr. Ex. 2114 with ECF No. 184-4 at 2. In the 2011 plan, the
BVAP in SD 21 was increased from 44.93% in the 2003 plan to 51.53%. Covington, 316
F.R.D. at 146. As a consequence, the 2011 district had a bizarre shape, and contained
“multiple appendages, which are so thin and oddly shaped that it is hard to see exactly
where the district begins and ends. Some portions of the district are so narrow that the
district is nearly non-contiguous.” Id.
The 2017 version of SD 21 made only minimal changes to the district. The district
still has a BVAP of 47.51%, which is ten percentage points higher than the overall cluster
BVAP of 36.86%. Decl. of Ben Clark ¶ 11(d) (attached as Ex. 8). A comparison of the
areas moved out of the district and those moved into the district shows very little
difference between the 2011 and 2017 districts. See Clark Decl. at 3, Figure 1. Most
significantly, the BVAP in the Cumberland County portions of SD 21 is 51.66% while
the BVAP in SD 19 is only 25.99%. Clark Decl. ¶ 11(a). Numerous other demographic
facts further illustrate the continued packing of African-American voters into SD 21,
including a detailed examination of a notched intersection between the two districts
which can only be explained by the sorting of voters on the basis of race. See Clark Decl.
¶ 11(e); Gilkeson Decl. ¶¶ 38-40.
Furthermore, the General Assembly’s disposition of two proposed amendments to
SD 19 and SD 21 in the enacted Senate map illustrates that the racially gerrymandered
nature of the district remains. An amendment that did not change the racial composition
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 of the district was accepted, but an amendment that would have made the district lines
much more regular but that would also have reduced the BVAP in SD 21 was rejected.
See Clark Decl. ¶¶ 13-16.
Examining the racial demographics of the district also illustrates how the district
lines were drawn to pack most of the black voters in Cumberland County into SD 21.
The district cuts through downtown Fayetteville, picking up only the majority black
VTDs as well as almost all of the city’s majority-black census blocks.10 Fairfax Decl. ¶
17-19, Figure 1 & App. 4.
The 2017 version of SD 21 is not geographically compact.

The overall

compactness score for the district is just .25 using the Polsby-Popper measure. See
Measures

of

Compactness

6-9,

Senate

Redistricting

Comm.,

http://www.ncleg.net/Sessions/2017/s691maps/S691%204th%20Ed.Combined.pdf.
Equally damning is the fact that a more compact district can be drawn, as illustrated by
the district configuration in Plaintiffs’ proposed remedial districts in Cumberland County,
in which SD 21 has a Polsby-Popper score of .37. See ECF No. 184-34 at 2, 23 (Senator
Blue’s amendment, which was the Covington Plaintiffs’ Senate plan and which was
defeated in committee and on the floor of the Senate).

10

Additional evidence is that an illustrative district drawn solely for the purpose of
testing the hypothesis that racial considerations predominated in the drawing of SD 21, shows
that, if it were constitutional to draw districts to achieve a partisan advantage, and Plaintiffs
contend it is not, the same partisan outcome could be achieved in the Cumberland/Hoke county
grouping without packing black voters into SD 21. Gilkeson Decl. ¶¶ 54-57.

26

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 Most telling is an analysis performed by Dr. Gregory Herschlag, a member of the
Mathematics Department at Duke University. See Decl. of Gregory Herschlag (attached
as Ex. 10).
principles

He used traditional redistricting criteria and established mathematics
to

generate

simulated

maps

of

two

senate

districts

within

the

Hoke/Cumberland county grouping. He then compared the racial composition of those
simulated maps to the racial composition of enacted SD 19 and SD 21. The purpose of
his analysis was to test the likelihood that districts drawn within that grouping based on
traditional redistricting criteria and not race, would include a district like enacted SD 21
with a BVAP of 47.51% for the district and 51.66% for the portion in Cumberland. Dr.
Herschlag generated 78,485 maps for the Hoke/Cumberland grouping that contained two
senate districts. Not one of those maps contained a district with BVAP numbers as high
as enacted SD 21. Herschlag Decl. ¶ 8 & Figure 1. This finding conclusively establishes
that Defendants have failed to cure the racial gerrymander in the Hoke/Cumberland
grouping.
Taken together, these facts lead to only one possible conclusion. The Defendants
have failed to demonstrate that the minor changes they made to SD 21 cured the
unconstitutional use of race in the 2011 version of the district.
3.

House District 57

The 2017 enacted version of House District 57 is contained wholly within
Guilford County, as were the 2011 and 2003 versions of the district. The district changed
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 radically between 2009 and 2011, when the General Assembly reconfigured HD 57 to
create a third majority-black House district in Guilford County. Op. at 121, ECF No. 123
(noting “almost no discernable overlap” between the 2009 and 2011 versions of HD 57).
In 2011, the legislature increased the BVAP of HD 57 from 29.93% to 50.69%. Id. at
120, 121. The increased BVAP in 2011 resulted from two changes: (1) relocating the core
of the district to Northeast Greensboro, a heavily black community of interest that had
not been included in previous iterations of HD 57, and (2) extending “a tail” east into
Sedalia, a predominantly black community. Id. at 120-21, 123. In the 2017 version of HD
57, the Sedalia tail has been shorn off, but other features of the racially gerrymandered
2011 district remain. See Map of 2017 House Redistricting Plan, ECF No. 184-1;
Robinson Decl. ¶ 32.
The 2017 version of HD 57 has a total BVAP of 60.75%, the highest total BVAP
percentage of any House or Senate district in the state. Additional Statistics on 2017
House Redistricting Plan 30-32, ECF No. 184-3; see Additional Statistics on 2017 Senate
Redistricting Plan 22, ECF No. 184-6. To achieve that concentration of black voters in
HD 57, as in the 2011 plan, the map drawers again drew district boundaries that closely
track concentrations of black population. Fairfax Decl. ¶¶ 26-27 & Figure 4. As in 2011,
HD 57 splits Greensboro along racial lines. See id. at 123.
This continued pattern of racial sorting may be most stark in the Irving Park
neighborhood and southeastern Greensboro. In not only maintaining HD 57 as a
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 majority-minority district but also significantly increasing its total black voting age
population beyond the 2011 level, the General Assembly chose to add heavily black
precincts in southeastern Greensboro to the district, while removing majority-white
precincts in the Irving Park area. See Robinson Decl. ¶¶ 39-41. In doing so, the General
Assembly severed Irving Park from a community of interest near downtown Greensboro.
Id. ¶ 40. And in adding southeastern Greensboro to HD 57, the General Assembly
displaced without explanation a distinct, historic, civically engaged African-American
community, which has never before been a part of HD 57. See id. ¶ 41. During the
legislative process for the 2017 plan, incumbent Rep. Pricey Harrison of HD 57 pressed
the committee chairs for clarification on why the BVAP in her district was being
increased after the district had been found unconstitutional at a lower BVAP level. See
House Select Comm. on Redistricting Meeting Tr. 119:6-15, Aug. 25, 2017, ECF No.
184-18. Her comment received no substantive response. Id. at 120:2-6.
Even without the Sedalia tail, the 2017 enacted version of HD 57 scores below the
statewide mean Polsby-Popper and Reock compactness scores for the 2017 House plan as
a whole, despite the “inherent compactness” the district benefits from as a result of its
location in Greensboro. Op. at 121-22, ECF No. 123 (noting that compactness alone does
not establish that race did not predominate in drawing district boundaries); see Measures
of

Compactness

8-10,

House

Redistricting

Comm.,

http://www.ncleg.net/Sessions/2017/h927maps/HB%20927%203rd%20Ed.Combined.pdf
29

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 . Plaintiffs’ alternative House map introduced during the legislative process illustrates
that HD 57 could have been drawn more compactly while meeting population goals and
other race-neutral redistricting criteria. See ECF No. 184-28 at 9, 12.
In addition, the General Assembly’s retention of the core of the 2011 version of
HD 57, continued use of boundary lines that outline black population and divide
Greensboro along racial lines, selection of heavily black precincts for inclusion in the
district while more heavily white precincts are excluded from the district, and disregard
of communities of interest has resulted in a configuration of HD 57 with greater than
50% total BVAP and substandard compactness scores. Taken together, these factors
demonstrate that race predominated in the construction of the 2017 enacted version of
HD 57.
4.

House District 21

In finding that the 2011 version of House District 21 was an unconstitutional racial
gerrymander, this court noted that at 51.90% BVAP and a Reock score of .19, splitting
three counties, and dividing seven municipalities, the district geography indicated that
race was the predominant motive for drawing the district lines. Covington, 316 F.R.D. at
155-56. The 2017 version of HD 21 is even less compact. Its Reock score is .12,
standing alone as the absolute lowest of all 120 house districts.
Compactness

8-10,

House

Redistricting

Measures of
Comm.

http://www.ncleg.net/Sessions/2017/h927maps/HB%20927%203rd%20Ed.Combined.pdf
30

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 . On the Polsby-Popper measure the district scores .29, which is in the lowest 10% of all
120 districts.
While the 2017 version is now contained in just two counties, Wayne and
Sampson, the irregular shape continues to follow the racial demographics of the region,
stretching up to Goldsboro and down to Clinton to pick up the black populations in those
areas. Fairfax Decl. ¶¶ 22-25 & Figure 3. This district is one of seven districts that must
be drawn in a seven county grouping. See ECF No. 136-1 at 21. In contrast to the
minimal changes made by the Defendants, the Plaintiffs’ proposed map shows that it is
completely possible to redraw these districts in a geographically compact manner, where
the lowest Reock score for any of the seven districts is just .36 instead of .12. See ECF
No. 184-28 at 2, 8-10. With a BVAP of 42.34%, this district continues to assign voters
on the basis of their race and is not a naturally occurring concentration of black voters.
Given this data, the Defendants cannot demonstrate that they have cured the racial
gerrymander in HD 21.
5.

Defendants’ Assertions of Colorblindness Are Not Persuasive
Evidence that Racial Considerations Did Not Predominate in
These Four Districts

The Defendants’ insistence that race could not predominate if racial data was not
used by Dr. Hofeller or looked at by the committees is false. Indeed, the Supreme Court
has taken it as a given that “redistricting differs from other kinds of state decisionmaking
in that the legislature always is aware of race when it draws district lines, just as it is
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 aware of age, economic status, religious and political persuasion, and a variety of other
demographic factors. That sort of race consciousness does not lead inevitably to
impermissible race discrimination.” Shaw v. Reno, 509 U.S. 630, 646, 113 S. Ct. 2816,
2826 (1993). But even more obviously, Dr. Hofeller does not need access to racial data
to know that if he draws a district in approximately the same way the racially
gerrymandered district was drawn, it would achieve the same effect, illegally separating
black voter from white voters based on their race. And he has said exactly that. Under
oath in a deposition earlier this year, testifying regarding his drawing of North Carolina’s
2016 Congressional Districts where again, racial data allegedly was not “used” to draw
the districts, Dr. Hofeller was asked “how did you go about ensuring Voting Rights Act
compliance in drawing the 2016 congressional plan.” Dep. of Thomas Hofeller 246:1012, League of Women Voters of N.C. v. Rucho, No. 1:16-cv-1164 (M.D.N.C. Jan. 24,
2017) (attached in excerpted format as Ex. 12). His response was that since it was drawn
in the same general area as it had been before, and based on his past experience, he did
not have to actually look at the racial data to know that the district would comply with the
Voting Rights Act. Id. at 246:13-247:7. Indeed, here, the district lines themselves reveal
that race predominated.
In the same case, the Defendants’ identified an expert witness, Dr. James G.
Gimpel, who, when asked whether he thought that the General Assembly considered race
data when drawing the 2016 Congressional districts, testified as follows:
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 You don’t have to consider race data. You don’t have to consider race data,
okay. There’s no need to go to race data, you know, to know, okay –
especially given the knowledge that a lot of these folks have of what’s
going on in this state and how long they’ve been around, you don’t need
race data to consider race data in order to draw maps that ensure the
representation of African Americans in the state of North Carolina. And,
you know, one of the ways that you can do that, by the way, and not
consider race data is by falling back on districts that look in many ways like
the districts from previous elections.
Dep. of James Gimpel 165:25-166:14, League of Women Voters of N.C. v. Rucho, No.
1:16-cv-1164 (M.D.N.C. Apr. 27 ,2017) (attached in excerpted format as Ex. 13). Dr.
Gimpel explains here why claiming to be colorblind by not looking at race data is no
proof that race did not predominate in the drawing of a legislative district, particularly
when that district is drawn by Dr. Hofeller, who has decades of experience with North
Carolina redistricting.
D.

Certain House and Senate Districts Violate the North Carolina
Constitution

The state’s proposed remedial maps also contain several violations of the state
constitution and, as such, cannot and should not be approved as an appropriate remedy by
this Court. This is the case because “where [a jurisdiction’s] remedial plan contravenes
state laws that have not been remedially abrogated by the Supremacy Clause,” remedial
plans offered by a legislative body must still respect the policy choices that sovereign
state constitutional law demands. Large v. Fremont Cty., 670 F.3d 1133 (10th Cir. 2012);
Bodker v. Taylor, Civ. A. No. 1:02-cv-999ODE, 2002 U.S. Dist. LEXIS 27447, at *5
(N.D. Ga. 2002) (court would not order a jurisdiction’s preferred redistricting plan when
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 ordering implementation of that plan would contravene state law). See also Cleveland
Cnty. Ass’n for Gov’t by the People v. Cleveland Cty. Bd. of Comm’rs, 142 F.3d 468, 477
(D.C. Cir. 1998) (“[I]f a violation of federal law necessitates a remedy barred by state
law, the state law must give way; if no such violation exists, principles of federalism
dictate that state law governs.”).

Here, the General Assembly is not authorized to

disregard the state policies inherent in, and commanded by, the state constitution and
cannot disregard those commands unless specifically abrogated by this court’s order
identifying a violation of federal law.
In Fremont, the Tenth Circuit upheld a district court’s rejection of a county’s
proposed plan to remedy violations of Section 2 of the Voting Rights Act. The district
court correctly concluded that the county, a subordinate legislative body in Wyoming,
could not override state law in crafting a remedy if it was not necessary to do so. 670
F.3d at 1148-49. There, state law prohibited the use of multi-member districts in county
elections, but the county’s proposed remedial plan would utilize both single-member and
multi-member districts. Id. at 1136. The court concluded that it was possible to remedy
the Section 2 violation using only single-member districts and thus comply with state
law. Id. at 136-37. Just as the county was subordinate to and controlled by state law, the
General Assembly here is subordinate to and controlled by state constitutional law.
Where, by alternate maps, Plaintiffs can demonstrate that it is not necessary to abrogate
compliance with the state constitution to remedy the federal constitutional violations
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 identified in this case, this Court should not allow a remedial plan that unnecessarily
disregards that ultimate designation of state policy choice—the North Carolina
Constitution.
Article II, Sections 3 and 5 of the North Carolina Constitution lay out the
restrictions imposed upon the General Assembly when engaging in state legislative
redistricting. Sections 3(3) and 5(3), collectively, establish the state’s Whole County
Provision (“WCP”) and Sections 3(4) and 5(4) explicitly prohibit the legislature from
redrawing state legislative districts, once enacted, until after the next decennial census.
N.C. CONST. Article II, Sections 3(3-4) and 5(3-4). As discussed below, the 2017
Enacted Plans violate these provisions, going far beyond the necessary abrogation of the
state constitution by this Court’s August 11, 2016 order (ECF No. 123), and must thus be
rejected.
1.

The General Assembly Exceeded the Authority Granted it by this
Court’s Orders and Redrew Districts in Violation of the State
Constitutional Prohibition on Mid-Decade Redistricting

On August 11, 2016, this Court “ordere[ed] the North Carolina General Assembly
to draw remedial districts…to correct the constitutional deficiencies in the Enacted
Plans.” ECF No. 123. That order, however, did not, and could not, authorize the General
Assembly to redraw districts not required to be redrawn to correct those federal
constitutional deficiencies in violation of the state constitutional prohibition on middecade redistricting.
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 The plain language of the state constitution prohibits mid-decade redistricting.
N.C. CONST. Article II, Sections 3(4) and 5(4) (i.e., “When established, the senate
districts and the apportionment of Senators shall remain unaltered until the return of
another decennial census of population taken by order of Congress.”). This state law
prohibition controls unless a district has been invalidated by a court. See, e.g., Crosby v.
Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000). The plain language of the state
constitution on this matter invites no serious dispute over its interpretation and in the only
case where the North Carolina Supreme Court has interpreted this constitutional
provision, the court went to great lengths to avoid violating the prohibition on middecade redistricting. Comm’rs of Granville Co. v. Ballard, 69 N.C. 18 (1873). Plaintiffs
in that case challenged a state statute that changed the boundaries between Franklin and
Granville Counties, arguing that the statute violated Article II, Section 5, because it
would have the effect of transferring part of Granville County from SD 21 to SD 7. Id. at
19. The Supreme Court said that violation of the mid-decade redistricting prohibition
could be avoided by interpreting the statute to mean that while Granville residents would
now be residents in Franklin County, they would continue to vote in SD 21. The
plaintiffs had urged against such a construction, arguing that it would then violate Article
II, Section 5(3), which requires whole counties be used in the construction of Senate
districts.

Id. at 20.

But in rejecting the plaintiffs’ arguments, the Supreme Court

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 established the supremacy of that prohibition against mid-decade redistricting, id., and
this Court can and should respect that unambiguous state constitutional rule.
Here, in both Wake and Mecklenburg Counties, the General Assembly has
violated Art. II, Sections 3(4) and 5(4) by unnecessarily altering districts mid-decade.
House Districts 36, 37, 40 and 41 in Wake County were not declared unconstitutional,
and they do not touch a district that was ruled unconstitutional. The same is true for
House District 105 in Mecklenburg County. These districts are modified in the enacted
remedial House plan in those counties, but it is not necessary to alter those districts in
order to correct the two districts in Wake County (33 and 38) and the three districts in
Mecklenburg County (99, 102 and 107) that were declared unconstitutional. Gilkeson
Decl. ¶ 42-49. Plaintiffs have demonstrated that with their proposed alternative map
introduced at the public hearing on August 22, 2017.
This court’s order invalidating only certain house districts in Wake and
Mecklenburg County does not mandate or allow abrogation of the state constitutional
prohibition against mid-decade redistrict except insofar as absolutely necessary to remedy
the violation. Moreover, partisan goals cannot trump state constitutional compliance.
Compare ECF No. 184-28 at 40-51 with Stat Pack for 2017 House Redistricting Plan 415, ECF No. 184-2 (HD 40, currently represented by a Democrat, is altered to become
Republican-performing district). The General Assembly has already redrawn HD 40 and
the other identified districts once this decade—its 2011 unconstitutional acts cannot now
37

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 justify a complete disregard of the state constitution’s prohibition on

mid-decade

redistricting. Thus, because Plaintiffs’ proposed maps in these counties remedy the racial
gerrymandering violation without affecting House Districts 36, 37, 40, 41 and 105, it is
clear that the enacted Wake and Mecklenburg County House district configurations
violate the state constitutional prohibition on mid-decade redistricting and cannot be
enacted or approved by this Court.
2.

Remedial House Districts Violate the State Constitutional Whole
County Provision

The state’s remedial house plan also runs afoul of the North Carolina
Constitution’s Whole County Provision (“WCP”). N.C. Const. Article II, Sections 3(3)
and 5(3). The North Carolina Supreme Court first established nine criteria for validlyconstructed state legislative districts in Stephenson v. Bartlett, 355 N.C. 354, 383-84, 562
S.E.2d 377, 396-97 (N.C. 2002) (“Stephenson I). Importantly here, the court instructed:
(a) “[w]ithin any [] contiguous multi-county grouping…the resulting interior county lines
created by any such groupings may be crossed or traversed in the creation of districts
within said multi-county grouping but only to the extent necessary to comply with the at
or within plus or minus five percent ‘one-person, one-vote’ standard”; and (b) “[t]he
intent underlying the WCP must be enforced to the maximum extent possible; thus, only
the smallest number of counties necessary to comply with the at or within plus or minus
five percent ‘one-person, one-vote’ standard shall be combined.” Id. at 383-84, 562
S.E.2d at 397
38

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 In 2007, the Supreme Court further fleshed out these instructions, invalidating a
state house district in Pender and New Hanover Counties for failure to comply with the
WCP. Pender County v. Bartlett, 361 N.C. 491, 649 S.E.2d 364 (N.C. 2007). There, at
that time, Pender County did not have the population to warrant an entire state house
district, and New Hanover County had the population to warrant more than two state
house districts, but not three. Id. at 494, 649 S.E.2d at 366. The two counties grouped
together were assigned three state house districts. Id. The legislature drew a house
district between Pender and New Hanover counties that did not keep either county whole
(HD 18). Id. Because there was not Voting Rights Act justification for this drawing of
HD 18, the Court held that the Pender County boundaries should be respected and “a
voting district that includes Pender County must add population across a county line, but
only to the extent necessary to comply with the at or within plus or minus five percent
‘one-person, one-vote’ standard.” Id. at 509, 649 S.E.2d at 376 (internal quotations
omitted).
There are two instances where the General Assembly violated this rule in the 2017
plan. Cabarrus County has the population to justify more than two house districts. As
such, two whole districts must be drawn in the county, with only enough population in a
neighboring county added to the remainder of the Cabarrus County population to bring it
to within plus or minus five percent of the ideal district population. Instead, in the
enacted map, there is only one district, HD 82, wholly within Cabarrus County, and HD
39

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 83 traverses the county line to include a portion of Rowan County with Cabarrus County.
Where, as here, it is possible to draw both HD 82 and HD 83 entirely within Cabarrus
County (as Plaintiffs’ map demonstrates), the failure to draw two districts entirely within
Cabarrus County violates the Supreme Court’s instructions from Stephenson I on
maximum compliance with the WCP.
Likewise, House District 10 also does not comply with the North Carolina
Supreme Court’s instructions from Stephenson I.
seven-county cluster.

House District 10 is at one end of a

Greene County, where that district is based in the proposed

remedial plan, does not have enough population to support a House District on its own.
Enough population could be added from the adjacent and larger county, Wayne County,
to satisfy the equal population requirement with only one county traverse.

That

construction would be consistent with the state constitutional commands as defined by
the North Carolina Supreme Court and as Dr. Hofeller explained in sworn testimony. See
Stephenson I, 355 N.C. at 384, 562 S.E.2d at 397 (“only the smallest number of counties
necessary to comply with the at or within plus or minus five percent ‘one-person, onevote’ standard shall be combined’); see also Hofeller Testimony, Covington Trial Tr. Vol
V, at 10:18-23 (Apr. 15, 2016) (“Also, if you have, for instance, a two-county group, the
smaller county with the smallest population should be left intact, and the larger county
should make up the share that the smaller county needs to bring it to the proper
population.”). Instead of simply adding the population from Wayne County necessary to
40

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 bring a Greene County-based district up to within plus or minus five percent of the ideal
population, House District 10 traverses two counties—Wayne County and then stretches
into Johnston County. Because Plaintiffs’ House map demonstrates that it is possible to
draw this cluster with the same number of traverses and the maximally compliant version
of HD 10 (Greene and Wayne Counties only), the enacted district violates the WCP.
3.

A Remedial Senate District Violates the State Constitutional
Compactness Requirement

Finally, SD 41 in Mecklenburg County also violates the WCP because it is grossly
non-compact.

In Stephenson v. Bartlett, 357 N.C. 301, 582 S.E.2d 247 (2003)

(“Stephenson II”), the North Carolina Supreme Court upheld a trial court’s rejection of
the legislature’s remedial redistricting plans because the trial court found that districts in
the remedial map demonstrated “substantial failures in compactness.” Id. at 309, 582
S.E.2d at 252. The trial court found that districts were not sufficiently compact, within a
county, when they were drawn “in a horseshoe manner,” combined northern parts of the
county with southern parts of the county, and “jut[ted]” and “meander[ed]” throughout
the county. Id. at 310-11, 582 S.E.2d at 253. The trial court additionally emphasized that
the challenged districts were “not compact, particularly as compared to the way in which
they might have been drawn as demonstrated by plaintiffs’ [proposed Senate Plan].” Id.
at 311, 582 S.E.2d at 253.
Likewise, in the instant case, SD 41 exhibits these very same traits: the district is a
horseshoe shape, starting in the northern part of the county before meandering along the
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 county’s western boundary, at times narrowing dramatically, before jutting down to
capture the county’s southern-most point. SD 41 has the absolute lowest compactness
score of any senate district in the entire plan on the Reock measure. At .19, there is not
another district that comes anywhere close to that number, see Measures of Compactness
6-9,

Senate

Redistricting

Comm.,

http://www.ncleg.net/Sessions/2017/s691maps/S691%204th%20Ed.Combined.pdf, and it
is well below the mean of .42 for all senate districts in the same plan. See Gilkeson Decl.
¶ 12. The district is also at the bottom of the scale on the Polsby-Popper measure of
compactness, at .13. See Measures of Compactness 6-9, Senate Redistricting Comm.,
http://www.ncleg.net/Sessions/2017/s691maps/S691%204th%20Ed.Combined.pdf.
Plaintiffs’ alternative map draws that district in a substantially more compact
manner. Gilkeson Decl. Ex. B. Thus, following the North Carolina Supreme Court’s
straightforward rejection of remedial districts that do just the same, this Court should
reject SD 41 as violating the state constitutional compactness requirement.
E.

Partisan Gerrymander Objection Reserved

Plaintiffs contend that both the House and Senate plans are unconstitutional
partisan gerrymanders in violation of the First and Fourteenth Amendments. However, as
noted by the trial court in Harris v. McCrory, at this stage of the proceedings, without
even a limited opportunity for discovery by the parties, the Court does not have the
record before it to resolve this question. See Harris v. McCrory, No. 1:13-cv-949, 2016
42

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 U.S. Dist. LEXIS 71853, at *8 (M.D.N.C. June 2, 2016) (‘[I]t does not seem, at this
stage, that the Court can resolve this question based on the record before it.”). Unlike
Plaintiffs’ other objections, which are based on prior findings of fact, and undisputed
facts in the record, addressing whether these districts are partisan gerrymanders requires
more evidence.
Plaintiffs therefore ask this Court to make clear that whatever disposition it makes
with regard to Plaintiffs other objections does not constitute, or imply, a finding that these
maps are not partisan gerrymanders, or foreclose any additional challenges to the 2017
House and Senate plans on those grounds. See id., (“The Court reiterates that the denial
of the plaintiffs' objections does not constitute or imply an endorsement of, or foreclose
any additional challenges to, the Contingent Congressional Plan.”).
V.

CONCLUSION

Plaintiffs respectfully request that this court sustain their objections to Senate
Districts 21, 28 and 41; and House Districts 10, 21, 36, 37, 40, 41, 57, 83, 105 on the
grounds identified herein, and Order the Defendants to conduct the 2018 legislative
elections using their 2017 Senate Districts with the Plaintiffs’ proposed districts in the 1)
Guilford, 2) Mecklenburg and 3) Cumberland county groupings; and their 2017 House
Districts with the Plaintiffs’ proposed districts in the following county groupings: 1)
Guilford, 2) Wake, 3) Mecklenburg, 4) Rowan, Cabarrus, Stanly, and 5) Lee, Harnett,
Johnston, Wayne, Greene, Sampson and Bladen. In the alternative, Plaintiffs request that
43

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 the Court sustain their objections and order a special master to redraw the districts in
these limited county groupings.
Respectfully submitted this 15th day of September, 2017.

POYNER SPRUILL LLP

By: /s/ Edwin M. Speas, Jr.
Edwin M. Speas, Jr.
N.C. State Bar No. 4112
espeas@poynerspruill.com
Caroline P. Mackie
N.C. State Bar No. 41512
cmackie@poynerspruill.com
P.O. Box 1801 (27602-1801)
301 Fayetteville St., Suite 1900
Raleigh, NC 27601
Telephone: 919-783-6400
Facsimile: 919-783-1075

SOUTHERN COALITION FOR
SOCIAL JUSTICE

By: /s/ Anita S. Earls
Anita S. Earls
N.C. State Bar No. 15597
anita@southerncoalition.org
Allison J. Riggs
N.C. State Bar No. 40028
allisonriggs@southerncoalition.org
1415 Highway 54, Suite 101
Durham, NC 27707
Telephone: 919-794-4198
Facsimile: 919-323-3942

Counsel for Plaintiffs

Counsel for Plaintiffs

44

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 CERTIFICATE OF SERVICE
I hereby certify that on this date I have electronically filed the foregoing with the
Clerk of Court using the CM/ECF system, which will provide electronic notification of
the same to the following:
Alexander M. Peters
Special Deputy Attorney
General
Office of the Attorney
General
P.O. Box 629
Raleigh, NC 27602
apeters@ncdoj.gov
Counsel for Defendants
State of North Carolina
and State Board of
Elections

Thomas A. Farr
Phillip J. Strach
Michael D. McKnight
Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.
4208 Six Forks Road, Suite 1100
Raleigh, NC 27602
thomas.farr@ogletreedeakins.com
phillip.strach@ogletreedeakins.com
michael.mcknight@ogletreedeakins.com
Counsel for Legislative Defendants

This 15th day of September, 2017.
 

/s/ Anita S. Earls
Anita S. Earls
Counsel for Plaintiffs
 

45

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 Exhibit 3

Exhibit 1

Case Document 187-1 Filed 09/15/17 Pace 1 of 6

 

1415 West Highway 54, Suite 101

P: 919-323-3380

Durham, NC 27707

F: 919-323-3942

SOUTHERN C OALITION
for SOCIAL JUSTICE

VIA ELECTRONIC MAIL
August 23, 2017
Thomas Farr
Phillip Strach
Michael D. McKnight
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
4208 Six Forks Road, Suite 1100
Raleigh, NC 27609

Alexander Peters
James Bernier
NC Department of Justice
P. O. Box 629
Raleigh, NC 27602

Senate Committee on Redistricting
House Select Committee on Redistricting
North Carolina General Assembly
16 West Jones Street
Raleigh, NC 27601
Re: 2017 Proposed Remedial Maps – House and Senate
Dear Counsel and Members of the Redistricting Committees,
On behalf of Plaintiffs in Covington v. North Carolina, we write you today to offer
alternative plans for the North Carolina State House and State Senate that remedy the
constitutional violations identified by the three-judge court in Covington and also comply with
the state and federal constitution in all other regards. Additionally, based on our initial analysis,
your proposed plans do not offer an adequate remedy and do not represent appropriate remedies
free from other state and federal constitutional flaws. We would like to take this opportunity to
highlight some of those flaws for you.
Constitutional Flaws in the State House and Senate Remedial Plans
First, it is plain that in several areas of both the House and Senate proposed maps, the
constitutional violations are not cured and, indeed, the racially gerrymandering continues. For
example, proposed Senate District 21 retains the same odd shape as invalidated Senate District
21, with the edges of the protrusion into Cumberland County only slightly smoothed out. Dr.
Hofeller obviously does not need access to racial data to know that if he draws the district in
approximately the same way the racially gerrymandered district was drawn, it would achieve the
same effect—the illegal separation of black from white voters in Cumberland County and the
packing of black voters into the district, thus limiting their political impact.
In the House, we observe the same phenomenon in Guilford County, where House
Districts 57, 58 and 60 are centered right over their locations in the 2011 map—Dr. Hofeller
again does not need access to racial data to know that he if he puts the new district in exactly the
same location as it was in their unconstitutional form, they will have the same effect. Likewise,
 

SCSJ

www.southerncoalition.org

Empowering people and communities who change the world
SCSJ is a 501(c)(3) nonprofit organization.

Case 1:15-cv-00399-TDS-JEP Document 187-1 Filed 09/15/17 Page 2 of 6

  

while House District 21 is now in only two counties, as opposed to three, it is still very noncompact and appears to us to be drawn in a way to capture black populations in those two
counties.
We anticipate there may be other examples of this problem that we may determine with
some additional time to review the proposed maps. What is clear is that these districts do not
fully correct the constitutional violations identified by the three-judge panel, whose findings
were unanimously affirmed by the United States Supreme Court. We request that these errors be
remedied immediately and in full. Absent such action, we believe the court will have to draw a
plan itself that fully remedies the violations, as it will not be able to approve these districts as an
appropriate remedy.
Additionally, analyses performed by the Campaign Legal Center (“CLC”) and submitted
to the Committees on August 22, 2017, confirm that these proposed remedial plans are in fact,
grossly unconstitutional partisan gerrymanders. Redistricting plans are unconstitutional where
they treat voters unequally, diluting the electoral influence of one party’s supporters in violation
of the Equal Protection Clause. CLC performed an efficiency gap analysis of the committee’s
proposed plans after the data was releasted late Monday morning (August 21, 2017). The
efficiency gap analysis employed by CLC has: (1) been endorsed by federal courts, see, e.g.,
Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. Nov. 21, 2016); (2) is a peer-reviewed
methodology, see Eric McGhee, Measuring Efficiency in Redistricting, 16 ELECTION L.J.
(forthcoming 2017), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=30 07401;
and (3) can be used prospectively (and accurately) to predict the efficiency gap in proposed
plans. Compare LWVNC v. Rucho, 1:16-cv-01164, ECF No. 1 at ¶9 (M.D.N.C. Sept. 22, 2016)
(Complaint) with Plaintiffs’ Response in Opposition to Motion to Dismiss, LWVCNC v. Rucho,
ECF No. 34 at 4 (M.D.N.C. Dec. 19, 2016). The legislature may not remedy constitutional
violations by enacted plans with new constitutional violations.
State Constitutional Flaws in the House Remedial Plan
Our initial analysis also reveals that several areas in the State House proposed remedial
map additionally violate the North Carolina state constitution—both its plain language and as it
has been interpreted by the North Carolina Supreme Court.
First, the configurations of House districts in Wake and Mecklenburg County violate the
state constitutional prohibition on mid-decade redistricting. Article II, Sections 3 and 5 prohibits
the legislature from redrawing districts, once enacted, until after the next decennial census. This
prohibition controls unless a district has been invalidated by a court. House Districts 36, 37, 40
and 41 in Wake County were not declared unconstitutional, and do not touch a district that was
ruled unconstitutional. The same is true for House District 105 in Mecklenburg County. These
districts are modified in the proposed remedial House maps in those counties, but it is not
necessary to alter those districts in order to correct the two districts in Wake County (33 and 38)
and the three districts in Mecklenburg County (99, 102 and 107) that were declared
2 
 

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unconstitutional. Plaintiffs have demonstrated that with a remedial map introduced at the public
hearing on August 22, 2017. Thus, the proposed Wake and Mecklenburg County House district
configurations violate the state constitution and cannot be enacted or approved by the Covington
court.
Second, Article II, Sections 3(3) and 5(3) state that “[n]o county shall be divided in the
formation of a senate district” and “[n]o county shall be divided in the formation of a
representative district,” respectively. These prohibitions are collectively referred to as state’s
Whole County Provision [WCP]. At least two areas in the House map violate the North Carolina
Supreme Court’s interpretation of the WCP.
In 2002, the North Carolina Supreme Court explained how the legislature should draw
state legislative districts to comply with the WCP. Stephenson v. Bartlett, 355 N.C. 354, 383-84,
562 S.E.2d 377, 396-97 (N.C. 2002) (“Stephenson I”). First, the Court noted the “long-standing
tradition of respecting county lines during the redistricting process in this State,” 355 N.C. at
366, 562 S.E.2d at 386. The Court went on to establish nine criteria for validly-constructed state
legislative redistricting. Three of the criteria are particularly relevant here:


When two or more non-VRA legislative districts may be created
within a single county…single-member non-VRA districts shall be
formed within said county. Such non-VRA districts shall be
compact and shall not traverse the exterior geographic boundary of
any such county.



[…] Within any [] contiguous multi-county grouping, compact
districts shall be formed, consistent with the at or within plus or
minus five percent standard, whose boundary lines do not cross or
traverse the “exterior” line of the multi-county grouping; provided,
however, that the resulting interior county lines created by any
such groupings may be crossed or traversed in the creation of
districts within said multi-county grouping but only to the extent
necessary to comply with the at or within plus or minus five
percent “one-person, one-vote” standard.”



The intent underlying the WCP must be enforced to the maximum
extent possible; thus, only the smallest number of counties
necessary to comply with the at or within plus or minus five
percent “one-person, one-vote” standard shall be combined.

355 N.C. at 383-84, 562 S.E.2d at 397.
3 
 

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In 2007, the Supreme Court further explained these rules in application when examining
how a state house district in Pender County was drawn. Pender County v. Bartlett, 361 N.C.
491, 649 S.E.2d 364 (N.C. 2007). There, at that time, Pender County did not have the population
to warrant an entire state house district, and New Hanover County had the population to warrant
more than two state house districts, but not three. 361 N.C. at 494, 649 S.E.2d at 366. The two
counties grouped together were assigned three state house districts. Id. The legislature drew a
house district between Pender and New Hanover counties that did not keep either county whole
(House District 18). Id. Because there was not Voting Rights Act justification for this drawing
of House District 18, the Court held that the state was required to perfectly comply with the
WCP, and that configuration of the district did not do so because it did not keep Pender County
whole. 361 N.C. at 507, 649 S.E.2d at 374. Instead, the Court said “a voting district that
includes Pender County must add population across a county line, but only to the extent
necessary to comply with the at or within plus or minus five percent ‘one-person, one-vote’
standard.” 361 N.C. at 509, 649 S.E.2d at 376 (internal quotations omitted).
In Cabarrus County, the house district configuration plainly violates the Stephenson I
criteria. That county has the population to justify more than two non-VRA districts. As such,
two whole districts must be drawn in the county, with only enough population in a neighboring
county added to the remainder of the Cabarrus County population to bring it to within plus or
minus five percent of the ideal district population. What the proposed map does instead is draw
only one district, House District 82, in Cabarrus, and then two additional districts are drawn in
the county, but neither is contained wholly within the county. Specifically, HD 83 traverses the
county line to include a portion of Rowan County with Cabarrus County, when it is possible to
draw both HD 82 and HD 83 entirely within Cabarrus County. Even though doing so does create
a traverse elsewhere in the county grouping, the failure to draw two districts entirely within
Cabarrus County, even though the overall number of county traverses is unchanged, violates the
Supreme Court’s instructions from Stephenson I on maximum compliance with the WCP. Our
version of this cluster keeps two counties wholly within Cabarrus County and does not increase
the number of traverses when compared to your version of the cluster. As such, this portion of
your proposed remedial House map is unconstitutional.
Likewise, the configuration of House District 10 also does not comply with the North
Carolina Supreme Court’s instructions from Stephenson I. House District 10 is at one end of a
seven-county cluster. Greene County, where that district is based in the proposed remedial plan,
does not have enough population to support a House District on its own. Enough population
could be added from the adjacent and larger county, Wayne County, to satisfy the equal
population requirement with only one county traverse. That construction would be consistent
with the state constitutional commands as defined by the North Carolina Supreme Court and as
Dr. Hofeller, the state’s mapdrawer, explained in sworn testimony. See Stephenson I, 355 N.C.
at 384, 562 S.E.2d at 397 (“only the smallest number of counties necessary to comply with the at
or within plus or minus five percent “one-person, one-vote” standard shall be combined); see
also, Hofeller Testimony, Covington Trial Tr. Vol V, at 10:18-23 (Apr. 15, 2016) (“Also, if you
have, for instance, a two-county group, the smaller county with the smallest population should be
4 
 

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left intact, and the larger county should make up the share that the smaller county needs to bring
it to the proper population.”). Instead of simply adding the population from Wayne County
necessary to bring a Greene County-based district up to within plus or minus five percent of the
ideal population, House District 10 traverses two counties—Wayne County and then stretches
into Johnston County. This configuration is not permissible under the state constitution if it is
possible to construct HD 10 comprised of only Greene and Wayne, which it is. Our version of
the this county grouping has the same number of total county traverses, but constructs the Greene
County-based district (House District 21 in our plan) as instructed by the North Carolina
Supreme Court: adding population from a neighboring county to a county too small to warrant its
own House district, but only adding as much as necessary from one neighboring county as
necessary to achieve acceptable population in the district. Thus, this portion of your proposed
remedial House map is also unconstitutional.
Plaintiffs’ Alternative Map
Plaintiffs have developed alternative maps for House and Senate that correct the
unconstitutional racially gerrymandered districts identified by the three-judge court, do not
constitute unconstitutional partisan gerrymanders, and fully comply with the North Carolina state
constitution.
We can immediately provide the block assignment files for these plans to counsel and
chairs of the redistricting committees, and any other individuals you to whom you request that
we send the files.
If you have any questions about these proposed alternative plans, please do not hesitate to
contact us.
Sincerely,
/s/ Anita S. Earls_______
Anita S. Earls
Allison J. Riggs
Emily S. Seawell
Southern Coalition for Social Justice
Edwin M. Speas
Caroline Mackie
Poyner Spruill, LLP
John W. O’Hale
Counsel for Plaintiffs
5 
 

Case 1:15-cv-00399-TDS-JEP Document 187-1 Filed 09/15/17 Page 6 of 6

 Exhibit 4

No. 201PA12-2

TENTH DISTRICT

SUPREME COURT OF NORTH CAROLINA
**************************************
MARGARET DICKSON, et al.,
)
Plaintiffs,
)
)
v.
)
)
ROBERT RUCHO, et al.,
)
Defendants.
)
)
NORTH CAROLINA STATE
)
From Wake County
CONFERENCE OF BRANCHES OF
)
THE NAACP, et al.,
)
Plaintiffs,
)
)
v.
)
)
THE STATE OF NORTH CAROLINA, )
et al.,
)
Defendants.
)
******************************************************************
PLAINTIFF-APPELLANTS’ BRIEF
******************************************************************

 -iINDEX
TABLE OF CASES AND AUTHORITIES ............................. ix
ISSUES PRESENTED ............................................................... 1
STATEMENT OF THE CASE .................................................. 3
STATEMENT OF THE GROUNDS FOR
APPELLATE REVIEW ............................................................. 6
STATEMENT OF FACTS ......................................................... 6
A.

Overview of the 2011 House and Senate
Redistricting Process.............................................. 7

B.

The Public Statements Made by Senator
Rucho and Representative Lewis Describing
the Criteria that Shaped the Challenged
House and Senate Districts. ................................. 10

C.

A Comparison of Districts in the Enacted
Plans and Previous Plans. .................................... 14

D.

The Evidence Before Defendants Regarding
the Decreased Need for Majority-Black
Districts in North Carolina................................... 17

E.

Polarized Voting Studies. .................................... 22

F.

Evidence of Geographical Compactness. ............ 24

G.

Comparison of Divided Counties in Plans
Drawn to Achieve Proportion, and Plans Not
Drawn for that Purpose. ....................................... 25

H.

Comparison of Split Precincts in Plans
Drawn to Achieve Proportion and Plans Not
Drawn for that Purpose. ....................................... 28

I.

Overview of the Congressional Redistricting
Process. ................................................................ 31

 - ii SUMMARY OF OPINION BELOW....................................... 33
A.

Plaintiffs‘ Equal Protection Claims Under
the 14th Amendment to the United States
Constitution. ......................................................... 33

B.

Plaintiffs‘ Claims that SD 32 and CD 12 are
Unconstitutional Racial Gerrymanders. .............. 37

C.

Plaintiffs‘ Claims that the Enacted House
and Senate Plans Violate the Whole County
Provisions of the State Constitution. ................... 37

D.

Plaintiffs‘ Compactness Claims Under the
Equal Protection Clause of the State
Constitution. ......................................................... 38

E.

Plaintiffs‘ Claims that Split Precincts
Violate the Right to Vote Under the State
Constitution. ......................................................... 38

ARGUMENT............................................................................ 39
I.

THE TRIAL COURT ERRED IN HOLDING
THAT SECTION 5 OF THE VOTING RIGHTS
ACT IS A COMPELLING GOVERNMENTAL
INTEREST JUSTIFYING THE DEFENDANTS‘
RACIALLY GERRYMANDERED DISTRICTS
WHEN THE U.S. SUPREME COURT RULED
THAT SECTION 5 DOES NOT CONSTITUTIONALLY APPLY TO NORTH CAROLINA. ............ 41
A.

Standard of Review. ............................................. 41

B.

Defendants Cannot Have An Interest in
Complying with an Unconstitutional Law........... 42
1.

Strict scrutiny applies current legal
standards. ................................................... 45

 - iii 2.

II.

A Supreme Court ruling declaring a
law unconstitutional means the law
was unconstitutional at the time it was
enacted, not at the time of the ruling. ........ 48

THE TRIAL COURT ERRED IN HOLDING
THAT THE VOTING RIGHTS ACT PROVIDES
A COMPELLING GOVERNMENTAL INTEREST FOR DEFENDANTS TO INTENTIONALLY CREATE A PROPORTIONATE NUMBER OF MAJORITY BLACK DISTRICTS ................. 49
A.

Standard of Review. ............................................. 49

B.

The Trial Court Erroneously Concluded that
Racial Proportionality is A Compelling
Government Interest. ........................................... 49

C.

1.

Racial Proportionality Can Never Be
a Compelling Governmental Interest. ....... 50

2.

Section 2 of the VRA Does Not
Require Racial Proportionality. ................. 52

3.

Compliance with Section 5 Does Not
Require Racial Proportionality. ................. 56

The Trial Court Erred in Ruling that the
General Assembly had a Strong Basis in
Evidence for Believing that it was Violating
the Voting Rights Act. ......................................... 59
1.

There Was No Strong Basis in
Evidence that § 2 of the VRA
Required Creating the Majority-Black
Districts Challenged Here. ........................ 59

2.

The Trial Court Erred as a Matter of
Law in Deferring to the Defendants‘
Judgment On This Issue. ........................... 66

 - iv III.

THE TRIAL COURT ERRED IN HOLDING
THAT THE RACIALLY GERRYMANDERED
DISTRICTS ENACTED BY THE GENERAL
ASSEMBLY WERE NARROWLY TAILORED ......... 71
A.

Standard of Review. ............................................. 71

B.

The Defendants Failed to Meet Their
Burden of Proving that the Plans They Drew
Were Narrowly Tailored to Comply with the
VRA. .................................................................... 71
1.

The Trial Court Wrongly Placed the
Burden of Proof on the Plaintiffs and
Wrongly Deferred to Legislative
Discretion................................................... 72

2.

The Redistricting Plans are Not
Narrowly Tailored Because they
Create More Majority-Black Districts
than are Necessary to Comply with
the VRA. .................................................... 76

3.

The Districts are Not Narrowly
Tailored Because the Districts are Not
Geographically Compact. .......................... 78

4.

The Districts are Not Narrowly
Tailored Because they Pack Black
Voters......................................................... 83

5.

The Challenged Districts Are Not
Narrowly Tailored Because they are
Drawn in Areas of the State Where a
VRA Remedy is Not Required under
Section 2 or Section 5. ............................... 86

 -vIV.

V.

THE TRIAL COURT ERRED IN FINDING
THAT RACE DID NOT PREDOMINATE IN
THE DRAWING OF SENATE DISTRICT 32
AND CONGRESSIONAL DISTRICT 12..................... 92
A.

Standard of Review. ............................................. 92

B.

Race was Manifestly the Predominant
Factor In the Construction of SD 32. ................... 93

C.

Race was Manifestly the Predominant
Factor in the Construction of CD 12.................. 100

THE TRIAL COURT ERRED IN REJECTING
PLAINTIFFS‘ ARGUMENTS THAT THE ENACTED SENATE AND HOUSE PLANS VIOLATE THE WHOLE COUNTIES PROVISION
OF THE NORTH CAROLINA CONSTITUTION ..... 105
A.

Standard of Review and Introduction. ............... 105

B.

The Trial Court‘s Holding is Inconsistent
with the Intent of the North Carolina
Constitution and this Court‘s Holding in
Stephenson and Stephenson II. .......................... 107
1.

The Constitutional Provisions And
The Context Of The Stephenson
Decisions. ................................................ 107

2.

The Trial Court‘s Holding Has No
Basis In The Words Of The
Constitution. ............................................ 110

3.

The Stephenson Decision In Fact
Made It Clear That The Measure Of
Compliance With The Whole County
Provision Is The Number Of Counties
Kept Whole. ............................................. 112

 - vi -

C.

D.
VI.

4.

The Supreme Court‘s Decision In
Pender County v. Bartlett Confirms
That Keeping Counties Whole Is The
Measure Of Compliance With The
Whole County Provision Of The
Constitution. ............................................ 114

5.

The Trial Court‘s Holding Leads to
the Splitting of More—Not Fewer—
Counties. .................................................. 116

Violations of the Whole County Provisions
in the Enacted Senate and House Plans. ............ 124
1.

There Is No VRA Or One-Person,
One-Vote Justification For Splitting
Beaufort County And Lee County In
The Enacted House Plan.......................... 124

2.

Defendants Have The Burden Of
Proving That A Section 2 Violation
Would Have Occurred In Each
District Constructed Using Parts Of
One Or More Counties And Drawn
For The Purpose Of Preempting A
Section 2 Lawsuit. ................................... 128

3.

There Is No Valid VRA Basis For
Splitting Wilson Or Lenoir Counties
In The Enacted Senate Plan. .................... 138

Conclusion. ........................................................ 142

THE TRIAL COURT ERRED IN CONCLUDING
THAT THE CONSTITUTION DOES NOT REQUIRE THE GENERAL ASSEMBLY TO DRAW
COMPACT DISTRICTS ............................................. 142
A.

Compactness is a State Constitutional
Requirement. ...................................................... 143

 - vii B.

This Court Applied Compactness Standards
in Stephenson II. ................................................ 147

C.

By the Concrete Standards Established by
this Court in Stephenson II At Least Nine
2011 Senate Districts Are Unconstitutionally
Non-Compact. .................................................... 153

D.

By the Concrete Standards Established by
this Court in Stephenson II at Least Sixteen
House Districts are Unconstitutionally NonCompact. ............................................................ 156

E.

The Compactness Requirements Established
In Stephenson II Apply To Congressional
Districts As Well As Legislative Districts. ........ 161

VII. THE TRIAL COURT ERRED IN REJECTING
PLAINTIFFS‘ CLAIM THAT THE UNNECESSARY SPLITTING OF PRECINCTS UNCONSTITUTIONALLY BURDENS THE RIGHT TO
VOTE ........................................................................... 166
A.

Standard of Review. ........................................... 166

B.

Introduction. ....................................................... 166

VIII. THE TRIAL COURT ERRED IN DISMISSING
THE PLAINTIFFS‘ CLAIMS THAT DEFENDANTS REDISTRICTING PLANS VIOLATE
THE GOOD OF THE WHOLE CLAUSE IN
ARTICLE I, SECTION 2 OF THE CONSTITUTION ...................................................................... 172
A.

Standard of Review. ........................................... 172

B.

Introduction. ....................................................... 172

 - viii C.

The Case Law Clearly Demonstrates that
Claims Based on the Good of the Whole
Clause of the Constitution are Justiciable
and its Provisions Enforceable by the
Courts. ................................................................ 173

D.

The Trial Court Ignored the Special
Limitations Imposed on the General
Assembly by the Good of the Whole Clause
when Drawing New Electoral Districts
Following the Census......................................... 178

CONCLUSION ...................................................................... 180
CERTIFICATE OF SERVICE ............................................... 186

 - ix TABLE OF CASES AND AUTHORITIES
CASES

PAGES

Adarand Constructors v. Pena,
515 U.S. 200 (1995) ....................................................... 73
Advisory Opinion in Re House Bill No. 65,
227 N.C. 708, 43 S.E.2d 73 (1947) .............................. 176
American Trucking Ass’ns v. Smith,
496 U.S. 167 (1990) ....................................................... 48
Andrews v. Clay County,
200 N.C. 280, 156 S.E. 855 (1931) .............................. 111
Askew v. City of Rome,
127 F.3d 1355 (11th Cir. 1997)...................................... 63
Bartlett v. Strickland,
556 U.S. 1 (2009) ......................................... 61, 64, 65, 89
Bayard v. Singleton,
3 N.C. 42 (1787)............................................................. 40
Briley v. Farabow,
348 N.C. 537, 501 S.E.2d 649 (1998) ............................ 92
Brown v. Board of Education,
347 U.S. 483 (1954) ....................................................... 71
Bush v. Vera,
517 U.S. 952 (1996) ................................................ passim
Cavanagh v. Brock,
577 F. Supp. 176 (E.D.N.C. 1983) ....................... 108, 109
Clarke v. City of Cincinnati,
40 F.3d 807 (6th Cir. 1994) ............................................ 63

 -xClay v. Board of Education,
90 F.3d 1357 (8th Cir. 1996).......................................... 63
Corum v. University of North Carolina,
330 N.C. 761, 413 S.E.2d 276 (1992) .......................... 175
Cottier v. City of Martin,
604 F.3d 553 (8th Cir. 2010).......................................... 63
Craig v. New Hanover County Bd. of Educ.,
363 N.C. 334, 678 S.E.2d 351 (2009) .......................... 143
Cromartie v. Hunt,
133 F. Supp. 2d 407 (E.D.N.C. 2000).......... 103, 165, 166
Dickson v. Rucho,
366 N.C. 332, 737 S.E.2d 362 (2013) .............................. 4
Drum v. Seawell,
271 F. Supp 193 (M.D.N.C. 1967)............................... 161
Easley v. Cromartie,
532 U.S. 234 (2001) ................................................ passim
Elliott v. State Board of Equalization,
203 N.C. 749, 166 S.E. 918 (1932) .............................. 111
Fisher v. Univ. of Tex. at Austin,
570 U.S. ___, 133 S. Ct. 2411 (2013) ..................... passim
Georgia v. Ashcroft, 539 U.S. 461 (2003) ............................... 92
Gingles v. Edmisten,
590 F. Supp. 345 (E.D.N.C. 1984) .......................... passim
Greens of Pine Glen, Ltd. P’ship,
356 N.C. 642, 576 S.E.2d 316 (2003) ............................ 41
In re Griffiths,
413 U.S. 717 (1973) ....................................................... 46

 - xi Growe v. Emison,
507 U.S. 25 (1993) ......................................................... 86
Grutter v. Bollinger,
539 U.S. 306 (2003) ........................................... 50, 73, 76
Harper v. Virginia Department of Taxation,
509 U.S. 86 (1993) ......................................................... 48
Hays v. Louisiana,
839 F. Supp. 1188 (W.D. La. 1993)............................... 74
Hinton v. Lacy,
193 N.C. 496, 137 S.E. 669 (1927) .............. 173, 174, 178
Hunt v. Cromartie,
526 U.S. 541 (1999) ....................................... 92, 103, 165
James B. Beam Distilling Co. v. Georgia,
501 U.S. 529 (1991) ....................................................... 48
James v. Bartlett,
359 N.C. 260, 607 S.E.2d. 638 (2005) ......................... 169
Johnson v. California,
543 U.S. 499 (2005) ....................................................... 71
Johnson v. DeGrandy,
512 U.S. 997 (1994) ........................................... 53, 54, 55
Johnson v. Miller,
864 F. Supp. 1354 (S.D. Ga. 1994) .................... 55, 56, 77
Kruidenier v. McCulloch,
258 Iowa 1121 (1966) .................................................. 146
Leandro v. State,
346 N.C. 336, 488 S.E.2d 249 (1997) .......................... 175
Lewis v. Alamance County,
99 F.3d 600 (4th Cir. 1996) ............................................ 99

 - xii Libertarian Party v. State,
365 N.C. 41, 707 S.E.2d 199 (2011) ....................... passim
Loving v. Virginia,
388 U.S. 1 (1967) ........................................................... 46
Lowe v. Tarble,
313 N.C. 460, 329 S.E.2d 648 (1985) .......................... 175
LULAC v. Perry,
548 U.S. 399 (2006) ....................................................... 84
Mann Media, Inc. v. Randolph County Planning Bd.,
356 N.C. 1, 565 S.E.2d 9 (2002) .................................... 41
McLaughlin v. Florida,
379 U.S. 184 (1964) ....................................................... 46
Michigan Rd. Builders Ass’n v. Milliken,
834 F.2d 583 (6th Cir. 1987).......................................... 47
Miller v. Johnson,
515 U.S. 900 (1995) ................................................ passim
Milliken v. Bradley,
433 U.S. 267 (1977) ................................................. 83, 84
Missouri v. Jenkins,
515 U.S. 70 (1995) ................................................... 83, 84
Northwest Austin Municipal Util. Dist. No. One v.
Holder, 557 U.S. 193 (2009).......................................... 43
Overton v. City of Austin,
871 F.2d 529 (5th Cir. 1989).......................................... 64
Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1,
551 U.S. 701 (2007) ..................................... 50, 51, 52, 73
Pender County v. Bartlett,
361 N.C. 491, 649 S.E.2d 364 (2007) ..................... passim

 - xiii Radogno v. Illinois State Bd. of Elections,
836 F. Supp. 2d 759 (N.D. Ill. 2011) ............................. 89
Regents of Univ. of Cal. v. Bakke,
438 U.S. 265 (1978) ......................... 45, 46, 50, 56, 76, 78
Reno v. Bossier Parish School Bd.,
520 U. S. 471 (1997) ...................................................... 57
Ricci v. DeStefano,
557 U.S. 557 (2009) ................................................. 51, 68
Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) ........................................... 51, 67, 68
San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1 (1973) ........................................................... 87
Shaw v. Hunt,
517 U.S. 899 (1996) ................................................ passim
Shaw v. Hunt,
861 F. Supp. 408 (E.D.N.C. 1994) ............................... 163
Shaw v. Reno,
509 U.S. 630 (1993) ................................................ passim
Shelby County v. Holder,
570 U.S. ___, 133 S. Ct. 2612 (2013) ..................... passim
State ex rel. Attorney General v. Knight,
169 N.C. 333, 85 S.E. 418 (1915) .................................. 41
State v. Biber,
365 N.C. 162, 712 S.E.2d 874 (2011) ...................... 49, 71
State v. Harris,
216 N.C. 746, 6 S.E.2d 854 (1940) .............................. 175
State v. Williams,
362 N.C. 628, 669 S.E.2d 290 (2008) ............................ 41

 - xiv Stephenson v. Bartlett,
No. 01 CVS 2885 (17 April 2003) .......................... passim
Stephenson v. Bartlett,
355 N.C. 354, 562 S.E.2d 377 (2002) ..................... passim
Stephenson v. Bartlett,
357 N.C. 301, 582 S.E.2d 247 (2003) ..................... passim
Thornburg v. Gingles,
478 U.S. 30 (1986) .................................................. passim
Valladolid v. National City,
976 F.2d 1293 (9th Cir. 1992)........................................ 64
Vecinos de Barrio Uno v. City of Holyoke,
960 F. Supp. 515 (D. Mass. 1997) ................................. 63
Vera v. Richards,
861 F. Supp. 1304 (S.D. Tx. 1994) ................................ 72
Virmani v. Presbyterian Health Servs. Corp.,
350 N.C. 449, 515 S.E.2d 675 (1999) .......................... 175
Weinberger v. Wiesenfeld,
420 U.S. 636 (1975) ....................................................... 68
Wygant v. Jackson Bd. of Educ.,
476 U.S. 267 (1986) ....................................................... 47
STATUTES
2 U.S.C. § 1 ............................................................................ 161
42 U.S.C. § 1973 ................................................................ 52, 60
N.C.G.S. § 1-267.1 ................................................................. 4, 6
N.C.G.S. § 24-5 ...................................................................... 175
N.C.G.S. § 120-2.4 ................................................................. 182

 - xv N.C.G.S. § 120-2.5 ..................................................................... 6
OTHER AUTHORITIES
N.C. Const. art. I, § 2 ......................................................... passim
N.C. Const. art. I, § 12 .................................................... 147, 169
N.C. Const. art. I, § 18............................................................ 175
N.C. Const. art. II, § 3 ............................................ 105, 106, 179
N.C. Const. art. II, § 4 ............................................................ 105
N.C. Const. art. II, § 5 ............................................ 105, 106, 179
N.C. Const., art. XIII, §§ 2-4 .................................................. 179
Random House Dictionary of the English Language,
Unabridged Edition (1981) .......................................... 178
United States Constitution ................................................ 33, 181

 -1No. 201PA12-2

TENTH DISTRICT

SUPREME COURT OF NORTH CAROLINA
**************************************
MARGARET DICKSON, et al.,
)
Plaintiffs,
)
)
v.
)
)
ROBERT RUCHO, et al.,
)
Defendants.
)
)
NORTH CAROLINA STATE
)
From Wake County
CONFERENCE OF BRANCHES OF
)
THE NAACP, et al.,
)
Plaintiffs,
)
)
v.
)
)
THE STATE OF NORTH CAROLINA, )
et al.,
)
Defendants.
)
******************************************************************
PLAINTIFF-APPELLANTS’ BRIEF
******************************************************************
ISSUES PRESENTED
I.

WAS IT ERROR FOR THE TRIAL COURT TO HOLD THAT
COMPLYING WITH SECTION 5 OF THE VOTING RIGHTS ACT
PROVIDED
DEFENDANTS
WITH
A
COMPELLING
GOVERNMENTAL INTEREST TO INTENTIONALLY CREATE A
PROPORTIONATE NUMBER OF MAJORITY AFRICAN-AMERICAN
DISTRICTS FOR THE NORTH CAROLINA HOUSE AND SENATE
AND FOR THE UNITED STATES CONGRESS DESPITE THE FACT
THAT THE UNITED STATE SUPREME COURT HAD JUST RULED

 -2THAT SECTION 5 DOES NOT CONSTITUTIONALLY APPLY TO
NORTH CAROLINA?
II.

WAS IT ERROR FOR THE TRIAL COURT TO HOLD THAT THE
VOTING
RIGHTS
ACT
PROVIDES
A
COMPELLING
GOVERNMENTAL
INTEREST
FOR
DEFENDANTS
TO
INTENTIONALLY CREATE A PROPORTIONATE NUMBER OF
MAJORITY AFRICAN-AMERICAN ELECTION DISTRICTS DESPITE
THE UNITED STATES SUPREME COURT RULINGS THAT SUCH
RACIAL BALANCING IS PER SE UNCONSTITUTIONAL?

III.

DID THE TRIAL COURT ERR IN HOLDING THAT THE RACIALLY
GERRYMANDERED DISTRICTS ENACTED BY THE GENERAL
ASSEMBLY WERE NARROWLY TAILORED WITHOUT ENGAGING
IN A SEARCHING INQUIRY TO ASSURE THAT RACE WAS NOT
USED MORE THAN NECESSARY TO COMPLY WITH THE VOTING
RIGHTS ACT?

IV.

DID THE TRIAL COURT ERR IN FINDING THAT RACE DID NOT
PREDOMINATE IN THE DRAWING OF SENATE DISTRICT 32 AND
CONGRESSIONAL DISTRICT 12?

V.

DID THE TRIAL COURT ERR IN HOLDING THAT COMPLIANCE
WITH THE WHOLE COUNTY PROVISION OF THE NORTH
CAROLINA CONSTITUTION IS NOT MEASURED BY THE NUMBER
OF COUNTIES KEPT WHOLE BUT RATHER BY THE NUMBER OF
COUNTY CLUSTERS, THEREBY SANCTIONING DEFENDANTS‘
PLANS DIVIDING MORE COUNTIES THAN NECESSARY?

VI.

WAS IT ERROR TO HOLD THAT THE NORTH CAROLINA
CONSTITUTION DOES NOT REQUIRE GEOGRAPHICALLY
COMPACT HOUSE, SENATE AND CONGRESSIONAL DISTRICTS
DESPITE THE CLEAR MANDATE OF THE STEPHENSON CASES
THAT DISTRICTS MUST BE COMPACT?

VII.

WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THE
EXTRAORDINARY AND UNPRECEDENTED NUMBER OF DIVIDED
PRECINCTS IN THE HOUSE AND SENATE PLANS DOES NOT
VIOLATE THE FUNDAMENTAL RIGHT TO VOTE AND THE EQUAL

 -3PROTECTION OF THE LAWS GUARANTEED BY THE UNITED
STATES AND NORTH CAROLINA CONSTITUTIONS?
VIII.

DID THE TRIAL COURT ERR IN DISMISSING PLAINTIFFS‘ CLAIM
THAT THE GENERAL ASSEMBLY‘S REDISTRICTING PLANS
VIOLATE THE GOOD OF THE WHOLE CLAUSE IN ARTICLE I,
SECTION 2 OF THE CONSTITUTION?
STATEMENT OF THE CASE
Following the 2010 Decennial Census, the North Carolina General

Assembly enacted new redistricting plans for the North Carolina House of
Representatives,1 North Carolina Senate,2 and United States House of
Representatives3 on 27 and 28 July 2011. The enacted plans were pre-cleared
administratively by the United States Attorney General on 1 November 2011.4
Plaintiffs filed separate suits on 3 and 4 November 2011 challenging the
constitutionality of the enacted plans and seeking a preliminary injunction.
Plaintiffs filed amended complaints on 9 and 12 December 2011. (R pp 42-140,

1

Session Law 2011-404 (July 28, 2011) also known as ―Lewis-Dollar-Dockham 4‖
(hereinafter ―Enacted House Plan‖).
2
Session Law 2011-402 (July 27, 2011) also known as ―Rucho Senate 3‖
(hereinafter ―Enacted Senate Plan‖).
3
Session Law 2011-403 (July 28, 2011) also known as ―Rucho-Lewis Congress 3‖
(hereinafter ―Enacted Congressional Plan‖). Collectively, the 2011 plans are
referred to as the ―Enacted Plans.‖
4
The General Assembly passed legislation on 7 November 2011 to cure a technical
defect in the plans. Session Laws 2011-413, 2011-414, and 2011-416. The United
States Attorney General pre-cleared the revised plans on 8 December 2011.

 -4141-258). In accordance with N.C.G.S. § 1-267.1, the Chief Justice appointed a
three-judge panel to hear both actions.
The trial court consolidated the cases on 19 December 2011. (R p 391). On
the same day Defendants filed their answers (R p 259-325, 326-86) and moved to
dismiss the suit. (R p 387). Plaintiffs moved for a preliminary injunction which
was denied on 20 January 2012. (R p 439). On 6 February 2012 the trial court
entered an order allowing in part and denying in part Defendants‘ motion to
dismiss. (R p 444).
On 20 April 2012 the trial court entered an order compelling the production
of certain documents. The trial court‘s order was appealed as a matter of right to
the North Carolina Supreme Court. On 25 January 2013 the Supreme Court issued
its ruling on that interlocutory matter, reversing the trial court. Dickson v. Rucho,
366 N.C. 332, 737 S.E.2d 362 (2013).
On 5 October 2012, Plaintiffs moved for summary judgment (R p 634-38)
and on 10 December 2012 Defendants cross-moved for summary judgment. (R p
644-46). During the week of 25 February 2013 the trial court conducted hearings
on those motions. On 13 May 2013 the trial court ordered that two issues be
separated from the remaining pending issues and that a bench trial be held on those

 -5two issues. (R p 669-72). The two issues separated for trial in the 13 May 2013
order were:
(A)

Assuming application of a strict scrutiny standard and, in
considering whether the Enacted Plans were narrowly tailored,
was each challenged Voting Rights Act (―VRA‖) district drawn
in a place where a remedy or potential remedy for racially
polarized voting was reasonable for purposes of preclearance or
protection of the State from vote dilution claims under the
Constitution or under § 2 of the VRA?

(B)

For six specific districts (Senate Districts 31 and 32, House
Districts 51 and 54 and Congressional Districts 4 and 12 – none
of which is identified as a VRA district), what was the
predominate factor in the drawing of those districts?

(R pp 669-70). A bench trial was held on 5 and 6 June 2013 before the three
judges of the trial court, who received evidence through record designations, trial
exhibits, and trial witnesses.5 On 8 July 2013, the court issued a ruling in favor of
the Defendants on all claims. (R pp 1264-1444). On 22 July 2013, Plaintiffs
timely appealed. (R pp 1437-39).

5

Trial witnesses for Plaintiffs were Senator Dan Blue from Wake County, former
Senator Eric Mansfield from Cumberland County, former Senator Linda Garrou
from Forsyth County, Representative Larry Hill from Durham County,
Congressman Mel Watt from Mecklenburg County, Goldie Wells from Guilford
County, Albert Kirby from Sampson County, Walter Rogers from Scotland County
and Professor Alan Lichtman from American University. (R p 703). Defendants‘
designated trial witness was Thomas Hofeller from Washington D.C.

 -6STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
This is an appeal as of right, pursuant to N.C.G.S. § 120-2.5, from a final
judgment issued 8 July 2013 by a three-judge panel in Wake County Superior
Court, convened pursuant to N.C.G.S. § 1-267.1, declaring constitutional the
districts in the 2011 legislative and congressional redistricting legislation
challenged in this litigation. ―Appeal lies of right directly to the Supreme Court
from any final order or judgment of a court declaring unconstitutional or otherwise
invalid in whole or in part and for any reason any act of the General Assembly that
apportions or redistricts State legislative or congressional districts.‖

N.C.G.S.

§ 120-2.5. This Court has interpreted this statute to apply to appeals declaring
redistricting plans both constitutional and unconstitutional.

Pender County v.

Bartlett, 361 N.C. 491, 497, 649 S.E.2d 364, 368 (2007).
STATEMENT OF FACTS
These lawsuits challenge the validity of the legislative and congressional
redistricting plans enacted by the General Assembly in 2011 and a series of
districts contained in those plans.

Most of the evidence consists of maps,

demographic and electoral data, documents authored by Defendants that speak for
themselves and historical information.

That evidence is summarized below.

 -7Evidence pertinent to specific issues, particularly the State constitutional issues, is
discussed in the context of those arguments.
A.

Overview of the 2011 House and Senate Redistricting Process.

Senator Robert Rucho and Representative David Lewis were appointed
Chairs of the Senate and House Redistricting Committees, respectively, on 27
January and 15 February 2011. (R p 276). Senator Rucho was responsible for
developing the challenged Senate plan. (Doc. Ex. 2264-68). Representative Lewis
was responsible for developing the challenged House plan.

Id.

Dr. Thomas

Brooks Hofeller (Hofeller) was retained by the Ogletree law firm to design and
draw the House and Senate plans for Senator Rucho and Representative Lewis.
(Doc. Ex. 1896, 1903). He began working for Senator Rucho and Representative
Lewis in December, 2010 and began drawing plans in March 2011 following
receipt of new census data. (Doc. Ex. 1943). Senator Rucho described Hofeller as
the ―chief architect‖ of the plans and Hofeller described himself the same way.
(Doc. Ex. 3068, 1895).
Senator Rucho and Representative Lewis were the sole source of
instructions to Hofeller regarding the design and construction of the House, Senate
and Congressional plans. These instructions were all oral. (Doc. Ex. 1921-22,
2306, 3078-79, 3184-85). Senator Rucho and Representative Lewis told Hofeller:

 -8―draw a 50% plus one district wherever in the state there is a sufficiently compact
black population‖ to do so. (Doc. Ex. 2451, 3087-89, 3167). Rucho and Lewis
also directed Hofeller to draw House and Senate plans that provide AfricanAmerican citizens ―with a substantial proportional and equal opportunity to elect
their candidates.‖ (Doc. Ex. 1216, 2363-64, 3087-89, 3167).
Hofeller used the same process and criteria to draw the House and Senate
plans. (Doc. Ex. 1993-94). He began the process by calculating how many
majority Black state House and state Senate districts would need to be drawn to
achieve proportionality between the percentage of the state‘s population that is
Black and the percentage of districts that would be majority-Black. (Doc. Ex.
1945-46). The proportionality chart Hofeller prepared for Defendants is attached
as Appendix 1.
Hofeller made this calculation as soon as the 2010 Census data was released,
(Doc. Ex. 1943), long before the General Assembly had compiled any data about
the extent to which voting is still racially polarized in the state, (T p 87), and
without any knowledge of where in the state candidates of choice of AfricanAmerican voters had been elected. Id.
Senator Rucho first filed a Senate plan and first made that plan public on 17
June 2011. (Doc. Ex 540). That plan was a partial plan drawn by Hofeller. (Doc.

 -9Ex. 3169). It was labeled ―Rucho Senate VRA Districts‖ and contained only 10
districts. (Map Notebook, Rucho Senate VRA Districts). Each of the 10 districts
had a Black voting age population higher than 50% except SD 32 in Forsyth.
(Map Notebook, Rucho Senate VRA Districts, Stat Pack). Eight of these 10
districts (3, 4, 5, 13, 14, 20, 28, 38 and 40) were enacted on 27 July 2011,
essentially as first filed and made public on 17 June 2011. (Map Notebook, Rucho
Senate 2).

Senate District 21 as first made public was located entirely in

Cumberland County. (Map Notebook, Rucho Senate VRA Districts). It was
modified prior to enactment to include Hoke County as well as part of Cumberland
County.

(Map Notebook, Rucho Senate 2).

That modification increased the

number of split precincts from 27 to 33 and increased the TBVAP from 51.03% to
51.53%. (Map Notebook, Rucho Senate VRA Districts, Stat Pack). District 32 in
Forsyth was also modified.

That modification increased the number of split

precincts from 1 to 43 and increased the total Black voting age population
(hereinafter ―TBVAP‖) from 39.32% to 42.53%. Id.
Following Senator Rucho‘s example, Representative Lewis first filed and
made public a proposed House plan on 17 June 2011.6 (Doc. Ex. 546). That plan
was a partial plan drawn by Hofeller. (Doc. Ex 2332). It was labeled ―Lewis

6

Due to an error the 17 June plan was slightly modified on 21 June.

 - 10 House VRA Districts‖ and only contained 27 districts, 24 of which had a Black
voting age population higher than 50%. (Map Notebook, Lewis House VRA
Districts, Stat Pack). Twenty-one of these 24 districts were enacted on 28 July
2011, essentially as first filed and made public on 21 June 2011. (Map Notebook,
Lewis-Dollar Dockham 4). House District 8 was reconfigured prior to enactment
to include parts of Wilson and Pitt Counties and renumbered as HD 24 but the
TBVAP remained above 50% at 57.38%. (Map Notebook, Lewis-Dollar Dockham
4, Stat Pack). District 21 was also reconfigured prior to enactment to include
pieces of Wayne, Sampson and Duplin Counties instead of pieces of Wayne,
Sampson and Pender Counties. (Map Notebook, Lewis-Dollar Dockham 4). The
TBVAP, however remained above 50% at 51.90%. (Map Notebook, Lewis-Dollar
Dockham 4, Stat Pack). District 20 was eliminated prior to enactment. Id. That
proposed district was formed out of pieces of Bladen, Columbus, Brunswick and
New Hanover Counties and would have had a TBVAP of 56.85%.

(Map

Notebook, Lewis House VRA Districts, Stat Pack).
B.

The Public Statements Made by Senator Rucho and
Representative Lewis Describing the Criteria that Shaped the
Challenged House and Senate Districts.

Senator Rucho and Representative Lewis issued public statements on 17
June, 21 June and 12 July describing the factors that had determined the number,

 - 11 location and shape of the ―VRA districts‖ challenged in these cases. (Doc. Ex.
540-53, 563-68). These public statements reflect the oral instructions Senator
Rucho and Representative Lewis had earlier given Hofeller to apply in drawing the
districts (Doc. Ex. 1921-22, 2306, 3078-79, 3184-85), and they are attached as
Appendix 2. Those instructions were:
1.

To draw each ―VRA District‖ where possible so that African
American citizens constitute at least a majority of the voting
age population in the district.7

2.

To draw ―VRA Districts‖ in numbers equal to the African American

proportion of the State‘s population.8
Senator Rucho and Representative Lewis also publicly stated that any
alternative plan that compromised or strayed from strict adherence to these

7

See App. 2 p 5 (―districts created to comply with Section 2 of the Voting Rights
Act must be created with a ―Black Voting Age Population‖ (―BVAP‖) as reported
by the census, at least at a level of 50% plus one.‖); App. 2 p 16 (―Districts must be
drawn with an actual black majority voting age population.‖); and App. 2 p 30
(districts ―must be drawn with a black voting age population in excess of 50% plus
one.‖)
8
See App. 2 p 6 (―Each plan [must] include a sufficient number of AfricanAmerican districts to provide North Carolina‘s African-American citizens with a
substantially proportional and equal opportunity to elect their preferred candidates
of choice. Based upon the statewide TBVAP figures, proportionally for the
African-American citizens in North Carolina means 24 majority African-American
House districts and 10 majority African-American Senate districts.‖ See also App.
2 p 31 (―our proposed plan provides black voters in North Carolina with substantial
or rough proportionality in the numbers of VRA districts.‖)

 - 12 instructions to Hofeller would be rejected. In their 21 June public statement,
Senator Rucho and Representative Lewis said:
We would entertain any specific suggestions from the Black Caucus
or others identifying more compact majority black populations to
form the core of alternative majority black districts, provided the total
districts proposed provide black voters with a substantially
proportional state-wide opportunity to elect candidates of their choice.
Moreover, any such districts must comply with Strickland v. Bartlett,
and be drawn at a level that constitutes a true majority of black voting
age population.
(App. 2 p 18). African-American legislators did not share Senator Rucho and
Representative Lewis‘ views about the State‘s Voting Rights Act (―VRA‖)
obligations or potential liability. Numerous African-American legislators spoke
out against all plans proposed by Senator Rucho and Representative Lewis.9 (T p

9

Other than Senator Rucho, no Republican member of the General Assembly filed
any bill to redistrict the Senate. Senate Democrats did file two Senate redistricting
bills: ―Possible Senate Districts‖ filed by Senator McKissick on behalf of the
Senate Black Caucus (hereinafter ―Black Caucus Senate Plan‖) and ―Senate Fair
and Legal‖ filed by Senator Nesbitt. Both bills were defeated. (R p 551, 664-65).
Other than the bill sponsored by Representatives Lewis, Dollar and Dockham, no
Republican member of the General Assembly filed any bill to redistrict the House.
House Democrats did file two House redistricting bills: ―Possible House Districts‖
proposed as an amendment by Representative Alexander on behalf of the House
Black Caucus (hereinafter ―Black Caucus House Plan‖) and ―House Fair and
Legal‖ filed as a proposed amendment by Representative Grier Martin. Both
amendments were defeated. (R pp 664-65) Draft legislative and congressional
maps were provided to the General Assembly on behalf of AFRAM but those maps
were never filed as bills in the General Assembly and do not resemble the bills
filed by Senators McKissick, Nesbitt and Stein or Representatives Martin,
Alexander and Hackney. See Map Notebook.

 - 13 114, lines 12-21). No African-American Senator or Representative voted in favor
of any of the plans proposed by Senator Rucho and Representative Lewis,
including the enacted plans. (T pp 30, 114).
In addition, once the VRA maps were introduced, citizens from around the
state testified at public hearings that the districts went beyond what was required
for compliance with the Voting Rights Act. (Doc. Ex. 7726: D:\Native Format\
CDs\PS79\NC111-S-28F-3(m)). Well before the final plans were enacted, the
Defendants were specifically informed in written testimony that the VRA districts
they were proposing were premised on a fundamental misunderstanding of
constitutional and civil rights law. (Doc. Ex. 7726, D:\Native Format\CDs\PS83\
Depositions\Exhibits\Exhibits 199-216\211) (Attached as Appendix 3). Writing on
behalf of a citizen group, the Alliance for Fair Redistricting and Minority Voting
Rights, or AFRAM, on 23 June 2011, counsel explained that ―it does appear that
these districts go beyond what the Voting Rights Act requires both in terms of the
number of majority-minority districts and in terms of the Black population
percentages in the Voting Rights Act districts.‖ Id. It also states that the Voting
Rights Act does not require proportional representation, that Section 5 does not
require maximization of the number of majority Black districts, that Section 5 does
not require districts to be 50% Black in voting age population, and that the districts

 - 14 as drawn ―threaten the very principles that the Voting Rights Act exists to
promote.‖ Id. The Defendants were aware, prior to enacting the VRA districts,
that the NAACP and many other citizens were opposed to those districts being
created as majority-Black districts.
C.

A Comparison of Districts in the Enacted Plans and Previous
Plans.

The legislative record contained data regarding the number of majority
Black districts drawn by the 1992 and 2003 sessions of the General Assembly and
by the courts in 2002. (Doc. Ex. 7726 PS83\Depositions\Exhibits\Exhibits 44-94
(Churchill) Churchill Dep. Ex. 80-84, (Churchill Dep. Ex. 81-83)). The following
chart compares the number of Senate districts judged by the 1992 and 2003
sessions of the General Assembly and the courts in 2002 as necessary to meet the
State‘s obligations under the Voting Rights Act compared to the number of
districts judged by the 2011 General Assembly to be necessary for that purpose.

 - 15 -

# Senate Districts Where TBVAP ≥50%
10
9
8
7
6
5
4
3
2
1
0

9

3

# Senate Districts Where
TBVAP ≥50%

3

0
1992 Senate
2002 Court
2003 Senate
2011 Plan
(used for '92- Plan (used for (used for '04- (used for 2012
'00 elections) '02 elections) '10 elections)
elections)

The following chart compares the number of House districts judged by the
1992, 2003 and 2009 sessions of the General Assembly and the courts in 2002 to
be necessary to meet the State‘s obligations under the Voting Rights Act with the
number of such districts judged to be necessary for that purpose by the 2011
General Assembly.

# House Districts Where TBVAP > 50%
23

25
20
15
10

13
9

10

10
# House Districts Where TBVAP
> 50%

5
0
1992
2002 Court 2003 Plan 2009 Plan 2011 Plan
House Plan (used (used for (used '10 (used for
(used for
for '02
'04-'08 elections)
2012
'92-'00 elections) elections)
elections)
election)

 - 16 All of these plans were precleared by the United States Department of Justice (―US
DOJ‖), and none of these plans were challenged on Section 2 grounds. (T pp 2627).
The record before the Legislature also established the counties in which past
sessions of the General Assembly and the courts in 2002 had determined that either
Section 2 or 5 required the creation of one or more majority African-American
districts.10 Notably, the 2011 plan doubles the number of majority Black Senate
districts in Mecklenburg County and adds a majority Black Senate district in 11
counties for the first time, including Wake, Durham, Guilford and Cumberland
counties. (Map Notebook, Lewis-Dollar Dockham 4, Stat Pack). The 2011 House
Plan increased the number of majority Black districts in Mecklenburg from 2 to 5,
in Guilford from 2 to 3, in Wake from 1 to 2, in Cumberland from 0 to 2 and in
Durham from 0 to 2. Id. It also created a majority Black House district for the

10

Attached as Appendix 4 are two charts, one for Senate Districts and one for
House Districts, that list each county in which a district containing > 50% TBVAP
was located (a) under the legislative plan used for the 1992-2000 elections; (b)
under the Court drawn plan used for the 2002 elections; (c) under the legislative
plan used for the 2004-2010 elections; and (d) under the challenged 2011 plan.
Appendix 5 is a chart showing the judgment of the General Assembly in 1991,
2003 and 2009 and the courts of this state in 2002, with regard to the scope of the
State‘s obligations under Section 2 in the counties in which Section 2 violations
had been found compared to Senator Rucho and Representative Lewis‘ belief as to
the scope of that obligation.

 - 17 first time in 10 counties: Pasquotank, Franklin, Duplin, Sampson, Wayne, Durham,
Hoke, Richmond, Robeson, and Scotland. Id.
The legislative record also included alternative plans introduced during the
2011 session of the General Assembly by the Democratic Caucus and the Black
Caucus that reflected the judgment of their members about the scope of the State‘s
Voting Rights Act obligation. (Map Notebook, Fair & Legal House, Fair & Legal
Senate, Possible House, Possible Senate).

Those plans contained far fewer

majority-Black House and Senate districts. (Map Notebook, Stat Packs, Fair &
Legal House, Fair & Legal Senate, Possible House, Possible Senate).

The

Legislative Black Caucus proposed two majority-Black Senate Districts and 10
majority-Black House Districts; the Democratic Caucus proposed one majorityBlack Senate District and nine majority-Black House Districts. Id.
D.

The Evidence Before Defendants Regarding the Decreased Need
for Majority-Black Districts in North Carolina.

Even as the number of majority-Black districts was decreasing prior to 2011,
the number of Black legislators in the General Assembly steadily increased. (T pp
32-35; R p 676). This reflects the fact that since Gingles, voters in North Carolina
have made significant progress towards achieving the goals of inclusion and fair
representation embodied in the Voting Rights Act.

Levels of Black voter

registration and participation in elections today are greater or equal to that of white

 - 18 voters, (T pp 383-84), in contrast to the factual finding by the district court in
Gingles in 1982 that African-Americans voters as a percentage of voting age
population lagged behind whites by 14 percentage points statewide (66.7% white
VAP registered vs. 52.7% Black VAP registered) and by as much as 23 percentage
points in many counties. Gingles v. Edmisten, 590 F. Supp. 345, 360 (E.D.N.C.
1984), aff’d in part, rev’d in part, sub nom Thornburg v. Gingles, 428 U.S. 30
(1986). Similarly, the increasing willingness of white voters to support Black
candidates at the ballot box has meant that when Black voters go to the polls, they
have a reasonable chance of electing their candidates of choice even when those
candidates are Black and even where Black voters are not a majority of the
electorate.
By 2011, the record as developed by the General Assembly11 showed that
fifty-six times between 2006 and 2011, Black candidates won election contests in
state house and senate districts that were not majority-Black, and twenty-two times
11

At the request of Senator Rucho, legislative staff at the General Assembly
compiled a list of every racially contested election in the state of North Carolina
from the years 2006 through 2010 and for every racially contested Congressional
election from 1992-2010.
(Doc. Ex. 1824; Doc. Ex. 7726
PS83\Depositions\Exhibits\Exhibits 44-94 (Churchill) Churchill Dep. Ex. 80-84).
Churchill Dep. Ex. 80-84. The data compiled by legislative staff included the race
of all candidates, the district number, the winner and loser of the election, the
margin of victory, and the racial demographics of the district in which the election
was conducted. (Doc. Ex. 7726 PS83\Depositions\Exhibits\Exhibits 44-94
(Churchill) Churchill Dep. Ex. 80-84Churchill Dep. Exs. 81-83.)

 - 19 those candidates were running in majority-white districts.12

(Doc. Ex. 7726

PS83\Depositions\Exhibits\Exhibits 44-94 (Churchill) Churchill Dep. Ex. 80-84).
Attached as Appendix 6 is a table listing these candidates and elections. Most of
these elections involved candidates of different races in which the Black candidate
defeated the white candidate, some of whom were incumbents. Id.
Defendants were advised by attorneys at the School of Government that
Gingles data was outdated and could not be relied on for 2011 redistricting
decisions.13
12

(Doc. Ex. 7726 (PS \PS83\Depositions\Exhibits\Exhibits 44-94

Among many examples is Durham County, where the enacted plan creates a
majority-black senate district and two majority-black house districts, even though
Durham County previously never had a majority-black legislative district and the
Gingles court ruled none was needed in 1986. African-American candidates
Mickey Michaux, Larry Hall, Jeanne Lucas, and Floyd McKissick won a total of
nine election contests between 2006 and 2011, winning contested general elections
with over 70% of the vote. Appendix 6. In Wake County, where there had never
been a majority-black senate district and no majority-black house district since
2002, Linda Coleman, an African-American, won election in 2006 and 2008 in a
house district that was 26.70% black in voting age population.
13
Michael Crowell and Bob Joyce wrote: ―In considering whether Section 2
requires the drawing of majority African American legislative districts today it
should be kept in mind that the Gingles decision was based on demographics as
they existed in 1982 and an election history primarily from the 1960s and 1970s;
likewise, the Section 2 litigation involving local governments mostly was
concluded by the early 1990s. North Carolina has changed significantly since
then, especially in the piedmont urban areas, so that more recent analysis of voting
patterns and the other Section 2 elements would be necessary to assert with any
confidence that a Section 2 violation might be found in a particular part of the state
today.‖
(Doc. Ex. 7726 (PS \PS83\Depositions\Exhibits\Exhibits 44-94
(Churchill)) (Dep. Ex. 57)).

 - 20 (Churchill)) Dep. Ex. 57-58). However, there is no evidence in the legislative
record of any effort by Defendants to review or analyze more recent election data.
Had Defendants reviewed this data they would have found:
1.

that seven African-American State Senators were elected from
eight of the prior Senate districts with Black voting percentages
between 42.52% and 49.70% in the past four election cycles.
(R pp 283-91, 366);

2.

that in the 40%+ Black voting age population Senate districts
relevant to this litigation, African-American candidates or the
candidates of choice of African-American voters prevailed in
all elections in 7 of 8 districts in the 2008 and 2010 primary and
general elections, for a win rate of 88 percent. (Doc. Ex. 962);

3.

that in the 40%+ Black voting age population State House
Districts relevant to this litigation, Black candidates or a white
candidate of choice of Black voters prevailed in 19 out of 21
districts in the 2008 and 2010 primary and general elections, for
a win rate of 90 percent. Id.;

4.

that in the State House districts that were above 40% Black
voting age population but below 50% Black voting age
population, the candidate of choice of Black voters prevailed in
all elections in 10 of the 11 districts, and prevailed in 3 out of 4
of the elections in the 11th district, for a win rate of 91%. (Doc.
Ex. 1304);

5.

that in the State House districts that were above 50% Black
voting age population, the candidate of choice of Black voters
prevailed in 8 of the 10 majority Black districts, for a win rate
of 80%, which is lower than the win rate in districts between
40% and 50% Black voting age population. (Doc. Ex. 1306);

6.

that Congressional Districts 1 and 12 previously were less than
50% Black in voting age population and that both districts
elected candidates of choice of Black voters in the 2008 and

 - 21 2010 primary and general elections. (R p 380; Doc. Ex. 7726;
CDs\PS83\Depositions\Exhibits\Exhibits 44-94 (Churchill)
Churchill Dep. Ex. 80-84 Churchill Dep. Ex. 81); Doc. Ex.
1322)
7.

that in all districts, state legislative and Congressional, the
candidate of choice of Black voters prevailed in 28 of 31
districts with 40%+ Black voting age population, for a win rate
of 90%. (Doc. Ex. 962). This win rate is no different than the
win rate for African-American candidates and white candidates
of choice of African-American voters in districts that are 50%+
in Black voting age populations. (Doc. Ex. 1303).

The General Assembly also had available information about the margin of
victory of African-American candidates in the earlier elections under prior plans
and the extent to which African-American candidates were unopposed in those
elections.

Appendix 5 attached hereto summarizes that information for each

challenged district.
At trial, voters and elected officials testified about the extent of election of
candidates of choice of Black voters around the state. (T pp 15-16, 20-24, 63-64,
103, 141). Their testimony described an evolving process whereby Black voters
and Black candidates have increasingly been woven into the fabric of political life
in this state. From Rencher N. Harris‘ election to the Durham City Council in
1953 (T pp 100-101), and Harvey Gantt‘s first election to the Charlotte City
Council in 1974 (T pp 168- 69), to Dan Blue‘s ascent to the position of Speaker of
the House in 1991 (T p 17), Ralph Campbell‘s statewide election as State Auditor

 - 22 in 2004 (T p 102), Malcolm Graham‘s defeat of incumbent Fountain Odom in
2006 (T p 173), and to Dr. Eric Mansfield‘s election to the Senate from
Fayetteville in 2010 (T p 62), Black candidates have built successful multi-racial
campaigns, with strong support from whites and Blacks in their communities.
Black and white voters have seen their common interests united behind the values
that they share, and they have seen their elected leaders, honorable and capable
men and women of color, ably represent Black and white voters together.
Senator Dan Blue and Congressman Mel Watt explained how over the past
30 to 40 years more and more white candidates have supported Black candidates.
(T pp 21-23, 172-76). Relative newcomers, such as Representative Larry Hall and
Dr. Eric Mansfield, testified that politics in this state are increasingly about issues
and values, and less about the race of the candidate. (T p 62, 98-99). Politically
active citizens at the local level, such as Goldie Wells, Albert Kirby and Walter
Rogers, described the multi-racial coalitions that have been formed in their
communities to address common issues. (T p 82-83, 144-47).
E.

Polarized Voting Studies.

The legislative record contained two studies indicating that racially polarized
voting is present in varying degrees throughout the State. (Doc. Ex. 1053, 1113).
One study was authored by Dr. Ray Block and presented at a public hearing on 9

 - 23 May 2011, in Raleigh. (Doc. Ex. 1053). The other study was authored by Dr.
Thomas Brunell and filed with the General Assembly on 14 June 2011, three days
before Senator Rucho and Representative Lewis made public the partial plans
containing the challenged districts. (R p 451-87).
Dr. Brunell‘s study primarily examined statewide races and provides
numerous examples across the state of Black candidates receiving substantial
support from white voters. (R p 451-87) (finding that in precincts that were at least
90% white, Black candidates received 39.3-43.8% of the vote in the 2004 State
Auditor election, the 2008 Democratic presidential primary, and the 2008
presidential election). Dr. Brunell‘s study fails, however, to consider the critical
question of whether the level of racially polarized voting in a particular area results
in the white bloc usually defeats the candidate of choice of Black voters.
Additionally, Dr. Brunell‘s methodology was flawed on a very basic level,
requiring him to file, long after the General Assembly had relied on his report, an
affidavit and updated report correcting those errors. (Doc. Ex. 5716).
Ray Block‘s study looked at state legislative contests, and similarly showed
that Black candidates receive substantial support from white voters. (Doc. Ex.
1057-59). Block‘s study did not include information about whether the candidates
of choice of Black voters won election. Id.

 - 24 F.

Evidence of Geographical Compactness.

The redistricting record compiled by the General Assembly contained the
results of 8 separate mathematical measures of the geographic compactness of each
of the enacted plans and alternate plans filed in the General Assembly. (Doc. Ex.
900, 4913) The Defendants did not use these mathematical measures in evaluating
the degree to which a potential plaintiff in a Section 2 lawsuit could meet the
compactness requirement of a Section 2 claim or whether the districts complied
with the state Constitutional compactness requirement as established in
Stephenson.

(Doc. Ex. 2141-2142).

Indeed, neither Senator Rucho or

Representative Lewis for themselves, nor Hofeller on their behalf, made any
focused or independent effort to evaluate the compactness element of a Section 2
claim for the challenged districts. (Doc. Ex. 2997, 3027).
Using the mathematical measures of compactness contained in the
legislative record, Anthony Fairfax compared the compactness of the challenged
districts in the enacted plans with the compactness of the alternative plans filed by
the Democratic and Black Caucus. (Doc. Ex. 367-68). He found that all three
2011 enacted redistricting plans scored overall less compact than prior redistricting
plans and less compact than other redistricting plans introduced during the 2011
redistricting process. (Doc. Ex. 378).

 - 25 Hofeller agrees that mathematical standards of compactness can be a
meaningful tool for measuring compactness. In what he previously referred to as
his ―seminal study of measures of compactness,‖ Hofeller argued that ―quantitative
scores should be used to make comparisons. The fact that compactness is a
relative measure does not render it meaningless.‖ (Doc. Ex. 7726, D:\Native
Format\CDs\PS83\Depositions\Exhibits\Exhibits 504-566 (Hofeller) Hofeller Dep.
Ex. 517, p.1176). His study went on to conclude that when ―multiple measures
coalescence in support of a single plan, the evidence in its favor is very strong.‖
Id. at 1117.
Defendants stated that the highly irregular shapes of the districts are due to
their effort to comply with the proportionality quota.

See Section IV Of

Defendants‘ Memorandum in Support of Motion for Summary Judgment (Doc. Ex.
3546-3619). The results of their efforts are demonstrated in Appendix 8, which
shows that the lines twist and turn to encompass areas with concentrations of Black
citizens.
G.

Comparison of Divided Counties in Plans Drawn to Achieve
Proportion, and Plans Not Drawn for that Purpose.

The 2003 Senate redistricting plan used for the 2004-10 elections was not
drawn to create majority African-American districts in numbers proportional to the
State‘s African-American population.

Only 12 counties were divided by that

 - 26 plan.14 (Map Notebook, 2003 Senate). By contrast, the 2011 Senate Plan, which
was drawn to create majority African-American districts proportional to the State‘s
African-American population, divides 19 counties or seven more than were divided
by the 2003 Senate Plan. (Doc. Ex. 910).
An alternative plan entitled ―Senate Fair and Legal‖ was introduced by
Senator Martin Nesbitt on 25 July 2011. (Map Notebook, Fair & Legal Senate).
That plan was not drawn to create majority African-American districts proportional
to the African-American population. It would have divided 14 counties or 5 fewer
counties than the enacted 2011 Senate Plan. Id. Another alternative plan entitled
―Possible Senate Districts‖ was introduced by Senator Floyd McKissick on 25
July.

(Map Notebook, Possible Senate).

That plan was not drawn to create

majority African-American districts in numbers proportional to the State‘s AfricanAmerican population. It would have divided 15 counties or 4 fewer counties than
the enacted 2011 Senate Plan. Id.
The same pattern is present in the House. The 2003 House Plan used for the
2004-08 elections and the 2009 House Plan used for the 2010 election were not
drawn to create majority African-American districts in numbers proportional to the
State‘s African American population. Forty-six counties were divided by the 2003
14

Appendix 6 is a chart showing all the counties divided by the various
redistricting plans discussed here.

 - 27 House Plan and forty-five counties were divided by the 2009 House Plan. (Map
Notebook, 2003 and 2009 House Redistricting Plan Maps). By contrast, the 2011
enacted House Plan was drawn to create majority African-American districts
proportional to the State‘s African-American populations. (Map Notebook, Lewis
Dollar Dockham 4). Forty-Nine counties are divided by that House Plan or four
more than were divided by the 2003 House Plan and five more than were divided
by the 2009 House Plan enacted following Stephenson I. Id.
Representative Grier Martin introduced a plan on 25 July 2011 entitled
―House Fair and Legal.‖ (Map Notebook, Fair and Legal House). That plan did
not create majority African-American districts in numbers proportional to the
State‘s African-American population. (Map Notebook, Fair and Legal House). It
would have divided 44 counties or 5 fewer counties than the challenged 2011
House Plan. Id. Representative Kelly Alexander introduced a plan on 25 July
entitled ―Possible House Districts.‖ (Map Notebook, Possible House Districts).
That plan was not drawn to create majority African-American districts in numbers
proportional to the State‘s African-American population. It would have four fewer
counties than the challenged 2011 House Plan. Id.

 - 28 H.

Comparison of Split Precincts in Plans Drawn to Achieve
Proportion and Plans Not Drawn for that Purpose.

Preservation of precincts and VTDs is not one of the criteria listed in the
public statements issued by Senator Rucho and Representative Lewis on 17 June,
22 June, and 12 July incorporating the oral instructions they gave Hofeller for
drawing House and Senate districts. (Doc. Ex. 540-598).15 Hofeller stated in his
affidavit that ―splitting VTD lines is often necessary in order to create TBVAP
districts.‖ (Doc. Ex. 7726, D:\Native Format\CDs\PS83\Depositions\Exhibits\
Exhibits 504-566 (Hofeller)\513). Hofeller further acknowledged that he split
precincts for the purpose of increasing the Black population in a district, in order to
achieve Rucho and Lewis‘ instruction to create majority African American districts
in numbers proportional to the state‘s African American population. (Doc. Ex.
2164, 2160-61).

15

Preservation of counties and precincts is specifically listed as criterion that was
considered in designing and constructing congressional districts. (Doc. Ex. 561).
VTDs are comparable to precincts. VTDs are the voting tabulation districts
reported to the Census. They are based on the voting precincts in effect on 1
January 2008 and cannot be altered by the Board of Elections. In most cases,
VTDs correspond exactly with precincts. However, in limited cases, local boards
of election may have altered the precinct boundary within a VTD after 1 January
2008. Because of the similarity between precincts and VTDs, Plaintiffs use the
term precinct to refer to VTDs.

 - 29 The following chart shows the number of split precincts in the enacted plans
compared to other plans introduced during the legislative process and compared to
prior redistricting plans in North Carolina:
Plan

Split Precincts

2003 House

198

2011 Legislative Black Caucus House

212

2011 Fair and Legal House

129

2011 Enacted House

395

2003 Senate

55

2011 Legislative Black Caucus Senate

10

2011 Fair and Legal Senate

6

2011 Enacted Senate

257

(R pp 342, 550-52). Overall in 2011, 563 of the state‘s 2,692 precincts were split
into more than 1,400 pieces in the three plans. More than one-fourth (27.2%) of
the state‘s voting-age population lives in these split precincts. (Doc. Ex. 423). In
some cases, district lines divide single family homes and apartment complexes into
different districts. (D:\Native Format\CDs\PS83\Depositions\Doss (Guilford BOE)

 - 30 Deposition, Doss Dep. Tr. p. 25-263; D:\Native Format\CDs\PS83\Depositions\
Fedrowitz Deposition Fedrowitz Dep. Tr. p. 65-67).
When the General Assembly splits precincts between or among districts,
there is an increased risk that voters will be assigned to the wrong district. (Doc.
Ex. 1485). An examination of the voter assignments in just six of the State‘s 100
counties (Durham, Robeson, Wilson, Richmond, Wayne, and Wake) showed 2056
voters were assigned to the wrong districts in the May, 2012 primary across the
House, Senate, and Congressional plans. (Doc. Ex. 3282). Ninety-seven percent
of those 2056 wrongly assigned voters live in split precincts. Id.
A subsequent audit by the State Board of Elections of all 100 counties
revealed many more voters remained incorrectly assigned after the 2012 primary
and general elections. (Doc. Ex. 6320). In Johnston County alone, approximately
2200 voters were wrongly assigned. Id. Based on the state audit, 6,340 voters
were potentially wrongly assigned in the State House plan, 3,557 voters were
potentially misassigned in the State Senate plan, and 2,793 voters in the
Congressional plan. (Doc. Ex. 6321).
A disproportionately high percentage of African-American voters live in
split precincts. Dan Frey, a GIS analyst at the General Assembly confirmed that
26.8% of the state‘s any part Black voting age population (―VAP‖) lives in a split

 - 31 precinct in the enacted House plan, while only 16.6% of the state‘s white VAP
lives in a split precinct in the enacted House plan. (Doc. Ex. 1202). Frey also
confirmed that the enacted 2011 House Plan contained a higher percentage of
Black voters residing in a split precinct than any other House plan proposed in the
legislative process. Id. Similarly, 19.4% of the state‘s any part Black VAP lives in
a split precinct in the enacted Senate plan, while only 11.8% of the state‘s white
VAP lives in a split precinct in the enacted Senate plan. Id. The 2011 enacted
Senate Plan contained a higher percentage of Black voters residing in a split
precinct than any other Senate plan proposed in the legislative process. Id.
I.

Overview of the Congressional Redistricting Process.

The process followed by Senator Rucho and Representative Lewis in
developing the congressional plan was similar to the process they followed in
developing the House and Senate plans. As Chairs of the House and Senate
Redistricting Committees, they were jointly responsible for developing the
Congressional Plan. (Doc. Ex. 3061, R p 276), and Thomas Hofeller was engaged
by the Ogletree law firm to as ―chief architect‖ for the congressional plan as he
was for the House and Senate plan. (Doc. Ex. 1895; Doc. Ex. 3068). Senator
Rucho and Representative Lewis were the sole sources of instructions to Hofeller

 - 32 regarding the design and construction of the congressional plan and those
instructions were oral. Id.
Senator Rucho and Representative Lewis filed a congressional plan labeled
―Rucho-Lewis Congressional 1‖ and first made that plan public on 1 July 2011.
(Doc. Ex. 555).

They filed a modified plan on 19 July (Rucho-Lewis

Congressional 2), 20 July (Rucho-Lewis Congress 2A), and 26 July (Rucho-Lewis
Congress 3). Rucho-Lewis Congress 3 was enacted on 26 July as Session Law
2011-403.
Senator Rucho and Representative Lewis issued public statements on 1 and
19 July 2011 describing the factors that shaped the challenged congressional
districts, CD 1, 4, and 12. (Doc. Ex. 555-68). These public statements reflected
the oral instructions Senator Rucho and Representative Lewis had given to
Hofeller to apply in drawing the districts and are included in Appendix 2.
With regard to CD 1, Senator Rucho and Representative Lewis stated that
CD 1 had been drawn in 1992 ―to comply with the Section 2 of the Voting Rights
Act.‖ (App. 2 p 22). With regard to CD 12, they stated that ―because of the
presence of Guilford County in the Twelfth District, we have drawn our proposed
Twelfth District at a Black voting age level that is above the percentage of Black
voting age population found in the current Twelfth Districts.‖ Id. at 24. The stated

 - 33 purpose for drawing CD 12 at this level was to ―ensure preclearance of the plan.‖
Id. The characteristics of these districts are compared to past plans in Appendix 9.
SUMMARY OF OPINION BELOW
On 8 July 2013, the trial court issued its Judgment and Memorandum of
Decision regarding each of the federal and state constitutional challenges to the
enacted legislation and congressional plans, and district within those plans. (R pp
1264-1434). The court‘s rulings on these challenges are summarized separately
below.
A.

Plaintiffs’ Equal Protection Claims Under the 14th Amendment to
the United States Constitution.

Most of the trial court‘s 171 page decision addresses Plaintiffs‘ claims that
30 legislative and congressional districts created by the redistricting legislation
enacted by the General Assembly in 2011 constitute racial gerrymanders in
violation of the Equal Protection Clause of the United States Constitution.
The court began this discussion by resolving a dispute between the parties
regarding the burden of proof and its allocation. Plaintiffs had acknowledged that
they had the burden of proof on the issue of whether race was the predominant
factor the Defendants used in assigning voters to districts, but argued that if they
carried that burden, the burden then shifted to Defendants to prove that those
decisions were made to meet a compelling government interest and to prove that

 - 34 each of those districts was narrowly tailored to meet that compelling interest. The
Defendants countered that the burden of proof was with Plaintiffs on all issues
encompassed within their equal protection claims. They did acknowledge that if
Plaintiffs proved that race was the predominant factor used to assign voters to
districts Defendants then had the burden of production, but not the burden to prove,
that those districts were drawn to meet a compelling interest and were narrowly
tailored to meet that interest. The panel adopted Defendants‘ position. (R pp
1272-75).
Applying this standard, the panel first concluded that the Plaintiffs had
carried their burden for 26 legislative and congressional districts and proved that
―the shape, location and racial composition of each VRA district was
predominately determined by a racial objective and was the result of a racial
classification sufficient to trigger the application of strict scrutiny as a matter of
law.‖ (R p 1278).
Turning to this compelling interest issue, the court observed that the
―Defendants assert that the VRA Districts in the Enacted Plans were drawn to
protect the State from liability under § 2 of the VRA, and to ensure preclearance of
the Enacted Plans under § 5 of the VRA.‖ (R p 1279). The trial court then held:
A redistricting plan furthers a compelling governmental interest if the
challenged districts are ―reasonably established‖ to avoid liability

 - 35 under § 2 of the VRA or the challenged districts are ―reasonably
necessary‖ to obtain preclearance of the plan under § 5 of the VRA.
(R p 1280). In determining whether Plaintiffs carried the burden the court had
assigned to them to prove the districts were not ―reasonably established‖ to avoid
§ 2 liability, the court concluded that it was ―required to defer to the General
Assembly‘s ‗reasonable fears of, and their reasonable efforts to avoid, § 2
liability.‘‖ (R p 1281). In determining whether the Plaintiffs carried the burden
the court had assigned to them to prove that the districts were not ―reasonably
necessary‖ to obtain preclearance under § 5, the panel concluded: ―A legislature‘s
efforts to ensure preclearance must be based upon its reasonable interpretation of
the legal requirements of § 5 of the VRA.‖ (R p 1285).
Examining the evidence in this light, the trial court concluded with respect to
the Defendants‘ potential § 2 liability:
[T]hat the General Assembly had a strong basis in evidence to
conclude that each of the Gingles preconditions was present in
substantial portions of North Carolina and that, based upon the totality
of circumstances, VRA districts were required to remedy against vote
dilution.
(R pp 1283-84). With respect to the Defendants‘ § 5 obligations the trial court
concluded:
[T]hat the General Assembly had a strong basis in evidence to
conclude that the Enacted Plans must be precleared, and that they

 - 36 must meet the heightened requirements of preclearance under the
2006 amendments to § 5 of the VRA.
(R p 1285). Having concluded that Plaintiffs had failed to carry their burden to
prove that the Defendants did not have a compelling interest in avoiding § 2
liability and in obtaining § 5 preclearance, the trial court then considered whether
Plaintiffs had carried their burden to prove that the Defendants had not narrowly
tailored the challenged districts to meet their § 2 and § 5 interests. The trial court
concluded that Plaintiffs had failed to prove that Defendants had not narrowly
tailored the challenged districts to meet their § 2 and § 5 interests. The trial court‘s
reasons for accepting Defendants‘ arguments are explained in the following
passage:
[T]he General Assembly had a strong basis in evidence for concluding
that ―rough proportionality‖ was reasonably necessary to protect the
State from anticipated liability under § 2 of the VRA and ensuring
preclearance under § 5 of the VRA…The trial court therefore
concludes that the number of VRA districts created by the General
Assembly in the Enacted Plans is not inconsistent with the General
Assembly‘s obligation to narrowly tailor the plans under strict
scrutiny.
(R p 1291).

The trial court‘s reasons for rejecting Plaintiffs‘ arguments are

explained in the following passage:
Plaintiffs‘ arguments are not persuasive because Plaintiffs have not
produced alternative plans that are of value to the trial court for
comparison in this narrow tailoring analysis. None of the alternative
plans proposed or endorsed by the Plaintiffs contain VRA districts in

 - 37 rough proportion to the Black population in North Carolina. None of
the alternative plans seek to comply with the General Assembly‘s
reasonable interpretation of Strickland by populating each VRA
district with >50% TBVAP. None of the alternative plans comply
with the N.C. Supreme Court‘s mandate in Stephenson v. Bartlett to
―group [ ] the minimum number of whole, contiguous counties
necessary to comply with the at or within plus or minus five percent
‗one-person, one-vote‘ standard.
(R p 1305).
B.

Plaintiffs’ Claims that SD 32 and CD 12 are Unconstitutional
Racial Gerrymanders.

While the trial court concluded that race was the predominant factor used by
Defendants to assign voters to 26 legislative and congressional districts, it
concluded that race was not the principal explanation for the assignment of voters
in 6 districts, SD 31 and 32, HD 51 and 54 and CD 4 and 12. (R p 1309-10).
C.

Plaintiffs’ Claims that the Enacted House and Senate Plans
Violate the Whole County Provisions of the State Constitution.

There is no factual dispute among the parties on this issue. The Enacted
House and Senate plans created more clusters of counties than proposed,
competing plans, and the proposed, competing plans divided fewer counties, fewer
times than the enacted plans. Concluding that it was ―bound by the precedent
established by the N.C. Supreme Court in Stephenson I and Stephenson II‖ (R p
1320), the trial court awarded summary judgment for the Defendants on this claim.

 - 38 D.

Plaintiffs’ Compactness Claims Under the Equal Protection
Clause of the State Constitution.

The court also awarded summary judgment to the Defendants on Plaintiffs‘
claims that the non-compact shapes of the challenged districts violated the Equal
Protection Clause of the State Constitution because compactness is not an
independent constitutional requirement under the State Constitution. The court
further determined that even if compactness were an independent constitutional
requirement, it could not measure compliance because there is no adopted judicial
standard by which to measure compliance. (R p 1325).
E.

Plaintiffs’ Claims that Split Precincts Violate the Right to Vote
Under the State Constitution.

Finally, the court concluded that Defendants were entitled to summary
judgment on Plaintiffs‘ claims that the excessive, race-based splitting of precincts
violated the equal protection guarantees of both the state and federal constitutions.
(R p 1332). The court found, as a matter of law, that while the splitting of
precincts may be circumstantial evidence of impermissible racial motive, it is not,
in and of itself, a constitutional defect, regardless of the harm caused to citizens.
(R p 1333).

 - 39 ARGUMENT
In enacting the 2011 redistricting plans, the Defendants turned the Voting
Rights Act on its head and used it as a means to justify the subversion of the rights
of North Carolina‘s citizens under both the State and federal constitutions. They
used a law designed to protect the voting rights of the country‘s most vulnerable
citizens to in fact segregate those voters by race and to reduce their proven ability
to form cross-racial coalitions. Their explicit goal of increasing the number of
majority-Black Senate and House districts to match the Black percentage of the
state‘s population not only meant that race predominated in the drawing of those
districts, it also led them to (a) use the racial identity of voters as the determinative
basis for drawing other, non-Voting Rights Act districts, (b) divide more counties
than necessary, (c) create oddly shaped, non-compact districts, and (d) divide an
unprecedented number of precincts, impacting approximately two million voters
and disproportionately disadvantaging African-American voters. This litigation
seeks to right that wrong.
Defendants made four fundamental mistakes of law in constructing the
districts that comprise their 2011 legislative and congressional redistricting
legislation.
First, they did not heed the rule that seeking, and achieving, racial
proportionality in electoral districts is per se unconstitutional, not a

 - 40 safe harbor from litigation. Defendants‘ reliance on the Voting Rights
Act as a justification for creating a pre-determined, proportional
number of African American election districts resulted in just the sort
of racial segregation the Act forbids and was designed to eliminate.
(Arguments I, II, & IV below.)
Second, they did not apply the rule that narrow tailoring in
redistricting requires legislative bodies to minimize, rather than
maximize, racial considerations. (Part III below.)
Third, they failed to honor the words of the Constitution and
constructed districts to maximize county clusters rather than minimize
county splits. (Argument V below.)
Finally, they ignored this Court‘s clear message in Stephenson I and
explicit holding in Stephenson II that state equal protection principles
forbid assigning some citizens to compact electoral districts and other
citizens to non-compact districts except when required by federal law.
(Argument VI below.)
The trial court declined to hold the Defendants accountable for these failures
to honor the constitutional rights of all citizens because of a misplaced deference
for the Defendants‘ litigation ―fears‖ (R p 1281) and the perceived need to give the
Defendants ―leeway‖ (R p 1290) in drawing districts. Constitutional rights may
not be sacrificed to fears or eroded to ease the legislature‘s burden. That much was
settled in Bayard v. Singleton, 1 N.C. 42 (1787). As this court explained:
The Constitution is the supreme law. It is ordained and established by
the people, and all judges are sworn to support it. When the
constitutionality of an act of the General Assembly is questioned, the
courts place the act by the side of the Constitution, with the purpose
and the desire to uphold it if it can be reasonably done, but under the
obligation, if there is an irreconcilable conflict, to sustain the will of

 - 41 the people as expressed in the Constitution, and not the will of the
legislators, who are but agents of the people.
State ex rel. Attorney General v. Knight, 169 N.C. 333, 352, 85 S.E. 418, 427
(1915). Plaintiffs respectfully request this Court to declare that the districts in
Defendants‘ legislative and congressional redistricting legislation were constructed
on an unconstitutional foundation and must be redrawn.
I.

THE TRIAL COURT ERRED IN HOLDING THAT SECTION 5 OF
THE
VOTING
RIGHTS
ACT
IS
A
COMPELLING
GOVERNMENTAL INTEREST JUSTIFYING THE DEFENDANTS’
RACIALLY GERRYMANDERED DISTRICTS WHEN THE U.S.
SUPREME COURT RULED THAT SECTION 5 DOES NOT
CONSTITUTIONALLY APPLY TO NORTH CAROLINA.
A.

Standard of Review.

A trial court‘s conclusions of law are reviewed de novo — the least
deferential standard of review.

Under de novo review, the appellate court

considers the issue anew and freely substitutes its judgment for that of the trial
court. Mann Media, Inc. v. Randolph County Planning Bd., 356 N.C. 1, 13, 565
S.E.2d 9, 17 (2002). See also State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d
290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P’ship, 356 N.C. 642,
647, 576 S.E.2d 316, 319 (2003)).

 - 42 B.

Defendants Cannot Have An Interest in Complying with an
Unconstitutional Law.

The trial court‘s holding that the Defendants had a compelling governmental
interest in achieving racial proportionality with districts over 50% Black in voting
age population in order to ensure preclearance of those plans by the United States
Department of Justice under Section 5 of the Voting Rights Act is based on two
errors of law. First, the trial court failed to acknowledge that Section 5 of the
Voting Rights Act, as reauthorized in 2006, does not constitutionally apply to
North Carolina. (R p 1298-1299). Second, as argued in Argument II, infra at 4971, even if Section 5‘s non-retrogression standard did apply, the trial court
erroneously deferred to the Defendants‘ view that in order to ensure preclearance,
the Defendants needed to enact a plan containing a number of majority-Black
districts proportionate to the Black percentage of North Carolina‘s population. (R
p 1298-99).
Citing the enormous gains in participation rates by African-American voters
in states throughout the South in the decades since the Voting Rights Act was
passed in 1965, on 25 June 2013 the U.S. Supreme Court issued an opinion in
Shelby County v. Holder, 570 U.S. ___, 133 S. Ct. 2612 (2013), holding that the
formula that determines which jurisdictions are covered under Section 5 of the
Voting Rights Act, as reauthorized by Congress in 2006, is unconstitutional. Since

 - 43 the coverage formula contained in Section 4(b) of the Act was not updated in 2006
when the ―extraordinary measures‖ which are a ―drastic departure from basic
principles of federalism‖ were extended for another 25 years, the Court ruled that
the formula cannot be a basis for subjecting certain jurisdictions and not others to
the preclearance requirement. Shelby County, 133 S. Ct. at 2618, 2631.
―There is no denying‖ the Court explained, ―that the conditions that
originally justified these measures no longer characterize voting in the covered
jurisdictions. By 2009, ‗the racial gap in voter registration and turnout [was] lower
in the States originally covered by §5 than it [was] nationwide.‘‖ Id., 133 S. Ct. at
2618-19, citing Northwest Austin Municipal Util. Dist. No. One v. Holder, 557
U.S. 193, 203-204 (2009). Shelby County v. Holder stands for the proposition that
Congress, when seeking to remedy racial discrimination in voting, must ―ensure
that the legislation it passes to remedy that problem speaks to current conditions.‖
Shelby County, 133 S. Ct. at 2631.
Despite the fact that the gains in participation rates by African-American
voters over the past fifty years are as true of North Carolina as in the rest of the
South, with African-American voters in North Carolina participating today at
higher rates than white voters, see T p 384; S. Rep. No. 109-295, p. 11 (2006); H.
R. Rep. No. 109-478, at 12, the trial court nevertheless held that compliance with

 - 44 the unconstitutional statute was a compelling governmental interest justifying the
decision to assign voters to districts based on their race in order to create nine
majority-Black Senate districts where previously there were none and twenty-four
majority-Black House districts where previously there were eight.
Although the Plaintiffs requested permission to brief this issue after the
Shelby County decision was announced, the trial court denied the motion but
accepted it as notice of supplemental authority. (R p 1262). In a footnote the trial
court did recognize that the Shelby County decision meant that North Carolina is
no longer under any obligation to comply with Section 5 of the Voting Rights Act,
but concluded that:
[t]his holding has no practical effect upon the outcome of this case
because the measure of the constitutionality of the Enacted Plans
depends upon the compelling governmental interests at the time of the
enactment of the Enacted Plans. At the time of enactment in 2011,
preclearance by the USDOJ was required of all North Carolina
legislative and congressional redistricting plans.
(R p 1284, fn. 16) (emphasis in original). This is incorrect. An unconstitutional
law (or, in this case, the unconstitutional application of Section 5 to North
Carolina) cannot be a compelling governmental interest.
There are at least two independent reasons why the U.S. Supreme Court‘s
ruling in the Shelby County case means that compliance with Section 5 of the
Voting Rights Act cannot be a compelling governmental interest justifying the

 - 45 continued use of racially gerrymandered districts.

First, under strict scrutiny

analysis, what matters is whether at the time strict scrutiny is applied, there exists a
compelling government interest to use the racial classifications at issue. Second, it
is well established that when the Court declares a law unconstitutional, the law is
unconstitutional from the time it was enacted, not from the date of the court‘s
decision.
1.

Strict scrutiny applies current legal standards.

The question here is not whether the Shelby County decision applies
retroactively, but rather, whether under strict scrutiny the compelling governmental
interest relied upon by the defendants to justify their use of racial classifications
must be one that exists currently or may be an interest that existed when the law
was enacted but is no longer a valid interest. The notion that a compelling interest
justifying the use of a racial classification is frozen in time from the date of the
government‘s reliance on that interest contradicts fundamental principles of strict
scrutiny review propounded by the United States Supreme Court. It has long been
well established that ―in order to justify the use of a suspect classification, a State
must show that its purpose or interest is both constitutionally permissible and
substantial, and that its use of the classification is ‗necessary . . . to the
accomplishment‘ of its purpose or the safeguarding of its interest.‖ Regents of

 - 46 Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (citing In re Griffiths, 413 U.S. 717,
721-22 (1973) (footnotes omitted); Loving v. Virginia, 388 U.S. 1, 11 (1967);
McLaughlin v. Florida, 379 U.S. 184, 196 (1964).

There is nothing in that

standard to suggest that what matters is the governmental interest at the time of
enactment rather than at the time of the searching judicial inquiry that strict
scrutiny requires.
This is reinforced by the U.S. Supreme Court‘s opinion in Fisher v. Univ. of
Tex. at Austin, 570 U.S. ___, 133 S. Ct. 2411 (2013). There, after reminding us
that racial distinctions are ―by their very nature odious to a free people … contrary
to our traditions…‖ and must be ―subjected to the most rigid scrutiny,‖ the Court
instructs that ―judicial review must begin from the position that ‗any official action
that treats a person differently on account of his race or ethnic origin is inherently
suspect.‘ Strict scrutiny is a searching examination, and it is the government that
bears the burden to prove ‗that the reasons for any [racial] classification [are]
clearly identified and unquestionably legitimate.‘‖ Fisher, 133 S. Ct. at 2418-19
(emphasis added) (internal citations omitted).
Since Section 5‘s protections are no longer validly applied to North
Carolina, the use of racially-gerrymandered districts cannot be justified by an
interest in complying with Section 5 of the Voting Rights Act. In evaluating

 - 47 whether the State of Michigan had a compelling governmental interest in enacting
a 1980 law that established a state contracting set aside for minority and women
owned businesses, the Sixth Circuit faced an analogous situation following the
Supreme Court‘s decision in Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986).
See Michigan Rd. Builders Ass’n v. Milliken, 834 F.2d 583 (6th Cir. 1987). PreWygant, the Sixth Circuit rule was that contracting set-aside programs needed to be
justified by a ―significant‖ governmental interest. Michigan Rd. Builders Ass’n,
834 F.2d at 587. Post-Wygant, it was clear that the constitutional standard required
a ―compelling‖ government interest. The Michigan Rd. Builders Ass’n court held
that even though the state program had been enacted at a time when constitutional
doctrine required only a ―significant‖ governmental interest for such programs, the
Sixth Circuit was clear that ―an appellate court must apply the law in effect at the
time it renders its decision.‖ Id. at 589.

Thus, the court did not apply the

constitutional rule in effect at the time of the enactment of the challenged statute
but rather applied the rule in effect at the time of its ruling. The same logic applies
here. The U.S. Supreme Court has ruled that under the 2006 reauthorization,
Section 5 of the Voting Rights Act could not constitutionally be applied to North
Carolina after 2006. Compliance with Section 5 cannot now be used to justify
racially gerrymandered districts enacted in 2011.

 - 48 2.

A Supreme Court ruling declaring a law unconstitutional means
the law was unconstitutional at the time it was enacted, not at
the time of the ruling.

The Supreme Court‘s view of the nature of the Constitution and its judicial
function is incompatible with the proposition that a law ―becomes‖
unconstitutional when the Court rules but was constitutional prior to that point. In
American Trucking Ass’ns v. Smith, 496 U.S. 167 (1990), Justice Scalia explained
that prospective decision making is incompatible with the role of the judiciary to
―say what the law is, not to prescribe what it shall be.‖ Id. at 201. When it holds
that a law is unconstitutional, the Court is interpreting what the Constitution
forbids, not what the Court forbids. Thus, it does not make sense to ask whether a
particular decision of the Court could only apply prospectively. The statute is
either constitutional or it is unconstitutional from the time of its enactment and ―the
issue of whether to ‗apply‘ that decision needs no further attention.‖16 Id.
Thus, Section 5 was unconstitutional when it was enacted and all courts
adjudicating federal law must give effect to that rule. It necessarily follows that

16

This question was addressed again a year later in James B. Beam Distilling Co.
v. Georgia, 501 U.S. 529, 535 (1991). In Beam, a majority of the Justices agreed
that a rule of federal law, once announced, must be given full retroactive effect by
all courts adjudicating federal law. See also Harper v. Virginia Department of
Taxation, 509 U.S. 86 (1993) (the Court‘s application of a rule of federal law must
be given full effect in all open cases).

 - 49 Defendants do not have a compelling governmental interest in complying with an
unconstitutional law.
II.

THE TRIAL COURT ERRED IN HOLDING THAT THE VOTING
RIGHTS ACT PROVIDES A COMPELLING GOVERNMENTAL
INTEREST FOR DEFENDANTS TO INTENTIONALLY CREATE A
PROPORTIONATE NUMBER OF MAJORITY BLACK DISTRICTS
A.

Standard of Review.

This is a question of law reviewed de novo. State v. Biber, 365 N.C. 162,
168, 712 S.E.2d 874, 878 (2011) (―Conclusions of law are reviewed de novo and
are subject to full review.‖) A de novo standard of review is also appropriate
because this issue involves constitutional rights. Libertarian Party v. State, 365
N.C. 41, 46, 707 S.E.2d 199, 202-03 (2011) (―[D]e novo review is ordinarily
appropriate in cases where constitutional rights are implicated.‖ (citations
omitted)).
B.

The Trial Court Erroneously Concluded that
Proportionality is A Compelling Government Interest.

Racial

At the heart of the trial court‘s equal protection analysis of the racially
gerrymandered districts it upheld is the conclusion that ―the General Assembly had
a strong basis in evidence for concluding that ‗rough proportionality‘ was
reasonably necessary to protect the State from anticipated liability under § 2 of the
VRA and ensuring preclearance under § 5 of the VRA.‖

(R p 1291).

This

conclusion is wrong as a matter of law because racial proportionality, whether

 - 50 exact or rough, is never a compelling governmental interest, nor is it required by
the Voting Rights Act. The VRA was not designed to guarantee majority-minority
voting districts, but to guarantee that the processes, procedures, and protocols
would be fair and free of racial discrimination.
1.

Racial Proportionality
Governmental Interest.

Can

Never

Be

a

Compelling

The Supreme Court has been long been clear that ―outright racial balancing
… is patently unconstitutional.‖ Fisher, 133 S. Ct. at 2419. Citing Bakke, Grutter
and Parents Involved, the Fisher Court explained that using ―some specified
percentage of a particular group merely because of its race or ethnic origin‖ as a
definition of diversity would amount to outright racial balancing and that ―[r]acial
balancing is not transformed from patently unconstitutional to a compelling state
interest simply by relabeling it ‗racial diversity‘.‖ Id.
Here, as the trial court found, ―the General Assembly acknowledges that it
intended to create as many VRA districts as needed to achieve a ‗roughly
proportionate‘ number of Senate, House and Congressional districts as compared
to the Black population in North Carolina.‖ (R p 1277). Each VRA district also
had to be at least 50% Black in voting age population. Id.
Racial balancing is no more constitutional in the redistricting context than it
is in law school admissions, Grutter v. Bollinger, 539 U.S. 306, 330 (2003)

 - 51 (outright racial balancing … is patently unconstitional‖), public school student
assignment policies, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1 551
U.S. 701, 730 (2007) (―Accepting racial balancing as a compelling state interest
would justify the imposition of racial proportionality throughout American society,
contrary to … the simple command that the Government must treat citizens as
individuals, not as simply components of a racial, religious, sexual or national
class‖), public sector employment, Ricci v. DeStefano, 557 U.S. 557, 582 (2009)
(―Title VII is express in disclaiming any interpretation of its requirements as
calling for outright racial balancing. § 2000e-2(j).‖), or government contracting,
Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989). The Supreme Court has
stated that:
Accepting racial balancing as a compelling state interest would justify
the imposition of racial proportionality throughout American society,
contrary to our repeated recognition that ―[a]t the heart of the
Constitution‘s guarantee of equal protection lies the simple command
that the Government must treat citizens as individuals, not as simply
components of a racial, religious, sexual or national class.‖ Allowing
racial balancing as a compelling end in itself would ―effectively
assur[e] that race will always be relevant in American life, and that
the ‗ultimate goal‘ of ‗eliminating entirely from governmental
decision making such irrelevant factors as a human being‘s race‘ will
never be achieved.‖ An interest ―linked to nothing other than
proportional representation of various races . . . would support
indefinite use of racial classifications, employed first to obtain the
appropriate mixture of racial views and then to ensure that the
[program] continues to reflect that mixture.‖

 - 52 Parents Involved, 551 U.S. at 730.

There is nothing in Voting Rights Act

jurisprudence to create an exception to this rule in the redistricting context.
2.

Section 2 of the VRA Does Not Require Racial Proportionality.

The Voting Rights Act does not require a legislature to draw a number of
majority-Black districts proportional to the Black voting age population in the
state.17 The text of the Voting Rights Act itself states that ―nothing in this section
establishes a right to have members of a protected class elected in numbers equal
to their proportion in the population.‖ 42 U.S.C. § 1973 (b). Furthermore, the
Supreme Court has stated that neither § 2 of the Voting Rights Act, nor § 5
requires proportionality between the percentage of African-Americans in the
jurisdiction and the percentage of districts in which African-Americans are a

17

In order to justify using a racial proportionality standard under strict scrutiny, the
question for the Defendants is not what the Voting Rights Act permits, but what it
requires. This is so for two important reasons: First, to use racial considerations in
redistricting beyond that the VRA requires is to violate the equal protection clause;
Shaw v. Reno, 509 U.S. 630, 654 (1993). Second, the state constitutional whole
county provision can be disregarded only to the extent necessary to comply with
the VRA. Stephenson II, 357 N.C. at 309, 582 S.E.2d at 251. If the Defendants
do have a compelling governmental interest in complying with the VRA, it is only
in complying with what the VRA requires, they do not have the discretion to enact
a plan that may be permitted, but not required, by the VRA.

 - 53 majority of the voting age population.18 Johnson v. DeGrandy, 512 U.S. 997
(1994) Miller v. Johnson, 515 U.S. 900 (1995).
In DeGrandy, Justice Kennedy explained why the Court‘s decision in that
case did not endorse proportionality as a safe harbor under § 2 of the Voting Rights
Act, forewarning Defendants here of the constitutional dangers inherent in the very
practice they chose to follow:
Operating under the constraints of a statutory regime in which
proportionality has some relevance, States might consider it lawful
and proper to act with the explicit goal of creating a proportional
number of majority-minority districts in an effort to avoid Section 2
litigation. Likewise, a court finding a Section 2 violation might
believe that the only appropriate remedy is to order the offending
18

Defendants were made aware of the very basic legal tenet that racial
proportionality is not required by § 2 of the VRA during the redistricting process
by staff attorneys in the General Assembly. In a memorandum to the chairs of the
redistricting committees, under the heading, ―Maximization Not Required;
Proportionality Not a Safe Harbor—Johnson v. DeGrandy,‖ staff attorneys at the
General Assembly explained that:
In Johnson v. DeGrandy, the Supreme Court focused on the ―totality
of the circumstances‖ as articulated in Gingles. The Supreme Court
rejected a rule that would require a state to maximize majorityminority districts. The Supreme Court also rejected an absolute rule
that would bar Section 2 claims if the number of majority-minority
districts is proportionate to the minority group‘s share of the relevant
voting age population. The Court rejected this rule, feeling that a
―safe harbor‖ might lead to other misuses.
(Doc. Ex. 7726) (PS \PS83\Depositions\Exhibits\Exhibits 44-94 (Churchill) \58).
But the legislative leaders were committed to their racial quotas in redistricting
from the very outset of the process and simply disregarded any advice to the
contrary from whatever source.

 - 54 State to engage in race-based districting and create a minimum
number of districts in which minorities constitute a voting majority.
The Department of Justice might require (in effect) the same as a
condition of granting preclearance [under Section 5].
Those
governmental actions, in my view, tend to entrench the very practices
and stereotypes the Equal Protection Clause is set against. As a
general matter, the sorting of persons with an intent to divide by
reason of race raises the most serious constitutional questions.
DeGrandy, 512 U.S. 997, 1029 (Kennedy, J. concurring) (internal citations
omitted). The DeGrandy court could not have been clearer that proportionality of
the sort the Defendants assert as a compelling governmental interest is not a safe
harbor: ―[n]or does the presence of proportionality prove the absence of dilution.
Proportionality is not a safe harbor for States; it does not immunize their election
schemes from § 2 challenge.‖ Id. at 1026 (O‘Connor, J. concurring). And again:
―As today‘s decision provides, a lack of proportionality is ‗never dispositive‘
proof of vote dilution, just as the presence of proportionality ‗is not a safe harbor
for States [and] does not immunize their election schemes from § 2 challenge.‘‖ Id.
at 1028 (Kennedy, J., concurring).
Nevertheless, the court below, relying on part but not all of a paragraph in
the DeGrandy opinion, held that because in its misreading of the DeGrandy
decision, no Section 2 violation can be found where there is proportionality, the
―General Assembly should be given leeway to seek to emulate those circumstances
in its Enacted Plans.‖ (R p 1290). The phrase left out of the DeGrandy passage

 - 55 quoted by the trial court is ―[w]hile such proportionality is not dispositive in a
challenge to single-member districting, it is a relevant fact in the totality of
circumstances …‖ DeGrandy, 512 U.S. at 1013.
It was a fundamental error of law to turn a ―relevant fact‖ into a ―safe
harbor‖ that then becomes a compelling government interest when ―there is good
reason for state and federal officials with responsibilities related to redistricting, as
well as reviewing courts, to recognize that explicit race-based districting embarks
us on a most dangerous course.‖ DeGrandy, 512 U.S. at 1031.
DeGrandy is not the only case in which this issue has arisen. The state
defendants in 1990s Georgia redistricting litigation, like the Defendants here,
admitted that achieving proportional representation was a goal motivating their
decision to create additional majority-minority congressional districts. Johnson v.
Miller, 864 F. Supp. 1354, 1378 (S.D. Ga. 1994), aff’d sub nom Miller v. Johnson,
515 U.S. 900 (1995). Georgia enacted a plan with 3 majority-Black districts—its
previous plan contained only one majority-Black district. Id. at 1360-61. Georgia
even indicated that it believed it had a compelling interest in achieving
proportionality apart from avoiding Section 2 vote dilution. Id. at 1379. To that,
the District Court in Johnson v. Miller replied that ―[t]o erect the goal of
proportional representation is to erect an implicit quota for Black voters. Far from

 - 56 a compelling state interest, such an effort is unconstitutional.‖ 864 F. Supp. at
1379 (citing Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978)
(Powell, J.)).
3.

Compliance with Section 5 Does Not Require Racial
Proportionality.

In addition to the failure to properly apply Shelby County v. Holder as
argued in the first issue above, see, supra at pp. 41-49, the trial court also erred in
concluding that rough proportionality was reasonably necessary to ensure
preclearance under § 5 of the VRA, had it been constitutionally applied to North
Carolina, and that ―ensuring preclearance under Section 5‖ is a compelling
governmental interest. (R p 1291).
The Supreme Court has held that as compared to § 2 of the VRA, § 5 has a
―limited substantive goal: to insure that no voting-procedure changes would be
made that would lead to a retrogression in the position of racial minorities with
respect to their effective exercise of the electoral franchise.‖ Bush v. Vera, 517
U.S. 952, 982-83 (1996) (internal quotations omitted). That substantive goal is

 - 57 known as non-retrogression.19

In Bush v. Vera, the Court held that a

reapportionment plan would not be narrowly tailored to the goal of avoiding
retrogression if the State went beyond what was reasonably necessary to avoid
retrogression. Id. at 983. Specifically, in that Texas case, the Court rejected the
state‘s contention that compliance with Section 5 required it to increase the BVAP
in a congressional district that elected an African-American congress person from
35.1% BVAP to 50.1% BVAP. Id. The Court explicitly rejected the argument that
Section 5 could be used to ―justify not maintenance, but substantial augmentation,
of the African-American population percentage‖ in the congressional district
challenged as a racially gerrymander. Id. Indeed, the state had ―shown no basis
for concluding that the increase to a 50.9% African-American population in 1991
was necessary to ensure nonretrogression.‖ Id. Significantly, the plan containing
the unconstitutional racial gerrymander was precleared by the Department of

19

The trial court misreads Shelby County as holding that the effect of the 2006
amendments to the VRA required jurisdictions to do more to obtain Section 5
preclearance. (R p 1285). What the Supreme Court was referring to was
Congress‘ decision to prohibit intentional discrimination prohibited under Section
5, not that jurisdictions must increase the percentage of black population or the
number of majority black districts in order to obtain preclearance. See Shelby
County, 570 U.S. ___, 133 S. Ct. 2612, 2636, citing Reno v. Bossier Parish School
Bd., 520 U. S. 471, 480-482 (1997). In briefing for the trial court, plaintiffs
documented examples of 2011 redistricting plans from other jurisdictions that were
precleared without increases in the number of majority-black districts or in the
percentages of black population. (Doc. Ex. 5966-72).

 - 58 Justice. Id. at 956. A plan that goes beyond that which is required by Section 5
would have certainly ensured preclearance, but that is not the strict scrutiny
question that the Supreme Court has applied when determining whether there is a
compelling government interest in complying with Section 5.
Likewise, in Miller v. Johnson, where the Department of Justice had refused
to preclear a Georgia congressional redistricting plan until the number of majorityBlack districts was increased, the court still focused the strict scrutiny analysis on
what was actually necessary to comply with Section 5, not what would ensure
preclearance from the Department of Justice. 515 U.S. at 917-918. Specifically,
the Court held: ―It is, therefore, safe to say that the congressional plan enacted in
the end was required in order to obtain preclearance. It does not follow, however,
that the plan was required by the substantive provisions of the Voting Rights Act.
We do not accept the contention that the State has a compelling interest in
complying with whatever preclearance mandates the Justice Department issues.‖
Id. at 921-22. In Miller, the state surely was acting reasonably, following two
objections from the Department of Justice, to ensure preclearance. But compliance
with Section 5 is the correct inquiry for a reviewing court to pursue, not ―ensuring
preclearance,‖ and compliance does not require a maximization of the number of
majority-minority districts. Id. at 925.

 - 59 The Miller Court also held that proportionality is not required by § 5 of the
VRA.

It further noted that Georgia‘s redistricting plan ―overstepped the

requirements for section 5 compliance because it was designed to secure
proportional representation for black voters in Georgia, not adhere to the VRA.‖
Id. at 910. Thus, § 5 of the VRA, even if it had been constitutionally applied to
North Carolina, does not require the racial balancing that the Defendants pursued
and achieved in their redistricting plans.
C.

The Trial Court Erred in Ruling that the General Assembly had a
Strong Basis in Evidence for Believing that it was Violating the
Voting Rights Act.
1.

There Was No Strong Basis in Evidence that § 2 of the VRA
Required Creating the Majority-Black Districts Challenged
Here.

In addition to applying the wrong legal standard for what constitutes a
compelling governmental interest, the trial court also erred in concluding that there
was a strong basis in evidence for believing ―that each of the Gingles preconditions
was present in substantial portions of North Carolina and that, based upon the
totality of circumstances, VRA districts were required to remedy against vote
dilution.‖ (R p 1283-84). As a matter of law, the prior success of candidates of
choice of African-American voters is fatal to a Section 2 claim. Thornburg v.
Gingles, 478 U.S. at 77. ―Compliance with federal antidiscrimination laws cannot

 - 60 justify race-based districting where the challenged district was not reasonably
necessary under a constitutional reading and application of those laws.‖ Miller v.
Johnson, 515 U.S. at 921. Here, the prior success of candidates of choice of
African-American voters was well documented, see supra at 17-22, and both the
Defendants and the trial court failed to properly apply fundamental Section 2 legal
principles evaluating whether and where majority-Black districts were required by
Section 2.
To prove that Section 2 required each of the Voting Rights Act districts in
their plans, the Defendants must prove there is a substantial basis in evidence that
minority voters ―have less opportunity than other members of the electorate
to…elect representatives of their choice,‖ 42 U.S.C. § 1973(b), in the area of the
state where each district is located. Shaw v. Hunt, 517 U.S. 899, 917 (1996).
To establish a Section 2 violation, a plaintiff must prove three threshold
factors:

1) that the minority group in question is ―sufficiently large and

geographically compact to constitute a majority in a single-member district;‖
2) that the minority group is ―politically cohesive;‖ and 3) that the majority votes
―sufficiently as a bloc to enable it…usually to defeat the minority‘s preferred
candidate.‖

Thornburg v. Gingles, 478 U.S. at 50-51.

These are necessary

preconditions, and the absence of any one element is fatal to a Section 2 claim,

 - 61 even if other conditions have been met. Pender County v. Bartlett, 361 N.C. 491,
499, 649 S.E.2d 364, 370(2007) aff’d sub nom. Bartlett v. Strickland, 556 U.S. 1
(2009). Further, when race is the predominant factor in drawing a district, the
burden of proving these preconditions falls on the defendants. Id. at 496, 649 S.E.
2d. at 368.
The Defendants have themselves admitted:
As a matter of law, racially polarized voting exists only when
minority voters need a majority of the voting population in a single
member district to elect their preferred candidate of choice. If
minorities can elect their preferred candidate in a district that is less
than majority minority, then racially polarized voting must not exist as
a matter of law.
(R p 266). Nevertheless, the crucial error in the logic employed by the Defendants
and endorsed by the trial court is the assumption that the mere presence of racially
polarized voting anywhere (and at any time) equates to legally cognizable racial
polarization every time.
The question Defendants faced when enacting these legislative and
congressional districts was not whether statistically significant racially polarized
voting exists, but rather whether white bloc voting exists at levels high enough
usually to defeat the candidate of choice of Black voters in the areas where
majority-Black districts are proposed.

Yet the trial court based its ruling on

findings such as ―not a single witness testified that racial polarization had vanished

 - 62 either statewide or in areas in which the General Assembly had enacted past VRA
districts.‖ (R p 1349). This finding misses that point entirely. The existence of
racially polarized voting alone does not require a remedy and Defendants were not
justified in creating majority-Black districts merely because racially polarized
voting exists. As explained in Gingles, a remedy is required only where white bloc
voting usually defeats the candidate of choice of Black voters. Gingles, 478 U.S.
at 49-50.
In determining whether there was substantial evidence in the record that the
Defendants faced potential liability under § 2, the burden is on the Defendants to
assess whether there is anywhere in this state where Black voters are consistently
shut out of the political process such that majority Black districts, a temporary and
remedial measure, are the only way that Black voters can have a fair opportunity to
elect their candidates of choice. The 90% success rate of Black candidates from
2006 to 2010 is by itself enough information to answer this question.

The

repeated, successful election of Black candidates does not require sophisticated
expert analysis; it is within the personal knowledge of everyone who is active in
the political process. The legal implication of this fact is plain. Where candidates
of choice of Black voters are elected without majority Black districts, there is no
Section 2 violation.

 - 63 There are numerous examples of unsuccessful § 2 plaintiffs who lose
because the repeated success of Black or Latino candidates means a plaintiff
cannot establish legally significant white bloc voting, the third prong of Gingles.
See, Cottier v. City of Martin, 604 F.3d 553, 558 (8th Cir. 2010) (en banc) cert.
denied ___ U.S. ___, 131 S. Ct. 598, (2010) (no Section 2 violation where in
countywide elections between candidates of different races, countywide elections
between white candidates, and state and federal elections between white
candidates, white voters did not vote sufficiently as a bloc usually to defeat the
Indian-preferred candidate.); Askew v. City of Rome, 127 F.3d 1355 (11th Cir.
1997) (city not sufficiently racially polarized to conclude that Sec. 2 had been
violated where 23 of 33 African American preferred candidates were elected.)
Vecinos de Barrio Uno v. City of Holyoke, 960 F. Supp. 515, 526 (D. Mass. 1997)
(Hispanic voters failed to establish Section 2 violation where white bloc voting
occurred but did not defeat candidate of choice of Hispanic voters); Clay v. Board
of Education, 90 F.3d 1357, 1362 (8th Cir. 1996) (Plaintiffs did not prove white
bloc voting when Black voters elected their preferred candidates to the Board 57.9
percent of the time); Clarke v. City of Cincinnati, 40 F.3d 807, 813 (6th Cir. 1994)
(noting the success of Black-preferred Black candidates implied a lack of white
bloc voting, thus leading the court to conclude that ―this success rate gives us no

 - 64 reason to find that blacks‘ preferred black candidates have ‗usually‘ been
defeated.‖); Valladolid v. National City, 976 F.2d 1293 (9th Cir. 1992) (―unless
minority group members experience substantial difficulty electing representatives
of their choice, they cannot prove that a challenged electoral mechanism impairs
their ability ―to elect.‖); Overton v. City of Austin, 871 F.2d 529, 538 (5th Cir.
1989) (―the sustained history of electoral success by black and Mexican-American
candidates … refuted the contention of racially polarized voting.‖).
The trial court‘s order contains 178 findings of fact regarding narrow
tailoring, but not one of them addresses the relevant legal inquiry Defendants and
the trial court were required to make. Standing Bartlett v. Strickland on its head,
the trial court‘s findings rely on examples of the success of African-American
candidates in coalition districts (districts that are less than 50% majority-Black) to
justify creating majority-Black districts. (See, e.g., R p 1341). Similarly, in the
findings regarding election results, the trial court recites data on registered voters
in the districts, how much funding was raised by certain candidates, and whether
the districts are cross-over districts, (see, e.g., R p 1389-1422), but not once
addresses the rule that § 2 of the Voting Rights Act is not violated where
candidates of choice of Black voters can win elections in districts that are not
majority-Black in voting age population.

 - 65 Remarkably, the trial court also adopts the wrong burden of proof, making
findings such as this one: ―Plaintiffs did not offer post-enactment election results
as evidence showing the absence of racially polarized voting in the following
challenged districts …‖ (R p 1388-89). Once strict scrutiny applies, the defendants
have the burden of proof to establish they had a strong basis in evidence for
believing they needed to draw 20 or 21% of the state‘s districts as majority Black
districts in order to comply with the VRA.20
When the correct legal standard is applied, Defendants‘ own expert Dr.
Thomas Brunell‘s racially polarized voting analysis demonstrates that new
majority-Black districts throughout the state, drawn to meet a substantial
proportionality requirement, are not required because white voters are widely
supporting Black candidates in North Carolina. 21 (R pp 451-87). In his report, Dr.
Brunell noted: ―[t]here are some counties, like Wake, Durham, Jackson,
Mecklenburg, in which there is a considerable amount of white cross-over voting.‖
(R p 459). He found that the percentage of white voters voting for the Black
20

Plaintiffs point the Court to the arguments of Amici on the burden of proof issue.
In a memorandum dated 3 June 2011, former Supreme Court Justice Robert Orr,
quoting from Bartlett v. Strickland, 556 U.S. at 24, advised Senator Rucho and
Representative Lewis that ―[i]n areas with substantial crossover voting it is
unlikely that the plaintiffs would be able to establish the third Gingles
precondition.‖ (Doc. Ex. 7726 (PS \PS83\Depositions\Exhibits\Exhibits 44-94
(Churchill) )\57).
21

 - 66 candidate in the 2008 presidential election was at least 40% in each county, and
was 59.4% in Durham County. Id. And yet, Defendants chose to draw new
majority Black districts in most of those counties listed by Dr. Brunell. In fact, in
Wake, Durham, and Mecklenburg Counties alone—counties identified by Dr.
Brunell as counties with substantial white crossover voting—Defendants chose to
draw 12 new majority Black districts: House Districts 29, 31, 38, 48, 99, 102, 106,
and 107; Senate Districts 14, 20, 38 and 40. (Doc. Ex. 550) Mot. for Jud. Not.
¶ 1(a)(i) (―Stat Pack‖ for NC House ―Existing District Plan‖); ¶ 1(a)(vii)(―Stat
Pack‖ for ―Lewis-Dollar-Dockham 4‖).
Dr. Brunell‘s report regarding crossover voting by whites is consistent with
this Court‘s findings in 2007 that ―[p]ast election results in North Carolina
demonstrate that a legislative voting district with a total African-American
population of at least 41.54 percent, or an African-American voting age population
of at least 38.37 percent, creates an opportunity to elect African-American
candidates.‖ Pender County v. Bartlett, 361 N.C. 491, 494, 649 S.E.2d 364, 367
(2007).
2.

The Trial Court Erred as a Matter of Law in Deferring to the
Defendants‘ Judgment On This Issue.

In Shaw v. Hunt the Supreme Court held: ―[w]e assume arguendo that a
State may have a compelling interest in complying with the properly interpreted

 - 67 VRA. But a State must have a strong basis in evidence for believing that it is
violating the Act. It has no such interest in avoiding meritless lawsuits.‖ Shaw v.
Hunt, 517 U.S. at 908 n.4. In Shaw, Justice Stevens in dissent argued that the
legislature had an interest in avoiding litigation, the very interest asserted here, and
the majority rejected that argument, saying it ―sweeps too broadly.‖ Id.
The court below believed it was ―required to defer to the General
Assembly‘s reasonable fears of; and their reasonable efforts to avoid, § 2 liability.‖
R p 1281 (citing Bush v. Vera, 517 U.S. at 978.) However, such deference exists
only where race has not predominated in the redistricting process. The Court in
Bush v. Vera emphasized that once a state, in the course of avoiding § 2 liability,
subordinates traditional redistricting principles to race, a constitutional problem
arises and ―[s]trict scrutiny remains, nonetheless, strict.‖ Id. at 978. Indeed, once
strict scrutiny applies, ―the mere recitation of a ‗benign‘ or legitimate purpose for a
racial classification is entitled to little or no weight.‖ Croson, 488 U.S. at 500
(1989).
There is good reason why, under strict scrutiny, legislative assurances of
good intention do not forgive an impermissible use of race. Fisher, 133 S. Ct. at
2421. Racial classifications imposed by the government may be motivated by
illegitimate notions of racial inferiority, Croson, 488 U.S. at 493, or rest on

 - 68 unproven assumptions about racial patterns in voting. Shaw v. Reno, 509 U.S. 630,
653 (1993) (―We unanimously reaffirmed that racial bloc voting and minoritygroup political cohesion never can be assumed, but specifically must be proved in
each case in order to establish that a redistricting plan dilutes minority voting
strength in violation of § 2.‖)
Strict scrutiny is necessary to ferret out when racial classifications are being
motivated by ―simple racial politics,‖ Croson, 488 U.S. at 493, or by the desire to
―placate a politically important racial constituency.‖ Ricci v. DeStefano, 557 U.S.
557, 597 (2009) (Alito, Scalia & Thomas, JJ. concurring). Indeed, ―the mere
recitation of a benign, compensatory purpose is not an automatic shield which
protects against any inquiry into the actual purposes underlying a statutory
scheme.‖ Weinberger v. Wiesenfeld, 420 U.S. 636, 648 (1975).
In this case, the trial court accepted without inquiry the Defendants‘
assertion that they drew 26 majority-Black districts in order to avoid potential
liability under § 2 of the Voting Rights Act, and to ensure preclearance under § 5
of the VRA and then erroneously concluded that those were, as a matter of law,
compelling governmental interests. That was plain error.
The process used by the General Assembly to achieve racial proportionality
in its redistricting plans casts further doubt on the constitutionality of those plans

 - 69 because it was a form of reverse-engineering. The Supreme Court‘s opinion in
Shelby County v. Holder is relevant on this question. 570 U.S. ___, 133 S. Ct.
2612 (2013). The Court rejected the notion that is was constitutionally permissible
for Congress to determine which jurisdictions it wanted to be subject to
preclearance and then employ a formula that captures those jurisdictions, holding
that the coverage formula must be relevant to the problem that Congress seeks to
address. Id. Similarly, in this case, the General Assembly‘s decision to draw a
proportional number of majority-Black districts and then after-the-fact seek to
justify those districts by incompletely examining the areas of the state where those
districts were drawn, was reverse-engineering that is not constitutionally sound.
Where racial quotas were devised at the beginning of the redistricting
process and the challenged districts were drawn pursuant to those instructions,
Defendants have failed to meet strict scrutiny and no compelling VRA interest
exists. Where no African-American legislator voted for or rose in defense of
Defendants‘ proportionality goal or the need under the VRA to draw the
challenged districts, and where no lawsuit has ever been filed challenging any
congressional district on Section 2 grounds and no lawsuit has been filed since
1986 challenging any legislative district on Section 2 grounds, Defendants have
failed to meet strict scrutiny and no compelling VRA interest exists.

 - 70 Where the 1992 and 2003 sessions of the General Assembly evaluated their
legal obligations under the VRA and did not draw majority Black districts in
numbers proportional to the State‘s Black population, and where the courts of this
state in 2002 evaluated the State‘s VRA obligations and did not draw majority
Black districts in numbers proportional to the State‘s Black population, Defendants
have failed to meet strict scrutiny that such districts are required in 2011 and no
compelling VRA interest exists.
Where the data in front of Defendants in 2011 established that on 56
occasions between 2006 and 2010 Black candidates were elected to office in
districts less than 50% Black, often by wide margins, and where Defendants‘ own
data shows that Black candidates on average receive 58% of the vote in a district
that is 40% Black, Defendants have failed to meet strict scrutiny and no
compelling VRA interest exists.
Rather than defer to the General Assembly‘s political discretion to draw
racial gerrymanders, it is the court‘s role to apply strict scrutiny precisely because
political motivations may be at work. Segregating this state‘s Black voters into
majority Black districts based on a racial proportionality quota cannot be justified
by partisan goals or left to the political judgment of the party drawing the districts.
―Indeed, we rejected the notion that separate can ever be equal--or ‗neutral‘--50

 - 71 years ago in Brown v. Board of Education, 347 U.S. 483 (1954), and we refuse to
resurrect it today.‖ Johnson v. California, 543 U.S. 499, 506 (2005).
III.

THE TRIAL COURT ERRED IN HOLDING THAT THE RACIALLY
GERRYMANDERED DISTRICTS ENACTED BY THE GENERAL
ASSEMBLY WERE NARROWLY TAILORED
A.

Standard of Review.

This is a question of law reviewed de novo. State v. Biber, 365 N.C. 162,
168, 712 S.E.2d 874, 878 (2011) (―Conclusions of law are reviewed de novo and
are subject to full review.‖) A de novo standard of review is also appropriate
because this issue involves constitutional rights. Libertarian Party v. State, 365
N.C. 41, 46, 707 S.E.2d 199, 202-03 (2011) (―[D]e novo review is ordinarily
appropriate in cases where constitutional rights are implicated.‖ (citations
omitted)).
B.

The Defendants Failed to Meet Their Burden of Proving that the
Plans They Drew Were Narrowly Tailored to Comply with the
VRA.

The trial court failed to follow the analysis the United States Supreme Court
has established to determine whether the challenged districts were narrowly
tailored to advance a compelling state interest. Plaintiffs have shown in Argument
II, supra at p 49-71, that the trial court erred in concluding that Defendants met
their burden to demonstrate compelling interests in creating each of the challenged
districts. However, even if they had, the districts are far from narrowly tailored,

 - 72 and they fail that inquiry on at least four independent grounds: the challenged
districts were drawn to satisfy a quota, the challenged districts are geographically
non-compact, the challenged districts were packed with more Black voters than
was necessary to comply with the Voting Rights Act, and the challenged districts
were sited in places in the state where a VRA remedy was not needed. At least in
part, these four erroneous conclusions of law resulted from the trial court‘s
improper imposition of the burden of proving narrow tailoring on Plaintiffs and its
improper deference to legislative discretion.
1.

The Trial Court Wrongly Placed the Burden of Proof on the
Plaintiffs and Wrongly Deferred to Legislative Discretion.

The trial court essentially required Plaintiffs to prove the challenged districts
and plans were not narrowly tailored. This is an incorrect application of the law.
It is fundamental that once the court establishes the existence of a racial
classification, as the trial court properly concluded here, the burden then shifts to
Defendants to demonstrate the challenged districts were narrowly tailored to
satisfy a compelling state interest.

Shaw v. Hunt, 515 U.S. at 908 (―North

Carolina, therefore, must show…its districting legislation is narrowly tailored‖);
Miller, 515 U.S. at 920 (―the State must demonstrate that its districting legislation
is narrowly tailored‖); Vera v. Richards, 861 F. Supp. 1304, 1342 (S.D. Tx. 1994)
(―The State has the burden of producing evidence of narrow tailoring to achieve its

 - 73 compelling state interest); see also Adarand Constructors v. Pena, 515 U.S. 200,
224 (1995) (Court will demand ―any governmental actor subject to the Constitution
justify any racial classification ―as narrowly tailored); Grutter v. Bollinger, 539
U.S. 306, 306 (2003) (―[t]he Law School has the burden of proving, in
conformance with the standard of strict scrutiny, that it did not utilize race in an
unconstitutional way‖) (Kennedy, J., dissenting); Parents Involved in Cmty. Sch. v.
Seattle Sch. Dist. No. 1, 551 U.S. 701, 744 (2007) (―we put the burden on state
actors to demonstrate their race-based policies are justified‖); Fisher, 133 S. Ct. at
2420 (―it remains at all times the University‘s obligation to demonstrate‖ narrow
tailoring).
The trial court‘s erroneous conclusion that the burden to prove narrow
tailoring rested with Plaintiffs carried with it another error. In the trial court‘s
view, the court must give Defendants some ―leeway‖ in evaluating the extent to
which the challenged districts are narrowly tailored. (R p 1275). The Supreme
Court‘s recent decision in Fisher expressly rejects the notion that governmental
bodies are entitled to ―leeway‖ or deference in evaluating whether a racial
classification is narrowly tailored. ―The University must prove that the means
chosen by the University to attain diversity are narrowly tailored to that goal. On
this point, the University receives no deference.‖ Fisher, 133 S. Ct. at 2420.

 - 74 The essence of narrow tailoring in the redistricting context has been
described with the following analogy: ―just as a homicide defendant may not use
excessive force to stop an aggressor, neither may a state burden the rights and
interests of its citizens more than is reasonably necessary to further the compelling
governmental interest advanced by the state.‖ Hays v. Louisiana, 839 F. Supp.
1188, 1206-07 (W.D. La. 1993), appeal dismissed, 18 F.3d 1319 (5th Cir. La.
1994). The state must affirmatively provide evidence and argument demonstrating
that it did not go further than necessary in imposing a racial remedy and that it
considered race-neutral alternatives.
Defendants have never articulated a race-neutral or less-race-focused
alternative that they considered and why they rejected it. In each of the four
narrow tailoring questions examined by the court below, the trial court accepted,
without subjecting to critical questioning, Defendants‘ assertions that the
challenged districts were narrowly tailored and instead concluded that Plaintiffs
had not disproved that the districts were narrowly-tailored. For example, on the
question of whether racial polarization was so strong as to necessitate the extreme
and affirmative remedy of a majority Black district, the Court said ―[t]he fact that
incumbent black candidates or strong black candidates have won elections in
majority-minority coalition districts with TBVAP between 40% and 49.99% does

 - 75 not prove the absence of racially polarized voting.‖ (R p 1389) (emphasis added).
Of course it was the Defendants‘ burden to prove the presence of legallysignificant racially polarized voting in each particular place where they sited a
majority Black district, rather than Plaintiffs‘ burden to prove its absence.
Additionally, the court was required to subject the Defendants‘ proof to strict
scrutiny, which it failed to do.
As another example, the trial court placed the entire burden on Plaintiffs to
disprove the first Gingles prong, whether districts are compact. The court refused
to find the districts insufficiently compact because the plans Plaintiffs pointed to—
the Senate and House Fair and Legal plans, which had more compact districts—did
not contain the same extreme number of majority black districts. (R p 1306). The
court thereby improperly placed the burden on Plaintiffs to prove that the districts
were not compact, at the same time requiring them to demonstrate more compact
districts could be crafted in a plan with a proportionate number of majority Black
districts, a plan that would be per se unconstitutional. As discussed more below, in
every element of the court‘s narrow tailoring analysis, the court relieved
Defendants of their burden to demonstrate that it used only as much ―force‖ as was
necessary to reasonably defend itself.

 - 76 2.

The Redistricting Plans are Not Narrowly Tailored Because
they Create More Majority-Black Districts than are Necessary
to Comply with the VRA.

The 2011 districts challenged in this litigation fail narrow tailoring scrutiny
primarily because they were drawn in order to achieve a quota for the number of
majority Black districts. Such a quota system can never, as a matter of law, satisfy
the demands of narrow tailoring.
Just as racial balancing can never be a compelling governmental interest,
drawing districts to meet a proportionality goal cannot meet the requirement that a
government‘s use of race be narrowly tailored. Bakke, 438 U.S. at 315-16. In
Grutter, the Court clarified further how a racial classification system could avoid
falling into a ―quota‖ trap. 539 U.S. at 334. The Court explained that race may
only be used, constitutionally, in a ―flexible‖ and ―nonmechanical‖ way because
equal protection requires ―individualized assessments.‖ Id. If race as ―one factor
among many‖ was considered in a state actor‘s path to effectuating a compelling
governmental interest, then a reviewing court will be satisfied that the action that
includes racial considerations is narrowly tailored. Id. at 340.
In the redistricting context, this same constitutional rejection of quotas in the
number of majority-minority districts drawn applies. In Miller v. Johnson, because
the Department of Justice had determined that it was possible to draw 3 majority

 - 77 Black congressional districts in Georgia following the 1990 census, the
Department set that number as essentially a quota for the number of majority Black
districts the state‘s enacted plan must contain in order to obtain preclearance under
Section 5 of the Voting Rights Act. Miller, 515 U.S. at 918. As discussed above,
this was a flawed interpretation of the Act. But beyond that, the Supreme Court
noted approvingly the District Court‘s conclusion that because the Voting Rights
Act ―did not require three majority-black districts, and…Georgia‘s plan for that
reason was not narrowly tailored to the goal of complying with the Act. Id. at 910
(quoting Johnson v. Miller, 864 F. Supp. 1354, 1392-1393 (S.D. Ga. 1994)).
In light of the long history of Supreme Court precedent rejecting the use of
quota systems to achieve racial equity, purportedly or actually, the proportionality
quota established by Defendants condemns the plans and challenged districts as
unconstitutional. The trial court also erred in its narrow tailoring analysis by
failing to appreciate that a rigid quota was not ―necessary‖ for advancing equal
opportunities for voters to participate in the political process. The court below
erroneously equated districts with 40-50% BVAP with districts that are over 50%
BVAP for the purpose of achieving the desired number of ―VRA‖ districts. (R p
1288). After equating the two kinds of district, the court seemed to conclude that
the enacted plans, prior plans, and Plaintiffs‘ demonstrative plans (which, like the

 - 78 prior plans, contained more 40-50% districts and fewer majority Black districts)
approximately achieved the set quota. Id. As such, the court found the quota
neither dramatically different from comparative plans nor constitutionally
problematic. (R p 1291). This is incorrect because, as discussed in more detail
below, a district with a 40-50% BVAP can be naturally occurring and compact and
would not require the explicit block-by-block construction of tortured districts
lines necessary to reach that 50% mark. Thus, a set quota for a number of majority
Black districts requires much more ―mechanical‖ and ―inflexible‖ map-drawing
than does a plan that can flexibly include districts with only 40-50% BVAP. This
is the approach adopted by previous legislatures and courts, and it allowed the state
for nearly 30 years to avoid Section 2 liability—the purported compelling interest
relied on by Defendants. Thus, following Bakke and other narrow tailoring cases,
it is clear that a quota of majority Black districts is forbidden.
3.

The Districts are Not Narrowly Tailored Because the Districts
are Not Geographically Compact.

The United States Supreme Court has held that a district that is intentionally
created as a majority Black district is not narrowly tailored if it is not compact.
Shaw v. Hunt, 517 U.S. at 916.; Bush v. Vera, 517 U.S. at 957. The trial court
refused to require Defendants to offer proof that the many irregularly-shaped, noncompact districts drawn in disregard of traditional redistricting principles were

 - 79 narrowly tailored. Its failure to demand this proof and its failure to subject the
districts to strict scrutiny as to compactness was error under Shaw v. Hunt and
Bush v. Vera.
It is ironic that the compactness analysis ignored in this case was first
established in Shaw v. Hunt, 517 U.S. at 916, a case from North Carolina that first
established racial gerrymandering rules. When the Supreme Court looked at North
Carolina‘s Congressional District 12 in the 1990s, it noted that ―[n]o one looking at
District 12 could reasonably suggest that the district contains a ―geographically
compact‖ population of any race,‖ and thus, ―District 12 is not narrowly tailored to
the State‘s asserted interest in complying with § 2 of the Voting Rights Act.‖ Id. at
916, 918 (internal citations omitted).
The state in Shaw v. Hunt did ―not defend District 12 by arguing that the
district is geographically compact,‖ and instead argued that ―once a legislature has
a strong basis in evidence for concluding that a § 2 violation exists in the State, it
may draw a majority-minority district anywhere, even if the district is in no way
coincident with the compact Gingles district, as long as racially polarized voting
exists where the district is ultimately drawn.‖

Id. at 916-17.

Defendants‘

argument here is much the same. The Court in Shaw v. Hunt unequivocally
rejected that argument as unpersuasive. Id. at 917.

 - 80 In Bush v. Vera, the Court invalidated three districts on the same grounds:
that the districts were non-compact and thus failed the narrow tailoring inquiry.
517 U.S. at 979. There, the Court reiterated that a district drawn on the basis of
race could be narrow tailored to comply with Section 2 if the district ―is reasonably
compact and regular, taking into account traditional districting principles such as
maintaining communities of interest and traditional boundaries.‖ Id. at 977. The
Court noted that ―District 30, for example, reaches out to grab small and apparently
isolated minority communities which, based on the evidence presented, could not
possibly form part of a compact majority-minority district, and does so in order to
make up for minority populations closer to its core that it shed in a further suspect
use of race as a proxy to further neighboring incumbents‘ interests.‖ Id. Such
―characteristics defeat any claim that the districts are narrowly tailored.‖ Id.
The legislative record in this case included the results of eight separate
measures of mathematical compactness for each of the plans filed in the General
Assembly. Neither Senator Rucho or Representative Lewis for themselves, nor
their expert Hofeller on their behalf, made any focused or independent effort to
evaluate the compactness of their district using those mathematical measures or to
determine whether they could achieve compliance with the Voting Rights Act with
more compact, less-race-focused districts.

Hofeller has previously stated that

 - 81 mathematical standards of compactness can be a meaningful tool for measuring
compactness. In what he previously referred to as his ―seminal study of measures
of compactness,‖ Hofeller had argued that ―quantitative scores should be used to
make comparisons. The fact that compactness is a relative measure does not
render it meaningless.‖ (Doc. Ex. 7726, D:\Native Format\CDs\PS83\Depositions\
Exhibits\Exhibits 504-566 (Hofeller) (Hofeller Dep. Ex. 517)). His study went on
to conclude that when ―multiple measures coalescence in support of a single plan,
the evidence in its favor is very strong.‖ Id. at 1117. However, in this case, he did
not conduct any compactness inquiry or analysis to comply with Defendants‘
burden to justify the districts under Gingles, nor was he instructed to do so by the
Defendants.
The trial court, for its part, refused to subject each challenged district to
strict scrutiny as required by Shaw v. Hunt and Bush v. Vera to determine whether
the districts were compact.

Instead, it concluded that it lacked a ―judicially

manageable standard for measuring‖ compactness despite the mandate of the
Supreme Court to engage in such an inquiry and the fact that the trial court and this
Court made such judgments in the Stephenson cases. (R p 1325). A court that
does not engage in any compactness analysis does not fulfill its strict scrutiny
obligations.

 - 82 Moreover, even had the court below been willing to engage in the
compactness inquiry necessitated by a narrow tailoring review of a redistricting
plan, it could not have arrived at the conclusion that the districts were narrowly
tailored. Just as the Court found Congressional District 30 in Texas reached out to
grab isolated minority communities, each district challenged in this litigation is
highly non-compact and possesses tortured appendages that are designed only to
pull in isolated minority communities.

Bush v. Vera, 517 U.S. at 979; see

Appendix 8. For example, House District 48 has three narrow tentacles that grab
dispersed minority pockets of population in four different counties. Under Hunt
and Vera, this cannot be a district narrowly tailored to satisfy Section 2 of the
Voting Rights Act. Complex mathematical measures of compactness are useful
but not necessary.22 Where the Supreme Court has been content to use an ―eye

22

Using the mathematical measures of compactness contained in the legislative
record, expert demographer Anthony Fairfax compared the compactness of the
challenged districts in the enacted plans with the compactness of the alternative
plans filed by the Democratic and Black Caucus. Fairfax Aff. ¶¶ 8-9. He found:
a. All three 2011 enacted redistricting plans scored overall less compact than
prior redistricting plans and less compact than other redistricting plans
introduced during the 2011 redistricting process. (Doc. Ex. 378)).
b. Nine of the thirteen districts in the 2011 enacted congressional redistricting
plan are less compact than the districts in the prior plan and eleven of the
thirteen district in the enacted plan were less compact than the Congressional
Fair and Legal plan introduced during the redistricting process. (Doc. Ex.
371).
(Footnote Continued)

 - 83 ball‖ test to strike down a non-compact district and a visual examination alone of
the challenged districts demonstrates that they too are non-compact, the districts
challenged do not survive a narrow tailoring inquiry.
4.

The Districts are Not Narrowly Tailored Because they Pack
Black Voters.

Defendants‘ theory is that their purpose in packing of Blacks into separate
districts is to provide Blacks with a remedy to which they are entitled under the
VRA, even though it is not one they have sought.

The remedy for racial

discrimination must be no greater than the discrimination it is designed to remedy.
Missouri v. Jenkins, 515 U.S. 70, 88 (1995) (quoting Milliken v. Bradley, 433 U.S.
267, 280-81 (1977)). A proper narrow tailoring inquiry must examine whether, in
a district purportedly devised to avoid liability under Section 2 of the Voting
Rights Act, the legislature has placed more Black voters into a district, thus being
over-inclusive and painting a remedy with too broad a brush. The Supreme Court
has not minced words on this topic: a racial classification must be ―remedial in
nature, that is, it must be designed as nearly as possible ‗to restore the victims of

c. 41 of the 50 districts in the enacted Senate Plan are less compact that the
previous plan. (Doc. Ex. 372). Compared to the Senate Fair and Legal Plan,
25 out of the 50 enacted districts were less compact. Id.
d. 91 of the 120 districts in the enacted House Plan were less compact than the
previous plan. (Doc. Ex. 377). Compared to the House Fair and Legal Plan,
78 out of the 120 districts were less compact. Id.

 - 84 discriminatory conduct to the position they would have occupied in the absence of
such conduct‘―). Missouri v. Jenkins, 515 U.S. 70, 88 (1995) (quoting Milliken v.
Bradley, 433 U.S. 267, 280-281 (1977)).
Thus, the validity of Defendants‘ districts turns on whether they adopted a
remedy that only provides an equal opportunity to participate and no more. As
discussed above, an invalid or unconstitutional interpretation of Section 2 cannot
suffice as a compelling governmental interest. A district is therefore not narrowly
tailored if it is more racially-divisive and intentionally race-focused than is
necessary under the law. In his opinion, concurring in part and dissenting in part,
in LULAC v. Perry, 548 U.S. 399, 519 (2006), Justice Scalia framed the test for
narrow tailoring in compliance with the VRA as an inquiry as to whether ―a State
use[d] racial considerations to achieve results beyond those that are required to
comply with the statute.‖
If Black voters in a district Durham County have established their
opportunity and, indeed, ability to elect the candidate of their choice when the
district is approximately 40% BVAP, then there ―neither has been a wrong nor can
be a remedy.‖ Shaw I, 509 U.S. at 653. Secondly, assuming there is a need for a
remedy, increasing the BVAP in the district to 50 or 55% does not ―restore‖ Black
voters to the position they would have occupied absent discriminatory conduct—it

 - 85 goes much further than that, and thus is not narrowly tailored. The legislature
repeated this scenario in dozens of districts across the state—all of the districts
challenged as racial gerrymanders in this litigation.
Likewise, the challenged districts are not narrowly tailored to comply with
Section 5 of the Voting Rights Act.

The Supreme Court noted that ―a

reapportionment plan would not be narrowly tailored to the goal of avoiding
retrogression if the State went beyond what was reasonably necessary to avoid
retrogression.‖ Shaw I, 509 U.S. at 655. The trial court committed legal error
when it concluded that Section 5 required the challenged districts to be drawn to
over 50% BVAP. (R p 1298-99). In fact, the Supreme Court has explicitly
rejected such a conclusion. In Bush v. Vera, the Court noted:
The problem with the State‘s argument is that it seeks to justify not
maintenance, but substantial augmentation, of the African-American
population percentage in District 18. At the previous redistricting, in
1980, District 18‘s population was 40.8% African-American. As a
result of Hispanic population increases and African-American
emigration from the district, its population had reached 35.1%
African-American and 42.2% Hispanic at the time of the 1990 census.
The State has shown no basis for concluding that the increase to a
50.9% African-American population in 1991 was necessary to ensure
nonretrogression.
Vera, 517 U.S. at 983 (internal citations omitted). Indeed, what Texas did in Vera
is absolutely analogous to what Defendants did in 2011—relied upon the Voting
Rights Act to justify not maintenance, but substantial augmentation, of districts

 - 86 that were already enabling minority voters to elect their candidates of choice. In
this context, substantial augmentation goes beyond the requirements of the law and
is therefore not a narrowly tailored remedy. Defendants have not met their burden
of justifying their packing of Blacks into districts, and the trial court failed to
strictly hold them to their burden.
5.

The Challenged Districts Are Not Narrowly Tailored Because
they are Drawn in Areas of the State Where a VRA Remedy is
Not Required under Section 2 or Section 5.

Any proactive remedy drawn to avoid a potential violation of the VRA must
be drawn in the area of the state where the potential violation exists. Shaw v. Hunt,
517 U.S. at 917. ―[R]acial bloc voting and minority-group political cohesion never
can be assumed, but specifically must be proved in each case in order to establish
that a redistricting plan dilutes minority voting strength in violation of § 2.‖ See
Growe v. Emison, 507 U.S. 25, 40-41 (1993) (―Unless these points are established,
there neither has been a wrong nor can be a remedy‖).‖ Shaw I, 509 U.S. at 653.
It is the court‘s duty to examine closely any such districting, placing the
burden squarely on Defendants to establish that any remedy it enacts be tailored to
remedy a prospective violation. As the Supreme Court wrote forty years ago,
―[s]trict scrutiny means that the State‘s system is not entitled to the usual
presumption of validity, that the State rather than the complainants must carry a

 - 87 ‗heavy burden of justification,‘ that the State must demonstrate that its [racial
classification] has been structured with precision and is tailored narrowly to serve
legitimate objectives and that it has selected the ‗less drastic means‘ for
effectuating its objectives.‖ San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S.
1, 16-17 (1973).
On this issue of whether there was justification for making the majority
Black districts challenged by the Plaintiffs, the trial court received two days of
evidence, and appended to its memorandum 178 findings of fact. However, for all
the reasons explained in above, those facts do not support the legal conclusion that
the Defendants carried their burden of establishing that the majority-Black districts
challenged in this case were drawn in areas of the state where plaintiffs could have
filed and won a lawsuit under § 2 of the Voting Rights Act.
The evidence of racially polarized voting in North Carolina relied upon by
the Defendants, the Block and Brunell reports, did give some estimates of the
levels of racially polarized voting in certain areas, but did not take the second step
that the General Assembly had the responsibility of taking—namely to consider
whether white bloc voting usually defeats the candidate of choice of Black voters.
This step would have radically changed their conclusions. In many of the same
elections analyzed by these two political scientists, the candidate of choice of

 - 88 Black voters was successful. See Appendix 6. The third prong of Gingles asks
1) does a pattern of racially polarized voting exist, and 2) is that pattern
consequential. As Dr. Lichtman testified, the question of statistical significance
that the Defendants focused on is not the dispositive issue. (T pp 377-79; Doc. Ex.
7726, CDs, PS76, Deposition Transcripts, Brunell, Thomas – Transcript, 67:2068:8). Gingles requires a showing of legally significant racially polarized voting.
The detailed evidence of the past success of Black candidates provides a strong
basis for rejecting any reasonable claim that the challenged districts were narrowly
tailored to remedy a potential § 2 violation.
The trial court‘s factual findings on this point appear to suggest that when a
candidate of choice of Black voters is successful in a district that is not majorityBlack, it must be due to ―special circumstances‖ such as incumbency or
exceptionally well-financed campaigns, so that the Defendants were justified in
drawing majority Black districts as a precaution. (See Gingles, 478 U.S. at 77)
(discussing special circumstances that may lead to minority candidate election.)
The 90% success rate in such districts over many elections, as shown by Dr.
Lichtman, demonstrates that Defendants‘ mapping strategy violates the third prong
of Gingles in each of the challenged districts. When the argument was made in
Illinois that a 75% success rate for Latino candidates was only due to special

 - 89 circumstances, the Illinois District Court recently explained:

―we decline

plaintiffs‘ invitation to be the first court ever to count actual Latino victories as
putative white victories, and to conclude, on that basis, that Gingles‘ third prong
has been met, despite uncontroverted evidence that Latino victories in fact
outnumbered white victories three-to one in RD 23.‖ Radogno v. Illinois State Bd.
of Elections, 836 F. Supp. 2d 759 (N.D. Ill. 2011). This Court should likewise
decline to be the first court to endorse the legal proposition that a 90% success rate
for Black candidates in recent elections in districts that are less than 50% Black in
voting age population constitutes the ―usual defeat‖ of Black candidates under the
Gingles standard.
The trial court also made factual findings that victories by Black candidates
came in districts that were not majority white, or they were in districts where Black
voters were the majority in the Democratic Party primary. (R pp 1341, 13601420). Other findings assert that the victory of Black candidates do not prove that
whites vote for Black candidates and therefore imply that by application of the
holding in Bartlett v. Strickland, majority-Black districts are necessary. (See, e.g,
R p 1341). However, twenty-two of the fifty six elections from 2006 to 2010 were
in majority-white districts. See App. 6 pp 60-61. Moreover, the huge margins by
which Black candidates were winning make clear that those candidates were

 - 90 attracting the votes of a substantial number of white voters as well as minority
voters. (R p 1064). Third, the uncontradicted lay witness testimony in this case is
that Black candidates do attract support from white voters, just as Black voters
have a record of supporting (and at times, preferring) white candidates. But most
importantly, nothing about the fact that some districts electing Black candidates
were majority-minority instead of majority-white justifies drawing those districts
now as majority-Black districts. If Black candidates are winning elections, there
obviously is no need to provide a remedy, no matter the racial composition of the
district.
Members of the General Assembly asked whether particular majority-Black
districts were required on several occasions during the legislative debate over the
proposed redistricting plans.

Representative Martin, for example, asked

Representative Lewis whether there was evidence of racially polarized voting in
Cumberland County, and the answers he received were that ―to forestall the chance
of a lawsuit, we chose simply to use the definition that a majority-minority district
needs to be one in which is drawn to have a majority of minorities in there.‖ 27
July House Session p. 27, lines 13-18, and that ―I do not recall the specific
findings in regard to Cumberland County.‖ When Representative Lucas asked if
Senate District 21 has been held by an African-American since the 1980‘s,

 - 91 Representative Lewis allowed that it had been, in fact, he was not aware of a time
―when it was not so held.‖ Id., p. 29, line 17. However, when asked if the district
had previously been a majority-Black district, Representative Lewis answered that
―I did not actually go back and look at the historical data as it applies to race and
that seat.‖ Id., p.29, line 25 to p. 30, lines 1-2.
The proponents of the redistricting plans sought to include as many
majority-Black districts as possible in order to achieve proportionality and they
drew them in areas of the state where the third prong of Gingles cannot be
satisfied. This is the very antithesis of narrow tailoring.
The floor debates demonstrate that the proponents of these redistricting
plans did not narrowly tailor their use of race to a compelling governmental
interest. They ignored evidence that showed such districts are not necessary,
ignored extensive testimony in public hearings that the districts are not necessary,
(Doc. Ex. 7726: D:\Native Format\CDs\PS79

NC111-S-28F-3(m) June 23rd

Public Hearing Tr.) and chose instead to rely on faulty assumptions rather than
facts. (T p 240 (Hofeller)) (―And I would have operated under the assumption that
[racially polarization] was present this time.‖) ―The purpose of the Voting Rights
Act is to prevent discrimination in the exercise of the electoral franchise and to
foster our transformation to a society that is no longer fixated on race.‖ Georgia v.

 - 92 Ashcroft, 539 U.S. 461, 490 (2003).

North Carolina is in the midst of that

transformation. Drawing majority-Black districts where they are not necessary
turns an opportunity for participation into a restriction on forming multi-racial
collaborations. Segregating voters by race into majority-Black districts when such
districts are not narrowly tailored to what is strictly required by law is
unconstitutional.
IV.

THE TRIAL COURT ERRED IN FINDING THAT RACE DID NOT
PREDOMINATE IN THE DRAWING OF SENATE DISTRICT 32
AND CONGRESSIONAL DISTRICT 12
A.

Standard of Review.

The legislature‘s motivation is a factual question. Hunt v. Cromartie, 526
U.S. 541, 549 (1999). Here the trial court found that race was not the predominant
factor used by Defendants in drawing SD 32 and CD 12. (R p 1429-32, 1424-26).
That factual finding was committed to the trial court‘s discretion and is conclusive
on appeal unless it is ―manifestly unsupported by reason or so arbitrary that it
could not have been the result of a reasoned decision.‖ Briley v. Farabow, 348
N.C. 537, 547, 501 S.E.2d 649, 656 (1998). As will be demonstrated, the trial
court‘s finding that race was not the predominant factor in drawing SD 32 and CD
12 ―could not have been the result of a reasoned decision‖ and should be reversed.

 - 93 B.

Race was Manifestly the Predominant Factor In the Construction
of SD 32.

The trial court‘s finding that race was not the predominant factor in drawing
SD 32 was not based on findings that traditional redistricting factors predominated
over race in the construction of that district or that those traditional factors better
explain the district‘s shape than does race. Rather, the trial court‘s finding was
based on the General Assembly‘s VRA liability concerns. Specifically, the trial
court found: (1) ‖because of concerns regarding the State‘s potential liability
under § 2 and § 5, Hofeller was instructed by the redistricting chairs to base the
2011 Senate District 32 on the 2003 version of Senate District 32‖ and (2) because
of § 2 and § 5 liability concerns, ―Dr. Hofeller was instructed by the Redistricting
Chairs to re-draw the State‘s version of Senate District 32 so that it would at least
equal the SCSJ version in terms of TBVAP.‖ (R pp 1430-31). Drawing districts to
comply with the VRA is necessarily a race-based process. The role of traditional
redistricting factors in that process is not even explained by the trial court, and as
Plaintiffs will demonstrate, only one reasoned conclusion is plausible: race
trumped traditional redistricting criteria in the construction of SD 32.
The 2003 version of SD 32, which the trial court found was the initial model
for the 2011 challenged district, was a relatively compact district that, except on its

 - 94 western side, followed county lines and major highways. It had a TBVAP of
42.52% (R p 1430) and is depicted below:

The version of SD 32 drafted by Hofeller and made public on 17 June 2011
as one of the ―VRA Districts‖ did resemble the 2003 version of SD 32 as Senator
Rucho had instructed. It only split one precinct, but its BVAP was 39.32%, or
2.2% lower than the 2003 version of SD 32. (R p 1431). In the statement released
contemporaneously with the VRA districts, Chairmen Rucho and Lewis asserted
that SD 32 would also have a Hispanic Voting Age population of 12.12% thus

 - 95 rendering this district as a majority-minority district. (Doc. Ex. 549). This first
2011 version of SD 32 is depicted below:

 - 96 On 23 June 2011, SCSJ provided the legislature a community-drawn map
with a version of SD 32 that closely resembled the 2003 version of SD 32.23 It had
a TBVAP of 41.95% and is depicted below (R p 1431):

23

This map was drawn by AFRAM, not SCSJ, but in the interest of clarity,
Plaintiffs will follow the trial court and refer to this map as the SCSJ map.

 - 97 As instructed by Senator Rucho, and as found by the trial court, Hofeller
revised SD 32 as first proposed by Senator Rucho on 17 June 2011 so that it would
equal or exceed the BVAP in the 23 June SCSJ version of SD 32. In accordance
with these instructions, Hofeller revised SD 32 so that its BVAP was increased to
42.53% (R p 1433) and thus exceeded the BVAP in the SCSJ version by 0.78%.
This small change in numbers had a huge impact on traditional redistricting criteria
and clearly demonstrates that race was the factor which could not be compromised
in the Defendants‘ construction of SD 32.
As revised and enacted, SD 32 is highly irregular in its shape and does not
resemble the relatively compact 2003 version of SD 32. Its boundary no longer
follows county lines and highways and meanders around parts of Forsyth County
following no path explainable on any grounds other than race. A map of raciallygerrymandered SD 32 as revised in accordance with Senator Rucho‘s directions,
and as enacted by Defendants, is depicted below. At the end of every contested
appendage, the Court will find a concentration of African-American voters; in
every area removed from the district, the court will find concentrations of white
voters.

 - 98 -

The highly irregular path for the boundary of the district chosen by the
General Assembly required the number of split precincts to be increased from one
to forty-three. Race was plainly the factor that determined which part of a split
precinct the General Assembly assigned to SD 32 and which part it assigned to SD
31.

79.5% of the African-American voters in those 43 split precincts were

assigned to SD 32, while only 20.5% of those citizens were assigned to
neighboring SD 31. (R pp 658-60).

 - 99 Defendants‘ stark racial goal in drawing their plans is most plainly
demonstrated by Senator Rucho‘s description of the reasons for the construction of
SD 32. In his 17 June 2011 public statement, Senator Rucho declared that ―the
current white incumbent for Forsyth [will] not be included in SD 32.‖ (Doc. Ex.
545). The only explanation for drawing the white incumbent out of the district was
that she was white. (Doc. Ex. 6691, 3230-31). These statements do not reflect any
reasonable, fact-based effort to comply with the VRA. It has long been recognized
in VRA jurisprudence that the candidate of choice of Black voters may well be
white.
To indulge the contrary presumption, that every black person
necessarily prefers a black candidate over a white candidate, or that
every white person necessarily prefers a white candidate over a black
candidate, would itself constitute invidious discrimination of the kind
that the Voting Rights Act was enacted to eradicate, effectively
disenfranchising every minority citizen who casts his or her vote for a
non-minority candidate.
Lewis v. Alamance County, 99 F.3d 600, 607(4th Cir. 1996).
Senator Linda Garrou, the ―white incumbent‖ to whom Senator Rucho
referred, had been elected from SD 32 for seven consecutive terms beginning in
1998. She was clearly the choice of Black voters in the district, having defeated
Black opponents twice by 4-1 margins. (Doc. Ex. 6597). Thus, under Defendants‘

 - 100 quota regime, SD 32 was drawn based on skin color without regard for established
VRA principles.
C.

Race was Manifestly the Predominant Factor in the Construction
of CD 12.

In concluding that race was not the predominant factor explaining the path
followed by the General Assembly in defining the boundary of CD 12, the trial
court found that the 2011 version of CD 12 was drawn based on ―the same
principles that motivated the 1997 version‖ of CD 12, and that the United States
Supreme Court in Easley v. Cromartie, 532 U.S. 234 (2001), found that politics,
more than race, explained the shape and boundary of the district. (R p 1424).
The trial court‘s finding is not plausible or reasoned. In their 1 July 2011,
public statement explaining the shape and boundaries of the congressional districts,
Senator Rucho and Representative Lewis jointly informed all North Carolinians:
Because of the presence of Guilford County in the Twelfth District, we have
drawn our proposed Twelfth District at a black voting age level that is above
the percentage of black voting age population found in the current Twelfth
District. We believe that this measure will ensure preclearance of the plan.
(Doc. Ex. 559) (emphasis added). When that public statement is examined in
context, it becomes manifest that race is the factor that explains the differences
between the 1997 district upheld in Easley v. Cromartie as predominantly the
product of politics and CD 12 as enacted by the General Assembly in 2011.

 - 101 As enacted by the General Assembly in 1997 and approved by the United
States Supreme Court, CD 12 had a BVAP of 43.36%. The structure of the 1997
version of CD 12 was maintained in the plan enacted by the General Assembly in
2001 following the 2000 census. The BVAP for CD 12 in the 2001 plan was
reduced to 42.31%. CD 12 as enacted in 2011 stands in stark contrast to the 1997
and 2001 plans. It increases the BVAP in the district to 50.66%. That percentage
reflects a 7% BVAP increase over the 1997 version of CD 12 declared not a racial
gerrymander in Easley v. Cromartie and an 8% increase over the unchallenged
version of CD 12 in the 2001 plan. That percentage in fact approximates the
BVAP (53.34%) in the version of CD 12 declared an unconstitutional racial
gerrymander in Shaw v. Hunt, 517 U.S. 899 (1996).
Plaintiffs presented to the trial court a statistical study that demonstrated that
race was the predominant factor that determined the boundary of CD 12. The trial
court however, does not mention that study in its Judgment and Memorandum of
Decision. At Plaintiffs‘ request, Dr. David Peterson, an accomplished statistician,
conducted a segment analysis of the boundary of CD 12 to determine whether race
or politics better explained the path of the boundary of the district. As Dr. Peterson
explained:
Segment analysis breaks down the border of a voting district into
many pieces, and examines whether, based on the race and political

 - 102 behavior of residents just inside and outside each segment, the overall
pattern suggests that, as between race and political affiliation, one
consideration dominated the other in the process that defined the
voting district.
(Doc. Ex. 349). Based on that analysis Dr. Peterson concluded:
The analysis indicates that racial considerations better account for the
boundary definition of the 12th NC Congressional Voting District
than do party affiliation consideration. There is no indication that
party affiliation dominated racial considerations.
(Doc. Ex. 352).
The failure of the trial court to acknowledge Dr. Peterson‘s study in its
decision is extraordinary in light of the dispositive role Dr. Peterson‘s analysis
played in the U.S. Supreme Court‘s decision in Cromartie v. Easley, 532 U.S. 234
(2000), the very case upon which the trial court based its conclusions that race did
not predominate in the construction of CD 12.
The segment analysis Dr. Peterson conducted for Plaintiffs in this case was
methodologically identical to the segment analysis he had earlier conducted for the
State in the litigation challenging the 1997 version of CD 12 as a racial
gerrymander. His studies of the 1997 district (BVAP 42.31%) and the 2011
district (BVAP 50.66%) not surprisingly resulted in different conclusions—politics
better explained the boundary of the 1997 district and race better explained the
boundary of the 2011 district.

 - 103 The State used Dr. Peterson‘s study to defend the 1997 version of CD 12 as
the product of politics and not race. The trial court in that case, however, awarded
summary judgment to the plaintiffs concluding that race, not politics, was the
predominant factor in the construction of CD 12 and that the district was
unconstitutional because it was not narrowly tailored to serve any compelling
interest. On appeal, the U.S. Supreme Court unanimously reversed the trial court,
holding that disputed facts regarding the issue of racial predominance made
summary judgment for plaintiffs inappropriate. ―More important‖ to the Court‘s
holding ―was the affidavit of an expert, Dr. David W. Peterson.‖

Hunt v.

Cromartie, 526 U.S. 541, 549 (1999).
On remand, the trial court again concluded that race, not politics, better
explained the path of CD 12 and that the district was unconstitutional because it
was not narrowly tailored to comply with the VRA.

Cromartie v. Hunt,

133 F. Supp. 2d 407 (E.D.N.C. 2000). On appeal, the Supreme Court again
reversed, holding that the trial court‘s findings that the boundary of the district was
better explained by the race than politics ―are clearly erroneous.‖ Easley v.
Cromartie, 532 U.S. 234, 237 (2001). Dr. Peterson‘s study was again central to
the Supreme Court‘s decision. Id. at 244-45, 251-52 (discussing Peterson‘s study).

 - 104 Just as the United States Supreme Court concluded in Easley v Cromartie
that the trial court‘s rejection of Dr Peterson‘s segment analysis there was ―clearly
erroneous,‖ so too should this Court conclude that the trial court‘s failure to
consider Dr. Peterson‘s analysis was not ―the result of a reasoned decision.‖
In the final analysis, the facts about CD 12 are incontrovertible, and when
the correct legal analysis is applied, the only reasoned conclusion is that race is the
predominant factor Defendants used to determine the exact placement of the
boundary of CD 12. On 1 July 2011, Defendants told all North Carolinians that
they had increased the BVAP for the district from 42.31% to 50.61% to ―ensure
preclearance of the plan.‖ (Doc. Ex. 559). Preclearance is ensured by the racial
composition of a district, not its partisan composition. Dr. Peterson‘s precise and
comprehensive examination of the segments along the boundary of the district
shows that the placement of the boundary of District 12 correlates exactly with
Defendants‘ 1 July 2011 public statement.
boundary.

Race, not politics, determined its

 - 105 V.

THE TRIAL COURT ERRED IN REJECTING PLAINTIFFS’
ARGUMENTS THAT THE ENACTED SENATE AND HOUSE
PLANS VIOLATE THE WHOLE COUNTIES PROVISION OF THE
NORTH CAROLINA CONSTITUTION
A.

Standard of Review and Introduction.

―The [Whole Counties Provision of the North Carolina Constitution] forbids
the division of a county in the formation of a legislative district, N.C. Const. art. II,
§§ 3(3), 5(3), except to the extent the WCP conflicts with the VRA and ‗oneperson, one-vote principles.‘‖ Stephenson v. Bartlett, 355 N.C. 354, 374, 562
S.E.2d 377, 391 (2002) (―Stephenson I‖) (emphasis added and certain internal
citations omitted).

―De novo review is ordinarily appropriate in cases where

constitutional rights are implicated.‖ Libertarian Party v. State, 365 N.C. 41, 46,
707 S.E.2d 199, 202-203 (2011).
The Enacted Senate and House Plans divide more counties than other
proposed plans, including the Senate and House Fair and Legal Plans. In the trial
court below, the Defendants argued that the larger number of divided counties
resulted from (1) purported compliance with the Voting Rights Act; and
(2) purported compliance with the county grouping (or ―clustering‖) procedure set
forth in Stephenson I through the rubric of creating clusters with a minimum
number of counties. (R p 1313). The trial court agreed with the Defendants‘
arguments and concluded ―as a matter of law the Enacted House Plan and the

 - 106 Enacted Senate Plan conform to the [Whole Counties Provision] set out in Article
II, § 3 and § 5, of the North Carolina Constitution.‖ (R p 1320).
This Court should reverse the trial court and should hold that the Enacted
Senate and House Plans violate the WCP.

In numerous instances, it was

unnecessary for Defendants to divide counties in order to comply with either the
Voting Rights Act or the county-grouping system set forth in Stephenson I (or for
any other reason). Defendants also exploited loopholes in the county-grouping
system to achieve a result contrary to the intent of Stephenson. Most egregiously,
Defendants created a 20-county ―cluster giganticus‖ stretching from the Outer
Banks to Montgomery County—just 50 miles from downtown Charlotte—and then
used that 20-county cluster as a shelter for freely dividing counties. The intent of
Stephenson, of course, was to create fewer divided counties, not more divided
counties, and the Defendants‘ Enacted Senate and House Plans directly contravene
what this Court was seeking to achieve in Stephenson.
For these reasons, as explained below in greater length, this Court should
reverse the trial court and should hold that the Enacted Senate and House Plans
violate the WCP.

 - 107 B.

The Trial Court’s Holding is Inconsistent with the Intent of the
North Carolina Constitution and this Court’s Holding in
Stephenson and Stephenson II.
1.

The Constitutional Provisions And The Context Of The
Stephenson Decisions.

Article II, Section 3(5) of the Constitution as adopted in 1971 provides: ―No
county shall be divided in the formation of a senate district.‖ Article II, Section
5(5), likewise adopted in 1971, provides: ―No county shall be divided in the
formation of a representative district.‖
The history of these provisions of the Constitution, and the manner in which
their predecessor constitutional provisions have

been applied by the General

Assembly, was reviewed by the Supreme Court in Stephenson I. ―There is a long
standing tradition of respecting county lines during the redistricting process.‖
Stephenson I, 355 N.C. at 366, 562 S.E.2d at 386. That tradition dates to the 1776
Constitution, which based representation in both chambers of the General
Assembly on counties. This tradition was carried forward in the 1868 and 1971
Constitutions. Id. Consistent with this tradition, the first redistricting legislation
enacted after the adoption of the 1971 Constitution ―did not divide any counties
into separate legislative districts.‖ Id., 532 S.E.2d at 387.
However, in 1982, as the result of the refusal of the United States
Department of Justice to approve the General Assembly‘s 1981 redistricting

 - 108 efforts, the General Assembly enacted an amended House plan that divided 24
counties and an amended Senate plan that divided 8 counties. Id. In 1983, a threejudge federal court determined that Article II, Sections 3 and 5 of the 1971
Constitution were unenforceable in the 40 North Carolina counties covered by
Section 5 of the 1965 Voting Rights Act because it was inconsistent with federal
law. Cavanagh v. Brock, 577 F. Supp. 176 (E.D.N.C. 1983). The court further
declared, as a matter of state law, that those constitutional provisions were void in
the remaining 60 counties because the state‘s citizens would not have approved
those provisions in 1971 had they known that they could not be enforced in all
counties. Id. Assuming that as a consequence of Cavanagh that it was no longer
constrained by Article II, Sections 3 and 5 of the Constitution, the General
Assembly enacted House and Senate plans in 1992 that divided 58 and 43 counties,
respectively. These plans were not challenged in court. In 2001, the General
Assembly enacted a House plan that would have divided 70 counties and enacted a
Senate plan that would have divided 51 counties. The constitutionality of these
plans was challenged.
In Stephenson I, the Supreme Court (1) rejected the federal court‘s analysis
in Cavanagh that Article II, Sections 3 and 5 were not enforceable parts of the
Constitution and held that those constitutional provisions remain ―valid and

 - 109 binding on the General Assembly during the redistricting and reapportionment
process … except to the extent superseded by federal law;‖ (2) declared that the
use of multi-member districts violated equal protection principles ―unless it is
established that the use of multi-member district advances a compelling state
interest;‖ and (3) directed the trial court, during ―the remedial stage‖ of the
litigation, to apply the methodology prescribed by the Court to any alternative
plans adopted by the General Assembly or drawn by the trial court. Id. at 371-72,
381, 383, 562 S.E.2d at 390, 395, 396.
In Stephenson v. Bartlett, 357 N.C. 301, 582 S.E.2d 247 (2003)
(―Stephenson II‖), the Court reviewed and affirmed the 31 May 2002 order of the
trial judge declaring that the remedial plans enacted by the General Assembly in
2002 failed to adhere to Stephenson I. Reciting the rule that findings of fact
supported by the evidence are conclusive on appeal, the Supreme Court affirmed a
series of mixed findings of fact and conclusions of law entered by the trial judge.
Stephenson II, 357 N.C. at 309, 582 S.E.2d at 252. The constitutional deficiencies
affirmed on this ground in the Senate plan included (a) excessive ―cuts across
interior county boundaries,‖ (b) clustering ―portions of counties,‖ and (c) lack of
―compactness‖ in Senate Districts 6, 10, 11, 14, 16, 21, 26, 36 and 44. Id. at 31011, 582 S.E.2d at 252-53. The deficiencies affirmed on this ground in the House

 - 110 plan included (a) the excessive cutting of county lines, (b) the arbitrary separation
of communities in House Districts 52, 95 and 96, and (c) lack of compactness in
House Districts 14, 18, 41, 51, 52, 57, 58, 59, 60, 61, 62, 63, 64, 76, 77, 95, 96,
110 and 118. Id. at 311-13, 582 S.E.2d at 253.
The Supreme Court did list the trial court‘s finding that the challenged plans
failed ―to create the maximum number of two-county groupings‖ in its recitation of
the trial court‘s findings, Id. at 307, 582 S.E.2d at 250, but that finding is not listed
among the trial court‘s findings affirmed. Id. at 309-313, 582 S.E.2d at 251-54.
By contrast, the Court did list the trial judge‘s finding that some House districts
―divided the county boundary in multiple locations‖ among the findings it
affirmed. Id. at 311, 582 S.E.2d at 253.
2.

The Trial Court‘s Holding Has No Basis In The Words Of The
Constitution.

The trial court‘s holding that compliance with Article II, Sections 3 and 5 of
the Constitution is measured by the number of groups of counties contained in a
legislative redistricting plan and not the number of counties kept whole has no
basis in the Constitution and mistakes a means for constitutional compliance with
the end of compliance.
The words of the Constitution are ―no county shall be divided in the
formation‖ of a House or Senate district. The Constitution does not state: House

 - 111 and Senate districts ―shall be formed from the maximum number of groups of
counties‖ or that ―the maximum number of two-county groups shall be used to
form House and Senate districts.‖ Substituting those words for the actual words of
the Constitution, as the Defendants ask the Court to do, would constitute an
amendment to the Constitution. The Courts, of course, have no power under the
guise of interpretation to amend the Constitution. See Elliott v. State Board of
Equalization, 203 N.C. 749, 756, 166 S.E. 918, 922 (1932) (―However liberally we
may be inclined to interpret the fundamental law, we should offend every canon of
construction and transgress the limitations of our jurisdiction to review decisions
upon matters of law or legal inference if we undertook to extend the function of the
Court to a judicial amendment of the Constitution.‖); Andrews v. Clay County, 200
N.C. 280, 282, 156 S.E. 855, 856-57 (1931) (stating that a court may not construe
the North Carolina Constitution in a manner that ―would in effect result in its
amendment by the courts and not by the people‖).
Logically, the Stephenson clustering requirements were not intended by the
Court as the measurement of compliance with the Whole County provisions but
rather as one step in the process of achieving compliance. In truth, the county
grouping requirement is simply one stop on the road to compliance with the
constitutional direction that ―no county be divided.‖ Once county groupings are

 - 112 formed, districts still have to be formed within the groupings, and the formation of
those districts within those groups presents the greatest temptation for the General
Assembly to place politics or other interests in front of the Constitution. For
example, Defendants‘ House Plan contains one county grouping that includes 20
counties stretching from Dare County to Stanly County. Within this 20 county
grouping, the Defendants formed 14 districts, and in the process of forming those
14 districts, they split 16 of the 20 counties contained in the grouping. Measuring
compliance with the requirement that ―no county be divided‖ by counting county
groupings is like declaring the winner of a mile-long run at the one-half mile mark.
This Court should again declare, as it did in Stephenson I and II, that the
North Carolina Constitution requires the Defendants not to split any counties
except as required to comply with federal law.
3.

The Stephenson Decision In Fact Made It Clear That The
Measure Of Compliance With The Whole County Provision Is
The Number Of Counties Kept Whole.

The requirements established in Stephenson must be understood in the
context of the dilemma facing the Court. On the one hand, the Court determined
that it had no power to consign to the dustbin of history a constitutional provision
adopted by the people and not repealed by them.

―We are not permitted to

construe the WCP mandate as now being in some fashion unmanageable, or to

 - 113 limit its application to a handful of counties.‖ Stephenson I, 355 N.C. at 382, 562
S.E.2d at 396. On the other hand, federal one-person, one-vote and Voting Rights
Act requirements made the full application of the whole county provisions
impossible.

―Prior to the imposition of one-person, one-vote and VRA

requirements, implication of this provision was simple and straight forward.‖ Id. at
383, 562 S.E.2d at 396.
This Court determined that in this circumstance its duty was ―to follow a
reasonable, workable and effective interpretation that maintains the people’s
express wishes to contain legislative district boundaries within county lines
whenever possible.‖ Id. at 382, 562 S.E.2d at 396 (emphasis added). As the
Supreme Court‘s express words in Stephenson make clear, the duty to ―contain
legislative districts within county lines,‖ does not end with the formation of
clusters containing 2 or more counties:
Within any such contiguous multi-county grouping, compact districts
shall be formed, consistent with the at or within plus or minus five
percent standard, whose boundary lines do not cross or traverse the
―exterior‖ line of the multi-county grouping; provided, however, that
the resulting interior county lines created by any such groupings may
be traversed but only to the extent necessary to comply with the at or
within five plus or minus five percent one-person, one-vote standard.
The intent underlying the WCP must be enforced to the maximum
extent possible; thus only the smallest number of counties necessary
to comply with the at or within plus or minus five percent one-person,
one-vote standard shall be combined in the formation of compact and
contiguous electoral districts.

 - 114 Id. at 384, 562 S.E.2d at 397 (emphasis added). Nothing in Stephenson II changes
these words.
4.

The Supreme Court‘s Decision In Pender County v. Bartlett
Confirms That Keeping Counties Whole Is The Measure Of
Compliance With The Whole County Provision Of The
Constitution.

In Pender County v. Bartlett, 361 N.C. 491, 649 S.E.2d 364 (2007), this
Court considered the validity of the General Assembly‘s decision not to keep
Pender County whole but rather to divide it into 2 districts, one of which (HD 18)
had a BVAP of 42%. The General Assembly‘s purpose in creating that district was
to comply with the perceived requirements of the Voting Rights Act. In Pender
County, the Court addressed two issues: (1) whether the VRA required the creation
of the district containing 42% BVAP; and (2) if not, whether dividing Pender
County between two districts when it would have been kept whole violated the
WCP.
After determining that the VRA did not require the creation of House
District 18, this Court addressed the WCP question. It held:
As we noted at the beginning of this opinion, the formation of
legislative districts must comport with the requirements of our State
Constitution, unless federal law supersedes those provisions.
Accordingly, because current House District 18 is not required by
Section 2, it must comply with the redistricting principles enunciated
by this Court in Stephenson I. The WCP forbids the division of a
county in the formation of a legislative district, N.C. Const. art. II,

 - 115 § § 3(3), 5(3), except to the extent the WCP conflicts with the VRA and
“one-person, one-vote: principles, Stephenson I, 355 N.C. at 381, 562
S.E.2d at 396.
Pender County, 361 N.C. at 507, 649 S.E.2d at 374 (emphasis added and certain
internal citations omitted).
But for the General Assembly‘s perceived need to create House District 18
to comply with the VRA, Pender County could have been kept whole and a district
meeting one-person, one-vote principles drawn by adding to Pender County a
portion of the population of neighboring New Hanover County. The failure to
draw House District 11 in this manner violated the Stephenson requirement that the
boundary of a county located in a cluster of counties may not be crossed for any
reason except to meet one-person, one-vote requirements. Id. at 509, 649 S.E.2d
at 376 (―Therefore, to comply with the fifth Stephenson I requirement, a voting
district that includes Pender County must add population across a county line, but
‗only to the extent necessary to comply with the at or within plus or minus five
percent ‗one-person, one-vote‘ standard.‘‖).
The cure for the defective House District 18 was not to regroup Pender
County. It was either to keep Pender County whole and form a complete district
by adding the necessary population from New Hanover or to draw a district
encompassing a minority population in excess of 50% assuming that was feasible

 - 116 and required by the VRA. The General Assembly chose the former cure and kept
Pender whole.
5.

The Trial Court‘s Holding Leads to the Splitting of More—Not
Fewer—Counties.

The trial court held that Stephenson and Stephenson II require the creation of
―the maximum number of two-county groupings,‖ and then ―within the framework
of remaining counties,‖ the ―smallest three-county groupings, and then four-county
groupings, etc., as possible.‖

(R p 1316).

Not only does the Defendants‘

methodology, as adopted by the trial court, result in a greater number of divided
counties, but those counties‘ boundaries are traversed more times than in
competing plans.24 In Stephenson II, this Court was clear that compliance with the
Stephenson criteria requires a minimal number of traverses. The Court affirmed
the trial court‘s finding that ―[o]verall, within multi-county groupings, defendants‘
revised House Plan cuts county lines 48 times, as compared to the 43 county line
traverses in plaintiffs‘ House Plan.‖ Stephenson II, 357 N.C. at 312, 582 S.E.2d at
253.

Indeed, that proposition was explained at even greater length by the

Stephenson plaintiffs in the trial court, when they argued as follows:

24

A county is either ―whole‖ or ―divided.‖ If the county is divided, then each time
that the legislative boundary cuts across the county line is referred to as a
―traverse.‖ See Fourth Affidavit of Chris Ketchie (Doc. Ex. 6199).

 - 117 A comparison of the split unit report for both the 2002 Senate Plan
and plaintiffs‘ Remedial Plan, modified to eliminate these districts
that are wholly within a particular county, shows that plaintiffs‘
Remedial Plan traverses interior county lines to create single-member
districts twenty-three times, while the 2002 Senate Plan traverses
county lines twenty-eight times. As compared to plaintiffs‘ proposed
Remedial Plan, the 2002 Senate Plan therefore does not minimize the
times county lines are traversed in creating single-member districts;
therefore, it fails to ‗strictly‘ comply with the Stephenson criteria, and
must be rejected.
(D:\Native Format\CDs\PS79\Exhibit 11 - Plaintiffs‘ Memo in Stephenson II in
Support of Plaintiffs‘ Remedial Plans and in Opposition to the 2002 Plans.pdf).
The following chart compares the size of the county clusters in the Enacted Senate
Plan and Senate Fair and Legal Plan.
Counties in
Clusters
Enacted Senate
Plan
Senate Fair and
Legal

1

2

3

4

5

6

7

8

9

10

Total

1

11

4

3

1

1

1

2

1

1

26

1

11

3

7

1

2

2

0

1

0

28

(Doc. Ex. 1189). Significantly, Senate Fair and Legal and the Enacted Senate Plan
have the same number (11) of two-county clusters, but Senate Fair and Legal has
more total clusters (28) than the Enacted Senate Plan (26). Senate Fair and Legal
also divides 5 fewer counties than the Enacted Senate Plan.

 - 118 Moreover, although the Senate Fair and Legal plan has two more total
county groupings than the enacted Senate plan, the Senate Fair and Legal plan has
eleven fewer traverses, as shown in the table below:
Divided
Counties

Traverses

County
Groupings

Enacted
Senate Plan

19

27

26

Senate
Fair
and Legal

14

16

28

With regard to the House, the following chart compares the sizes of the
county clusters in the Enacted House Plan with House Fair and Legal.
Counties in
Cluster
Enacted House
Plan
House Fair and
Legal

1

2

3

4

5

6

7

8

9

10

11

20

Total

1
1
1
1

1
5
9

4

2

2

0

0

0

1

0

0

1

36

6

5

3

1

1

0

1

0

0

0

36

(Doc. Ex. 1189).
The Enacted House Plan and House Fair and Legal both have 36 total
clusters. While the Enacted House Plan has more two-county clusters than House
Fair and Legal, the Enacted House Plan has a 20 county cluster. Nevertheless,
House Fair and Legal divides 5 fewer counties than the Enacted House Plan.
Moreover, the House Fair and Legal plan has six fewer traverses, as shown in the
table below:

 - 119 Divided
Counties

Traverses

County
Groupings

House

49

50

36

House Fair and
Legal

44

44

36

Enacted
Plan

This supports the claim that establishing county groupings is only one step
in the process of compliance with WCP, and it establishes that the Enacted Plans
violate the Whole Counties Provision, properly interpreted.

Once county

groupings are established, there are still decisions to be made, and those decisions
can affect the number of traverses and split counties. One example from the
Enacted House Plan, which is set forth below, illustrates this point. In the county
grouping (or ―cluster‖) depicted below, the cluster in the enacted plan and the
competing House plan is identical. The cluster consists of Chatham, Lee, and
Harnett Counties.

 - 120 Enacted House Plan

House Fair and Legal Plan (Not Enacted)

2 divided counties (Harnett and Lee)
1 whole county (Chatham)
2 traverses within the cluster

1 divided county (Harnett)
2 whole counties (Chatham and Lee)
2 traverses within the cluster

 H54 traverses from Chatham into
Lee
 H51 traverses from Lee into Harnett
(or vice-versa)

 H56 traverses from Chatham into
Harnett
 H53 traverses from Lee into Harnett

The Enacted House Plan splits more counties than the House Fair and Legal
Plan (2 versus 1), and the number of traversals is equal (2 versus 2). In the trial
court below, Defendants defended this cluster in the enacted plan as follows:
The difference is that the House Fair and Legal Plan would divide
Harnett County twice, while the enacted Plan does so only once.
(Doc. Ex. 2229). The total number of traversals in the cluster, however, is the
same (2 versus 2). Defendants‘ argument is that the number of traversals within a

 - 121 cluster must be ―spread around‖ to different counties, instead of being ―stacked up‖
in one particular county. Stephenson says nothing about any such requirement, and
the Defendants‘ argument adds a much more specific requirement to the
Stephenson criteria. At the same time, the argument allows Defendants to violate
the fundamental purpose of Stephenson, which seeks to minimize the number of
divided counties.
The court upheld the constitutionality of this county grouping but did not
explain why the enacted districts are constitutional; it merely stated as follows:
[W]hile the Fair and Legal configuration has more whole counties
(two) as compared to the 2011 House Plan (one), both plans form
three districts by two traversals of a county line.
(R p 1252). Impliedly, the trial court‘s rationale must have been something along
the lines of: ―Even if the General Assembly divides a greater number of counties
than the competing plan in a particular cluster, that is not unconstitutional, as long
as the number of traversals within the General Assembly‘s cluster is equal to the
competing plan.‖
The two most apparent flaws with this holding are:
1.

It means that the number of traversals is more important than
the number of divided counties. That proposition simply
cannot be correct.

2.

However, even if that reasoning is correct, then based on that
same logic, the Enacted Senate and House Plans should be

 - 122 invalid, because the Enacted Plans contained more traversals on
a statewide basis.
The broader problem with the holding is that it appears to require that county
groupings be analyzed at a level of great detail, for which other measures (e.g.,
average cluster size) should also be relevant criteria for evaluating the maps (but
which the trial court did not discuss). For example, it is clear that the Defendants‘
methodology results, on average, in clusters containing more counties, not fewer
counties. Most egregiously, the Enacted House Plan includes a very large group of
20 counties, spanning Cape Hatteras to the suburbs of Charlotte:

The principal architect of the plan, Thomas Hofeller, referred to that group
as the ―Cluster Giga[n]ticus.‖ The Defendants appear to have used the 20-county

 - 123 cluster as a mechanism for traversing county boundaries many more times than
would have been feasible in a smaller county cluster. This methodology violates
both the letter and the spirit of the Stephenson criteria.
In summary, no matter how the Court measures compliance with
Stephenson, it is clear that the Senate and House Fair and Legal Plans are superior
for purposes of enforcing the Whole Counties Provision to the ―maximum extent
possible,‖ as is shown in the table below:
Criterion

Analysis

Absolute Number of Counties Divided

Absolute
Traverses

Number

of

Size of County Groupings

The Enacted Senate and House Plans
divide more counties than the competing
Senate and House Fair and Legal Plans.

Boundary The Enacted Senate and House Plans
traverse county boundaries more times
than the competing Senate and House
Fair and Legal.
The Enacted House Plan includes a 20county cluster.

In light of the foregoing analysis, the enacted maps violate the intent of the
North Carolina Constitution and this Court‘s holding in Stephenson and
Stephenson II.

 - 124 C.

Violations of the Whole County Provisions in the Enacted Senate
and House Plans.
1.

There Is No VRA Or One-Person, One-Vote Justification For
Splitting Beaufort County And Lee County In The Enacted
House Plan.

Under Stephenson, a county must be kept whole unless constitutional oneperson, one-vote principles or compliance with the federal Voting Rights Act
requires the county to be divided. Defendants have in effect conceded that there is
no plausible one-person, one-vote or VRA justification for dividing Beaufort and
Lee Counties in the Enacted House Plan.
(a)

Beaufort County.

There is no valid VRA or one-person, one-vote ground for dividing Beaufort
County. A map of the Enacted House Plan with regard to Beaufort County is set
forth below:

 - 125 -

At his deposition, Representative Lewis testified that he directed that
Beaufort be split for political reasons:
Q.

There‘s another change, Representative Lewis, that Beaufort
county is divided in Lewis-Dollar-Dockham 3 but not divided
in Lewis-Dollar-Dockham 2?

A.

Yes, sir. This was—This was a change that was made at the
request of one of our members, Representative Sanderson.

 - 126 Sometimes when you‘re in the political world and you‘ve got to
get enough votes to pass a plan, sometimes you have to make
some hard calls. Representative Cook was opposed to this call,
but ultimately it was—it was my choice to make.
(Doc. Ex. 2379).
Moreover, Beaufort County was not divided in the 1992, 2002, 2003 or 2009
enacted House plans or in Judge Jenkins‘s 2002 Interim Plan, and would not have
been divided by House Fair and Legal.25 Defendants have articulated no valid
reason for dividing Beaufort County in the Enacted House Plan.
(b)

Lee County.

A comparison of the Enacted House Plan to the House Fair and Legal
demonstrates that there is no one-person, one-vote justification for splitting Lee
County:

25

See 1992 House Base Plan 5 Map, 2002 Proposed House Plan – Sutton 5 Map,
2003 House Redistricting Plan Map, 2009 House Redistricting Plan Map, 2002
Jenkins Interim House Redistricting Plan Map and House Fair and Legal Map.
LDD1 and LDD2 as drawn by Hofeller and presented by Representative Lewis
likewise would have kept Beaufort whole. See LDD1 Map and LDD2 Map.
Beaufort was first divided in LDD3, see LDD3 Map, and that division was carried
forward in the Enacted House Plan.

 - 127 Enacted House Plan

House Fair and Legal Plan
(Not Enacted)

Lee County was not divided in the 1992, 2001, 2002, 2003 or 2009 enacted
House plans and would not have been divided in the House Fair and Legal Plan.26
Representative Lewis agreed that this district is not a VRA district in the Enacted
House Plan. (Doc. Ex. 2391). Defendants have articulated no valid reason for
dividing Lee County in the Enacted House Plan.

26

See 1992 House Base Plan 5 Map; 2001 Sutton House Plan 3 Map; 2002
Proposed House Plan – Sutton 5 Map; 2003 House Redistricting Plan Map; 2009
House Redistricting Plan Map; and House Fair and Legal Map.

 - 128 2.

Defendants Have The Burden Of Proving That A Section 2
Violation Would Have Occurred In Each District Constructed
Using Parts Of One Or More Counties And Drawn For The
Purpose Of Preempting A Section 2 Lawsuit.

The Court in Pender County established the burden of proof the Defendant
must bear in defending the formation of House and Senate districts from parts of
counties in order to preempt Section 2 lawsuits. It held:
Here, defendants drew House District 18 as a preemptive measure
against the possibility that a lawsuit might be filed challenging the
absence of a Section 2 district in southeastern North Carolina.
Plaintiffs claim that the current configuration of House District 18 was
not required by Section 2 and that the District violates the WCP, thus
placing defendants in the unusual position of having to defend a
legislative district by proving that a Section 2 violation would have
occurred if current House District 18 had not been created.
Accordingly, defendants here must bear the burden, normally borne
by plaintiffs, of establishing the Gingles preconditions. If they
succeed, defendants can demonstrate that the drawing of House
District 18 was required by Section 2, obviating the need to comply
with the WCP.
Pender County, 361 N.C. at 496, 649 S.E.2d at 367 (emphasis added). Defendants
cannot sustain that burden for either the Enacted Senate or House Plans. As the
United States Supreme Court has stated:
The state appellees suggest that a covered jurisdiction may have a
compelling interest in creating majority-minority districts in order to
comply with the Voting Rights Act. The States certainly have a very
strong interest in complying with federal antidiscrimination laws that
are constitutionally valid as interpreted and as applied. But in the
context of a Fourteenth Amendment challenge, courts must bear in

 - 129 mind the difference between what the law permits and what it
requires.
Shaw v. Reno, 509 U.S. 630, 654 (1993) (emphasis added). In the following
sections, Plaintiffs will demonstrate that in numerous instances the Defendants
divided counties for reasons not required by the VRA, including for example, the
pursuit of proportionality. Pender County places the burden on Defendants to
prove the necessity to divide a county to meet VRA requirements, a burden they
did not, and cannot, carry. That failure, as this Court explained in Stephenson II,
violates the WCP:
In Stephenson I, this Court harmonized the provisions of Article I,
Section 2, 3 and 5, and the WCP of Article II, Sections 3(3) and 5(3)
of the State Constitution and mandated that in creating legislative
districts, counties shall not be divided except to the extent necessary
to comply with federal law, including the “one-person, one-vote:
principle and the VRA.
Stephenson II, 357 N.C. at 309, 582 S.E.2d at 251 (emphasis added).
(a)

Pasquotank County.

A map of the Enacted House Plan with regard to Pasquotank County is set
forth below:

 - 130 -

Pasquotank County has historically been kept whole and not used to
construct a VRA district.27
27

Pasquotank County was not divided in the House plans enacted in 1991, 2001,
2002, 2003 or 2009 or in Judge Jenkins‘s 2002 Interim Plan. See 1992 House Base
Plan 5 Map, 2001 Sutton House Plan 3 Map, 2002 Proposed House Plan – Sutton 5
Map, 2003 House Redistricting Plan Map, 2009 House Redistricting Plan Map,
and 2002 Judge Jenkins Interim House Redistricting Plan Map. The BVAP in the
districts in which Pasquotank was included in those plans in those years did not
exceed 28%. See Combined House Voting Age Population Tables for 1992, 2001,
2002, 2003, 2009, and 2002 Interim Plans. Pasquotank also would not have been
divided in House Fair and Legal. See House Fair and Legal Map. Under that plan,
Pasquotank would have been joined with Camden, Currituck and Tyrell—which
would also have been kept whole—to form a district around the rim of the
Albemarle Sound. The BVAP in that district would have been 25.35%. See
House Fair and Legal District 1 Statistics. In the Enacted House Plan, Defendants
joined part of Pasquotank with Bertie, Hertford and Gates to form House District 5
with a BVAP of 53.54% and joined the remainder of Pasquotank with Currituck,
(Footnote Continued)

 - 131 Representative Lewis testified that Pasquotank was divided ―to get a
sufficient number of populations to create one of our VRA seats.‖ (Doc. Ex. 2390).
By dividing out the African American population in Elizabeth City from the rest of
Pasquotank and adding those citizens to neighboring districts, Defendants were
able to increase the number of VRA districts in northeastern North Carolina and
better achieve their goal of proportionality. Defendants have articulated no valid
reason for dividing Pasquotank County in the Enacted House Plan.
(b)

Richmond County.

A map of the Enacted House Plan with regard to Richmond County is set
forth below:

Camden, Perquimans and Chowan to form House District 1 with a BVAP of
18.62%. See Enacted House Plan District 5 Statistics and Enacted House Plan
District 1 Statistics. House districts 7, 23, 24, and 27 are all located in the
northeastern part of the State in the Enacted House Plan and have BVAPs of
50.02%, 51.43%, 56.61%, and 53.25%, respectively. See Enacted House Plan
District 7 Statistics, Enacted House Plan District 23 Statistics, Enacted House Plan
District 24 Statistics, and Enacted House Plan District 27 Statistics.

 - 132 -

Like Pasquotank, Richmond County has historically been kept whole and
not used to construct a VRA district.28 The Enacted House Plan assigns 19,048
28

It was not divided in the House plans enacted in 1992, 2001, 2002, 2003 or 2009
or in Judge Jenkins‘s 2002 Interim plan. See 1992 House Base Plan 5 Map, 2001
Sutton House Plan 3 Map, 2002 Proposed House Plan – Sutton 5 Map, 2003 House
Redistricting Plan Map, 2009 House Redistricting Plan Map, and 2002 Judge
Jenkins Interim House Redistricting Plan Map. The BVAP in the districts in which
Richmond was included during these years did not exceed 28%. See Combined
House Voting Age Population Tables for 1992, 2001, 2002, 2003, 2009, and 2002
Interim Plans. Richmond would also have been kept whole in House Fair and
Legal, and would have been joined with parts of Scotland and Moore to form a
district in which the BVAP was 26.37%. See House Fair and Legal Map and
House Fair and Legal District 51 Statistics. In the Enacted House Plan, Richmond
(Footnote Continued)

 - 133 Richmond County citizens to District 48 and the remaining 27,591 Richmond
citizens to District 66, and it assigns 13,455 Scotland citizens to District 48 and the
remaining 22,703 Scotland citizens to District 66. Had 19,408 Richmond citizens
been swapped with 19,408 Scotland citizens, Richmond County could have been
kept whole. Representative Lewis, however, never asked Hofeller to investigate
whether Richmond could be kept whole. (Doc. Ex. 2393).
(c)

Greene County.

A map of the Enacted House Plan with regard to Greene County is set forth
below:

is part of the 20 county cluster that stretches from Dare County to Montgomery
County. It is divided in jigsaw puzzle fashion between HD 48 which also includes
parts of Scotland, Hoke and Robeson Counties and HD 66 which also divides the
citizens of Richmond County and neighboring Scotland equally between Districts
48 and 66.

 - 134 -

Greene County was not divided in the 2003 or 2009 enacted House plans.29
In the Enacted House Plan, only 6,297 Greene County citizens are assigned to
District 10. Had those 6,297 Greene County citizens been swapped with 6,297
citizens of Wayne County—which has a population of 122,623—or Lenoir
County—which has a population of 59,495—Greene County could have been kept
whole.

29

See 2003 House Redistricting Plan Map and 2009 House Redistricting Plan
Map. It also would have been kept whole in House Fair and Legal and joined with
parts of Lenoir and Craven to form House District 12 as a VRA district in which
the BVAP was 45.88% . See House Fair and Legal Map and House Fair and Legal
District 12 Statistics. In the Enacted House Plan, Greene is part of the 20 county
cluster running from Dare to Montgomery.

 - 135 (d)

Bladen County.

A map of the Enacted House Plan with regard to Bladen County is set forth
below:

 - 136 Bladen County has historically been kept whole and not used to construct a
VRA district.30 Only 5,724 Bladen citizens are assigned to District 46 by the
Enacted House Plan. Had these 5,724 Bladen citizens simply been swapped for
5,724 citizens from either Robeson—which has a population of 101,469—or
Sampson—which has a population of 50,495—Bladen County could have been
kept whole.
(e)

Duplin County.

A map of the Enacted House Plan with regard to Duplin County is set forth
below:

30

Bladen County was kept whole in the House plans enacted in 1992, 2001, 2002,
2003, 2009 and in Judge Jenkins‘s 2002 Interim Plan. See 1992 House Base Plan
5 Map, 2001 Sutton House Plan 3 Map, 2002 Proposed House Plan – Sutton 5
Map, 2003 House Redistricting Plan Map, 2009 House Redistricting Plan Map,
and 2002 Judge Jenkins Interim House Redistricting Plan Map. The BVAP in the
districts in which Bladen was included during these years did not exceed 28%.
Bladen also would have been kept whole by House Fair and Legal and joined with
parts of Robeson and Cumberland to form House District 50 in which the BVAP
would have been 29.05%. See House Fair and Legal Map and House Fair and
Legal District 50 Statistics.

 - 137 -

Duplin County was not divided in the 2003 or 2009 enacted House plans.31
The part of the population of Duplin assigned to District 21 in the Enacted House
Plan is 21,145. The population of Wayne County is 122,623. Simply by switching
the 21,145 Duplin citizens with 21,145 of the 122,623 citizens in Wayne County,
Duplin County could have been kept whole.
31

See 2003 House Redistricting Plan Map and 2009 House Redistricting Plan
Map. It also would have been kept whole by House Fair and Legal and joined
with part of Pender to form House District 15 in which the BVAP is 27.33%. See
House Fair and Legal Map and House Fair and Legal District 15 Statistics. In the
Enacted House Plan, Duplin is part of the 20 county cluster running more than
halfway across the state.

 - 138 3.

There Is No Valid VRA Basis For Splitting Wilson Or Lenoir
Counties In The Enacted Senate Plan.

One means by which Defendants achieved their goal of proportionality in
the Enacted Senate Plan was by drawing an additional majority-minority district in
the northeast so that that area of the State would include for the first time three
districts with an African-American population greater than 50%. (Doc. Ex. 1993).
Wilson and Lenoir counties were both divided in pursuit of that goal.
The following analysis of these counties, and the districts within which
Defendants placed these pieces of counties, is based entirely on Defendants‘ own
documents and data. It demonstrates that these counties were divided by Senator
Rucho and Mr. Hofeller in furtherance of their goal of proportionality.
Proportionality is not required by the Voting Rights Act and under Stephenson a
county may be divided only to the extent required by the Voting Rights Act.
(a)

Wilson County.

A map of the Enacted Senate Plan with regard to Wilson County is set forth
below:

 - 139 -

Wilson County was kept whole in the 2002 and 2003 enacted Senate plans
and in Judge Jenkins‘s 2002 Interim Senate plan.32 There are 190,991 citizens
32

See 2002 Proposed Senate Plan – Fewer Divided Counties Map, 2003 Senate
Redistricting Plan Map, and 2002 Judge Jenkins Interim Senate Redistricting Plan
Map. The districts within which Wilson was included in these plans during these
years had a BVAP that did not exceed 34%. See Combined Senate Voting Age
Population Tables for 2002, 2003, and 2002 Interim Plans. Wilson would also
have been kept whole in Senate Fair and Legal and joined with three other whole
counties (Edgecombe, Martin and Bertie) to form Senate District 3 which would
(Footnote Continued)

 - 140 assigned to District 4, of whom 29,190 live in Wilson County. The population of
the part of Nash County assigned to District 11 is 55,124. Simply by switching the
29,190 Wilson County citizens assigned to District 4 for 29,190 of the 55,124 Nash
County citizens assigned to District 11, Wilson County could have been kept
whole. See Fifth Affidavit of Christopher D. Ketchie (demonstrating that ―[i]t is
possible to draw Senate district 4 with a BVAP above 50% and a deviation in
between +/-5%, while using the same 10 county grouping and avoiding a split to
Wilson County‖) (Doc. Ex. 6345).
(b)

Lenoir County.

A map of the Enacted Senate Plan with regard to Lenoir County is set forth
below:

have had a BVAP of 46.53%. See Senate Fair and Legal Map and Senate Fair and
Legal District 3 Statistics. Wilson County is included in District 4 in the Enacted
Senate Plan. Senate District 4 is a VRA district created by Defendants by joining
together all of Vance, Warren, and Halifax counties with an appendage extending
southward from Halifax County through part of Nash County and then into part of
Wilson County. In effect, the Enacted Senate Plan uses the northern and eastern
parts of Nash County as a path to get into part of Wilson County. District 11
adjoins District 4 and includes the parts of Wilson County not included in District
4 as well as part of Johnston County.

 - 141 -

Lenoir County was kept whole in the 2002 and 2003 enacted Senate plans
and in Judge Jenkins‘s 2002 Interim Senate plan.33 In the Enacted Senate Plan,
Lenoir is included in Senate District 5, which is a VRA district created by

33

See 2002 Proposed Senate Plan – Fewer Divided Counties Map, 2003 Senate
Redistricting Plan Map, and 2002 Judge Jenkins Interim Senate Redistricting Plan
Map. The districts within which Lenoir was included in these plans in these years
did not have a BVAP that exceeded 39%. See Combined Senate Voting Age
Population Tables for 2002, 2003, and 2002 Interim Senate Plans. Lenoir would
also have been kept whole in Senate Fair and Legal and joined with Wayne
County, which was also kept whole, to form Senate District 12 in which the BVAP
was 33.41%. See Senate Fair and Legal Map and Senate Fair and Legal District 12
Statistics.

 - 142 Defendants by joining all of Greene County with parts of Wayne, Lenoir and Pitt.
In effect, District 5 was created by extending appendages from the core of the
district into Lenoir and Wayne counties. There are 181,547 citizens assigned to
District 5 of whom 28,640 live in Lenoir County. District 7 adjoins District 5 and
includes the parts of Wayne, Lenoir and Pitt counties not included in District 5.
The part of the population of Wayne County assigned to District 7 is 76,371.
Simply by substituting the 28,640 Lenoir County citizens assigned to District 5 for
28,640 of the 76,371 Wayne County citizens assigned to District 5, Lenoir County
would have been kept whole.
D.

Conclusion.

For the reasons stated above, the Defendants have failed to strictly comply
with the Stephenson criteria, and this Court should hold that the Enacted Senate
and House Plans are unconstitutional violations of the Whole Counties Provision.
VI.

THE TRIAL COURT ERRED IN CONCLUDING THAT THE
CONSTITUTION DOES NOT REQUIRE THE GENERAL
ASSEMBLY TO DRAW COMPACT DISTRICTS
The trial court held that the constitutional requirement of compactness was

not violated on two grounds: (1) compactness is not an independent constitutional
requirement (R p 1324); and (2) even if compactness is an independent
constitutional requirement, there is no uniformly ―adopted judicial standard by

 - 143 which to measure compliance.‖ (R p 1325). This Court, under de novo review,
must consider the conclusions of law anew and ―freely substitute[] its own
judgment for that of the lower tribunal.‖ Craig v. New Hanover County Bd. of
Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009). The trial court‘s holdings
are exactly opposite of this Court‘s holdings in the Stephenson decisions. Indeed,
upholding the trial court‘s ruling would result in irregularly-shaped districts that
were unconstitutionally non-compact in 2003 becoming constitutional just ten
years later.
A.

Compactness is a State Constitutional Requirement.

The trial court‘s rejection of compactness as a constitutional standard is
directly contradicted by the analysis of compactness that was central to this Court‘s
evaluation of the constitutionality of districts in the Stephenson decisions and in
the Court‘s plain words in those decisions. For all districts not deemed necessary
to meet the State‘s VRA obligations, the Court in Stephenson I directed that such
districts located within a single county ―shall be compact‖ and that ―compact
districts shall be formed‖ within all multi-county districts. Stephenson I, 355 N.C.
at 383-84, 562 S.E.2d at 397 (emphasis added). For VRA districts, the Court
directed compliance with compactness ―to the maximum extent practicable.‖ Id. at
382, 562 S.E.2d at 397. For both VRA and non-VRA districts, the Court directed

 - 144 that ―any new redistricting plans . . . shall depart from the legal requirements set
forth herein only to the extent necessary to comply with federal law.‖ Id. at 384,
562 S.E.2d at 398.
In Stephenson II, these compactness directions were labeled ―requirements
that must be present in any constitutionally valid plan.‖ 357 N.C. at 305, 582
S.E.2d at 250. Notably, the trial court order reviewed and affirmed in Stephenson
II made the specific finding that ―[t]he Stephenson criteria include the requirement
that districts should be compact and contiguous. If a given district fails to meet
either of these requirements, the district is non-compliant with Stephenson.‖
Stephenson v. Bartlett, No. 01 CVS 2885 (17 April 2003), p. 304 (copy attached
hereto as Appendix 10).

Further, the findings of non-compact districts were

presented under the heading ―Failures of Compactness‖ for the House districts and
the heading ―Compact and Contiguous‖ for the Senate districts. Stephenson II, 357
N.C. at 305, 582 S.E.2d at 250.
Indeed, compactness is the only explanation for this Court‘s decision in
Stephenson that certain districts were invalid. As just one example, the Supreme
Court in Stephenson II struck down House Districts 76 and 77 (which were nonVRA districts located only in Rowan County) on the ground of compactness; no
other ground was cited by the trial court or this Court for their invalidity. In this

 - 145 case, the trial court‘s order states that ―nothing in Stephenson II suggests that,
standing alone, without a WCP violation, the failure to achieve compliance with
traditional redistricting criteria would be sufficient to defeat a legislatively enacted
redistricting plan.‖ (R p 1324). Yet, the striking down of House Districts 76 and
77 in Stephenson II reflects exactly that: there were no WCP violations for two
districts drawn entirely within Rowan County, and the lack of compactness is the
only basis for striking down these districts. The Supreme Court, of course, has no
power to strike down legislative districts on any ground other than
unconstitutionality (or the violation of a federal statute, which was not at issue in
Rowan County).
It is true that the word ―compact‖ does not appear in the Constitution, but as
explained in the Stephenson decisions, compactness is a constitutional, antigerrymandering principle based on the Equal Protection Clause of the State
Constitution. The trial court in Stephenson II, affirmed by this Court, noted the
same: ―The 2002 House and Senate plans enacted by the General Assembly
contain districts that are not sufficiently compact to meet the requirements of the
equal protection clause.‖ Stephenson II, 357 N.C. at 308, 582 S.E.2d at 251
(emphasis added). When the General Assembly assigns some citizens to compact
districts and others to non-compact districts, it unequally burdens the fundamental

 - 146 right to vote for citizens assigned to non-compact districts.

The notion that

different forms of districts unequally burden the right to vote was discussed and
applied by this Court in Stephenson I in analyzing the constitutionality of the use
of multi-member districts in redistricting plans. Observing that ―it is well settled in
this State that the right to vote on equal terms is a fundamental right,‖ which
guarantees all citizens ―substantially equal voting power,‖ this Court held:
In our view, use of both single-member and multi-member districts
within the same redistricting plan violates the Equal Protection clause
of the State Constitution unless it is established that the inclusion of
multi-member districts advances a compelling state interest.
Stephenson I, 355 N.C. at 378 -79, 393, 562 S.E.2d at 393. Multi-member districts
produce ―unwieldy, confusing and unreasonably long ballots,‖ as contrasted with
single-member districts, and result in ―an impermissible distinction among
similarly situated citizens based on the population area in which they reside.‖ Id.
at 377-78, 562 S.E.2d at 393. Multi-member districts also give their voters an
unfair advantage over voters in single-member districts because the multi-member
voter has more representation. ―It is a political reality that legislators are much
more inclined to listen to and support a constituent than an outsider with the same
problem.‖ Id. at 380, 562 S.E.2d at 395 (quoting Kruidenier v. McCulloch, 258
Iowa 1121, cert denied, 385 U.S. 851 (1966)).

 - 147 And so it is with citizens assigned to non-compact districts. Ragged and
meandering district lines cause confusion among both voters and their
representatives. Voters do not know who the candidates for district elections are
and do not know who represents them after the election. Representatives do not
know who their constituents are and to whom they should be responsive. (Doc.
Ex. 3319-36). Sometimes district lines divide single family homes and apartment
buildings and complexes into different districts. (Doc. Ex. 3287). As compared to
citizens assigned to compact districts, citizens assigned to non-compact districts
have an unequal opportunity to ―instruct their representatives‖ and ―to apply to the
General Assembly for redress of grievances.‖ N.C. Const. Art. I, § 12.
In sum, compactness is a traditional redistricting criteria mandated by North
Carolina‘s Constitution, as evidenced by Stephenson, the language of the
Constitution, and equal protection principles.
B.

This Court Applied Compactness Standards in Stephenson II.

The trial court‘s conclusion that a compactness claim is not justiciable
because there is no uniformly ―adopted judicial standard by which to measure
compliance‖ (R p 1325) ignores this Court‘s decision in Stephenson II. There this
Court adopted concrete, visual examples of districts failing to meet minimum
constitutional compactness standards that the trial court could have, and should

 - 148 have, applied here. Set out below are maps of six 2002 Senate Districts this Court
in Stephenson II affirmed ―to violate the Stephenson mandate that districts shall be
compact,‖ 357 N.C. at 310, 582 S.E.2d at 252, and maps of 17 House districts this
Court in Stephenson II affirmed ―are not compact and fail to strictly comply with
Stephenson.‖ Id. at 313, 582 S.E.2d at 254.
Senate Districts Declared Unconstitutionally Non-Compact
in Stephenson II

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- 153 These concrete examples of non-compact, unconstitutional districts plainly
refute the trial court‘s observation that there is ―no adopted judicial standard by
which to measure compliance‖ with compactness. (R p 1325).
C.

By the Concrete Standards Established by this Court in
Stephenson II At Least Nine 2011 Senate Districts Are
Unconstitutionally Non-Compact.

There is no need to remand these cases to the trial court to apply the
compactness standards established by the Court in Stephenson II. A simple visual
comparison of the shape of the Senate districts found unconstitutional in
Stephenson II and the Senate districts challenged in these cases establishes the
merits of Plaintiffs‘ claims. Maps of these nine challenged districts are set out
below.

  

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- 156 -

D.

By the Concrete Standards Established by this Court in
Stephenson II at Least Sixteen House Districts are
Unconstitutionally Non-Compact.

Just as there is no need to remand these cases to the trial court to apply the
compactness standards established by this Court in Stephenson II to challenged
Senate districts, there is no need for remand to make that determination for House
districts.

A visual comparison of the shape of the 17 House districts found

unconstitutional in Stephenson II and the House districts challenged here will
establish the merits of Plaintiffs‘ claims. Maps of the challenged districts in the
Enacted House plan are set forth below.

  

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- 161 E.

The Compactness Requirements Established In Stephenson II
Apply To Congressional Districts As Well As Legislative Districts.

Congress has delegated to the States the power to draw congressional
districts.

2 U.S.C. § 1.

In exercising that power, the General Assembly is

constrained by the provisions of the Equal Protection Clause of the State
Constitution. While compactness is not an independent requirement under the
federal constitution, it is, as established earlier, a requirement under the Equal
Protection Clause of the State Constitution and must also be applied to
congressional districts.34
The examples of the Senate and House districts declared unconstitutionally
non-compact in Stephenson II provide an appropriate standard for this Court to
adjudicate the non-compactness of the 2011 congressional districts. The twists and
turns of district lines joining together citizens who have no other boundaries or
communities in common are as evident in the Congressional plan as in the House

34

Earlier the Equal Protection Clause of the United States Constitution was also
thought to include a compactness requirement. See Drum v. Seawell, 271 F. Supp
193, 194 (M.D.N.C. 1967) (three judge court) (―Regretfully, we note that tortuous
lines still delineate the boundaries of some of the districts, particularly the Ninth
and Tenth Districts. As we previously observed with respect to the two houses of
the State Legislature, we assume that when congressional districts are
reapportioned following the 1970 decennial census, each congressional district will
be so drawn as to not only achieve equal representation for equal numbers of
people as nearly as practicable but will also be reasonably compact.‖) (emphasis
added).

 - 162 and Senate plans. The only differences are the scale of the violations and the
number of citizens whose rights are violated.
CD 1 is depicted below.

It is formed from 5 whole counties and ragged pieces of 18 counties. The
perimeter of the district is 1,319.37 miles long, and the district itself spans almost
half the state.

Previous versions of this district challenged on federal racial

gerrymander grounds, but not state constitutional compactness grounds, were

 - 163 equally non-compact, but at least embraced an area of the State that was uniformly
rural. See Shaw v. Hunt, 861 F. Supp. 408, 470 (E.D.N.C. 1994) (three-judge
court) (observing that the ―distinctively rural‖ character of CD 1 ―is a fact so much
within the common knowledge of inhabitants of the state that it probably is subject
to judicial notice.‖). The 2011 version abandons that ―distinctively rural‖ area for
Durham which includes approximately one-quarter of the district‘s population.
CD 4 is depicted below.

 - 164 CD 4 bears no resemblance to any congressional district previously
established by the General Assembly. No whole county is included in CD 4. It is
composed entirely of ragged pieces of 6 counties and completely dissects three
counties (Chatham, Harnett and Cumberland).
CD 12 is depicted below.

Like CD 1, CD 12 has been challenged previously on racial gerrymander
grounds. The conclusions of the federal courts regarding the compactness of the

 - 165 district in a racial-gerrymander context are instructive with regard to the lack of
compactness of the district in a state equal protection context. In Cromartie v.
Hunt, 133 F. Supp. 2d 407 (E.D.N.C. 2000) (three judge court), the 1997 version
of CD 12 was challenged on racial gerrymander grounds. The version of CD 12
challenged there is almost identical in shape to the version of the district
challenged here. Large Black populations in Mecklenburg county are joined by a
land bridge to large Black populations in Forsyth and Guilford counties. The only
differences between the 1997 and 2011 versions are the counties used as the land
bridge. The 1997 and 2011 versions of CD 12 are depicted below:

The Cromartie district court described the 1997 version of CD 12 as a
―racial archipelago‖ constructed by the General Assembly without any regard for

 - 166 ―traditional districting criteria such as contiguity, geographical integrity,
community of interest and compactness.‖ 133 F. Supp. 2d at 420. This part of the
district court‘s order was not disturbed on appeal.

That description remains

accurate today.
VII. THE TRIAL COURT ERRED IN REJECTING PLAINTIFFS’ CLAIM
THAT THE UNNECESSARY SPLITTING OF PRECINCTS
UNCONSTITUTIONALLY BURDENS THE RIGHT TO VOTE
A.

Standard of Review.

―De novo review is ordinarily appropriate in cases where constitutional
rights are implicated.‖ Libertarian Party v. State, 365 N.C. 41, 46, 707 S.E.2d
199, 202-203 (2011).
B.

Introduction.

Plaintiffs alleged in their complaints that North Carolinians are being
deprived of the fundamental right to vote as the result of the Defendants‘ actions
creating two classes of voters: a class assigned to split precincts who are burdened
by the problems of split precincts, and a class of voters not assigned to split
precincts who are not burdened by the problems of split precincts. (R pp 246-47,
1332). Additionally, the burdens of these splits are disproportionately borne by
Black voters in the State, in violation of the state and federal equal protection
guarantees.

 - 167 There is no dispute in the evidence about the scope of precinct-splitting
Defendants engaged in when drawing the enacted House and Senate plans. More
than a million citizens (1,326,244) reside in the 257 precincts Defendants split in
constructing the enacted Senate plan and almost two million citizens (1,878,626)
reside in the 395 precincts Defendants split in constructing the House plan.
Overall, Defendants assigned more than one-quarter of North Carolina‘s voters to
split precincts (Hall Aff. ¶ 16) (Doc Ex. 423). And that burden is borne differently
by race—in the Enacted House Plan, 26.8% of the state‘s Black voting age
population lives in a split VTD, while only 16.6% of the state‘s white VAP lives in
a split VTD. In the Senate Plan, 19.4% of the state‘s BVAP lives in a split VTD,
while only 11.8% of the state‘s WVAP lives in a split VTD. (Doc. Ex. 1203).
There is no precedent for this action either in terms of the number of citizens
impacted or the departure from established public policy. Only 55 precincts were
split in the 2003 Senate plan and only 198 in the 2003 House plan. (R pp 342,
550-52). Since 1995, the State‘s public policy, as established by the General
Assembly itself, has been to enact redistricting plans ―without splitting precincts‖
except as required to comply with the state or federal constitutions or federal law.
1995 S.L. 423 § 2, amended by 2006 S.L. 264 § 75.5(a). No anomaly in the 2010
Census or change in the configuration of precincts by the counties made the

 - 168 General Assembly abandon past practices and policy in 2011. A competing 2011
Senate plan would have split 6 precincts instead of 257 precincts and a competing
House plan would have divided 129 precincts instead of 395 precincts. (R pp 342,
550-52).
Nor is there any dispute in the evidence that precinct-splitting on the scale
employed by Defendants creates substantial burdens on the democratic process and
individual voters and candidates for elected office.

As the former Executive

Director of the State Board of Elections testified, the integrity of the elections
process and election results depends on the correct assignment of voters to their
electoral districts. (Doc. Ex. 1484). The larger the number of precincts split, the
greater the risk to the democratic process, voters and candidates. (Doc. Ex. 1485).
The unprecedented number of precincts split by the enacted plans imposed
significant burdens on election officials to assure that voters were properly
assigned.

Despite the herculean effort of election officials, a State Board of

Elections post-primary and post 2012 general election audit found that more than
10,000 voters had not yet been assigned to their correct district. (Doc Ex. 632021). Voters who are assigned to the incorrect voting district are disenfranchised—
they will not be able to cast a vote in elections in which they are legally entitled to
vote. More perniciously, a statistical survey taken just before the May 2012

 - 169 primary established that both Republican and Democratic voters in split precincts
are less likely to be able to correctly identify the candidates in their districts than
voters in split precincts. When citizens do not know who their representatives are
they cannot effectively exercise their basic constitutional right ―to instruct their
representative and to apply to the General Assembly for the redress of grievances.‖
N.C. Const. Art. I, §12.
These are precisely the results the legislature should have anticipated when
they abandoned the integrity of the precinct voting system which ―is woven
throughout the fabric of our election laws.‖ James v. Bartlett, 359 N.C. 260, 270,
607 S.E.2d. 638, 644 (2005). Further, as a direct consequence of Defendants‘
focus on separating citizens into districts based on the color of their skin, these
harms fell more heavily on African-American citizens. Members of the General
Assembly‘s staff acknowledged that African-American citizens were far more
likely to be assigned to split precincts than white citizens. (Doc. Ex. 1203).
In the face of these facts, the trial court concluded that Plaintiffs‘ claim
―must fail as a matter of law‖ (R p 1333): (1) because there is no authority
―providing constitutional relief on a claim of split precincts,‖ id.; (2) because
―there is no judicially manageable standard for when a redistricting plan splits an
excessive number of precincts‖ (R p 1334); and (3) because in any event the

 - 170 ―General Assembly must be given leeway‖ ―to achieve compelling governmental
interests of avoiding § 2 liability and to ensure preclearance under § 5 of the
VRA.‖ (R p 1335). Further, in the trial court‘s view, ―Plaintiffs have not proferred
any alternative plan that shows that the General Assembly could have achieved its
legitimate political and policy objectives in alternate ways with fewer split
precincts.‖ (R p 1336). None of these grounds are valid.
Stephenson I refutes the trial court‘s first two points. ―It is well settled in
this state that the right to vote on equal terms is a fundamental right.‖ 355 N.C. at
376, 562 S.E.2d at 393. Assigning voters to different forms of districts—single
member and multi member districts in Stephenson; districts made up of whole
precincts and others made up of pieces of precincts here—―implicates the
fundamental right to vote on equal terms, and thus strict scrutiny is the applicable
standard.‖ Id. Strict scrutiny does not involve the application of any ―judicially
manageable standard.‖ It simply requires the legislature to come forward and
prove that its actions were necessary to meet some compelling interest and that it
carefully structured those actions to minimize any impact on the right of citizens to
vote on equal terms. Under state constitutional principles, the Defendants, not the
Plaintiffs, have that burden. Id. at 377, 562 S.E.2d at 393. (―Under strict scrutiny,

 - 171 a challenged governmental action is unconstitutional if the state cannot establish
that it is narrowly tailored to advance a compelling governmental interest.‖)
Defendants‘ mapmaker, Hofeller, testified splitting precincts was one of the
tools he used to create majority African-American districts. (Hofeller Dep. Ex
513; Doc. Ex. 299).

As established earlier, that is not a compelling interest

sufficient to justify infringing the right to vote on equal terms, and it certainly does
not justify the racial classifications imposed in splitting precincts. As for narrow
tailoring, the Court need only consider that the 2003 General Assembly, which
faced precisely the same whole county, one-person, one-vote and Section 2
obligations as the 2011 General Assembly, was able to achieve all those
obligations with 205 (257-55) fewer split precincts in the Senate plan and 197
(395-198) fewer split precincts in the House plan.
Dividing an unprecedented number of precincts undermines voters‘
confidence in the election system by turning the system‘s most basic unit into an
administrative labyrinth of district lines, multiple ballot styles and segmented
neighborhoods. Where there are multiple points of confusion leading up to the
ballot box, a voter cannot have confidence that his ballot will be cast fairly and
counted fairly along with the votes of voters in whole precincts. As the North
Carolina Court of Appeals has observed:

 - 172 Every voter is entitled to place confidence in the election system.
Every voter is entitled to assume that every other vote is cast legally.
He is entitled to have his vote counted honestly and fairly along with
the other votes, which have been cast honestly and counted honestly
and fairly. Anything less is a threat to the democratic system which is
wholly dependent upon elections conducted fairly and honestly.
In re Judicial Review by Republican Candidates for Election in Clay County, 45
N.C. App. 556, 573, 264 S.E.2d 338, 347 (1980).
VIII. THE TRIAL COURT ERRED IN DISMISSING THE PLAINTIFFS’
CLAIMS THAT DEFENDANTS REDISTRICTING PLANS
VIOLATE THE GOOD OF THE WHOLE CLAUSE IN ARTICLE I,
SECTION 2 OF THE CONSTITUTION
A.

Standard of Review.

―De novo review is ordinarily appropriate in cases where constitutional
rights are implicated.‖ Libertarian Party v. State, 365 N.C. at 46, 707 S.E.2d at
202-203.
B.

Introduction.

In their First Amended Complaints, the Plaintiffs allege that one of the
limitations imposed by the people on the General Assembly when redrawing
legislative and congressional districts is that such legislation must be for ―the good
of the whole.‖ N.C. Const. art. I, § 2. (R pp 240-43, 316-17). The trial court
dismissed that claim on Defendants‘ Rule 12(b) motion. (R pp 444-45). That was
error. The Good of the Whole Clause limits the General Assembly in enacting
legislation and congressional redistricting plans.

 - 173 Article I of the Constitution is entitled ―Declaration of Rights.‖

It

establishes the ―essential principles of liberty and free government‖ that constrain
the General Assembly‘s power to make the law. The second of those essential
principles is:
All power is vested in and derived from the people; all government of
right originates from the people, is founded on their will only, and is
instituted solely for the good of the whole.
N.C. Const. art. I, § 2. There is nothing ambiguous or uncertain about the meaning
of these words. The people of this State approved the Constitution on condition
that the General Assembly would exercise its power to make the law for the good
of all the people, not just some of the people.
C.

The Case Law Clearly Demonstrates that Claims Based on the
Good of the Whole Clause of the Constitution are Justiciable and
its Provisions Enforceable by the Courts.

Numerous cases demonstrate that the Good of the Whole Clause contained
in Article I, Section 2 does place substantive limitations upon the actions of the
government. In Hinton v. Lacy, 193 N.C. 496, 137 S.E. 669 (1927), the Supreme
Court stated that the Good of the Whole Clause substantively limits the actions of
the North Carolina General Assembly. In Hinton, the plaintiff challenged the
constitutionality of certain bonds issued by the State in order to finance homeloans to World War I veterans. The Supreme Court evaluated the constitutionality

 - 174 of the bonds under several clauses of the North Carolina Constitution, including
the Good of the Whole Clause. The Court stated as follows:
The second section of Article I of the present Constitution (1868)
says: ―That all political power is vested in, and derived from, the
people; all government of right originates from the people, is founded
upon their will only, and is instituted solely for the good of the
whole.‖
The present act, we think, is … for the good of the whole, and comes
clearly within the limitations and restrictions of the Constitution of
this State.
[…]
What is … for ―good of the whole‖ has given rise to no little judicial
interpretation and consideration. Some courts have taken a liberal
view, and to a great extent left it to the determination of the
Legislature and referendum of popular vote, but we should ever be
mindful that the Constitution to a great extent is the rudder to keep the
ship of State from off the rocks and reefs.
Hinton, 193 N.C. 496 at 501, 509, 137 S.E. at 672, 676.
Hinton was decided under the North Carolina Constitution of 1868, as
amended.35 When a new North Carolina Constitution was enacted in 1971, the
drafters re-emphasized that the provisions of Article I of the Constitution are not
mere admonitions. That much is made clear by the report of the drafters of the
1971 Constitution, which stated:

35

The Good of the Whole Clause has appeared in its present form unchanged since
at least the North Carolina Constitution of 1868.

 - 175 In order to make clear that the rights secured by the declaration of
rights are commands and not merely admonitions to proper conduct
on the part of the government, the words ―ought‖ and ―should‖ have
been changed to shall throughout the declaration.
Report of the North Carolina State Constitution Study Commission (1968)
(emphasis added). Indeed, it is axiomatic that the provisions set forth in the
Declaration of Rights provide for justifiable rights; otherwise, those constitutional
provisions would be meaningless.36

―The civil rights guaranteed by the

Declaration of Rights in Article I of our Constitution are individual and personal
rights entitled to protection against state action.‖ Corum v. University of North
Carolina, 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992). ―The very purpose of
the Declaration of Rights is to ensure that the violation of these rights is never
permitted by anyone who might be invested under the Constitution with the powers
36

Many other provisions in the Declaration of Rights are just as abstract, if not
more abstract, than the Good of the Whole Clause, yet North Carolina courts have
consistently found justiciable issues arising out of these other provisions. See, e.g.,
Lowe v. Tarble, 313 N.C. 460, 329 S.E.2d 648 (1985) (holding that N.C.G.S. § 245 did not violate the Law of the Land Clause of Article I, Section 19); Virmani v.
Presbyterian Health Servs. Corp., 350 N.C. 449, 515 S.E.2d 675 (1999) (holding
that Article I, Section 18 of the North Carolina Constitution, the Open Courts
Clause, granted the public a judicially-enforceable, qualified right to attend civil
court proceedings); State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940) (treating
Article I, Section 1, ―enjoyment of the fruits of their own labor,‖ as justiciable);
Leandro v. State, 346 N.C. 336, 488 S.E.2d 249 (1997) (treating Article I, Section
15, the ―right to the privilege of education,‖ as justiciable). The abstract language
of these other provisions in the Declaration of Rights has not precluded North
Carolina‘s Supreme Court from nonetheless treating them as justiciable and
judicially-enforceable.

 - 176 of the State.‖ Id. at 783, 413 S.E.2d at 290. ―It is axiomatic under our system of
government that the Constitution within its compass is supreme as the established
expression of the will and purpose of the people. Its provisions must be observed
by all … . It is not in accord with the nature of written constitutions to incorporate
nonessential or unimportant details which may be dispensed with.‖

Advisory

Opinion in Re House Bill No. 65, 227 N.C. 708, 713, 43 S.E.2d 73, 76 (1947). If
the Good of the Whole Clause is to mean anything, as it must, then individuals
must be able to rely on it when the legislature redraws legislative and
congressional districts and institutes a new form of government. And if individuals
are entitled to rely on it, the courts must have the power to enforce it.
This Court in Stephenson I in fact relied on the Good of the Whole Clause as
one source of the anti-gerrymandering limitations imposed on the General
Assembly by the people when they approved the Constitution. There the Court
affirmed the trial court‘s holding that several constitutional provisions (including
Article I, Section 2) required the courts to ―harmonize‖ the North Carolina
Constitution with federal law, in order to avoid invalidating any constitutional
provisions, to the extent possible. The trial court had held as follows:
The Court concludes that Article I, Sections 2, 3, and 5, require that
the North Carolina Constitution should be harmonized with any
applicable provisions of federal law, so as to avoid any conflict
between the North Carolina Constitution and federal law.

 - 177 Under a harmonized interpretation of Article I, Sections 2, 3, and 5
and Article II, Sections 3(3) and 5(3), the North Carolina Constitution
prohibits the General Assembly from dividing counties into separate
Senate and House districts, except to the extent that counties must be
divided to comply with federal law.
Stephenson I, 355 N.C. at 359, 562 S.E.2d at 382. The Supreme Court affirmed
this portion of the trial court‘s holding (which was referred to as the ―State
Constitutional Analysis‖). The Supreme Court‘s holding in Stephenson I thus
confirms that Article I, Section 2 of the North Carolina Constitution is a source of
substantive law.
This Court in Stephenson I also emphasized that when courts construe the
North Carolina Constitution in the context of redistricting disputes, the courts must
consider the public‘s interest in avoiding ―unnecessarily complicated and
confusing district lines‖:
[O]ur holding accords the fullest effect possible to the stated
intentions of the people through their duly adopted State Constitution,
the subject provisions of which have remained in place without
amendment since 1971. [The] ―all-or-nothing‖ interpretation [which
was argued by the appellants, in support of totally invalidating the
Whole-Counties Provision] is inordinately mechanical in its
application, leaving no room to carry out the spirit or intent of the
State Constitution in contravention of time-honored principles of
federalism. This construction needlessly burdens millions of citizens
with unnecessarily complicated and confusing district lines.
Id. at 375, 562 S.E.2d at 392 (emphasis supplied and internal citations omitted).
The public interest identified in Stephenson I is, of course, the crux of the

 - 178 Plaintiffs‘ claims under the Good of the Whole Clause that the challenged
legislative and congressional plans are replete with ―complicated‖ and ―confusing‖
district lines to the detriment of the Good of the Whole.
D.

The Trial Court Ignored the Special Limitations Imposed on the
General Assembly by the Good of the Whole Clause when
Drawing New Electoral Districts Following the Census.

As Stephenson I illustrates, redistricting is plainly one of those types of cases
where the courts‘ role is ―to keep the ship of State from off the rocks and reefs.‖
Hinton v. Lacy, 193 N.C. 496 at 501, 509, 137 S.E. at 672, 676. Contained within
the concepts reflected in Article I, Section 2 (which was expressly relied upon by
the Court in Stephenson I) is a specific limitation on the powers of the General
Assembly with regard to redistricting: ―All government of right … is instituted
only for the good of the whole.‖ The sole form of legislation enacted by the
General Assembly by which the government ―is instituted‖ is the decennial
legislation redrawing legislative and congressional districts. That is the plain
meaning of ―to institute,‖ which has been defined as: ―to set up; establish: to
institute a government.‖ The Random House Dictionary of the English Language,
Unabridged Edition (1981). When the General Assembly enacts ordinary laws to
protect the public health, welfare or safety, it does not ―institute‖ laws, but when

 - 179 the General Assembly redraws legislative and congressional districts every ten
years, it ―institutes‖ a new form of government.
Even if the framers of the Constitution conceivably intended to assure that
ordinary legislation is for ―the good of the whole‖ only by making legislators
accountable to the public at elections held every other year, that check does not
exist for redistricting legislation.

The Constitution itself provides that once

―established,‖ legislative districts ―shall remain unaltered until the return of
another decennial census of population taken by order of Congress.‖ N.C. Const.
art. II, §§ 3(4) and 5(4). Imposing heightened limitations on the General Assembly
when it institutes a new government through the redrawing of electoral districts is
also entirely consistent with the plan of our Constitution. Just as districts must be
drawn ―solely for the good of the whole,‖ so too the Constitution itself may not be
changed merely upon a majority vote of both the Senate and House. That power is
expressly reserved to the people, either through a Convention of the People
followed by a vote of the People, or through legislation approved by a three-fifths
vote of both the House and Senate, followed by a vote of the People. N.C. Const.,
art. XIII, §§ 2-4.
Thus, even if the Good of the Whole Clause of the Constitution does not
provide grounds for challenging most forms of legislation, it does limit the power

 - 180 of the General Assembly when it institutes new districts once each decade from
which the people will elect their representatives to the General Assembly and
Congress for the next five election cycles. Plaintiffs therefore respectfully request
the Court to reverse the trial court‘s order dismissing their claims based on the
Good of the Whole Clause of the Constitution and declare that the Good of the
Whole Clause limits the power of the General Assembly to enact legislative and
congressional plans.
CONCLUSION
For all these reasons, Plaintiffs respectfully request this Court to reverse the
trial court and declare that the 2011 House, Senate and Congressional redistricting
plans enacted by the Defendants violate the United States and North Carolina
Constitutions and must be redrawn. Specifically, Plaintiffs ask this Court to:
a)

Declare that the 26 VRA House, Senate and Congressional Districts found
by the trial court to be racial gerrymanders are unconstitutional and violate
the Equal Protection Clause of the United States Constitution, as do Senate
District 32 and Congressional District 12.

b)

Declare, and reaffirm, that the Whole County Provisions of the North
Carolina Constitution must be strictly adhered to and require the General
Assembly to keep counties whole except to the extent necessary to comply

 - 181 with federal law, properly interpreted, and further declare that the 2011
House and Senate plans violate those constitutional principles.
c)

Declare, and reaffirm, that the North Carolina Constitution requires that
House, Senate and Congressional districts be compact except to the extent
necessary to comply with federal law, properly interpreted, and further
declare that the 2011 House, Senate and Congressional plans fail to comply
with that requirement.

d)

Declare that the 2011 House and Senate plans violate the rights to vote and
to equal protection guaranteed by the North Carolina Constitution and the
right to equal protection guaranteed by the United States Constitution
because those plans divide precincts for reasons not required to comply with
State or federal law

e)

Declare that the Good of the Whole Clause of the North Carolina
Constitution applies to the General Assembly, and limits its powers, when
drawing House, Senate and Congressional districts for the people, and
further declare that the 2011 House, Senate, and Congressional plans violate
that constitutional principle.

 - 182 f)

Remand these cases to the trial court with directions to implement new
House, Senate and Congressional plans in accordance with the process
prescribed by the General Assembly in N.C.G.S. § 120-2.4.
This the 11th day of October, 2013.
POYNER SPRUILL LLP

By: /s/ Edwin M. Speas, Jr.
Edwin M. Speas, Jr.
N.C. State Bar No. 4112
espeas@poynerspruill.com
P.O. Box 1801
Raleigh, NC 27602-1801
Telephone: 919.783.6400
Facsimile: 919.783.1075
COUNSEL FOR PLAINTIFFSAPPELLANTS THE DICKSON
PLAINTIFFS
N.C. R. App. P. 33(b) Certification:
I certify that all of the attorneys listed
below have authorized me to list their
names on this document as if they had
personally signed it.

 - 183 POYNER SPRUILL LLP
By: /s/ John W. O‘Hale
John W. O‘Hale
N.C. State Bar No. 35895
johale@poynerspruill.com
By: /s/ Caroline P. Mackie
Caroline P. Mackie
N.C. State Bar No. 41512
cmackie@poynerspruill.com
P.O. Box 1801
Raleigh, NC 27602-1801
Telephone: 919.783.6400
Facsimile: 919.783.1075
COUNSEL FOR PLAINTIFFSAPPELLANTS THE DICKSON
PLAINTIFFS

 - 184 SOUTHERN COALITION FOR
SOCIAL JUSTICE
By: /s/ Anita S. Earls
Anita S. Earls
N.C. State Bar No. 15597
anita@southerncoalition.org
By: /s/ Clare Barnett
Clare Barnett
N.C. State Bar No. 42678
ClareBarnett@southerncoalition.org
By: /s/ Allison Riggs
Allison Riggs
N.C. State Bar No. 40028
AllisonRiggs@southerncoalition.org
1415 Highway 54, Suite 101
Durham, NC 27707
Telephone: (919) 323-3380
Facsimile: (919) 323-3942
COUNSEL FOR PLAINTIFFSAPPELLANTS THE NAACP
PLAINTIFFS

 - 185 TIN FULTON WALKER &
OWEN, PLLC
By: /s/ Adam Stein
Adam Stein
N.C. State Bar No. 4145
astein@tinfulton.com
312 West Franklin Street
Chapel Hill, NC 27516
Telephone: (919) 240-7089
Facsimile: (919) 240-7822
COUNSEL FOR PLAINTIFFSAPPELLANTS THE NAACP
PLAINTIFFS

 - 186 CERTIFICATE OF SERVICE
The undersigned hereby certifies that this day a copy of the foregoing
PLAINTIFF-APPELLANTS‘ BRIEF has been duly served by depositing a copy
thereof in an envelope bearing sufficient postage in the United States mail,
addressed to the following persons at the following addresses, which are the last
addresses known to me:
Alexander M. Peters
Special Deputy Attorney General
Susan K. Nichols
Special Deputy Attorney General
Office of the Attorney General
P.O. Box 629
Raleigh, NC 27602
apeters@ncdoj.gov
snichols@ncdoj.gov

Thomas A. Farr
Phillip J. Strach
Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.
4208 Six Forks Road, Suite 1100
Raleigh, NC 27602
thomas.farr@ogletreedeakins.com
phillip.strach@ogletreedeakins.com
Counsel for Legislative Defendants
Rucho, Lewis, Dollar, Dockham,
Berger, and Tillis

Counsel for Defendants

This the 11th day of October, 2013

/s/ Edwin M. Speas, Jr.
Edwin M. Speas, Jr.

 CONTENTS OF APPENDIX
Appendix 1:

Hofeller’s Proportionality Chart ....................... 1

Appendix 2:

Rucho and Lewis Public Statements ................ 3

Appendix 3:

June 23, 2011 Testimony of Anita Earls ........ 33

Appendix 4: Counties in which Majority Black
Districts were Sited in the State Legislative Plans
Used for the 1992-2000 Elections, the 2002
Court-Drawn Plans, the State Legislative Plans
Used for the 2004-2010 Elections, and the 2011
Enacted Plans ................................................................. 38
Appendix 5: Charts Comparing Districts, in Counties
Examined by Gingles Court, in the 1991, 2003
and 2009 Legislatively-Enacted Redistricting
Plans, the 2002 Court-Drawn Plan, and the 2011
Enacted Plans ................................................................. 42
Appendix 6: Racially Contested State Legislative
District Elections 2006-2011 (w/District
Demographic Data) ........................................................ 54
Appendix 7: Challenged District Election History and
Margins of Victory of African-American-Preferred
Candidates ...................................................................... 62
Appendix 8: Lines of Challenged Districts
Superimposed over Census Block Data by Race ........... 77
Appendix 9: Characteristics of Past Congressional
Plans Precleared by the USDOJ and Not
Challenged on Section 2 Grounds Compared to the
Characteristics of CD 1 and 12 .................................... 104
Appendix 10: Stephenson v. Bartlett,
No. 01 CVS 2885 (April 17, 2003) .............................. 108

 -App.1-

Appendix 1:

Proportionality chart Hofe?er
prepared for Defendants

~

..

Z:;rI

m':~

-1::::1'"0

H~use

Proportionality

Senate Proportionality

Chamber

0.212
120

25.44
25

26

Pet.
II Seats Proportionality Truncated Rounded Up
0.212
50
10.6
10
11

Exact

18+ Any Part Black

carolina Proportionalty Chart

Exact

0.206
24.72

24

Proportionality Truncated
10.3
0.206
10

Pet.

18+ Black Only (Single Race)

Up

25

11

Rounded

- App. 2 -

 - App. 3 -

Appendix 2:
June 17, June 21, July 1 and
July 12 Statements of
Redistricting Chairs Rucho and
Lewis

 - App. 4 -

I

DJ:posmON
EXHIBIT

I.
NORTH CAROLINA GENERAL ASSEMBLY
STATE LEGISLATIVE BUILDING
RALEIGH, NORTH CAROLINA 27603

Joint Statement by Senator Bob Rucho, Chair of the Senate Redistricting Committee,
and Representative David Lewis, Chair of tbe House Redistricting Committee,
released on June 17,2011

The Chait'S ofthe Joint House and Senate Redistricting Committee are committed to
proposing fair and legal districts for all citizens ofN011h Carolina, including our minority
communities. Therefore, on June 23, 201 I, the Joint House and Senate Redistricting Committee

will hold a public hearing on Voting Rights Act districts and four other districts proposed by the
Chairs for the 20 II State Senate and State House redistricting plans.
Locations for this public hearing include the North Carolina Museum of History in Wake
County, Fayetteville Technical Community College, Guilford Technical Community College,
UNC Charlotte, UNC Wilmington, East Carolina University, and Roanoke-Chowan Community
College. The public hearing will run from 3:00 PM to 9:00 PM. Individuals interested in
speaking should call the General Assembly or consult the General Assembly's web site for signup procedures.
We have decided to focus this public hearing on proposed legislative Voting 'Rights Act
("VRA") districts and four other proposed districts. We have chosen this option because of the
importance of minority voting rights. Moreover, the decisions by the North Carolina Supreme
Court in Stephenson v. Bartlelf, 355 N.C. 354 (2002) ("Stephenson F'), and SIephmson v.
Bartlett, 357 N.C. 301 (2003) ("Stephenson If'), require that VRA districts be created before

other legislative districts.

I

 - App. 5 -

The Chairs believe lhat there is a strong basis in the record to conclude that NOlth
Carolina remains obligated by federal and state law to create majority African American
districts. Our conclusion is based upon the history surrounding the creation ofVRA districts in
the State of North Carolina, both as ordered by the federal comts and as adopted by the
Legislature, from 1986 through the present. Our conclusion is also supported by evidence and
testimony submitted to the Joint Redistricting Committee 01' received at public hearings.
In creating new majority African American districts, we are obligated to follow the
decisions in Stephenson I and II as well as the decisions by the NOl'th Carolina Supreme Court
and the United States Supreme Court inS/rick/andY. Bartlefl, 361 N.C. 491 (2007), affirmed,
Bartleft v. Strickland, 129 S.Ct. 1231 (2009). Under the Strickland decisions, districts created to

comply with section 2 of the Voting Rights Act, must be created with a "Black Voting Age
Population" ("BVAP"), as reported by the Census, at the level of at least 50% plus one. I Thus.
in consftucting VRA majority black districts, the Chairs recommend that, where possible, these
districts be drawn at a level equal to at least 50% plus one "BVAP." To determine the
percentage of "BVAP" in proposed districts, we have used a more specific census category listed
in our repOlis as "Total Black Voting Age Population" ("TBVAP"). This category includes any
person 18 years old 01' older, who self identifies as wholly or partially "any part black." It is our
understanding that this Census category is preferred by the United States Department of Justice
and the United States Supreme Court. See Georgia v. Ashcroft, 539 U.S. 461, 473 n. I (2003).
During our proceedings we have asked for advice on the number, shape, and locations of
VRA districts that should be included in the Senate and House plans. During our public
hearings, members of the public requested that current ml\iority African American distl'icts be
retained, where possible, and that additional majority black districts be created, where possible.

I The North Carolina Supreme Court described the required majority as Citizen Black Voting Age Population
(,'CBVAP"). The 2010 Census did not report on this category of information.

2

 - App. 6 -

Based upon this testimony, along with input we have received from at least one black incumbent
House member, the Chairs recommend, where possible, that each plan include a sufficient
number of majority African American districts to provide North Carolina's African American
citizens with a substantially proportional and equal opportunity to elect their preferred candidates
of choice.
Based upon the statewide TBV AP figures, proportionality for the African American
citizens in North Carolina means the creation of24 majority African American House districts
and 10 majority African American Senate districts. Based upon census figures for both 2000 and
2010, the 2003 plans do not satisfy this standard. The 2003 Senate plan, used in elections fl.-om
2004 to 2010, contains zero districts in which African Americans constitute a TBV AP majority.
The 2003 House plan, as amended for the 2010 General Election, contains nine districts in which
African Americans constitute a TBVAP majority based upon 2000 census figures. The 2003
House plan, as amended for the 2010 General Election, contains ten distticts in which African
Americans constitute a TBVAP majority based upon 2010 census figures.
The Chairs note that under the benchmark 2003 plans, only eighteen African American
members arec~'Cntly serving in th~ House and only seven African Americans are currently
serving in the Senate. The Chairs also note that two incumbent African American senators were
defeated in the 2010 General Election. Both of these former African American incumbents (Don
Davis in District 5 and Tony Foriest in District 24) were defeated by white candidates in districts
with a TBVAP population below 40%.
Unlike the 2003 benchmark plans, the Chairs' proposed 2011 plans will provide
substantial proportionality for NOl1h Carolina's African American citizens. TIle 201 1 House
plan, recommended by Chairman Lewis, consists of24 majority African American House
districts and two additional districts in which the TBVAP percentage exceeds 43%. Moreover,
the 2011 Senate plan proposed by Chairman Rucho consists of9 majority African American
3

 - App. 7 -

Senate districts. Chairman Rucho has been unable to identify a reasonably compact majority
African American population to create a tenth majority African American district.
Increasing the number of majority Aft'ican American distticts will ensure nonretrogressive legislative plans. Thus, adopting plans that increase the number of majority black
districts will expedite the preclearance of each plan pursuant to Section 5 of the Voting Rights
Act. See Federal Register Vol. 76, no. 27 at 7471: Report by the United States House of
Representatives, Committee on the JudicialY, 109,h Congress, 2d Session, Report 109-478 at 6872 (2006); Beer v. United Slates, 425 U.S. 130 (1976). Substantial proportionality also furthers
the State's obligation to comply with Section 2 of the Voting Rights Act. See Johnson v.

DeGrandy, 512 U.S. 997 (1994).
In creating proposed majority black districts, the Chairs have been guided by testimony
and advice received from experts recommended by the Democratic legislative leadership. Based
upon this information, the Chairs have rejected the possibility of any districts that would
constitute the "cracking" or "packing" of any reasonably compact African American population,
as those terms have been defined by the United States Supreme Court. See Quilter v. Voinovich,
507 U.S. 146, 153-154 (1993). Nor have the Chairs supported any district that would involve the
"stacking" of a minority population. We understand the term "stacking" to mean the
submergence of a less affluent, geographically compact, African American population capable of
being a majority in a single member district, within a larger, more affluent majority white
population.
We wish to point out several features of the proposed VRA districts upon which the
Chairs invite public comment.
First, testimony during the public hearing in New Hanover County indicated that the
minority community in that area of the State would support the creation of a new m!\iority
African American House district to replace the former House District 18. That district was

4

 - App. 8 -

constructed in the 2003 House plan with an African American voting age population
substantially below 50% plus one. In Strickland v. Bartlett, both the North Carolina Supreme
Court and the Supreme Court of the United States ruled that African American districts needed
by the State to comply with Section 2 of the Voting Rights Act must be established with a BVAP
of50% plus one, In response to testimony during the New Hanover public hearing, the plan
proposed by Chairman Lewis includes a revised black voting age majority version of District 18
that complies with the Strickland decisions.
The Chairs also wish to receive comments regarding the Senate and House districts to be
adopted in Forsyth County. Districts in Forsyth County were found to be in violation of Section
2 of the Voting Rights Act in the decision of Thornburg v. Gingles, 478 U. S. 30 (1986). This
decision has never been vacated or over-ruled and is still binding on the State. Moreover, the
historical and legislative records indicate that all of the elements necessary to prove a Section 2
violation in Forsyth County still remain, except as described below.
In 2003, as reported by the 2000 Census, the State created three legislative districts in
Forsyth that consisted of a TBVAP in excess of 40%: Senate District 32 - 41.42%; House
District 71 - 51.57%; and House District 72 - 43.40%. Pursuant to the 2010 Census, these
districts have the following percentage of TBVAP population: Senate District 32 - 42.52%.;
House District 71 - 51.09%; and House District 72 - 45.40%. Unfortunately, also under the 2010
Census, all three districts are under-populated for compliance with the constitutional requirement
of one person one vote. Because atl three districts are under-populated, all three must be
adjusted to add additional total population. See Stephenson 1 and 11. Adding additional total
population has the effect of decreasing the percentage of the African American voting age
population in each district.
Because House Districts 71 and 72 are both significantly under-populated, Chairman
Lewis believes that it is not possible to create two majority African American House districts in
5

 - App. 9 -

Forsyth. He is concerned that it may not be possible to create one reasonably compact majority
black house district in Forsyth County and another district that would keep District 72 at a
TBVAP level that reasonably approaches its benchmark level. Based upon the experience in
Democratic primaries for Senate DisMct 32, there is also concern that a plurality House district
in the 40% range or under may not re-elect the CUlTent African American incumbent in House
District 72. Therefore, at this time, Chairman Lewis has recommended that both House districts,
which currently elect two black incumbents, be created at TBVAP levels above 43%. Thus,
under the 2010 Census, proposed House District 71 has a TBVAP population of 47.31%,
Proposed District 72 would be established with a TBVAP percentage of 43.33%.
Chairman Rucho believes that it is not possible to create a majority black Senate district
in Forsyth. He therefore recommends that proposed Senate District 32 be created at a TBV AP
percentage of39.32%.2 Chairman Rucho also recommends that the current white incumbent for
the Forsyth Senate district not be included in the proposed Senate District 32. The white
incumbent has defeated African American candidates in Democratic primaries in 2004 and 2010.
The Senate Chair recommends this adjustment in the absence of a tenth reasonably compact
majority African American senate population. If adopted by the General Assembly, proposed
coalition District 32 will provide African American citizens with a more equal, and tenth
oppoI1unity, to elect a candidate of choice.
The Chairs also wish to note their attempts to consider political access and opportunities
for the Native American population located in southeastern NoI1h Carolina. In recognition of
those impoI1ant interests, the House Chair recommends that House District 47 be retained as a
majority Native American District.

2 Proposed Senate District 32 also contains a Hispanic population of 12.21%, thus rendering this district as a
"majority minority" district. While we have not performed a cohesion analysis involving Aftican Americans and
Hispanics, we have been advised by Congressman Watt that, in his opinion, urban African American and Hispanic
voters who reside in his congressional district are cohesive.

6

 - App. 10 -

In the 2003 Senate plan, Robeson County was combined with Hoke County to create a
two county, single Senate district (Senate District 13). Chairman Rucho believes that it is 1I0t
possible to create a majority Native American Senate district that complies with federal and state
law. Because it is not possible to create a majority Native American Senate district, the

Stephenson 1 and II county combination rules prevent the re-establishment of District 13 based
upon a combination of Robeson and Hoke Counties. Under the 2010 Census, the combined
population of Robeson and Hoke is slightly lower than the maximum negative population
deviation range (minus 5%). Thus, unlike the 2003 Senate plan, Robeson County cannot be
grouped with Hoke County. As a result, Robeson County has been combined with Columbus
County to form a two county senate district. Under this configuration, proposed Senate District
13 will retain a significant and influential percentage of Native American citizens.
The Chairs have solicited redistricting inputfrom North Carolina's Hispanic population.
Based upon the 2010 Census, neither Chair was able to identifY a reasonably compact Hispanic
population that could form the basis for either a majority Hispanic House 01' Senate District. The
Chairs would entertain any proposals for a majority Hispanic House or Senate district that
complies with applicable federal and state law.
On March 24, 2011, we announced that the Chairs would recommend legislative
redistricting plans that complied with the criteria established in Stephenson I and 11 and Bartlett
v. Strickland. On that date, and on other occasions, including numerous public hearings, the
Chait'S have solicited members of the General Assembly and the public for any information,
comments and advice related to redistricting. On March 24,2011, every member of the General
Assembly received notice of the resources available to them for the preparation of proposed
districts and plans. The Chairs also have taken the unprecedented step of providing additional
expert staff and technology assistance to the Legislative Black Caucus, requested by the Black
Caucus in order to draw their own proposed disttictsand plans. As of today, we have not
7

 - App. 11 -

received any proposals for specific legislative districts or proposed state wide legislative plans
from the Democratic leadership or the Legislative Black Caucus
Nevertheless, the Chairs remain interested and open to other proposed configurations for
majority minority districts as well as non-VRA districts. The Chairs will also consider
recommendations regarding legislative districts in Forsyth County and any proposed Senate plan
that includes ten majority African American distl'icts, provided any such proposals are based
upon ten reasonably compact majority African American popUlations.
As we stated on March 24, 2011, the Chairs continue to recommend that alternative
proposals comply with the requirements of Stephenson I and II and Bartlett v. Strickland. We
also recommend that any proposed state-wide plan contain a sufficient number of districts that
will bring African American citizens as close as possible to substantial proportionality in the
number of majority African American districts.

8

 - App. 12 ,<

NORTH CAROLINA GENERAL ASSEMBLY
STATE LEGISLATIVE I3UILDING
RALEIGH, NORTH CAROLINA 27603

Statement by Sen. Bob Rucho and Rep. David Lewis Regarding Proposed VRA Districts
In anticipation of tile public hearing scheduled for June 23, 2011, we want to correct
several erroneous statements that have appeared in the news media regarding our proposed
Voting Rights Act ("VRA") districts.
Claim 1: The proposed VRA districts plan includes an illegal "packing" strategy.

"I think they uunecessarily and probably illegally pack minority voters into districts," said Sen,
Dan Blue, D-Wake. "I need to analyze them a little bit further, but my initial impression is
they're engaged in packing in non-Section 5 Voting Rights Act districts:' ("Blue questions
legality of draft redistricting maps," SGR Today, 6/20/11)
"How ... 'packing' may dilute minority voting strength is not difficult to conceptualize. A
minority group, for example, mig!tt have sufficient nllmbers to c.onstitute a m~ority in three
districts. So apportioned, the group inevitably will elect three candidates of its choice, assuming
the group is sufficiently cohesive. But if the group is packed into two districts in which it
constitutes a super-majority, it will be assured only two candidates." Volnovich v. Quilter, 507
U.S. 146, 153-154 (1993).
Senator Dan Blue, among others, has stated that our proposed majority black districts
result in illegal "packing" of black voters. There is no factual or legal basis for this argument.
The U.S. Supreme Court has defined the term "packing" to mean the intentional creation
of super majority black districts designed to prevent the creation of one or more other majority
black districts. See Voinovich v Quilter, 507 U.S. 146 (2003). We have not engaged in this
practice. Senator Blue is presumably aware of the Supreme Court's definition of packing. If
there is another Supreme COUlt case that SUppOits Senator Blue's definition we request that he
provide it to us.
Claim 2: The proposed VRA districts plan includes too many majority-minority districts.

 - App. 13 -

"The new maps include 24 majority-black districts in the N.C. House and 10 in the Senate,
according to an attached memo." ("NOIth Carolina redistricting maps may hUit Republican allies
William Brisson, Dewey Hill," Fayetteville Observer, 6/20/11)
"Any legislative district designated as a Section 2 district under the current redistricting plans,
and any futm'e plans, must satisfy either the numerical majority requirement as defined herein, or
be redrawn in compliance with the Whole County Provision of the Constitution of North
Carolina and with Stephenson I requirements." Sirickiand v. Barl/ett, 649 S.E.2d 364, 376 (N.C.
2007).
Our proposed Senate plan includes only nine majority black Senate districts. We were
unable to identify a tenth reasonably compact majority black population which could be used to
create a tenth majority black Senate district. Senate District 32 is not a majority black district
because of the absence of sufficient black population in Forsyth County. In proposed Senate
District 32, blacks comprise 39.48% of the voting age population. Voting age Hispanics
constitute 12.21 %.
Congressman Watt has advised us that urban Hispanic populations in his Congressional
district tend to vote for the same candidates favored by urban African Americans voters. Thus,
OUi' proposed version of Senate District 32 provides the black community with a tenth
opportunity to elect a candidate of their choice, provided African American voters in Forsyth
County can build a coalition with urban Hispanic voters.
Our proposed Senate District 13 was consti:ucted, as was the predecessor District 13; to
have a plurality Native American population (26.49%). The Native American popUlation
combines with the black population (25.92%) to establish a majority minority district. However,
this district is neither majority Native American nor majority black.
Congressman Watt has advised us that black voters and Native American voters do not
tend to vote for the same candidate and are not politically cohesive. The predecessor district to
our proposed Senate District) 3 has always elected a white candidate. Current Senate District 13
never elected a black or a Native American candidate. The failure of an African American or

2

 - App. 14 -

Native American to be elected from current Senate District 13 seems to support Congressman
Watt's opinion.
There are only twenty four proposed majority black House districts in our proposed plan.
Some media outlets have reported tllat there are twenty seven majority black House districts.
The alleged twenty-fifth district, House District 47, is a majority Native American district
and replicates a similar district in the 2003 house plan. It does not count towards giving the
black community a propOitional and equal opportunity to elect candidates of their choice.
Two other alleged majority black districts, House Districts 71 and 72 in Forsyth County
cannot both be drawn with a black voting age population of over 50%. Neither district is
therefore a majority black district.

Claim 3: The proposed VRA districts plan is solely an attempt to maintain Republicans' political
power.
"Democrats charged that Republicans are trying to pack black Democrats into districts so as to
make it easier for the GOP to win the remaining ones ... 'They want to make sure they maintain
their power,' said Fleming El-Amin, a local activist who sits on the Democratic committee that
will review the redistricting recommendations." ("GOP well within rights on redistricting, but
Garrou would be heavY loss," Winston-Salem Journal, 6/22/11)
The State has an obligation to comply with the Voting Rights Act. In the 2003 plans,
rather than comply with the VRA, the previous Legislative leadership engaged in a redistricting
technique called "cracking."
Under Supreme Court precedent, one example of "cracking" or "fragmenting" occurs
when Legislative leaders remove black population from a majority black district and spread these
voters into other adjoining districts that will elect a white candidate but not a black candidate.

See Voinovich v Quilter 507 US 146, 153 (2003); Thornburg v Gingles, 478 U.S. 30, 46 n.ll
(1986). Based upon these Supreme Court definitions, in creating the 2003· plans, the former
Legislative leaders "cracked" majority black districts in two different ways.

3

 - App. 15 -

First, in the 2003 plans, populations in several formerly majority black districts were
reduced to populations levels of 39% to 49% black. This practice was rejected by the North
Carolina and United States Supreme Courts inSlricklandv Bartlett, 129 S.C!. 1231 (2009).
Where possible, majority black districts drawn to comply with the VRA must be based upon an
actual majority of black voters.
Second, the Legislative leaders rejected several majority black districts in locations at
which the black community had a right, under the VRA, to a majority black district.
While districts that adjoin majol'ity black districts may become more competitive for
Republican candidates because of compliance with the VRA, such competitiveness results from
compliance with the VRA. This is the opposite of the prior Legislative leadership intentionally
cracking majority black districts required by the VRA to ensure the re-election of white
incumbents.

Claim 4: The proposed VRA districts plan dilutes the influence of minority voters.
"It is illegal to arbitrarily pack minorities into the same districts just for the sake of doing it
because you dilute the minorities' voting strength in other districts." Senator Dan Blue, D-Wake
("Blue questions legality of draft redistricting maps," SGR Today, 6/20fll)
"[A] minority group must constitute a numerical majority of the voting popUlation in the area
under consideration before Section 2 of the VRA requires the creation of a legislative district to
prevent the dilution of the votes of that minority group." Strickland v. Bartlett, 649 S.E.2d 364,
371 (N.C. 2007).

In 2003, the Legislative leadership pursued a strategy which reduced the number of
majority black districts and replaced them with two types of districts.
Districts that were between 40 and 50% black were called "effective" majority districts.
The Legislative leaders argued that it was not necessary to create majority black districts under
the VRA because black populations over 40% were "good enough" to elect a black candidate.

In 2003, Legislative leaders also supported "influence districts." These were districts
with black popUlations between 30% and 40%. These districts have very rarely elected black

4

 - App. 16 -

candidates, but the Legislative leaders argued that black voters would be able to "influence" the
election of candidates who were "sympathetic" to their point of view.
A Supreme Court case called Georgia v Ashcroft, 539 U.s. 461 (2000). provided some
legal support for this proposition. However, in a case called LULAC v Peny, 548 U.S 399
(2006), the US Supreme Court clarified that "influence" districts were not required by the VRA.
Moreover, Georgia v Ashcroft was legislatively over-ruled in 2006 when the Congress reenacted Section 5 of the VRA. See Federal Register Vol. 76, no. 27 at 7471: Report by the
United States House of Representatives, Committee on the Judiciary, Report 109-478 at 68-72.
Finally, in Strickland v BaN/eft, 361 N.C. 491 (2007), affirmed by Bartlett v Strickland,
129 S.Ct. 123 (2009), the North Carolina and U.S. Supreme Courts announced that majority
black districts must be drawn with an actual majority black voting age population.
Thus, the current 2003 plans violate the voting rights of black citizens in two ways.
Alleged majority black districts were not drawn with a true majority of black voters. And
"influence districts" were incorrectly substituted for true majority black districts. Our proposed
VRA districts do not repeat these violations.
Claim 5: These districts are a done deal and will be enacted with no input from voters.
We have had an unprecedented number of public hearings. For example, in 2001
Legislative leaders held 26 pnblic hearings including hearings in 13 counties covered by section
5 of the Voting Rights Act. In 2001, Legislative leadership did not produce proposed legislative
or congressional plans until the end of the public hearing process. In 2003, we are aware of no
public hearings held on proposed plans.
By way of contrast, in 2011, we have already held 36 public hearings including 24 in
counties that are covered by section 5 of the Voting Rights Act. Under our current schedule we
intend to hold three public hearings. The first will be on June 23 and will focus on proposed

5

 - App. 17 -

VRA districts and four other districts. On July 7,2011, we intend to hold an additional public
hearing.
We have also provided an unprecedented level of redistricting sUpp0l1 to the Black
Caucus. This included the hiring of additional staff with special redistricting expcI1ise and
technology assistance not provided to other members of the General Assembly.
Starting on March 24, 2011, we have repeatedly asked for input from the Democratic
leadership and the Black Caucus on the issue of majority black districts. We understand that the
Black Caucus has produced alternative maps, however, !hey have not been provided to us.
Further, while we have received some input from individual members regarding specific
districts, to date we have received no suggestions for proposed plans from !he Democratic
leadership or any of several interest groups to whom we have made requests for
recommendations and input.
We are more than willing to ei1tertai~ specific sugge~tiotisr~lafed to our proposed plans
arid specific districts.

Claim 6: The proposed VRA districts plan violates principles of compactness.
"State Sen. Eric Mansfield, a Democrat, said he's disappointed by the shape of his new district.
The old district is a compact, somewhat rectangular shape covering the northwest corner of
Cumberland County. Mansfield said the new shape resembles a crab." ("N0I1h Carolina
redistricting maps may hurt Republican allies William BrisSon. Dewey Hill," Fayetteville
Observer, 6120/11)
This argument misstates the law. Majority black districts must be based upon reasonably
compact black populations, not districts.
Congressman Butterfield's First Congressional district has been found by a federal court
to be based upon a reasonably compact black population. Using Congressman Butterfield's
district as an example, we believe !hat all of our proposed legislative districts are, based upon,
reasonably compact black populations.

6

 - App. 18 -

However, we would entertain any specific suggestions from the Black Caucus or others
identifying more compact majority black populations to form the core of alternative mf\iorily
black districts, provided the total districts proposed provide black voters with a substantially
proportional state-wide opportunity to elect candidates of their choice. Moreover, any such
districts must comply with Strickland v Bartlett, and be drawn at a level that constitutes a true
majority of black voting age population.

7

 - App. 19 -

Statement by Senator Bob Rucho and Representative David Lewis Regarding the Proposed
2011 Congressional Plan
July 1, 2011
From the beginning, our goal has remained the same: the development of fair and legal
congressional and legislative districts. Our process has included an unprecedented number of
public hearings (36) scheduled before the release of any maps. These included an unprecedented
number of hearings in (24) counties covered by Section 5 of the Voting Rights Act. In another
unprecedented act, we provided the Legislative Black Caucus with staff support and computer
technology resulting in costs to the General Assembly in excess of $60,000. We also decided to
schedule twenty-five public hearings to give the public an opportunity to comment on legislative
and Congressional maps. Consistent with the guidance provided by the North Carolina Supreme
Court in Stephenson v Bartlett 355 N.C. 354 (2002), our first public hearing was focused on our
proposed VRA legislative districts. Our second public hearing, scheduled for July 7, 2011, will
give the public an opportunity to comment on our proposed Congressional plan. Finally, our
third public hearing, scheduled for July 18, 2011 will solicit feedback on our proposed legislative
plans.
Today we are pleased to release our proposed 2011 Congressional Plan. We believe that
our proposed Congressional plan fully complies with applicable federal and state law. We also
believe that a majority of North Carolinians will agree that our proposed plan will establish
Congressional districts that are fair to North Carolina voters.
1

 - App. 20 Unlike state legislative districts, there are very few constitutional criteria that apply to
legislative districts. Some of the factors we considered include the following:
1.

Use of current Congressional plan as a frame of reference.

The current Congressional plan could not be retained for several reasons. However, we
used the current plan as a frame of reference for re-drawing new congressional districts. Thus,
our proposed plan and the current Congressional plan (2001: Congress Zero Deviation) are
similar in some respects.
2.

Compliance with “one person one vote.”

Based upon several decisions by the United States Supreme Court, Congressional
districts must be drawn at equal population. See Westberry v Sanders, 376 U.S. 1 (1964);
Karcher v Daggett, 466 U.S. 910 (1984). The ideal population for a North Carolina
Congressional district under the 2010 census is 733,499. Our proposed districts meet this
constitutional requirement.
Re-drawing districts with equal population necessitated significant changes in the
boundary lines of the current districts. Revisions were required because six of the current
Congressional districts are significantly under-populated below the ideal number. (Districts 1, 5,
6, 8, 10, and 11). In contrast, seven districts are over-populated above the ideal number (2, 3, 4,
7, 9, 12, and 13). The population shift between our thirteen districts is largely the result of more
rapid growth in the Mecklenburg/Piedmont and Research Triangle areas of the state as compared
to more rural areas located in eastern and western North Carolina.
3.

Compliance with the Voting Rights Act.

Our proposed plan, if adopted by the General Assembly, will need to be “precleared”
under Section 5 of the Voting Rights Act. States have the option of seeking administrative
preclearance by the United States Department of Justice or by filing a lawsuit seeking
preclearance by the United States District Court of the District of Columbia. To obtain
2

 - App. 21 preclearance, we are obligated to show that the plan is not retrogressive or purposefully
discriminatory. We believe that our plan accomplishes this goal.
(a)

Districts Represented by Black Incumbents

Voters in the First and Twelfth Congressional Districts are represented by two African
American members of Congress, Congressman G.K. Butterfield and Congressman Mel Watt. As
part of our investigation into fair and legal congressional districts, we sought advice from
Congressman Butterfield and Congressman Watt. We believed that we could benefit from
hearing their views on how their districts should be re-drawn in light of population movement.
The State’s First Congressional District was originally drawn in 1992 as a majority black
district. It was established by the State to comply with Section 2 of the Voting Rights Act.
Under the decision by the United States Supreme Court in Strickland v. Bartlett, 129 U.S. 1231
(2009), the State is now obligated to draw majority black districts with true majority black voting
age population. Under the 2010 Census, the current version of the First District does not contain
a majority black voting age population.
In addition, the current First District is substantially under-populated by over 97,500
people. Thus, in order to comply with “one person one vote,” over 97,500 people must be added
to create a new First District.
We met with Congressman Butterfield to discuss these issues. Congressman Butterfield
acknowledged that the legal deficiencies of the existing First District could be addressed through
the addition of either the minority community located in Wake County or the minority
community residing in Durham County. Congressman Butterfield believed that including Wake
County in his district would give him the opportunity to represent the communities reflected by
Shaw University and St. Augustine College. Between these two options, Congressman
Butterfield advised us that he preferred the addition to his district of the minority population in
Wake County, as opposed to the minority population in Durham County.
3

 - App. 22 We elected to accommodate Congressman Butterfield’s preference. By adding
population from Wake County, we have brought the First District into compliance with “one
person, one vote.” Because African Americans represent a high percentage of the population
added to the First District from Wake County, we have also been able to re-establish
Congressman Butterfield’s district as a true majority black district under the Strickland case.
In light of the population growth experienced by urban counties and the slower growth
experienced by rural population, drawing Congressman Butterfield’s district into Wake County
accomplished another important goal. It is less likely that the First District will become
substantially under-populated during this decade and it is more likely that the First District can
be retained in our proposed configuration at the time of the 2020 Census. This will provide
stability for the minority community that has not been achieved by prior versions of this district.
Finally, we note that the United States Supreme Court has previously found Section 2
liability in Wake County in a case involving legislative districts. See Thornburg v Gingles, 478
U. S. 30 (1986). Thus, with this adjustment to the First District, for the first time in history the
black community in Wake County will have the opportunity to be part of a majority black
Congressional district.
After we had adopted Congressman Butterfield’s preference, and showed a map of our
proposal to him, he expressed concern about the withdrawal of his district from Craven and
Wayne Counties. Given our decision to add the minority community in Wake County to our
proposed First District, the retention of populations in Wayne and Craven would result in the
over-population of the First District. We believe that the benefits of adding the black community
in Wake County outweighs any negative impacts. Moreover, by replacing these counties with
the community in Wake County, we were also able to create a district that was based upon a
more compact minority population.

4

 - App. 23 Current District 12, represented by Congressman Watt, is not a Section 2 majority black
district. Instead, it was created with the intention of making it a very strong Democratic District.
See Easley v Cromartie 121 S.Ct. 1452 (2000). However, there is one county in the Twelfth
District that is covered by Section 5 of the Voting Rights Act (Guilford).
As with Congressman Butterfield, we sought input from Congressman Watt regarding
potential options for revising the Twelfth Congressional district. We have accommodated
Congressman Watt’s preference by agreeing to model the new Twelfth District after the current
Twelfth District.
Following the framework of the district created by the 2001 General Assembly, to the
extent practicable and possible, we have again based the Twelfth Congressional District on
whole precincts.
Because of the presence of Guilford County in the Twelfth District, we have drawn our
proposed Twelfth District at a black voting age level that is above the percentage of black voting
age population found in the current Twelfth District. We believe that this measure will ensure
preclearance of the plan.
Finally, we have re-drawn the Twelfth District to reduce some population because 2010
census figures show that it is currently over-populated.
(b)

Minority populations in other districts

No district in the 2001 Congressional plan contains a black voting age population in
excess of 28.75% except for the First and Twelfth Districts. Our proposed Fourth Congressional
District establishes one district with a black voting age population of 29.12%. Our proposed
Third Congressional District contains a black voting age population of 23.50%. Our proposed
District 8 has a black voting age population of 19.88% and a Native American voting age
population of 7.12%. All other proposed districts have been created with a black voting age
population of under 18%.
5

 - App. 24 We believe that our proposed plan fully complies with both Section 5 and Section 2 of
the Voting Rights Act.
4.

Point Contiguity.

In past Congressional plans, prior legislative leadership elected to make a few
congressional districts contiguous by a mathematical point. We believe that this past practice is
arbitrary and irrational. It is also inconsistent with the standards for contiguity established by the
North Carolina Supreme Court for legislative districts. Stephenson v Bartlett, 357 N.C. 301
(2003). We have elected to reject this criterion for congressional districts. All of our
congressional districts are contiguous in a real and meaningful manner.
5.

Incumbents.

We decided to avoid placing incumbents in the same district. All incumbents in our
proposed plan are located in a district in which they face no opposition from another sitting
member of Congress.
6.

Communities of Interest.

Communities of interest are political considerations which will always create some
interests that will be recognized and others that will not. The elected representatives are best
equipped to determine this balance.
Because all of our districts are largely based in the same areas of the state in which they
are located under the 2001 congressional plan, our districts reflect the same communities of
regional interests recognized by the 2001 plan.
New District 4 is substantially based upon the current version of District 4. We decided
to expand the district from Chatham County through Lee and Harnett County and into
Cumberland County. Lee and Harnett Counties share with Chatham County many of the same
rural and other communities of interest. Moreover, the interests of those residing within the
urban areas of Cumberland County are similar to those who live in the urban areas of Orange and
6

 - App. 25 Durham Counties. Finally, all of the counties in our proposed District 4 are in the same media
market which should help reduce the costs of campaigns in this district.
7.

Whole counties and whole precincts.

Counties and precincts are two specific examples of communities of interest. Like other
interests, they must be balanced. We have attempted to respect county lines and whole precincts
when it was logical to do so and consistent with other relevant factors. Our plan includes 65
whole counties. Most of our precinct divisions were prompted by the creation of Congressman
Butterfield’s majority black First Congressional District or when precincts needed to be divided
for compliance with the one person one vote requirement.
8.

Urban Counties.

We decided to continue the tradition, as reflected in the 2001 plan that results in the
division of urban counties into more than one Congressional district. We agree with the decision
of prior legislative leadership that urban counties are best represented by multiple members of
Congress. Moreover, creating multiple districts within an urban county makes it less likely that
congressional districts in 2020 will experience the significant population shifts that make the
2001 plan unbalanced. We extended this policy to Buncombe County but elected not to divide
New Hanover County. We concluded that the population in New Hanover is more isolated in the
southeastern corner of North Carolina and was needed to anchor our new proposed Seventh
Congressional District.
9.

Creating More Competitive Districts.

The federal and state constitutions allow legislatures to consider partisan impacts in
making Congressional redistricting decisions. While we have not been ignorant of the partisan
impacts of the districts we have created, we have focused on ensuring that the districts will be
more competitive than the districts created by the 2001 legislature. Along these lines we wish to
highlight several important facts. First, in twelve of our proposed thirteen districts, in the 2008
7

 - App. 26 General Election, more voters voted for Democratic candidate for Attorney General, Roy Cooper
than those who voted for the Republican candidate. Second, registered Democrats outnumber
registered Republicans in ten of our proposed thirteen districts. Finally, the combination of
registered Democrats plus unaffiliated voters constitute very significant majorities in all thirteen
districts.

8

 - App. 27 -

.. '

NORTH CAROLINA GENERAL ASSEMBLY
STATE LEGISLATIVE BUll_DING
RALEIGH, NORTH CAROLINA 27603

Statement by Senator Bob Rucho and Representative David Lewis Regarding
Proposed State Legislative Redistricting Plans
July 12,2011

Today we are pleased to release our initial proposals for 2011 state legislative
redistricting maps.
These maps are available on the General Assembly's website.
We will hold public hearings on these proposed plans on July 18, 2011, from 3:00 P.M.
until 9:00 P.M. Locations for these hearings wiIJ include: the North Carolina Museum of History
in Wake County, Fayetteville Technical Community College, Nash Community College,
Roanoke-Chowan Community College, UNC Wilmington, Guilford Technical Community
College, Central Piedmont Community College, Western Carolina University, Appalachian State
University, and Asheville-Buncombe Technical Community College.
Individuals interested in providing comments should call the General Assembly or
consult the General Assembly's web site for sign-up procedures.
North Carolina has been the subject of numerous legal challenges to redistricting plans.
Given this history, our primary goal is to propose maps that will sUi:Vive any possible legal
challenge. The first legal requirement is that legislative districts comply with the "one person
one vote" standard affirmed in Stephenson 11 Bartlel/, 355 N.C. 354 (2002) ("Stephenson f') and
Stephenson 11 Bartlett, 357 N. C. 301 (2003) ("Stephenson If'). The second requirement is the

creation of plans that will obtain preclearance under Section 5 of the Voting Rights Act
1

 - App. 28 -

("VRA"), and foreclose the possibility of a successful challenge under Section 2 of the Voting
Rights Act. Finally, plans must comply with State constitutional requirements as explained in
the Stephenson decisions, and the decisions by the NOlth Carolina Supreme Court and the United
States Supreme Court in Strickland v Bartlett, 361 N.C. 491 (2007), affirmed, Bartlett v.

Strickland, 129 S.Ct. 1231 (2009).

1.

One person, one vote
All of our districts have been constructed with sufficient population so that they are

within plus or minus 5% of the ideal population for state senate districts (190,710) and state
house districts (79,462).

2.

Voting Rights Act districts ("VRA districts")
We have explained our understanding of the Voting Rights Act in our statement issued on

June 17,2011. In our original plans, we proposed nine majority black Senate districts and
twenty four majority black House districts. "Majority" means in excess of 50% as required by
the Strickland decision and affirmed by the US Supreme Court.
Based upon comments we received during the public hearing process, we have made
several changes in our proposed VRA districts. For example, in the House plan, we elected to
delete a majority black district we had proposed for southeastern North Carolina based upon the
strong statements opposing such a district, including from the Southern Coalition for Social
Justice ("SCSJ") as part of the broader Alliance for Fair Redistricting and Minority Voting
Rights. The remaining 23 districts with a majority of black voting age population ("BVAP")
combined with two over 40% BV AP districts, continue to provide black voters with a
substantially proportional and equal opportunity to elect candidates of their choice. See Johnson
v DeGrandy, 512 U.S. 997 (1994). Creating these districts also provides the State with a strong

2

 - App. 29 -

argument for preclearance of the plans under Section 5 of the Voting Rights Act. Federal
Register Vol. 76, no. 27 at 7471; Report by the United States House of Representatives,
Committee on the JUdiciary, 109111 Congress, 2d Session, Repolt 109-478 at 68-72 (2006); Beer

v. United States, 425 U.S. 130 (1976).
Consistent with feedback provided at the public hearings or in person and as permitted by
law, we have also made other changes in our proposed House VRA districts affecting Rep.
Mobley, Rep. Gill, Rep. Earle, and the elimination of the southeastern district described above.
In the Senate, we have made two significant changes. Hoke and Cumbel'iand Counties
have been combined to form a majority black district (District 21). In the 2003 Senate plan,
minorities in Hoke County were included in District 13 which was a mixed minority district
which has elected a white Senator. Under our revised proposal, the black community in Hoke
will now be palt of a cohesive majority black district which should be able to elect a candidate of
the minority community's choice. Both Cumberland and Hoke are covered by Section 5 of the
Voting Rights Act.
We have also elected to change our proposed Senate District 32 in Forsyth County to
create a district with a percentage of BVAP (42.53%) which exceeds the percentage suggested
for that district by the SCSJ.
Several of our critics have incOlTectly argued that our plans "pack" African American
voters. We have repeatedly asked Democratic leaders and others to provide a legal case which
defines "packing" as either a majority black district or creating enough districts to give black
voters a substantially equal and proportional opportunity to elect candidates of their choice. To
date, we have not received any case citations to this effect from any of our critics. Regardless, in
1982, these same arguments were considered and rejected by Congress when it amended Section
2 of the Voting Rights Act. See Gingles v Edmisten, 590 F. Supp. 345, 356-357 (E.D. N.C.
1984) (Phillips, J.), affirmed, Thornburg v Gingles, 478 U.S. 30 (1986).
3

 - App. 30 -

Since March 17, 2011, we have repeatedly requested Democratic leaders and members of
the minority community to provide us with proposed redistricting plans. To date, only the SCSJ
has submitted alternative plans. In prior testimony, Anita Earls, Executive Director of the SCSJ,
advised us that majority black districts are still needed in the State ofNolth Carolina. Consistent
with that testimony, the SCSJ has proposed nine senate districts with a BVAP from 40% to over
50%, twenty house districts with a BVAP from 40% to over 50%, and one house district with a
BVAP of 37.06%. Even though all of the SCSJ districts have been drawn to achieve a specific
level of black population, no one has accused the SCSJ of packing black voters.
There are two major differences between the SCSJ minority districts and our proposed
VFlJ\ districts.
First, we have complied, as we must, with the holding by the United States Supreme
Court and the North Carolina Supreme Court in Strickland v Bartlett, 361 N.C. 491 (2007),

affirmed, Bartlett v Strickland, 129 U.S. 1231 (2009). These decisions require that districts
drawn to insulate the State from liability tinder the Voting Rights Act must be drawn with a
black voting age population in excess of 50% plus one.
Five of the nine districts SCSJ contends are "VFlJ\" senate districts are drawn at majority
black levels while four are drawn at levels above 40% BVAP. We have proposed ten senate
districts with nine ofthose districts drawn at majority levels. We agree with the SCSJ that our
tenth senate district, District 32, cannot be drawn within Forsyth County in excess of 50% plus
one.
The SCSJ has also proposed eleven majority black house districts, nine house districts
with black populations in excess of 40%, and one house district with black population at 37.5%.
We have drawn all of our house districts at levels above 50% except for two districts in Forsyth

4

 - App. 31 -

·.
County. We again agree with the position of the SCSI that two majority BVAP districts cannot
be drawn in Forsyth County.
Aside from the lack of black population in Forsyth County, which prevents a majority
black senate district and two majority black house districts, in light of Bartlett, we see no
principled legal reason not to draw all VRA districts at the 50% or above level when it is
possible to do so. Now that it is apparent that these ml\iority black districts can be drawn, any
decision to draw a few selected districts at less than a ml\iority level could be used as evidence of
purposeful discrimination or in support of claims against the State filed under Section 2. Thus,
in order to best protect the State from costly and unnecessary litigation, we have a legal
obligation to draw these districts at true majority levels.
Second, we have a disagreement with the SCSI regarding the number of majority black
districts that should be drawn in each map. SCSI has proposed nine districts it contends are
"VRA" senate districts as compared to the ten districts in our proposed senate plan. In the
House, the SCSJ has recommended 2 I districts it contends are "VRA" districts as compared to
the 25 districts we have suggested. Our proposed plan provides black voters in North Carolina
with substantial or rough propol1ionality in the number of VRA districts in which they have an
equal 0ppOitunity to elect their preferred candidates of choice. Our plans, therefore, give the
State an impol1ant defense to any lawsuit that might be filed challenging the plans under Section
2 of the Voting Rights Act. See Johnson v DeGrandy, 512 U.S. 997 (1994). The plans proposed
by the SCSJ fail to give black voters a proportional and equal oppol1unity and therefore would
not provide the State with this defense.

3.

State Constitutional requirements
Our senate and house plans have been drawn in compliance with the State constitutional

requirements stated in Stephenson J and II, along with the decision of the NOltb Carolina

5

 - App. 32 -

Supreme Court in Strickland v Bartlett, 361 N.C. 491 (2007), affirmed, Bart/elf l' Strickland, 109
S.Ct. 1231 (2009). These decisions establish a hierarchy of constitutional rules for drawing
districts within a whole county or combinations of counties. We encourage interested members
of the public to consult these decisions as well as the Legislator's Guide to North Carolinq

Legislative and Congressional Redistricting published on the General Assembly's website.
We look forward to hearing comments and suggestions related to these proposed
legislative maps during the public hearing scheduled for July 18, 2011.

6

 - App. 33 -

Appendix 3:

June 23, 2011 Testimony of
Anita Earls

- App. 34 -

1415 West Highway 54. Suite 101

P: 919-323-3380

Durham. NC 27707

F: 919-323-3942

SOUTHERN COALITION
for SOCIAL JUSTICE

North Carolina General Assembly
2011 Redistricting Public Hearing
June 23, 2011
Testimony of Anita S. Earls, Esq.
Executive Director, Southern Coalition for Social Justice
On Behalf of AFRAM - the Alliance for Fair Redistricting and Minority Votl.ng Rights
Mr. Chairmen and Members ofthe North Carolina General Assembly:
Today I am speaking on behalf of the Alliance for Fair Redistricting and Minority Voting Rights, a
coalition of non-profit, non-partisan organizations in North Carolina. As a part of that Alliance,
my organization, the Southern Coalition for Social Justice, worked with other AFRAM members
to involve the community in statewide redistricting. We held redistricting workshops where we
Invited members of the public to come in and work directly with our demographer to examine
redistricting plan options for the State Senate and State House districts. We then posted the
draft maps on a website and invited further public comment.
What I am submitting today are the district plans that resulted from that process. To be clear,
AFRAM is not advocating for the adoption of these plans at this time. There may be better
configurations, additional input and further refinements to these plans before AFRAM formally
endorses a particular plan. However, we submit these complete plans for your consideration
because these plans comply with the Voting Rights Act, complywith the Stephenson criteria,
create geographically compact districts, and recognize Important communities of interest.
More specifically, the plans were drawn following these criteria:

1. Comply with the federal constitutional one-person, one-vote requirement as refined
by the Stephenson court to require no more than a plus or minus 5% deviation from
2.
3.
4.
5.
6.
7.
8.
9.

the Ideal district size for each district.
Comply with the non-retrogression criteria for districts In counties covered by
Section 5 of the Voting Rights Act.
Comply with Section 2 ofthe Voting Rights Act In Mecklenburg, Forsyth and Wake
Counties.
Comply with the State Constitutional whole county provision as specified in the
Stephenson opinions.
Draw geographically compact and contiguous districts.
Recognize communities of interest.
Preserve the cores of existing districts.
Avoid pairing incumbents to the extent posslbl~.
Avoid splitting precincts to the extent possible ..

 - App. 35 -

In addition to the district maps and population data, we can provide shapefiles electronically. I
am also submitting today reports that show which districts we considered to be Section 2 VRA
Districts and which districts are Section 5 VRA districts, with the Black voting age population of
each district in the current districts and In our proposed districts. We Identify the county
cluster groupings mandated by Stephenson that we followed in each plan. Finally, we identify
the Incumbent pairings that were unavoldabl,e given the population shifts reflected in the 2010
census and the need to comply with the other redistricting criteria Identified above.
Again, on behalf of AFRAM, we have the following comment on the Voting Rights Act districts
that the committee has made public.
It is impossible to analyze fully the impact of these districts on minority voters in North Carolina
in Isolation. We cannot assess the impact of a partial plan. We need to know the composition
of all of the districts In the plan in order to understand the implications of the interests of
minority voters.
With that caveat, however, it does appear that these districts go beyond what the Voting Rights
Act requires both in terms of the number of majority-minority districts and In terms of the Black
population percentages in the Voting Rights Act districts. These districts appear to be premised
on at least three fundamental legal errors.
First, the Committee states their central goal is to achieve proportional representation for Black
voters. However, Section 2 ofthe Voting Rights Act explicitly states that It is not a guarantee of
proportional representation. The Act states: "nothing in this section establishes a right to have
members of a protected class elected in numbers equal to their proportion in the population."
42 U.S.C. § 1973 (2010). Thus, achieving proportional representation for a protected racial
group Is not required by the Voting Rights Act.
Second, the theory that the Voting Rights Act requires the drawing of a "max black" plan that
creates a majority black district where ever possible was explicitly rejected by the U.S. Supreme
Court in the Miller v. Johnson case, where the court explained:
The Justice Department refus~d to preclear both of Georgia's first two submitted
redistricting plans. The District Court found that the Justice Department had
adopted a "black·maximlzatlon" policy under § 5, and that it was clear from Its
objection letters that the Department would not grant preclearance until the
State ... created a third majority-black district. 864 F. Supp., at 1366, 1380. It is,
therefore, safe to say that the congressional plan enacted in the end was
required in order to obtain preclearance. It does not follow, however, that the
plan was required by the substantive provisions of the Act.
2

 - App. 36 -

Miller v. Johnson, 515 U.S. 900, 921 (1995).

The Supreme Court went on to explain why the Voting Rights Act does not require
((maxlmlzation" by stating:
Based on this historical understanding, we recognized in Beer that "the purpose
of § 5 has always been to insure that no votlng~procedure changes would be
made that would lead to a retrogression In the position of racial minorities with
respect to their effective exercise of the electoral franchise." 425 U.S., at 141.
The Justice Department's maximization policy seems quite far removed from this
purpose. We are especially reluctant to conclude that § 5 justifies that policy
given the serious constitutional concerns it raises.

Id., 515 U.S. at 926.
Indeed, by following a maximization polley, these districts threaten the very principles that the
Voting Rights Act exists to promote. The goal of the Act is to ensure a fair opportunity to
participate, not a guarantee of racial proportionality. By drawing districts that go far beyond
what the Voting Rights Act requires, the General Assembly frustrates the purpose of the Act
and creates a threat to its constitutionality.
Third, the purported justification for these districts is based on a crucial legal error: conflating
the standards under Section 2 and Section 5 of the Voting Rights Act. The Section 5 nonretrogreSSion requirement prevents the drawing of districts that, compared to the benchmark
of existing districts, makes it harder for Black voters to elect their candidates of choice. It does
not mean that Section 5 districts must be 50% or greater in Black population. A district that has
a Black voting age population of 45% and has been electing the candidate of choice of Black
voters, need only be redrawn to meet the benchmark of 45%. Instead, this plan appears to be
based on the assumption that the Section 2 standards also apply under Section 5. The Supreme
Court expjicltly rejected this proposition in the Bossler Parish case, and has been very clear on
numerous occasions since then that the standards under these two sections of the Act are
different. See Reno v. Bossier Parish, 520 U.S. 471, 476-480 {1997}. Most recently in Bartlett v.
Strickland the court explained:
Petitioners claim the majority-minority rule Is inconsistent with §5, but we
rejected a similar argument in LULAC, 548 U. S. 399,446 {2006} {opinion of
Kennedy, J.}. The inquiries under §§2 and 5 are different. Section 2 concerns
minority groups' opportunity ((to elect representatives oftheir cholce," 42 U.S.
C. §1973(b) (2000 ed.), while the more stringent §5 asks whether a change has
the purpose or effect of ((denying or abridging the right to vote," §1973c.
3

 - App. 37 -

Bartlett v. Strickland, 129 S. Ct. 1231 (2009) (citing LULAC v. Perry, 548 U.S. 399,446 (2006)).
By conflating the Section 2 and Section 5 standards, the plan exceeds what the Voting Rights
Act requires and, In particular, Increases the percentage of Black voters In Section 5 districts
beyond what is required by the non-retrogression standard.
Finally, this plan Is not in the best Interests of racial minority voters In North Carolina because it
concentrates their voting strength in a smaller number of districts and does not balance the
goals of minority representation with the goals of reflecting important communities of interest.
I look forward to having the opportunity to comment on other matters relating to Section 2 and
Section 5 compliance once the full districting plans are made pubiic.
Thank you again for the kind invitation to provide this information.

4

 - App. 38 -

Appendix 4:
Counties in Which Majority
Black Districts Were Sited in
the State Legislative Plans Used
for the 1992-2000 Elections, the
2002 Court-Drawn Plans, the
State Legislative Plans Used for
the 2004-2010 Elections, and
the 2011 Enacted Plans

 - App. 39 -

Counties in Which Majority Black Senate Districts Were Sited in the Senate
Plans Used for the 1992-2000 Elections, the 2002 Court-Drawn Plans, the
State Legislative Plans Used for the 2004-2010 Elections, and the 2011
Enacted Plans
County
Bertie
Gates
Halifax
Hertford
Northhampton
Vance
Warren
Edgecombe
Martin
Pitt
Washington
Wilson
Mecklenburg
Tyrell
Chowan
Nash
Greene
Lenoir
Wayne
Wake
Durham
Granville
Cumberland
Hoke
Guilford

1992
1
1
1
1
1
1
1
1
1
1
1
1
1
0
0
0
0
0
0
0
0
0
0
0
0

2002
1
1
1
1
1
1
1
1
1
1
1
0
1
1
0
0
0
0
0
0
0
0
0
0
0

2003
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0

2011
1
0
1
1
1
1
1
1
1
1
1
1
2
1
1
1
1
1
1
1
1
1
1
1
1

 - App. 40 -

Counties in Which Majority Black House Districts Were Sited in the House
Plans Used for the 1992-2000 Elections, the 2002 Court-Drawn Plans, the
State Legislative Plans Used for the 2004-2010 Elections, and the 2011
Enacted Plans
County
Bertie
Gates
Hertford
Northhampton
Edgecombe
Greene
Martin
Pitt
Halifax
Nash
Guilford
Forsyth
Mecklenburg
Wake
Cumberland
Granville
Vance
Warren
Craven
Jones
Lenoir
Pamlico
Brunswick
Columbus
New Hanover
Pender
Wilson
Pasquotank
Franklin
Duplin
Sampson
Wayne
Durham
Hoke

1992
1
1
1
1
3
1
2
1
1
2
2
1
2
1
0
1
1
1
1
1
1
1
1
1
1
1
1
0
0
0
0
0
0
0

2002
1
0
1
1
1
1
1
1
1
1
2
1
1
0
0
1
1
1
0
0
0
0
0
0
0
0
1
0
0
0
0
0
0
0

2003
0
0
0
1
1
0
1
1
1
1
2
1
2
0
0
0
1
1
0
0
0
0
0
0
0
0
1
0
0
0
0
0
0
0

2009
0
0
0
1
1
0
1
1
1
1
2
1
2
0
0
0
1
1
0
0
0
0
0
0
0
0
1
0
0
0
0
0
0
0

2011
1
1
1
1
1
1
1
1
1
1
3
0
5
2
2
1
1
1
1
0
1
0
0
0
0
0
1
1
1
1
1
1
2
1

 - App. 41 -

Richmond 0 
Robeson 0
Scotland 0 

- App. 42 -

Appendix 5:
Charts Comparing Districts, in
Counties Examined by Gingles
Court, in the 1991, 2003 and
2009 Legislatively-Enacted
Redistricting Plans, the 2002
Court-Drawn Plan, and the
2011 Enacted Plans

 - App. 43 -

The following is a chart that shows the enacted BVAP of districts in the counties in
1984, 1991, 2002, and 2003, 2011 in the counties in which the Gingles Court
conducted its Section 2 analysis
Durham County House Districts1

Plan

District #

District
BVAP

1984

23
68

67.2%
31.0%

69

10.9%

23
63
(Durham/Wake)
92
(Durham/Wake)
29
30
31
32
(Durham/Wake)
29
30
31
66
(Durham/Person)
29
30
31
50
(Durham/Orange)

37.39%
7.11%

1991

2002

2003

2011

1

Except as noted all districts are located entirely within a county.

14.87%
44.44%
25.74%
44.72%
27.84%
44.12%
21.16%
44.20%
26.49%
56.31%
17.75%
50.74%
17.80%

 - App. 44 -

Notably, neither the General Assembly in 1991 or 2003 or the Courts in
2002 judged that the VRA required any 50% + House District in Durham County.
The challenged House Plan included two 50%+ districts in Durham.
Durham County Senate Districts

Plan

District #

19842
2002

13
18
(Person, Granville
Part of Durham)
20
20
18
(Chatham and
Part of Durham)
20
(Granville and
Part of Durham)
22
(Caswell,
Person
and
Part of Durham)

2003

2011

District
BVAP
32.95%
23.31%

46.87%
44.58%
19.38%

51.64%

21.47%

Notably, neither the General Assembly in 1984, 1991 or 2003 or the Courts
in 2002 judged that the VRA required any 50% + Senate district in Durham
County. The Challenged Senate Plans includes such a district for the first time.
Wake County House Districts

2

The Gingles Order did not require redrawing Senate Districts in Durham, Forsyth or Wake Counties

 - App. 45 -

Plan

District #

1984

HD 21
HD 61
HD 62
HD 63
HD 64
HD 65
HD 15
HD 21
HD 61
HD 62
HD
63
(Wake/Durham)
HD 64
HD 65
HD
92
(Wake/Durham)
HD 33
HD 34
HD 35
HD 36
HD 37
HD 38
HD 39
HD 40
HD 41
HD 33
HD 34
HD 35
HD 36
HD 37
HD 38
HD 39
HD 40
HD 41
HD 11

1991

2002

2003

2011

District
BVAP
63.4%
6.5%
21.3%
9.5%
12.1%
18.1%
13.75%
54.13%
9.49%
12.91%
14.87%
23.21%
18.84%
7.11%
49.27%
12.76%
10.99%
5.60%
14.96%
31.63%
27.07%
8.49%
8.54%
49.97%
12.76%
10.33%
5.60%
14.96%
31.63%
27.07%
8.49%
8.54%
14.04%

 - App. 46 -

HD 33
HD 34
HD 35
HD 36
HD 37
HD 38
HD 39
HD 40
HD 41

50.36%
16.26%
16.87%
7.43%
13.32%
50.68%
26.69%
9.26%
6.98%

Notably, neither the General Assembly in 2003 or the Courts in 2002 judged
that the VRA required a 50%+ House district in Wake.

The 2011 General

Assembly included 2 such districts in Wake.
Wake County Senate Districts

Plan

District #

1991

13
(Granville, Durham
and
Part of Wake)
14
(Wake and
Part of Johnston)
36
14
15
16
17
14
15
16
17
14

2002

2003

2011

District
BVAP
32.95%

25.24%

8.45%
43.16%
16.14%
16.80%
11.68%
41.0%
10.36%
14.70%
11.44%
51.78%

 - App. 47 -

15
16
17
18
(Franklin and
Part of Wake)

10.07%
15.03%
9.48%
17.96%

Notably, neither the 1991 or 2003 sessions of the General Assembly, or the
Courts in 1992, judged the VRA required a 50%+ Senate District in Wake. The
2011 General Assembly included such a district.
Forsyth County House Districts

Plan

District #

1984

39 (3 members)
66
67
39
66
67
73
(Forsyth/Rockingham)
84
(Forsyth/Guilford)
88
71
72
91 (part)
(Surry/Forsyth/Stoke)s
92 (part)
Yadkin/Forsyth
93
94
71

1991

2002

2003

District
BVAP
4.4%
56.1%
55.4%
5.53%
51.77%
45.71%
14.43%
6.52%
5.44%
50.35%
41.56%
4.74%
4.50%
9.33%
7.84%
51.57%

 - App. 48 -

2011

72
73
74
75
71
72
74
75
79 (part)
(Davie/Forsyth)

43.40%
5.70%
7.99%
8.35%
45.49%
45.02%
16.77%
11.84%
8.06%

Forsyth County Senate Districts

Plan

District #

1991

20
38
(Part of Forsyth,
Davidson, Rowan
and Davie)
31
32
31
32
31
(Yadkin and Part
of Forsyth)
32

2002
2003
2011

District
BVAP

6.99%
40.47%
6.23%
40.74%
6.42%

42.53%

Mecklenburg County House Districts

Plan

District #

District
BVAP

1984

36

4.5%

 - App. 49 -

1991

2002

2003

54
55
56
57
58
59
60
36
54
55
56
57
58
59
60
69
76
93
98
99
100
101
102
103
104
105
106
107
98
99
100
101
102
103
104
105
106
107

16.9%
12.1%
18.0%
2.1%
28.2%
63.1%
66.3%
17.60%
26.41%
5.77%
31.28%
4.33%
26.87%
51.55%
53.60%
4.46%
8.42%
7.86%
9.02%
27.42%
30.18%
47.70%
46.05%
7.2%
5.09%
5.17%
26.16%
54.36%
9.46%
28.29%
30.97%
50.60%
46.11%
13.03%
4.22%
4.48%
25.50%
50.48%

 - App. 50 -

2011

88
92
98
99
100
101
102
103
104
105
106
107

7.5%
17.46%
10.74%
53.23%
30.97%
50.26%
52.49%
12.58%
7.69%
9.01%
51.12%
51.49%

Notably, the 1984, 1991 and 2003 sessions of the General Assembly, and the
Courts in 2002, judged that no more than two 50%+ House districts were required
in Mecklenburg, but the 2011 sessions judged that five such districts were
necessary.
Mecklenburg County Senate Districts

Plan

District #

1984

22
(Mecklenburg
and Cabarrus)
33
34
35
33
34
(Part
of
Lincoln and
Mecklenburg)
35

1991

District
BVAP
11.1%

66.0%
14.4%
5.8%
55.28%
20.59%

3.43%

 - App. 51 -

2002

2003

RS2

40
35
37
38
39
40
35
37
38
39
40
37
38
39
40
41

18.77%
9.67%
41.91%
56.67%
7.59%
9.32
10.93%
24.99%
47.69%
5.18%
31.11%
26.34%
52.51%
6.99%
51.84%
13.15%

Notably, prior to 2011 neither the General Assembly nor the Courts had
judged that the VRA required more than one 50% districts in Mecklenburg. The
2011 Session of the General Assembly judged two such districts necessary.
Wilson, Nash and Edgecombe Districts

Plan

District #

1984

8
70
20
(Parts
of
Nash,
Franklin and
Johnston)
70
(Parts
of
Nash,

1991

District
BVAP
29.6%
69.1%
18.37%

61.09%

 - App. 52 -

2002

2003

Edgecombe
and Wilson)
71
(Parts
of
Nash,
Edgecombe
and Wilson)
72
(Parts
of
Nash
and
Wilson)
7
(Halifax and
Parts
of
Nash)
23
(Parts
of
Wilson and
Edgecombe)
24
(Parts
of
Wilson and
Edgecombe)
25
(Part
of
Nash)
7
(Halifax and
Part of Nash
23
(Parts
of
Wilson and
Edgecombe)
24
(Parts
of
Wilson and
Edgecombe)
25
(Nash Only)

29.18%

16.06%

58.45%

29.84%

58.8%

25.05

59.77%

36.54%

58.47%

27.26%

 - App. 53 -

2011

7
of
(Parts
and
Nash
Franklin)
28
of
(Parts
and
Nash
Franklin)
8
of
(Parts
Wilson and
Pitt)
24
of
(Parts
Wilson and
Pitt)
23
(Edgecombe,
Martin)

52.49%

16.94%

29.90%

60.01%

53.80%

Notably, prior to 2011 neither the General Assembly nor Courts had judged
that the VRA required more than two 50% House districts in those counties. The
2011 General Assembly includes three such districts in those counties.

 - App. 54 -

Appendix 6:
Racially Contested State
Legislative District Elections
2006-2011 (with District
Demographic Data)

 - App. 55 -

Recent Elections of African-American Officials from Non-Majority Black
Districts
Year District Representative

Race

District
BVAP%

Winner %
of Vote

Record
Citation

Black

Racially
Contested
Election?
N

2008 HD 5

Annie Mobley

48.76%

-

Annie Mobley

Black

Y

48.76%

58.99%

2006 HD 12

William
Wainwright

Black

Y

47.09%

66.28%

2008 HD 12

William
Wainwright

Black

Y

47.09%

69.14%

2010 HD 12

William
Wainwright

Black

Y

47.09%

60.21%

2006 HD 18

Thomas Wright

Black

Y (prim)

39.09%

67.84%

2008 HD 18

Sandra Hughes

Black

Y

39.09%

67.18%

2006 HD 21

Larry Bell

Black

N

47.94%

-

2008 HD 21

Larry Bell

Black

N

47.94%

-

2006 HD 29

Larry Hall

Black

Y (prim)

44.12%

55.47%

2008 HD 29

Larry Hall

Black

Y

44.12%

90.73%

2010 HD 29

Larry Hall

Black

N

44.12%

-

2006 HD 31

Mickey
Michaux

Black

N

44.20%

-

Churchill
Depo. Ex. 83,
p. 22
Churchill
Depo. Ex. 83,
p. 43
Churchill
Depo. Ex. 83,
p. 5
Churchill
Depo. Ex. 83,
p. 25
Churchill
Depo. Ex. 83,
p. 47
Churchill
Depo. Ex. 83,
p. 6
Churchill
Depo. Ex. 83,
p. 26
Churchill
Depo. Ex. 83,
p. 7
Churchill
Depo. Ex. 83,
p. 27
Churchill
Depo. Ex. 83,
p. 10
Churchill
Depo. Ex. 83,
p. 29
Churchill
Depo. Ex. 83,
p. 49
Churchill
Depo. Ex. 83,
p. 11

2010 HD 5

 - App. 56 -

2008 HD 31

Mickey
Michaux

Black

N

44.20%

-

2010 HD 31

Mickey
Michaux

Black

Y

44.20%

75.50%

2006 HD 33

Bernard Allen

Black

N

49.19%

-

2008 HD 33

Dan Blue

Black

Y

49.19%

81.85%

2010 HD 33

Rosa Gill

Black

Y

49.19%

77.79%

2006 HD 39

Linda Coleman

Black

Y

26.70%

58.73%

2008 HD 39

Linda Coleman

Black

Y

26.70%

64.24%

2006 HD 41

Ty Harrell

Black

Y

8.30%

51.64%

2008 HD 41

Ty Harrell

Black

Y

8.30%

53.77%

2006 HD 42

Marvin Lucas

Black

N

43.94%

-

2008 HD 42

Marvin Lucas

Black

N

43.94%

-

2010 HD 42

Marvin Lucas

Black

N

43.94%

-

2006 HD 43

Mary
McAllister

Black

N

47.75%

-

2008 HD 43

Elmer Floyd

Black

N

47.75%

93.31%

2006 HD 48

Garland Pierce

Black

N

45.24%

-

2008 HD 48

Garland Pierce

Black

N

45.24%

-

Churchill
Depo. Ex. 83,
p. 30
Churchill
Depo. Ex. 83,
p. 50
Churchill
Depo. Ex. 83,
p. 12
Churchill
Depo. Ex. 83,
p. 31
Churchill
Depo. Ex. 83,
p. 51
Churchill
Depo. Ex. 83,
p. 66
Churchill
Depo. Ex. 83,
p. 68
Churchill
Depo. Ex. 83,
p. 79
Churchill
Depo. Ex. 83,
p. 81
Churchill
Depo. Ex. 83,
p. 13
Churchill
Depo. Ex. 83,
p. 32
Churchill
Depo. Ex. 83,
p. 53
Churchill
Depo. Ex. 83,
p. 15
Churchill
Depo. Ex. 83,
p. 33
Churchill
Depo. Ex. 83,
p. 16
Churchill

 - App. 57 -

2010 HD 48

Garland Pierce

Black

Y

45.24%

74.80%

2006 HD 72

Earline Parmon

Black

N

42.93%

-

2008 HD 72

Earline Parmon

Black

N

42.93%

-

2010 HD 72

Earline Parmon

Black

Y

42.93%

69.48%

2008 HD 99

Nick Mackey

Black

Y (prim)

27.74%

65.32%

2010 HD 99

Rodney Moore

Black

Y

27.74%

72.01%

2006 SD 4

Robert
Holloman

Black

Y

49.14%

69.67%

2008 SD 4

Edward Jones

Black

N

49.14%

-

2008 SD 5

Don Davis

Black

Y

30.14%

52.90%

2008 SD 14

Vernon Malone

Black

Y

41.01%

69.45%

2010 SD 14

Dan Blue

Black

Y

41.01%

65.92%

2006 SD 20

Jeanne Lucas

Black

N

44.58%

-

2008 SD 20

Floyd
McKissick

Black

Y

44.58%

73.58%

2010 SD 20

Floyd
McKissick

Black

Y

44.58%

73.11%

2008 SD 21

Larry Shaw

Black

N

41.00%

-

Depo. Ex. 83,
p. 36
Churchill
Depo. Ex. 83,
p. 55
Churchill
Depo. Ex. 83,
p. 20
Churchill
Depo. Ex. 83,
p. 40
Churchill
Depo. Ex. 83,
p. 59
Churchill
Depo. Ex. 83,
p. 70
Churchill
Depo. Ex. 83,
p. 74
Churchill
Depo. Ex. 82,
p. 4
Churchill
Depo. Ex. 82,
p. 11
Churchill
Depo. Ex. 82,
p. 29
Churchill
Depo. Ex. 82,
p. 13
Churchill
Depo. Ex. 82,
p. 21
Churchill
Depo. Ex. 82,
p. 6
Churchill
Depo. Ex. 82,
p. 14
Churchill
Depo. Ex. 82,
p. 22
Churchill
Depo. Ex. 82,

 - App. 58 -

2010 SD 21

Eric Mansfield

Black

Y

41.00%

67.61%

2006 SD 24

Tony Foriest

Black

Y (prim)

20.79%

70.06%

2008 SD 24

Tony Foriest

Black

Y

20.79%

52.51%

2006 SD 28

Katie Dorsett

Black

N

44.18%

-

2008 SD 28

Katie Dorsett

Black

N

44.18%

-

2010 SD 28

Gladys
Robinson

Black

Y

44.18%

2006 SD 38

Charlie
Dannelly

Black

N

47.69%

47.38%
[black (I)
candidate
received
13.47%]
-

2008 SD 38

Charlie
Dannelly

Black

Y

47.69%

73.33%

2010 SD 38

Charlie
Dannelly

Black

N

47.69%

-

2006 SD 40

Malcolm
Graham

Black

Y

31.11%

61.48%

2008 SD 40

Malcolm
Graham

Black

Y

31.11%

66.96%

2010 SD 40

Malcolm
Graham

Black

Y

31.11%

58.16%

1998 CD 1

Eva Clayton

Black

Y

46.54%

62.24%

2000 CD 1

Eva Clayton

Black

Y

46.54%

66%

2002 CD 1

Frank Ballance

Black

Y

47.76%

63.73%

p. 15
Churchill
Depo. Ex. 82,
p. 23
Churchill
Depo. Ex. 82,
p. 36
Churchill
Depo. Ex. 82,
p. 39
Churchill
Depo. Ex. 82,
p. 8
Churchill
Depo. Ex. 82,
p. 16
Churchill
Depo. Ex. 82,
p. 24

Churchill
Depo. Ex. 82,
p. 9
Churchill
Depo. Ex. 82,
p. 17
Churchill
Depo. Ex. 82,
p. 26
Churchill
Depo. Ex. 82,
p. 28
Churchill
Depo. Ex. 82,
p. 31
Churchill
Depo. Ex. 82,
p. 34
Churchill
Depo. Ex. 81,
p. 10
Churchill
Depo. Ex. 81,
p. 12
Churchill

 - App. 59 -

2004 CD 1

G.K. Butterfield Black

Y

47.76%

63.97%

2006 CD 1

G.K. Butterfield Black

N

47.76%

-

2008 CD 1

G.K. Butterfield Black

Y

47.76%

70.28%

2010 CD 1

G.K. Butterfield Black

Y

47.76%

59.31%

1998 CD 12

Mel Watt

Black

Y

32.56%

55.95%

2000 CD 12

Mel Watt

Black

Y

43.36%

65%

2002 CD 12

Mel Watt

Black

Y

42.31%

65.34%

2004 CD 12

Mel Watt

Black

Y (prim)

42.31%

66.82%

2006 CD 12

Mel Watt

Black

N

42.31%

-

2008 CD 12

Mel Watt

Black

Y

42.31%

71.55%

2010 CD 12

Mel Watt

Black

Y

42.31%

63.88%

Depo. Ex. 81,
p. 15
Churchill
Depo. Ex. 81,
p. 17
Churchill
Depo. Ex. 81,
p. 20
Churchill
Depo. Ex. 81,
p. 24
Churchill
Depo. Ex. 81,
p. 26
Churchill
Depo. Ex. 81,
p. 11
Churchill
Depo. Ex. 81,
p. 14
Churchill
Depo. Ex. 81,
p. 16
Churchill
Depo. Ex. 81,
p. 19
Churchill
Depo. Ex. 81,
p. 22
Churchill
Depo. Ex. 81,
p. 25
Churchill
Depo. Ex. 81,
p. 29

 - App. 60 -

Recent Elections of African-American Officials from Majority White Districts
Year

District

Representative

Race

District
WVAP%

Record Citation

Black

Racially
Contested
Election?
Y (prim)

2006

HD 18

Thomas Wright

57.73%

Sandra Hughes

Black

Y

57.73%

HD 39

Linda Coleman

Black

Y

67.68%

2008

HD 39

Linda Coleman

Black

Y

67.68%

2006

HD 41

Ty Harrell

Black

Y

82.85%

2008

HD 41

Ty Harrell

Black

Y

82.85%

2006

HD 72

Earline Parmon

Black

N

51.33%

2008

HD 72

Earline Parmon

Black

N

51.33%

2010

HD 72

Earline Parmon

Black

Y

51.33%

2008

HD 99

Nick Mackey

Black

Y (prim)

62.20%

2010

HD 99

Rodney Moore

Black

Y

62.20%

2008

SD 14

Vernon Malone

Black

Y

51.84%

2010

SD 14

Dan Blue

Black

Y

51.84%

2006

SD 24

Tony Foriest

Black

Y (prim)

75.17%

2008

SD 24

Tony Foriest

Black

Y

75.17%

2006

SD 40

Black

Y

59.89%

2008

SD 40

Black

Y

59.89%

2010

SD 40

Black

Y

59.89%

2008

SD 5

Malcolm
Graham
Malcolm
Graham
Malcolm
Graham
Don Davis

Black

Y

65.13%

2006

SD 28

Katie Dorsett

Black

N

50.74%

Churchill Depo. Ex.
83, p. 6
Churchill Depo. Ex.
83, p. 26
Churchill Depo. Ex.
83, p. 66
Churchill Depo. Ex.
83, p. 68
Churchill Depo. Ex.
83, p. 79
Churchill Depo. Ex.
83, p. 81
Churchill Depo. Ex.
83, p. 20
Churchill Depo. Ex.
83, p. 40
Churchill Depo. Ex.
83, p. 59
Churchill Depo. Ex.
83, p. 70
Churchill Depo. Ex.
83, p. 74
Churchill Depo. Ex.
82, p. 13
Churchill Depo. Ex.
82, p. 21
Churchill Depo. Ex.
82, p. 36
Churchill Depo. Ex.
82, p. 39
Churchill Depo. Ex.
82, p. 28
Churchill Depo. Ex.
82, p. 31
Churchill Depo. Ex.
82, p. 34
Churchill Depo. Ex.
82, p. 29
Churchill Depo. Ex.
82, p. 8

2008

HD 18

2006

 - App. 61 -

2008

SD 28

Katie Dorsett

Black

N

50.74%

2010

SD 28

Gladys Robinson Black

Y

50.74%

1998

CD 1

Eva Clayton

Black

Y

52.42%

2000

CD 1

Eva Clayton

Black

Y

52.42%

1998

CD 12

Mel Watt

Black

Y

65.85%

2000

CD 12

Mel Watt

Black

Y

55.05%

2002

CD 12

Mel Watt

Black

Y

50.57%

2004

CD 12

Mel Watt

Black

Y (prim)

50.57%

2006

CD 12

Mel Watt

Black

N

50.57%

2008

CD 12

Mel Watt

Black

Y

50.57%

2010

CD 12

Mel Watt

Black

Y

50.57%

 

Churchill Depo. Ex.
82, p. 16
Churchill Depo. Ex.
82, p. 24
Churchill Depo. Ex.
81, p. 10
Churchill Depo. Ex.
81, p. 12
Churchill Depo. Ex.
81, p. 11
Churchill Depo. Ex.
81, p. 14
Churchill Depo. Ex.
81, p. 16
Churchill Depo. Ex.
81, p. 19
Churchill Depo. Ex.
81, p. 22
Churchill Depo. Ex.
81, p. 25
Churchill Depo. Ex.
81, p. 29

 - App. 62 -

Appendix 7:

District?by?Distriet Information
Available to the General
Assembly

- App. 63 -

Senate District 4
Senate District 4 is comprised of Vance, Warren and Halifax counties, and
pieces of Nash and Wilson counties. (Doc. Ex. 7726, CDs, PS 83, Depositions,
Rucho Deposition, Exhibits 199-218, NAACP-199). Defendants increased the
TBVAP for Senate District 4 from 49.70% in 2010 to 52.75% under the 2011 plan.
(R p 660; Doc. Ex. 6211). The candidate of choice of black voters won the general
election in 2010 with 62.55% of the vote, when the district had 49.70% TBVAP.
(Doc. Ex. 6211).

The candidate of choice of black voters also won the general

election in 2006 and 2008. (Doc. Ex. 7726, CDs, PS83, Depositions, Churchill
Deposition, Ex 44-94, Churchill 82).
Senate District 5
Senate District 5 is comprised of Greene County and pieces of Wayne,
Lenoir and Pitt counties. (Doc. Ex. 7726, CDs, PS 83, Depositions, Rucho
Deposition, Exhibits 199-218, NAACP-199). Defendants increased the TBVAP
for Senate District 5 from 31% in 2010 to 51.97% under the 2011 plan. (R p 660;
Doc. Ex. 6211). The candidate of choice of black voters won the election in 2008
when the district had only 31% TBVAP. (Doc. Ex. 1309).
Senate District 14
Senate District 14 is located wholly within Wake County. (Doc. Ex. 7726,
CDs, PS 83, Depositions, Rucho Deposition, Exhibits 199-218, NAACP-199).

 - App. 64 -

Defendants increased the TBVAP for Senate District 14 from 42.62% in 2010 to
51.28% under the 2011 plan. (R p 660; Doc. Ex. 6211). The candidate of choice of
black voters won the general election in 2010 with 65.92% of the vote, when the
district had 42.62% TBVAP. (Doc. Ex. 6211).

In the 2004 general election, the

Black candidate (Vernon Malone) defeated the White candidate by 64.1% to
35.9%. In the 2006 general election, Senator Malone defeated the White candidate
by 65.9% to 34.1%. In the 2008 general election, Senator Malone defeated the
White candidate 69.45% to 30.55%. In the 2010 general election, the Black
candidate (Dan Blue) defeated the White candidate 65.9% to 34.1%. (R p 283;
Doc. Ex. 7726, CDs, PS83, Depositions, Churchill Deposition, Ex 44-94, Churchill
82).
Senate District 20
Senate District 20 is comprised of Granville County and a piece of Durham
County. (Doc. Ex. 7726, CDs, PS 83, Depositions, Rucho Deposition, Exhibits
199-218, NAACP-199). Defendants increased the TBVAP for Senate District 20
from 44.64% in 2010 to 51.04% under the 2011 plan. (R p 660; Doc. Ex. 6211).
The candidate of choice of black voters won the general election in 2010 with
73.11% of the vote, when the district had 44.64% TBVAP. (Doc. Ex. 6211). In
the 2004 general election, the Black candidate, Senator Lucas, defeated the White
candidate 90.2% to 9.8%. In the 2006 general election, Senator Lucas was not

 - App. 65 -

opposed. In the 2008 general elections, the Black candidate defeated White
opponents, by 73.58% to 22.55%.

(Doc. Ex. 7726, CDs, PS83, Depositions,

Churchill Deposition, Ex 44-94, Churchill 82; R p 285). Senator Jeanne Lucas was
elected to office at least 7 times prior to the election of Senator McKissick. (T p
110).
Senate District 21
Senate District 21 is comprised of Hoke County and pieces of Cumberland
County. (Doc. Ex. 7726, CDs, PS 83, Depositions, Rucho Deposition, Exhibits
199-218, NAACP-199). Defendants increased the TBVAP for Senate District 21
from 44.93% in 2010 to 51.53% under the 2011 plan. (R p 660; Doc. Ex. 6211).
The candidate of choice of black voters, Eric Mansfield, won the general election
in 2010 with 67.61% of the vote, when the district had 44.93% TBVAP. (Doc. Ex.
6211). In the 2004 general election, the Black candidate, Larry Shaw, received
61.21% of the vote, the White candidate received 36.09% of the vote, and a third
party candidate received 2.69% of the votes. In the 2006 general election, Senator
Shaw defeated the White candidate by 61.6% to 38.4%. In the 2008 general
election, Senator Shaw was unopposed. (R p 286; Doc. Ex. 7726, CDs, PS83,
Depositions, Churchill Deposition, Ex 44-94, Churchill 82).
Prior to Senator Shaw’s election, Senate District 21 was represented by
another African-American senator, C.R. Edwards. (T p 57). Senate District 21 has

 - App. 66 -

been represented by four different African-American candidates in recent years,
and in none of those districts were black voters a majority of the electorate. (Doc.
Ex. 7726, CDs, PS83, Depositions, Churchill Deposition, Ex 44-94, Churchill 82;
Doc. Ex. 6211). Then-Senator Mansfield spoke out against the configuration of
Senate District 21 in the enacted plan and spoke personally with Senator Rucho,
explaining that an increase in the black voting age population in the district was
not necessary and that it sent the message that white voters in the district would
only vote for a white candidate when that was clearly not the case. (T pp 65-66).
Senate District 28
Senate District 28 is located wholly within Guilford County. (Doc. Ex.
7726, CDs, PS 83, Depositions, Rucho Deposition, Exhibits 199-218, NAACP199). Defendants increased the TBVAP for Senate District 28 from 47.20% in
2010 to 56.49% under the 2011 plan. (R p 660; Doc. Ex. 6211). Senator Robinson
won the general election in 2010 in a three-candidate race with 47.84% of the vote,
when the district had 47.20% TBVAP. (Doc. Ex. 6211). In that general election,
there were two black candidates and one white candidate. (T pp 144-45; Doc. Ex.
6760). SD 28 has been represented by three black senators, Bill Martin, Katie
Dorsett and Gladys Robinson. (Doc. Ex. 6760).

In the 2004 and 2006 general

elections, the Black candidate, Katie Dorsett, was not opposed. In the 2008 general

 - App. 67 -

election, Senator Dorsett was not opposed. (R p 288; Doc. Ex. 7726, CDs, PS83,
Depositions, Churchill Deposition, Ex 44-94, Churchill 82).
Senate District 38
Senate District 38 is located wholly within Mecklenburg County. (Doc. Ex.
7726, CDs, PS 83, Depositions, Rucho Deposition, Exhibits 199-218, NAACP199). Defendants increased the TBVAP for Senate District 38 from 46.97% in
2010 to 52.51% under the 2011 plan. (R p 660; Doc. Ex. 6211). The candidate of
choice of black voters won in 2010 with 68.67% of the vote when the district had
46.97% TBVAP. (Doc. Ex. 6211). In the 2004 and 2006 general elections, the
Black candidate, Charlie Dannelly, was unopposed. In the 2008 general election,
Senator Dannelly defeated his White opponent by wide margins—73.33% to
23.87%. (R p 290; Doc. Ex. 7726, CDs, PS83, Depositions, Churchill Deposition,
Ex 44-94, Churchill 82).
Senate District 40
Senate District 40 is located wholly within Mecklenburg County. (Doc. Ex.
7726, CDs, PS 83, Depositions, Rucho Deposition, Exhibits 199-218, NAACP199). Defendants increased the TBVAP for Senate District 40 from 35.43% in
2010 to 51.84% under the 2011 plan. (R p 660; Doc. Ex. 6211). Sen. Graham won
in 2010 with 58.16% of the vote when the district had 35.43% TBVAP. (Doc. Ex.
6211).

In the 2004 general election, Sen. Graham defeated his opponent by

 - App. 68 -

57.88% to 42.11%. In the 2006 general election, Senator Graham was reelected by
61.47% to 38.52%; in the 2008 general election, he was re-elected by 66.96% to
33.04%. (R p 291; Doc. Ex. 7726, CDs, PS83, Depositions, Churchill Deposition,
Ex 44-94, Churchill 82).
House District 5
House District 5 is comprised of Gates, Hertford, Bertie and a piece of
Pasquotank County. (Doc. Ex. 7726, CDs, PS 83, Depositions, Lewis Deposition,
NAACP Exhibits 179-198, NAACP-189).

Defendants increased the TBVAP for

House District 5 from 48.87% in 2010 to 54.17% under the 2011 plan. (R p 659;
Doc. Ex. 6209). The candidate of choice of black voters won with 58.99% of the
vote in 2010, when the district had 48.87% TBVAP. (Doc. Ex. 6209). The
candidate of choice of black voters also won in 2008. (Doc. Ex. 7726, CDs, PS83,
Depositions, Churchill Deposition, Ex 44-94, Churchill 83).
House District 7
House District 7 is comprised of pieces of Halifax and Nash counties. Lewis
Dep. Ex. 189. Defendants increased the TBVAP for House District 7 from 48.87%
in 2010 to 51.67% under the 2011 plan. (R p 659; Doc. Ex. 6209). The candidate
of choice of black voters won in 2010 in an uncontested race, when the district had
48.87% TBVAP. (Doc. Ex. 6209). The candidate of choice of black voters also

 - App. 69 -

won in 2006 and 2008.

(Doc. Ex. 7726, CDs, PS83, Depositions, Churchill

Deposition, Ex 44-94, Churchill 83).
House District 12
House District 12 is comprised of pieces of Greene, Lenoir, and Craven
counties. (Doc. Ex. 7726, CDs, PS 83, Depositions, Lewis Deposition, NAACP
Exhibits 179-198, NAACP-189). Defendants increased the TBVAP for House
District 12 from 46.45% in 2010 to 50.6% under the 2011 plan. (R p 659; Doc.
Ex. 6209).

The candidate of choice of black voters, African-American state

representative William Wainwright, won in 2010 with 60.21% of the vote when
the district had 46.45 TBVAP. (Doc. Ex. 6209).

Representative Wainwright

prevailed in the 2004, 2006, and 2008 general elections, respectively, by 64.49% to
35.50%, 66.27% to 33.72%, and 69.13% to 30.86%. (R p 297; Doc. Ex. 7726,
CDs, PS83, Depositions, Churchill Deposition, Ex 44-94, Churchill 83).
House District 21
House District 21 is comprised of pieces of Sampson, Duplin, and Wayne
counties. (Doc. Ex. 7726, CDs, PS 83, Depositions, Lewis Deposition, NAACP
Exhibits 179-198, NAACP-189). Defendants increased the TBVAP for House
District 21 from 46.25% in 2010 to 51.9% under the 2011 plan. (R p 659; Doc. Ex.
6209). The candidate of choice of black voters won in 2010 with 65.59% of the
vote when the district had 46.25% TBVAP. (Doc. Ex. 6209). The candidate of

 - App. 70 -

choice of black voters also won in 2006 and 2008.

(Doc. Ex. 7726, CDs, PS83,

Depositions, Churchill Deposition, Ex 44-94, Churchill 83).
In floor debates, Representative Bell stated that he found the removal of
white and Native American voters from his district offensive and unnecessary,
because he knew those populations in his district supported him. (Doc. Ex. 686466).
House District 24
House District 24 is comprised of pieces of Wilson and Pitt counties. (Doc.
Ex. 7726, CDs, PS 83, Depositions, Lewis Deposition, NAACP Exhibits 179-198,
NAACP-189).

Defendants increased the TBVAP for House District 24 from

56.07% in 2010 to 57.33% under the 2011 plan. (R p 659; Doc. Ex. 6209). The
candidate of choice of black voters won in 2010 with 64.84% of the vote when the
district had 56.07% TBVAP. (Doc. Ex. 6209). The candidate of choice of black
voters also won in 2006 and 2008. (Doc. Ex. 7726, CDs, PS83, Depositions,
Churchill Deposition, Ex 44-94, Churchill 83).
House District 29
House District 29 is located wholly within Durham County. (Doc. Ex. 7726,
CDs, PS 83, Depositions, Lewis Deposition, NAACP Exhibits 179-198, NAACP189). Defendants increased the TBVAP for House District 29 from 46.25% in
2010 to 51.34% under the 2011 plan. (R p 659; Doc. Ex. 6209). Rep. Hall won in

 - App. 71 -

an uncontested general election in 2010 when the district had 46.25% TBVAP.
(Doc. Ex. 6209) Rep. Hall first won in the district in 2006, when he ran against
two other African-American candidates and two white candidates in the primary
elections. (T p 91). In 2008, Representative Hall defeated his opponent 90.73% to
9.27%. (R p 300; Doc. Ex. 7726, CDs, PS83, Depositions, Churchill Deposition,
Ex 44-94, Churchill 83). In his first election to the State House of Representatives,
Rep. Hall had the endorsements of groups such as the People’s Alliance and the
Police

Benevolent

Association—organizations

with

predominantly

white

memberships. (T p 103). The representative who preceded Representative Hall in
serving in House District 29 was another African-American state representative,
Paul Miller, who was elected and served three terms. (T p 91).
House District 31
House District 31 is located wholly within Durham County. (Doc. Ex. 7726,
CDs, PS 83, Depositions, Lewis Deposition, NAACP Exhibits 179-198, NAACP189). Defendants increased the TBVAP for House District 31 from 47.23% in
2010 to 51.84% under the 2011 plan. (R p 659; Doc. Ex. 6209). Rep. Michaux
won in 2010 with 75.5% of the vote when the district had 47.23% TBVAP. (Doc.
Ex. 6209). At the 2006 and 2008 general elections, Rep. Michaux did not have an
opponent. At the 2004 general election, Rep. Michaux defeated his opponent by
85.97% to 14.02%. (R p 301; Doc. Ex. 7726, CDs, PS83, Depositions, Churchill

 - App. 72 -

Deposition, Ex 44-94, Churchill 83). The voters in House District 31 have elected
an African-American representative, Rep. Michaux, to 17 consecutive terms in
office. (T p 101).
House District 32
House District 32 is comprised of Warren, Vance, and Granville Counties.
(Doc. Ex. 7726, CDs, PS 83, Depositions, Lewis Deposition, NAACP Exhibits
179-198, NAACP-189). Defendants increased the TBVAP in House District 32
from 35.88% in 2010 to 50.45% under the 2011 plan. (Doc. Ex. 7726, CDs, PS 83,
Depositions, Lewis Deposition, NAACP Exhibits 179-198, NAACP-189; R p 659;
Doc. Ex. 6209). The prior version of House District 32 was located only in
Granville and Vance counties. (R p 658). The candidate of choice of black voters,
African-American state representative Nathan Baskerville, won in that district with
70.78% of the vote in the 2012 general election. (Doc. Ex. 6209).
House District 33
House District 33 is located wholly within Wake County. (Doc. Ex. 7726,
CDs, PS 83, Depositions, Lewis Deposition, NAACP Exhibits 179-198, NAACP189). House District 33 was drawn at 51.42% TBVAP. (R p 659). The candidate
of choice of black voters won in 2010 with 77.79% of the vote when the district
had 51.74% TBVAP. (Doc. Ex. 6209). The candidate of choice of black voters,

 - App. 73 -

then-state representative Dan Blue, also won in 2006 and 2008. (Doc. Ex. 7726,
CDs, PS83, Depositions, Churchill Deposition, Ex 44-94, Churchill 83).
House District 38
House District 38 is located wholly within Wake County. (Doc. Ex. 7726,
CDs, PS 83, Depositions, Lewis Deposition, NAACP Exhibits 179-198, NAACP189). Defendants increased the TBVAP for House District 38 from 27.96% in
2010 to 51.37% under the 2011 plan. (R p 659; Doc. Ex. 6209). The candidate of
choice of black voters won the general election in 2010 with 65.63% of the vote
when the district had 27.96% TBVAP. (Doc. Ex. 6209)
House District 42
House District 42 is located wholly within Cumberland County. (Doc. Ex.
7726, CDs, PS 83, Depositions, Lewis Deposition, NAACP Exhibits 179-198,
NAACP-189).

Defendants increased the TBVAP for House District 42 from

47.94% in 2010 to 52.56% under the 2011 plan. (R p 659; Doc. Ex. 6209). The
candidate of choice of black voters won the uncontested general election in 2010
when the district had 47.94% TBVAP. (Doc. Ex. 6209) The candidate of choice of
black voters also won in 2006 and 2008. (Doc. Ex. 7726, CDs, PS83, Depositions,
Churchill Deposition, Ex 44-94, Churchill 83).
House District 48

 - App. 74 -

House District 48 is comprised of pieces of Richmond, Scotland, Hoke, and
Robeson counties. (Doc. Ex. 7726, CDs, PS 83, Depositions, Lewis Deposition,
NAACP Exhibits 179-198, NAACP-189). Defendants increased the TBVAP for
House District 48 from 45.56% in 2010 to 51.27% under the 2011 plan. (R p 659;
Doc. Ex. 6209). Rep. Pierce won the general election in 2010 with 74.80% of the
vote when the district had 45.56% TBVAP. (Doc. Ex. 6209). In the 2004, 2006,
and 2008 general elections, Rep. Pierce did not have an opponent. (R p 306).
House District 57
House District 57 is located wholly within Guilford County. (Doc. Ex. 7726,
CDs, PS 83, Depositions, Lewis Deposition, NAACP Exhibits 179-198, NAACP189). Defendants increased the BVAP for House District 57 from 29.93% in 2010
to 50.69% under the 2011 plan. (R p 659; Doc. Ex. 6209). The candidate of
choice of black voters won in 2010 with 55.69% of the vote when the district had
29.93% TBVAP. (Doc. Ex. 6209).
House District 99
House District 99 is located entirely within Mecklenburg County. (Doc. Ex.
7726, CDs, PS 83, Depositions, Lewis Deposition, NAACP Exhibits 179-198,
NAACP-189).

Defendants increased the TBVAP for House District 99 from

41.26% in 2010 to 54.65% under the 2011 plan. (R p 659; Doc. Ex. 6209). The
candidate of choice of black voters won in 2010 with 72.01% of the vote, when the

 - App. 75 -

district had 41.26% TBVAP. (Doc. Ex. 6209). The candidate of choice of black
voters also won in 2006 and 2008.

(R p 310; Doc. Ex. 7726, CDs, PS83,

Depositions, Churchill Deposition, Ex 44-94, Churchill 83).
House District 106
House District 106 is located entirely within Mecklenburg County. (Doc. Ex.
7726, CDs, PS 83, Depositions, Lewis Deposition, NAACP Exhibits 179-198,
NAACP-189). Defendants increased the TBVAP for House District 106 from
28.16% in 2010 to 51.12% under the 2011 plan. (R p 659; Doc. Ex. 6209). The
candidate of choice of black voters won in 2010 with 59.50% of the vote, when the
district had 28.16% TBVAP. (Doc. Ex. 6209). After the unnecessary increase in
TBVAP, the candidate of choice of black voters, African-American state
representative Carla Cunningham, won an uncontested general election in 2012.
(Doc. Ex. 6209).
House District 107
House District 107 is located entirely within Mecklenburg County. (Doc.
Ex. 7726, CDs, PS 83, Depositions, Lewis Deposition, NAACP Exhibits 179-198,
NAACP-189).

Defendants increased the TBVAP in House District 107 from

47.14% in 2010 to 52.52% under the 2011 plan. (R p 659; Doc. Ex. 6209). In the
2004 general election, the Black candidate, Pete Cunningham, defeated his
opponent 68.2% to 31.8%. In the 2006 general election, Representative

 - App. 76 -

Cunningham did not have an opponent. In the 2008 and 2010 elections, the Black
candidate, Kelly Alexander, defeated his opponent 75.26% to 24.74% and 67.26%
to 32.74%. (R p 311).

 - App. 77 -

Appendix 8:
Lines of Challenged Districts
Superimposed over Census
Block Data by Race

 - App. 78 -

House District 5

5

1

Percent BVAP
20% and below
20% - 40%
40% - 60%
60% - 80%
80% and above

 - App. 79 -

House District 7

32

27

2
7

40
25
23

35

38

Percent BVAP

20% and below

8

39
33

26

20% - 40%
40% - 60%
60% - 80%

80% and above
24

 - App. 80 -

House District 21
28

12

10
22

4

21

13

Percent BVAP

20% and below

16

20% - 40%
40% - 60%
60% - 80%

80% and above

 - App. 81 -

7

25

House District 24
23

24

8
Percent BVAP

10

12
4

9

20% and below
20% - 40%
40% - 60%
60% - 80%

80% and above

 - App. 82 -

House District 29
50

30

31

29

56
Percent BVAP

20% and below

40

20% - 40%
40% - 60%
60% - 80%

80% and above

 - App. 83 -

House District
31
2
50
40
31
30

29

Percent BVAP

20% and below
20% - 40%
40% - 60%
60% - 80%

49

80% and above

 - App. 84 -

House District 32

2

32

Percent BVAP

20% and below
20% - 40%

50

40% - 60%
60% - 80%

7

80% and above

 - App. 85 -

34

38

House District 33

11

33

39
36

Percent BVAP

20% and below
20% - 40%
40% - 60%
60% - 80%

26

80% and above

 - App. 86 -

40

House District 38

49
35
38

34

39

Percent BVAP

11

20% and below

33

20% - 40%
40% - 60%
60% - 80%

80% and above

 - App. 87 -

53

51

52

House District 42
45

42
43

66

44
48

Percent BVAP

20% and below
20% - 40%
40% - 60%
60% - 80%

80% and above

 - App. 88 -

52

House District 4843
42

48

55

44

45

66

22

47

46
Percent
BVAP

20% and below
20% - 40%
40% - 60%
60% - 80%

80% and above

 - App. 89 -

House District 54

41

54

51
78

Percent BVAP

20% and below
20% - 40%

52

40% - 60%
60% - 80%

80% and above

 - App. 90 -

House District 57

62

57
59

58
60

Percent BVAP

20% and below
20% - 40%
40% - 60%
60% - 80%

80% and above

 - App. 91 -

House District 99

107

82

106

83

99

100

Percent BVAP

103
102

104

20% and below
20% - 40%
40% - 60%
60% - 80%

80% and above

 - App. 92 -

108

House District 102
99
107

101

106

100
109

92

102
88

104

Percent BVAP

20% and below
20% - 40%
40% - 60%

105

60% - 80%

103

80% and above

 - App. 93 -

82

House District 106

106

103
107
100

101

99

Percent BVAP

20% and below
20% - 40%
40% - 60%

102

60% - 80%

80% and above

 - App. 94 -

98

92

83

House District 107
82

108

107

101

106

103
99

Percent BVAP

20% and below
20% - 40%

102

100

40% - 60%
60% - 80%

80% and above

 - App. 95 -

Senate District 4

20

18

15

16

4

14

10

3

11

Percent BVAP

5

20% and below
20% - 40%
40% - 60%
60% - 80%

1

780% and above

 - App. 96 -

Senate District 5

3
4
11

10
1
5

7

2

Percent BVAP

20% and below
20% - 40%
40% - 60%

6

60% - 80%

80% and above

 - App. 97 -

Senate District 14
18

15

16

14

Percent BVAP

17

11

20% and below
20% - 40%
40% - 60%
60% - 80%

80% and above

 - App. 98 -

Senate District 20

23

22

20

15

Percent BVAP

20% and below

16

20% - 40%
40% - 60%
60% - 80%

80% and above

 - App. 99 -

12

Senate District 21

29

21

10

19
Percent BVAP

20% and below
20% - 40%
40% - 60%
60% - 80%

80% and above

 - App. 100 -

31

Senate District 28

26

28
27
Percent BVAP

20% and below
20% - 40%
40% - 60%
60% - 80%

80% and above

 - App. 101 -

30

Senate District 32

31

Linda
Garrou

26

_
^
32

Percent BVAP
27

20% and below
20% - 40%

34

33

40% - 60%
60% - 80%

28

80% and above

 - App. 102 -

Senate District 38
41

44

36

40

38
43

Percent BVAP

37

20% and below

39

20% - 40%
40% - 60%
60% - 80%

80% and above

 - App. 103 -

Senate District 40

36

38
40

37

39

41

Percent BVAP

20% and below
20% - 40%
40% - 60%

35

60% - 80%

80% and above

 - App. 104 -

Appendix 9:
Characteristics of Past
Congressional Plans Precleared
by the USDOJ and Not
Challenged on Section 2
Grounds Compared to the
Characteristics of CD 1 and 12

 - App. 105 -

Characteristics of Past Congressional Plans Precleared by the USDOJ and
Not Challenged on Section 2 Grounds Compared to the Characteristics of CD
1 and 12
The following chart compares CD 1 as enacted in 2011 with CD 1 in all
plans enacted since 1992 or used for any election since 1992. Those plans are:
a.

The 1992 plan used for the 1992, 1994 and 1996 elections in
CD 1. CD 1 in the plan was declared unconstitutional in
Cromartie v. Hunt, 133 F.Supp 407 (2000) (Cromartie II)

b.

The 1997 plan. CD 1 in that plan was declared constitutional in
Cromartie II.

c.

The 1998 plan; identical to the 1997 plan and used for the 1998
elections in CD 1.

d.

The 2001 Plan used for the 2002-2010 elections in CD 1.

e.

Senator Stein’s 2011 alternative plan.

f.

The 2011 enacted plan used for 2012 election.
Plan

BVAP

1992
1997
1998
2001
2011 (Stein)
2011

53.40
46.54
50.27
47.46
47.82
52.65

Partial
Counties
18
10
10
12
13
191

Whole
Counties
9
10
10
10
11
5

The following chart compares CD 12 as enacted in 2011 with CD 12 in all
other plans enacted or used for any election since 1992. Those plans are:

1

9 of these 19 counties are severed

 - App. 106 -

1.

The 1992 plan used for the 1992, 1994 and 1996 elections. CD
12 in that plan was declared unconstitutional on June 28, 1996,
in Shaw v. Hunt because it was not narrowly tailored to serve a
compelling interest.

2.

The 1997 plan.
CD 12 in that plan was declared
unconstitutional on April 3, 1998 in Cromartie v. Hunt I.

3.

The 1998 plan used for the 1998 election.

4.

The 2001 plan used for the 2002-2010 elections.

5.

Senator Stein’s 2011 alternative plans.

6.

The enacted 2011 plan
Plan

BVAP

1992
1997
1998
2000
2001
2011 (Stein)
2011
(Enacted)

53.34
43.36
35.38
43.36
42.31
41.95
50.66

Partial
Counties
10
6
4
6
6
5
6

Whole
Counties
0
0
1
0
0
0
0

The following chart compares the BVAP in CD 1 and 12 with the margin of
victory for the African-American candidates in those districts each election since
1992.
Elections
1992
1994
1996
1998

CD 1 BVAP
53.40
53.40
53.40
46.54

% of Vote
66.99
61.06
65.90
62.24

CD 12 BVAP
53.34
53.34
53.34
32.56

% of Vote
70.37
65.80
71.48
55.95

 - App. 107 -

Elections
2000
2002
2004
2006
2008
2010
2012

CD 1 BVAP
46.54
47.76
47.74
47.76
47.76
47.72
52.65

% of Vote
66.00
63.73
63.97
100
70.28
59.31
75.32

CD 12 BVAP
43.36
42.31
42.31
42.31
42.31
42.31
50.61

% of Vote
65.60
65.34
66.82
67.00
71.55
63.88
79.63

 - App. 108 -

Appendix 10:

Stephenson v. Bartlett, N0. 
CVS 2885 (April 17, 2003)

- App. 109 -

-293NORTH CAROLINA

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
FILE NO: 01 CvS 2885

JOHNSTON COUNTY

ASHLEY STEPHENSON, et aI,
PLAINTIFFS
vs.

GARY O. BARTLETT, et aI,
DEFENDANTS
THIS MATTER having been certified to the undersigned Senior Resident
Superior Court Judge, Johnston County, for additional Findings of Fact regarding
the trial court's May 31, 2002 determination that the General Assembly's 2002
redistrf'cting plans ("House Plan-Sutton 5" and "Senate Plan-Fewer Divided
Counties") are unconstitutional.
By Order dated March 18, 2003 the Court requested proposed Findings of
Fact from the parties. On March 28, 2003 Plaintiffs submitted Proposed Additional
Findings of Fact, which were considered by the Court. On March

2~,

2003, the

Defendants replied that "We have not proposed any Findings of Fact."

The

Defendants attached a document entitled "Defendants' response to order of March
18, 2003" which was considered by the Court.
CONTEXT OF FINDINGS
On April 30, 2002, the Supreme Court of North Carolina issued its decision
in Stephenson v. Bartlett. The Supreme Court directed the General Assembly to
develop revised constitutional redistricting plans in accord with specific criteria set

_

............... .

_

............ .

 - App. 110 -

-294forth in Stephenson and further directed the Superior Court, on remand, to review
and judge whether such House and Senate redistricting plans as prepared by the
General Assembly strictly complied with the Stephenson criteria. If the Superior
Court found that such redistricting plans were defective, the Court should take
those actions necessary to bring those plans into compliance with the Stephenson
decision or the Superior Court could prepare its own interim redistricting plans
solely for the 2002 elections.
On May 18, 2002, in response to the order of the Superior Court on May 8,
2002, the Defendants delivered proposed House and Senate redistricting plans to the
Court. On that date, the Plaintiffs also provided alternative proposals for House and
Senate redistricting plans to the Superior Court.
Court.

On May 22 - 23, 2002, the Superior Court heard testimony on these proposed
House and Senate redistricting plans, including graphic and statistical data, to

support the suggested constitutionality or defects of the alternative districting
proposals.

During the eight days following these hearings, the Superior Court - with
technical assistance from its expert witnesses - conducted a review to judge whether
the plans proposed by the General Assembly were in strict compliance with the
Stephenson criteria, the Voting Rights Act and traditional redistricting principles.

The Court also expended a weeklong effort in an attempt to redesign the Sutton 5'
county cluster system, with the aim of establishing a more flexible design and
exploring ways to create additional minority districts. The Court had accepted an
amicus brief submitted by the National Association for the Advanceknent of Colored

2

 - App. 111 -

-295People (NAACP) requesting additional majority-minority districts in Mecklenburg
and Guilford Counties.

The Court was of the opinion that the request was

meritorious. It became apparent to the Court that the time required to accomplish
these tasks would further delay the schedule for the 2002 primaries and the general
elections.
The Superior Court took note of the fact that the Stephenson ruling
recognized the delays in the North Carolina elections process and that House and
Senate redistricting plans, once completed, would still be subject to pre-clearance
review by the U.S. Department of Justice for compliance with the Voting Rights Act
of 1965 (as amended), a process that could require up to sixty days or more. 1
On May 31, 2002, the Superior Court issued the results of its review of the
redistricting plans presented by Defendants and Plaintiffs at the May 22-23, 2002
hearing. In its May 31, 2002 order, the Superior Court found that portions of the
General Assembly's Sutton 5 plan did not meet the constitutional requirements
mandated by Stephenson. Because these portions failed the Stephenson criteria, the
Court found the Sutton 5 plan unconstitutional. The Superior Court points out that
the exigencies of the tightly compressed timetable for the statewide general elections
led the Court to go forward with modifications to the submitted redistricting plans
and designate them as "Interim Plans", applying solely to the 2002 election cycle,
consistent with the authority granted the Superior Court in the Stephenson decision.'

1 The U.S, Department of Justice may take up to 60 days to conduct its "pre-clearance'] process under
Section 5 of the 1965 Voting Rights Act (as amended), and, if the Department requests additional data from
the state, the 60-day "clock" begins anew when the requested information is received by the Justice
Department.

3

 - App. 112 -

-296STANDARD OF REVIEW
The Court examined the statute to determine its constitutionality. In making

this determination, the Court reviewed the statute using the following legal
standards as set forth in Stephenson I.

The Constitution restricts the General

Assembly's discretion to draw legislative districts, according to the following
criteria.
(a)

The State Constitution specifically enumerates four limitations upon

the redistricting and reapportionment authority of the General Assembly,
summarized as'follows:
(i)

Each Senate and Representative district shall represent, as

nearly as possible, an equal number of inhabitants.
(ii)

Each Senate and Representative district shall at all times

consist of contiguous territory.
(iii)

No county shall be divided in the formation of a Senate or

Representative district.
(iv)

Once established, the Senate and Representative districts and

the apportionment of Senators and Representatives shall remain unaltered until the
next decennial census of population taken by order of Congress;
(b)

"[T]o ensure full compliance with federal law, legislative districts

required by the VRA (i.e., Section 5 or Section 2) should be formed prior to the'
creation of non-VRA districts ... In the formation of VRA districts within the revised
redistricting plans on remand, we likewise direct the trial court to ensure that VRA

districts are formed consistent with federal law and in a. maimer having no

4

 - App. 113 -

-297-

retrogressive effect on minority voters. To the maximum extent practicable, VRA
districts shall comply with the WCP, as defined below;"

(c)

To comply with one-person, one-vote, any deviation from the ideal

population for a legislative district "shall be at or within plus or minus five percent
for purposes of compliance with federal 'one-person, one-vote requirements;'"

(d)

In counties having a 2000 census population "sufficient to support the

formation of one non-VRA legislative district. .. , the WCP requires that the physical
boundaries of any such non-VRA legislative district not cross or traverse the
exterior geographic line of such county;"

(e)

"When two or more non-VRA legislative districts may be created

within a single county..., single-member non-VRA districts shall be formed within
said county. Such non-VRA districts shall be compact and shall not traverse the
exterior geographic boundary of any such county;"
(0

"In counties having a non-VRA population pool which cannot support

at least one legislative district...or alternatively, counties having a non-VRA
population pool, which, if divided into districts, would not comply [with the oneperson, one-vote standard], the requirements of the WCP are met by combining or
grouping the minimum number of whole, contiguous counties necessary [to create
districts within the grouping that] comply with the 'one-person, one-vote'
standard." "Within any such contiguous, multi-county grouping," [districts must
be compact, the boundary lines of each district shall not cross or traverse the
"exterior" line of the multi-county grouping, and the resulting interior county lines
may be traversed only to comply with the one-person, one-vote,stanaard];

5

 - App. 114 -

-298(g)

The "intent underlying the WCP must be enforced to the maximum

extent possible; thus, only the smallest number of counties necessary to create a
population pool necessary to draw one or more districts that meet the one-person,
one-vote standard shall be combined;"
(h)

"[C]ommunities of interest should be considered in the formation of

compact and contiguous electoral districts" within single counties or multi-county
groupings;
(i)

Absent a compelling state interest, multi-member districts are

prohibited;
Q)

Any new redistricting plans, including any proposed on remand,

"shall depart from 'strict compliance' with the legal requirements set forth herein
only to the extent necessary to comply with federal law." Stephenson I, 355 N.e. at
383-84, 562 S.E.2d at 396-98 (emphasis added).

Although not a constitutional standard, the Court has reviewed the plans
with the following legislative policy in mind. Maintaining the residences of the
incumbents who serve those core constituents within the district is also a districting
principle that historically has been observed in North Carolina. Although this is
usually referred to as
as""incumbency-protection,"
incumbency -protection," this Court views the principle as
more accurately protecting the core constituency's interest in reelecting, if they
choose, an incumbent representative in whom they have placed their trust:
Provided it does not conflict with other nonpolitical considerations such as
communities of interest and compactness, this Court considered it a principle
worthy of consideration.

6

 - App. 115 -

-299FINDINGS FOR HOUSE PLAN
The Superior Court identified certain defects in the General Assembly's
tbat are described below:
Sutton 5 House Plan and instituted remedies that
District 14:

The shape
Tbe
sbape of this Sutton 5 district contained a narrow "arm"

that protruded north, and other protrusions to the south and south-southeast,
leaving the district without compactness. This Court modified District 14's
boundary to make it compact and consistent with the Stephenson criteria.
District 18:

This district was altered to increase its African American

population from 44.00 % to 46.99 % to make it a more effective minority district.
Districts 33-40, 50: In Wake County, the Superior Court observed that the

Defendant's Sutton 5 plan for the House of Representatives contained only one
majority-minority district (District 33) and no "effective minority" districts despite
a sufficiently large African American population in the county. This could lead to
potential litigation against the state.
The Court's examination of Sutton S's District 33 in Wake County also

revealed that its shape lacked compactness. Specifically, a narrow "arm" extended
to the north, northeast and a pair of "arms" meandered south and southeast in a
horseshoe manner around a portion of District 34.
To remedy both these situations and to protect the state from potential legal

challenges (e.g., Section 2 of the Voting Rights Act), the Court chose to substitute the'
districts from Plaintiff's "VRA Review 01" plan for the Sutton 5 districts in Wake
County. This action resulted in 2 effective minority districts in Wake County and
increased district compactness.

7

 - App. 116 -

-300-

District 52: Sutton 5 had been drawn to remove Carthage, the seat of Moore

County government, and place it in District 51. To better preserve "communities of
interest", District 52, which is anchored in Moore County, was redrawn by the
Court to include the city of Carthage, the county seat.
Districts 57, 60-62: Sutton 5 divided the City of High Point among four

districts (57, 60, 61 and 62). The Court modified the area's districts in order to
reduce the number of splits of this city from 4 to 3 to better respect the local
government boundaries. If timing of the elections process had permitted the Court
to redesign the county clusters, it might have been possible to further reduce the
splitting of the High Point community.
Districts 95 and 96: These Sutton 5 districts split the communities of

Mooresville and Statesville; the Court modified Districts 95 and 96 to run east-west
and eliminate the splits of these boundaries in keeping with the preservation of local
governments as communities of interest.
District 113: Testimony at the hearing on March 22-23, 2002, had included

witness statements about the communities of new residents (moving to western
North Carolina from other states) clustered along the southern portions of
Transylvania, Polk arid Henderson counties. Accordingly, the Court redrew the
boundaries of District 113 to reflect these communities of interest.
Subsequent to the Court's adoption of these modifications to Sutton 5, the'

resulting Interim House Redistricting Plan for North Carolina 2002 Elections was
reviewed by the U.S. Department of Justice for compliance with Section 5 of the
Voting Rights Act of 1965 (as amended) and approved for the 2002 elections in

8

 - App. 117 -

-301North Carolina. (This Court's Interim Senate Redistricting Plan for North Carolina
2002 Elections was also reviewed and approved by the U.S. Department of Justice,
under Section 5 of the Voting Rights Act.)
While the Court deemed the above-described modifications of Sutton 5 to

conform to the Stephenson criteria, the Court observed other unconstitutional
defects in Sutton 5 that it would have tried to remedy, or ordered the legislature to
correct, if the timetable for holding statewide elections had not been at stake.
SUTTON 5 DEFECTS NOT CORRECTABLE IN LIMITED TIMEFRAME
Below the Superior Court offers descriptions of other observed defects and
possible ways to remedy these features that do not strictly comply with the
Stephenson criteria.

SPLITS OF COUNTY BOUDARIES
The Sutton 5 districts in these counties were drawn in a manner that di"ides

the county boundary in multiple locations. Comparisons of the Sutton 5 plan with
the Plaintiff's alternative plan for the House of Representatives (Plaintiff's
Remedial House Plan, hereafter referred to as "Plaintiff's House Plan") reveals
potential ways in which these county boundary splits could be reduced in number
and bring the plan into strict conformance with the Stephenson constitutional
criteria.
A.

In Forsyth County, Sutton 5 crosses the county boundary in three'

places, but the Plaintiff's House Plan groups counties so that Forsyth County is cut
only once.

9

 - App. 118 -

-302B.

In Harnett County, the Sutton 5 plan splits this county line in three

locations, as compared with only one crossing of the Harnett line in Plaintiff's House
Plan.
C.

In Sutton 5, Haywood County's line is cut in two locations, as

compared with only one such cut in the Plaintiff's House Plan.
D.

In New Hanover County, the Sutton 5 plan cuts the county boundary

three times; Plaintiff's House Plan crosses New Hanover's county line only one time.

Speciiically, the Court finds that the Sutton 5 House Plan fails to minimize
the number of times county lines are traversed in the following respects:
1.

The Sutton 5 House Plan contains District 119, which consists of all of

Jackson and Swain Counties, and parts of Macon and Haywood County. House
District 119 traverses the interior county lines on the Haywood and Jackson County
border twice, rather than only once in order to comply with the one-person one-vote
standard. District 119 traverses the Haywood County lines once in the north, and a
second time in the south, with the northern and southern portion being separated by
District 118, which extends from Madison County, through Haywood County, to the
Jackson County line.
2.

The Sutton 5 House Plan has Forsyth County as part of a seven-

county cluster. Rather than traverse the Forsyth County line once to comply with
one-person, one-vote, the Sutton 5 House Plan unnecessarily traverses Forsyth
County lines three times, in House District 92 with Yadkin County, House District
i

91 with Stokes County, and House District 66 with Rockingham County, (to the

10

 - App. 119 -

-303-

extent the Defendants maintain Rockingham and Forsyth Counties are contiguous).
Plaintiffs' VRA 1 House Plan demonstrates that Forsyth and Davidson County
could be grouped in a two-county cluster, and traverses the interior county line
once, with a single district shared between the two counties for one-person, one-vote

purposes.
3.

The Sutton 5 House Plan places New Hanover in a four-county

cluster, and traverses the New Hanover county line three times, in District 20 which
contains parts of Columbus and Bladen County, and District 16 with Pender
County, as well as with the District 18, with parts of New Hanover, Brunswick and
Columbus Counties. Overall, the Sutton 5 House Plan divides New Hanover County
into four districts, with only one district within the county lines, and the other three
districts traversing the New Hanover County line. This is not necessary to comply
with the one-person, one-vote standard, or the Voting Rights Act.

Th\s is

demonstrated by Plaintiffs' VRA 1 Plan, which divides New Hanover County into
two districts wholly within the county (House Districts 13 and 16) and only traverses
the New Hanover County line once for District 19, to comply with the one-person,
one-vote standard, or the Voting Rights Act.

4.

The Sutton 5 House Plan combines Harnett and Cumberland

Counties into a four-county cluster.

The Sutton 5 House Plan unnecessarily

traverses the Harnett County line three times, in House District 41 with'
Cumberland County, in House District 42 a second time with Cumberland County,
and in House District 51 with Lee County. Overall, the Sutton 5 House Plan divides
Harnett County into four districts, with three districts traversing the Harnett

11

 - App. 120 -

-304County line, and only one district (District 53) wholly within Harnett County. This
is not necessary to comply with the one-person, one-vote standard, or the Voting
Rights Act. This is demonstrated by Plaintiffs' VRA 1 House Plan which groups
Harnett and Cumberland County in a two-county cluster, and traverses the Harnett
County line only once in District 41 in order to comply with the one-person, onevote standard. Furthermore, under Plaintiffs' VRt-~ 1 House Plan, House District 41
is compact, consisting of adjoining precincts in northeast Cumberland County and
southeast Harnett County.
Overall; within multi-county groupings, Sutton 5 cuts county lines 48 times,
as compared to the 43 county line traverses in Plaintiffs' House Plan.
The Court holds that these defects could be modified for strict compliance

with Stephenson criteria. The Court was unable to address these defects of countyline traverses in Sutton 5, for the Court's interim house plan without fur!her
fUI1her
adverse impact on the statewide schedule of elections.
COMPACTNESS AND CONTIGUITY
The Stephenson criteria include the requirement that districts should be

compact and contiguous. If a given district fails to meet either element of this
requirement, the district is non-compliant with Stephenson.
FAILURES OF COMPACTNESS
In addition to the Sutton 5 districts that were altered by this Court to achieve'

compactness and bring the Interim House Redistricting Plan for North Carolina
2002 Elections into compliance with Stephenson, the Court also takes note of other
districts in Sutton 5 that lacked compactness. The existence of the irregular shapes

12

 - App. 121 -

-305of these districts leaves them non-compliant. with Stephenson and opens the
possibility of future legal challenges. 2
A.

Alamance County - District 63 features an "arm" that that extends

from the main north-south portion of the district and cuts the county in an east-west
direction that almost bisects District 64.
B.

Cleveland County - District 110 runs from the northwest along the

eastern boundary of the county in a southeasterly direction, but makes a sharp turn
to the south, resulting in an appendage pointing toward South Carolina.
C.

Rowan County - The common boundary between Districts 76 and 77

has a sharply irregular shape. The district line meanders from the east in a westerly
direction, then southward, turns next to the north, then abruptly goes south almost
touching the Cabarrus County line, then west for a short distance, turns north again
and then finally to the south, touching against the boundary with Iredell County~
D.

Stanly County - The general shape of District 70 has the look of a

lobster claw extending northward through the central and northeastern portion of
Union County with the ''pincers'' of the claw encompassing the portion of Stanly
County that stretches southward from midway on the western border along the
southern boundary and up into the north central portion of the county.
E.

Yancey County - District 118 stretches from Yancey County in the

northeast through Madison County and includes a portion of Haywood County:
The district extends an "arm" from the eastern edge of Haywood County and
meanders from the northeast to southeast in a manner that divides that county.

In some instances, compliance with federal law may necessitate districts that could otherwise be drawn
more compactly.

2

13

 - App. 122 -

-306In addition to these four examples (Items A-E above) of non-compactness,
Sutton 5 contained various other districts that failed to meet the compactness
standard of Stephenson. This Court finds that Sutton 5 Districts 18,41,51,52,5758
59, 60, 61, 62, 63, 64, 76, 77, 95, 96 and 118 are not compact and fail to strictly
comply with Stephenson. More specifically, the Court fmds that the Sutton 5 House
Plan includes the following districts which are not compact and do not respect
communities of interest, as follows:

1.

The Sutton 5 House Plan, in Iredell County, contains House Districts

95 and 96, which both split the town of Mooresville in southern Iredell, and
Statesville in northern Iredell, when these two districts could easily be drawn so that
the community of Statesville is intact in a northern district, and the community of
Mooresville is intact in a southern district.
2.

The Sutton 5 House Plan, in Moore County, contains District. 52,

located wholly within Moore County, but which district is shaped like a "C," rather
than being compact,and leaves out the county seat, Carthage.
Carthage.
. 3.

The Sutton 5 House Plan, in Guilford County, divides the City of High

Point into four districts (57, 60, 61 and 62), when it is possible to divide the city only
three times while complying with the one-person, one-vote standard and the Voting
Rights Act.

4.

The Sutton 5 House Plan, in Cabarrus County, divided Cabarrus'

County into two districts which lack compactness, on a ragged line from the
northwest toward the southeast, with District 74 almost bisecting House District 75,
and splitting the communities of Concord and Kannapolis within the county. It is

14

 - App. 123 -

-307-

possible to draw more compact districts in Cabarrus County, which better respect
the communities, as demonstrated by Plaintiffs' House Plan.
5.

The Sutton 5 House Plan, in Wake County has one less VRA district

and uses irregularly shaped non-VRA districts. The Sutton 5 House Plan Districts
34, 35, 36, 37, and 38 are all non-VRA districts, but have irregular shapes with
''fingers'' sticking out into other districts. It is possible to establish two, rather than
just one VRA district in Wake County, and make the adjoining non-VRA districts
more compact, as demonstrated by the configuration of districts in Wake County in
Plaintiffs' House Plan.
6.

The Sutton 5 House Plan divided Rowan using a very irregular line,

with House District 77 almost bisecting House District 66.
7.

The Sutton 5 House Plan contains Districts 63 and 64 in Alamance

County, with District 63 shaped as a peculiar reverse "L" almost bisecting
District 64.

H~use

Plaintiffs
Plaintiffs' House Plan shows that in Alamance County a compact
I

District 74 can be created in the northeast corner of the county.
8.

The Sutton 5 House Plan places McDowell and Burke Counties in a

six-county cluster. In this six-county cluster, House District 85 lacks compactness,
as it stretches to include small parts of Caldwell County in the east, as well as parts
of Burke County and McDowell County in the west. Furthermore, Sutton 5 House
Plan District 86 almost bisects House District 85. It is possible to draw more'
compact districts, and to traverse interior county lines fewer times, as demonstrated
in Plaintiffs' House Plan which places McDowell and Burke Counties in a twocounty cluster, and only traverses the Burke County line once (pistnct 114) in order

15

 - App. 124 -

-308to comply with one-person~ one-vote. Furthermore, Plaintiffs' House Plan District
114 is compact, consisting of all of McDowell and the adjoining precincts of western
Burke County.
The Court finds that the irregular shapes of districts such as those above
could be redrawn to be compact and comply with the strict criteria of Stephenson.
FAILURES OF CONTIGUITY
This Court finds that a district whose parts are "held together" by the
mathematical concept of ''point contiguity" does not meet the Stephenson criteria
for contiguity. 'A single district cannot be "contiguous with itseIr'. This Court holds
that the term "contiguity", as used in Stephenson, means that two districts must
share a common boundary that touches for a non-trivial distance. As Herbert notes
in Redistricting in the Post-2000 Era, " ..• a contiguous district is not divided into two
or more discrete pieces.,,3 Iowa and Minnesota, for example, prohibit the use of
"point" contiguity to joint disparate parts of districts. 4
District 68 in Sutton 5 is alleged by Defendants to be contiguous, but that
assertion rests solely on the use of the academic concept of ''point contiguity". The
northwest and southeast parts of District 68 are discrete land areas dependant on
such "mathematical touching" to claim contiguity.
District 68, along with District 69, illustrates the concept of "double point"
and "crisscross" contiguity. In the same way that Sutton 5's District 68 is severed,

3 Hebert,

J. Gerald, Redistricting in the Post-2000 Era, 8 Geo. Mason Law Review, 431, 451 (2000).
Minnesota adopted redistricting standards noting, " ... point contiguity should be prohipited ... " Districts
" ... that consist of two areas contiguous at only a single point... would create too great an opportunity for
gerrymandering." December 2001, Order Stating Redistricting Principles and Requirements for Plan
Submissions; Iowa also prohibits point contiguity for legislative districts; Iowa Code, S,ection 42.4.

4

16

 - App. 125 -

-309into two distinguishable land areas (like a "bowtie"), District 68 crisscrosses with
District 69 at the same theoretical point in space and is divided into two pieces.
These two districts fail to be contiguous and the Court finds that they violate

the North Carolina's Constitution's equal protection clause which requires that
legislative districts be single member districts unless there is a compelling
governmental interest. While one of these two crossing districts might be argued to
be contiguous under a minimal interpretation of "contiguity", the other district
could not logically connect itself through the other district at the same point. Hence,
at least one or both of such crisscrossing districts cannot qualify as single-member
districts, and, therefore, both districts fail to comply with the North Carolina
Constitution's equal protection clause.
Further, this Court finds that the use of the ''point'' and "double point"
constructs and "crisscrosses" can result in bizarre shapes that are not compact.
Hence, Districts 68 and 69 fail not only to be contiguous but also their resulting
shapes are not compact.
. Another example of such point contiguity and double-point contiguity is

District 11 in Sutton 5. The western portion of the district is linked to its eastern
portion by a mathematical point that divides the district into two discrete pieces. In
doing so, District 11 also involves itself in a "double point" attachment and
crisscrosses with Sutton 5 District 21. Neither district, as.a
as ,a result, meets standards'
for contiguity and compactness and both fail to meet that strict standard of
Stephenson.

17

 - App. 126 -

-310This Court also finds that the General Assembly's Sutton 5 House plan
contained additional districts that were divided into discrete pieces that render it
impossible to travel fr.om one part of a partiCUlar district to the other part of the
same district without crossing the boundaries of the district at a sole point where the
disparate pieces meet. Specific instances of this include Sutton 5 Districts 11, 21, 22,
26, 66, 68, 69, 95 and 96. These districts do not meet the contiguity requirement of
Stephenson. Further, these particular nine districts use the concept of double-point
attachment and, thereby, fail the constitutional test for contiguity on those grounds
as well.

As noted earlier, the Court was unable, in the available time, to remedy these
additional defects in Sutton 5 without disrupting the 2002 general elections.

The appellant's brief filed in the Supreme Court contains the writer's false
impression that this Court was improving upon the enacted plan to make it "more
constitutional." The writer further states that "a plan is either constitutional or
not." (emphasis added)

The latter statement is obviously correct.

("Page 67,

Footnote 26.")
FINDINGS FOR SENATE PLAN

Following its review and comparison of the General Assembly's "Proposed
Senate Plan Fewer Divided Counties" (hereafter referred to as "Fewer Divided
Counties") and Plaintiff's "Constitutional VRA Senate 1", plan (hereafter referred'
to as "VRA Senate 1"), the Court adopted, as a base interim Senate plan for the
2002 elections, the VRA Senate 1 plan as it was judged to meet the Stephenson
criteria.

18

 - App. 127 -

-311Below the Court outlines the defects identified in the Defendants' Fewer

Divided Counties plan that caused this plan to fail to meet the constitutional
mandates required by Stephenson and traditional redistricting principles.
COUNTY BOUNDARIES
The Fewer Divided Counties senate plans cuts across interior county

boundaries m 28 locations. In contrast, Plaintiff's VRA Senate 1 plan, modified to
eliminate those districts that are wholly within a particular county crosses county
lines only 23 times. Thus, the Fewer Divided Counties senate plan fails to strictly
comply with Stephenson's WCP requirement.
COMPACT AND CONTIGUOUS
As noted earlier in discussing the House Plan, the Stephenson mandate sets
out these standards. Individual districts must comply by being both "compact" and
"contiguous".
A.

Fewer Divided Counties has a District 14 in Wake County that is not

compact. It is distinguished by 4 major appendages. Beginning in the northern tip, it
moves southeast with jutting points that end in a downward facing cul-de-sac tbat
embraces a portion of this plan's District 36. The boundary of District 14 then
meanders toward the northeast turns to the southeast and extends a curved "arm"
that carves out a "bay" in the side of District 6.
B.

District 11 in Fewer Divided Counties is not compact. Its eastern,

boundary has been drawn in such a manner that it runs southward, then swings to
the northwest, then gives curves around a portion of Nash County to District 10,
before continuing to the south and cutting through Johnston (:ounity and severing

19

 - App. 128 -

-312communities of interest in that area. This design also results in there being a point,
interior to District 11, where Johnston and Franklin counties meet.
C.

Neither District 21 or 26 in Fewer Divided Counties is compact.

District 21 stretches from the western boundary of Montgomery County then moves
east across the boundary of Moore County in a jagged line that moves first east,
then north, then east again, turns south, makes a right turn west, then again south,
before moving north to close the district where Moore meets Chatham and
Randolph counties.
The complementary effect of this district's boundary is that it results in

adjacent District 26 having a southward arm and an appendage, thereby failing to
be compact.
These are three examples (Items A-C above) of compactness failures that

render the Fewer Divided Counties senate plan unconstitutional.
In addition to these three illustrative cases, this Court fmds overall that

senate districts 6, 10, 11, 14, 16,36,44 in Johnston, Nash and Wake counties of the
General Assembly's Fewer Divided Counties plan are not compact, particularly as
compared to the way in which they might have been drawn as demonstrated by
Plaintiff's VRA Senate 1.
Further, this Court finds that Districts 21 and 26 of the Fewer Divided

Counties Plan are not compact. The General Assembly's ability to create these two,
meandering districts in the Fewer Divided Counties Senate Plan was possible only
because the General Assembly rejected two different two-county groupings found in
both Plaintiffs' VRA Senate 1 Plan and the Superior Court's InteriniI Plan (grouping

20

 - App. 129 -

-313Randolph with Montgomery County to create on single-member Senate District 29
and grouping Orange County with Chatham County to create one single-member
Senate District 23).
COUNTY CLUSTERING SYSTEMS USED BY DEFENDANTS
As this Court noted in its May 31, 2002 order, there was not sufficient time

following the May 18, 2002 submission of the General Assembly's redistricting plans
for the Court to devise potential new systems for clustering (or grouping) counties
as required under Stephenson. This constraint limited the actions that the Court
could take to ensure strict compliance with the Stephenson criteria.
The Court calls attention to the manner in which the Defendants grouped

counties. Stephenson states: " In counties having a non-VRA population pool which
cannot support at least one legislative district ... or alternatively, counties having a
non-VRA popUlation
population pool, which, if divided into districts, would not comply [with
the one-person, one-vote standard], the requirements of the WCP are met by
combining or grouping the minimum number of whole, contiguous counties [to
create districts within the grouping that] comply with the one-person, one-vote
standard" (emphasis added by italics).
This provision of Stephenson notwithstanding, Defendants contend that this
decision allows the grouping of portions of counties to structure individual county
groups. For example, Defendants count their Sutton 5 grouping of Bladen and'
Sampson Counties as a two-county cluster, with one District 22. However, this
cluster contains only a portion of Sampson County, rather than the whole county.
The remainder of Sampson County lies in District 21, which is outkide this cluster.

21

 - App. 130 -

-314Similarly, Defendants have one county cluster that comprises Johnston and Wayne
Counties. Defendants count this as a two-county cluster, but it contains only a
portion of Wayne County. The remainder of Wayne County is in District 21, which
is not part of this cluster. These are but two examples of Defendants' apparent
misunderstanding and/or misapplication of the Stephenson requirement for
grouping counties.
Using this concept, Defendants made erroneous comparisons between their

redistricting plans and those of Plaintiff's with regard to whose plan creates the
larger (est) numbers of groups with minimal numbers of whole counties. For
example, Defendants argued that their May 2002 Fewer Divided Counties Senate
Plan has four "single county groups" as compared with only three such I-county
groups in Plaintiff's VRA Senate 1 Plan and this Court's Interim Senate Plan.
However, Defendants' claim is possible only because a portion of Durham COl,mty
C01,lnty
contains a sufficient population to constitute one senate district, even though the
other part of Durham County is combined with Granville County to create another
district. Thus, Defendants falsely contend that a portion of Durham County is
equivalent to the single whole-county senate groupings of New Hanover, Wake and
Forsyth counties.
Defendants also claim that the General Assembly's Sutton 5 House Plan

contains 11 "groupings" of counties, each made up of single counties, as opposed to'
only 10 single-county groupings in Plaintiff's Remedial House Plan. Like their
senate district in Durham County (as described earlier above), the Defendants'
claim appears to be based on House District 25, which is located exJlusively in Nash

22

 - App. 131 -

-315County. However, only part of Nash County was combined with Halifax County to
create proposed Sutton House District 7.
Because the D.efendants' county-group comparisons are based on the

Defendants' misinterpretation or incorrect application of Stephenson's WCP
principle for grouping counties, this Court finds the Defendants' county-group
comparisons between the specified plans of Plaintiffs and Defendants to be moot.
CONCLUSIONS
The Superior Court submits these conclusions regarding the factual basis for

its May 31, 2002 decision that the "House Plan- Sutton 5" and "Senate Fewer
Divided Counties" plans did not meet the constitutional requirements mandated by
Stephenson, the Voting Rights Act and traditional redistricting principles.
1.

The Court presumed that acts of the General Assembly are

constitutional. See Stephenson I, 355 N.C. at 362, 562 S.E.2d at 384.
2.

The Court understood and applied the Doctrine of Separation of

Powers as found in the North Carolina Constitution.
3.

The Court required the Plaintiffs to meet the requisite burden of

proving an act of the General Assembly unconstitutional.
4.

The Court reviewed the General Assembly's plans using the "strict

compliance" standard required in Stephenson l.
5.

In this Court's May 31, 2002 order, the Court erred in using the term·

"constitutional" to describe its Interim House and Interim Senate Redistricting
Plans for the N.C. 2002 Elections. While the Court has found that the General
Assembly's 2002 House and Senate Plans are unconstitutiona., the i Court used the

23

 - App. 132 -

-3162002 House Plan (Sutton 5) as the oase plan for its Interim House Plan. The Court
made certain specified changes in the 2002 House Plan (Sutton 5) when adopting its
Interim House Plan to bring the Interim House Plan into closer compliance with the
WCP. Time constraints, and the need to establish a plan that could be pre-cleared
in time for the 2002 elections, prevented the Court from correcting all the
constitutional flaws in the 2002 House Plan (Sutton 5). Thus, it was constitutional to
use the 2002 Interim House Plan as an emergency remedial plan despite its
constitutional flaws. See Ely v. Klahr, 403 U.S. 108, 113, 91 S. Ct. 1803, 1806, 29
L.Ed.2d 352(1~71); Kilgarlin v. Hill, 386 U.S. 120, 121, 87 S. Ct. 820, 821, 17L.Ed.2d
771(1967); Silver v. Jordan, 320 F.Supp. 1169, 1173-74(c.n. Ca1.1970); Drum, 250

F.Supp. at 925. There did not exist sufficient time for the General Assembly to enact
new redistricting statutes and conduct orderly elections in time for pre-clearance
and the elections of 2002 after the May 22-23 hearing.
6.

The Court rmds that the 2002 (Sutton 5) House and Senate Fewer

Divided Counties Plans did not create VRA districts consistent with Section 2 of the
Voting Rights Act in Wake County in the House and Wake, Forsyth and
Mecklenburg Counties in the Senate.
7.

The Court finds that in Wake, Mecklenburg and Forsyth Counties,

there has previously been established a rmding of Section 2 liability under federal
law (see Thornburg v Gingles, 478 U.S. 30, 335 n.2, 77-80, 106 S.Ct 2752,2758 n. 2,2780-83, 92 L.Ed2d 25(1986) and due to demographic changes in population there
exists the required Gingles preconditions by which a second VRA' House District

24

 - App. 133 -

-317should be drawn in Wake County and more "effective" VRA Senate districts drawn
in Wake, Mecklenburg and Forsyth Counties.
8.

The General Assembly's May 2002 Fewer Divided Counties Senate

and Sutton 5 House Plans fail to comply with the requirement that in forming
districts, only the smallest number of counties necessary to comply with the oneperson, one-vote requirement should be combined in forming multi-county
groupings.
9.

The General Assembly's failure to create the maximum number of

two-county groupings in the May 2002 House Plan violates Stephenson I.

See

Stephenson 1,355 N.C. at 384, 562, S.E.2d at 397.

10.

The 2002 House and Senate plans enacted by the General Assembly

contain districts that are not sufficiently compact to meet the requirements of the
equal protection clause in that the requirements of keeping local governmental
subdivisions or geographically based communities of interest were not consistently
applied throughout the General Assembly's plan producing districts which were a
crazy quilt of districts unrelated to a legitimate governmental interest.
11.

Plaintiffs have shown that it is possible to draft Senate and House

redistricting plans, which do not violate any federal or state law and harmonize
requirements of the state law with federal law. In submission of these plans, the
Plaintiffs have successfully rebutted the presumption of constitutionality due to state
legislative enactments.
12.

The Defendants failed to offer any evidence that a .compelling

governmental interest-such as the requirements imposed by federal law or

25

 - App. 134 -

-318impossibility-required them to violate the requirements of the North Carolina
Constitution in enacting the statute.
13.

The plans enacted by the General Assembly are unconstitutional.

14.

There did not exist sufficient time for the General Assembly to enact

new redistricting statutes and conduct orderly elections in time for pre-clearance
and the elections of 2002 after the May 22·23 hearing.
15.

The House and Senate plans enacted by the General Assembly violate

the WCP, as defined by Stephenson 1.
16.

The House and Senate plans enacted by the General Assembly violate

Article II, Section 5 in that they contain districts that are not contiguous.
The foregoing Findings of Fact and Conclusions of Law are hereby certified
to the Supreme Court of North Carolina.

This the

11- day of April, 2003.

26

 Exhibit 5

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
WAKE COUNTY - -- SUPERIOR, COURT DIVISION
18 CVS 014001

COMMON CAUSE, et al.
Plaintiffs,
V. ORDER
Representative DAVID R. LEWIS,
in his official capacity as Senior
Chairman of the House Select

Committee on Redistricting, et al.,
Defendants.



This matter comes before the undersigned three-judge panel for review of Remedial
Redistricting Maps (hereinafter ?Remedial Maps?) enacted by the North Carolina General
Assembly on September 17, 2019, NC. Sess. Laws. 2019-219 (Senate Bill 692) and 2019-
220 (House Bill 1020), to apportion the legislative districts within North Carolina. The
Remedial Maps were enacted following entry of the September 3, 2019, Judgment of this
Court wherein the Court held that certain districts in the 2017 House and Senate plans
(hereinafter ?2017 Enacted Maps?) were unconstitutional partisan gerrymanders. The
Court ordered that twenty-one Senate districts contained within seven county groupings
and ?fty-six House districts contained within fourteen county groupings be redrawn in
conformance with the mandate of its Judgment.

Following the enactment of the Remedial Maps, Plaintiffs submitted objections to
the new maps. Plaintiffs raised no specific objections to the twenty?one new districts drawn
in the Remedial Senate Maps. Plaintiffs raised no specific objection to thirty-seven House
Districts contained within nine county groupings in the Remedial House Map, but did raise

specific objections to nineteen House Districts contained within five county groupings. See,

generally, Plaintiffs? Objections to the Remedial Plans (Sept. 27, 201.9). The county
groupings and House Districts that are the subject of the Plaintiffs? objections are:

a. Columbus?Pender-Robeson (HD-16, -46, 

b. (HD-71, -72, -73, -74, 

c. Gaston-Cleveland (HD-108, -109, -110, -111);

d. Brunswick-New Hanover (HD-17, -18, -19, and

e. Guilford (HD-58, -59, -60).

All parties have had a full opportunity to submit memoranda supporting or opposing the
Remedial Maps. The Court has examined each of the seventy-seven newly-drawn Senate
and House districts in the Remedial Maps, and in particular the nineteen districts objected
to by Plaintiffs, as well as the transcripts, video and written record of the General Assembly
proceedings, and the arguments of counsel. The findings and conclusions of the Court are
set out below.

In this Court?s September 3, 2019, Judgment, the Court required that remedial
maps conform to speci?c criteria. Certain of the Court?s criteria governed the process
required of the General Assembly if it chose to enact remedial maps, while other criteria set
out substantive requirements for any remedial maps enacted.

I. Compliance with the Procedural Requirements of the September 3,
2019, Judgment of the Court.

With respect to the process that the Court required of the General Assembly, the
following criteria were set out in the Court?s Judgment:

a. Legislative Defendants and their agents shall conduct the entire
remedial process infull 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.

b. In redrawing the relevant districts in the Remedial Maps, the
invalidated 2017 districts may not be used as a starting point for
drawing new districts, and no effort may be made to preserve the
cores of invalidated 2017 districts.

0. Election Data. Partisan considerations and election results data
shall not be used in the drawing of legislative districts in the
Remedial Maps.

d. 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.

In reviewing the actions of the General Assembly that led to the enactment of the
Remedial Maps, the Court is satis?ed that the process chosen and implemented by both the
House and Senate of the General Assembly comported with the procedural requirements of
the Court?s Judgment. Several aspects of the General Assembly?s process, and several of

the Plaintiffs? objections thereto, merit further discussion.

a. Requirement that the remedial redistricting process be
conducted in full public view.

In contrast to the unconstitutional 2017 Enacted Maps, the remedial redistricting
process was conducted in full public View, as ordered by the Court. To comply with the
Court?s mandate, both the Senate and the House conducted the vast majority of the
remedial redistricting process in public hearings, broadcast by audio and video livestream,
so that Plaintiffs and interested public could view the process in its entirety. A record of
the entire proceedings has been made and preserved and is available not only to the Court,
but to the public for inspection and scrutiny.

Plaintiffs, in their Objections to the Remedial Plans, make note of some apparent
lapses in transparency that predictably and justifiably give rise to suspicion. These lapses
are detailed in Plaintiffs? Objections to the Remedial Plans on pages 2-7. For example,

Plaintiffs suspect that Rep. David Lewis, chair of the House Redistricting Committee,

3

conferred with Republican redistricting strategists to determine which dataset of simulated
maps created by Plaintiffs? expert Dr. Jowei Chen, Set 1 or Set 2, ought to be used as the
base map in the remedial process. Rep. Lewis denies taking such action, but if Rep. Lewis
had consulted in private regarding the partisan consequences of choosing either Set 1 or Set
2, the Court does not accept Legislative Defendants? rationalization that such a
consultation would not be ??map drawing? but ?map picking? and therefore not in Violation
of the Court?s mandate that the ?entire remedial process? be conducted in ?full public View.?
Leg. Defs?Memorandum. Regarding House and Senate Remedial Maps (hereinafter ?Leg.
Defs?Memorandum?), p. 12 (Sept. 23, 2019) (emphasis original). On the other hand, the
Court notes that the House Redistricting Committee?s ultimate choice to use Set 1 as the
starting point for the remedial process was made with unanimous and bipartisan approval
by the House Redistricting Committee after thorough debate in public. Tr. H. Redistricting
Comm., Sept. 11, 2019 at 17:3-22.

The Court is satisfied, despite the lapses identi?ed by Plaintiffs, that the efforts
made by the General Assembly to ensure that the remedial process was conducted in public
view were reasonable and complied with the Court?s mandate. It is noteworthy to the Court
that both Legislative Defendants and ranking Democratic members of the General
Assembly concur that ?the level of public access provided to the committee process was
unprecedented in the history of the General Assembly, regardless of the type of committee
or subject matter involve.? Leg. Defs?Memorandum at 10. Democratic Minority Leader
Senator Dan Blue, during Senate ?oor debate on the Senate?s remedial plan, stated that
this process, the rules that have been applied have been evenly administered. It is a
transparent, open, process, more transparent than anything I?ve seen in this legislature,
especially with redistricting? and ?[o]ne of the mainstays of a democratic government is

transparency and that?s why I think this process worked so well.? Senate Floor Debate

4

Transcript, Sept. 16, 2019, at 207-12; 22:15-1 7. As such, the Court overrules the objections
of Plaintiffs to the extent the objections challenge the General Assembly?s compliance With
the mandate of the Court that the remedial process be conducted in full public view.

b. Requirement that invalidated 2017 districts not be used as a

starting point for drawing new districts and there be no effort
to preserve the cores of invalidated districts.

The Court finds and concludes that the General Assembly?s use of Set 2 (Senate) and
Set 1 (House) of the simulated maps created by Dr. Chen as the datasets from which to
select the base Remedial Senate and House Maps comports with the mandate of the Court
that invalidated 2017 districts not be used as a starting point for drawing new districts.
The Court has previously found, in its September 3, 2019, Judgment, that these simulated
maps both Set 1 and Set 2 were created by an algorithm designed by Dr. Chen to
maximize traditional redistricting criteria and to disregard partisan criteria and the cores
of the 2017 districts. See Judgment, 1] 83-86, 113-114. The Court accorded Dr. Chen?s
testimony and methodology great weight in the liability phase of this litigation and again
does so here.

The Court further concludes that the methodology adopted by the General Assembly
to select the ultimate House and Senate base remedial maps, through a random process
from among the various simulated maps contained in Dr. Chen?s datasets, was reasonable.
The methodology utilized by the General Assembly rank-ordered the simulated maps for
each county grouping by optimizing traditional, nonpartisan redistricting criteria computed
by Dr. Chen, and then selected a map, through a random drawing, from the top five rank-
ordered maps to serve as the base district maps for that grouping. The process was
overseen by nonpartisan staff and conducted in public View. Notably, the base map
selection process received broad bipartisan support in both the House and Senate

Redistricting Committees. The Court recognizes that other methodologies might have been

5

chosen that could have resulted in maps that more reliably optimized traditional and
nonpartisan redistricting criteria. For example, the decision to randomly draw a base map
from county groupings where Dr. Chen?s simulation showed that only a few unique maps
could possibly be drawn within the group raises the possibility that the ?optimal? map was
supplanted by a map significantly less optimal through the random drawing process.l
Nonetheless, despite these possible shortcomings in the chosen methodology, the decision to
consistently employ and abide by random choice to choose among simulated maps created
through a nonpartisan algorithm was reasonable. As such, the Court overrules the
objections of Plaintiffs to the extent the objections challenge the General Assembly?s
compliance with the mandate of the Court that invalidated 2017 districts not be used as a
starting point for drawing new districts and there be no effort to preserve the cores of
invalidated districts.
0. Requirement that no partisan consideration or election results
data be used in the drawing of legislative districts in the
Remedial Maps.
The Court is satisfied that significant and reasonable efforts were taken by the
General Assembly to attempt to limit partisan consideration and election results data from
being used in the remedial redistricting process. The Court finds and concludes that to the

degree that this mandate could be achieved, it was significantly aided by public and media

scrutiny and the transparency of the remedial process.

 

1 For example, in the simulations produced by Dr. Chen for the Franklin-Nash House county
grouping, due to the relatively small number of VTDs and municipalities in that grouping, only five
unique maps could possibly be drawn while comporting with traditional and legal redistricting
criteria. See, Testimony of Dr. Chen, Trial Tr. 35710-35815. As such, the random choice of one of
those five possible simulated maps for this House grouping might (with a 1:5 chance) have resulted
in choosing the fifth-most Optimal choice i.e. the ?worst? choice rather than the more optimal first
choice.

Plaintiffs, in their Objections to the Remedial Plans, raise a serious concern
regarding the use of election data or partisan data. Specifically, Plaintiffs have provided
evidence to the Court that shortly after the House and Senate Redistricting Committees
announced that Dr. Chen?s simulated maps would be used to select the base map, counsel
for the Legislative Defendants, responding to a request from legislative staff for shapefiles
and block assignments for those maps, sent an email containing a link to Dr. Chen?s backup
files to dozens of recipients, including all members of the House and Senate Redistricting
Committees. Dr. Chen?s backup ?les contained extensive partisanship data on every
district in every one of Dr. Chen?s simulated maps. With these files, any recipient could
look up the partisan composition of any district in any of Dr. Chen?s simulated maps. The
link was emailed by Legislative Defendants? counsel at 4:21 pm. on September 9, 2019;
Plaintiffs counsel objected to the distribution of the data shortly thereafter at 4:45 and
the link was disabled at or about 7:09 pm.

Legislative Defendants, in their Reply Brief, report that no central staff member
completed the download of the partisan dataset, and that of the members of the House
Redistricting Committee,2 only two, one Republican member and one Democratic member,
had, through their staff, downloaded the data at issue. Legislative Defendants further
report that as to the data downloaded by the Republican member?s staff, the zip ?le
containing the partisan data was never accessed; with respect to the Democratic member?s
data, counsel argues there is no evidence that the Democratic member or her office used the

data or sought to inject partisan changes into the maps. Legislative Defendants? counsel

 

2 Legislative Defendants only report the potential use of data by members of the House and
House staff members because ?Plaintiffs only attack the House? and are not raising objections to the
Senate Remedial Maps. Reply Brief at 14.

also note the complexity of the partisan data, asserting that it is ?entirely unusable for- a
non-expert in political data analysis.? Reply Brief at 14.

The Court finds and concludes that the distribution of partisan data by email to
legislative staff and members of the Redistricting Committees by counsel for Legislative
Defendants is a serious breach of this Court?s mandate. However, the Court further finds
that the distribution was inadvertent, and the potential damage was mitigated by public
scrutiny and the vigilance of Plaintiffs? counsel and their prompt objection. As such, the
Court concludes that this breach alone is not sufficient to invalidate the remedial map
drawing process. The Court overrules the objections of Plaintiffs to the extent the
objections challenge the General Assembly?s compliance with the mandate of the Court that
no partisan consideration or election results data be used in drawing the remedial maps.

d. Requirement that Legislative Defendants obtain prior

approval of the Court to retain individuals who are not
current legislative employees to assist in the map-drawing
process.

Plaintiffs, in their Objections to the Remedial Plans, establish that Legislative
Defendants, without seeking prior approval of the Court, utilized the services of Clark
Bensen, who operates a political consulting firm known as during the
remedial map drawing process. Plaintiffs note that Mr. Bensen is an attorney by training,
and according to his resume, has been involved in ?redistricting and census issues
throughout the previous three reapportionment cycles and has developed political and
census datasets for every state in the nation? and that ?development of election datasets for
every level of geography has been a specialty since 1974.? Id. at 5. Mr. Bensen previously

served as director of ?Political Analysis? for the Republican National Committee where his

duties were to ?undertake the collection, compilation, systemization and analysis of

politically related data.? Id. In 2011, Legislative Defendants relied upon Mr. Bensen to
provide political data for them in drawing the 2011 plans. Id.

Legislative Defendants, by way of affidavit of Mr. Bensen, confirm that Mr. Bensen
was contacted by email on September 9, 2019, inquiring about his availability to ?analyze
1,000 districting plans? in a short period of time. Bensen Affidavit, ?l 7. He responded that
he had limited availability, and he was then requested to ?simply compare the two sets of
1,000 plans with two of the sets of 1,000 plans that Dr. Chen had provided during the
liability stage, for the purposes of verifying that the plans submitted by Dr. Chen during
the remedial stage appeared to be the same plans that had been submitted previously.??
Id., 1W 7-8. Mr. Bensen further reports that he conducted this comparison on September
10, 2019, and by 2:30 pm. that same day, he reported to counsel for Legislative Defendants
that ?it appeared to [him] ?like almost all of the old plans are included.? Id., ll 16'. He states
that ?he had neither the time nor the instructions to undertake? any other review
associated with the remedial maps and that comparison of datasets was the sole task he
performed. Id., Tl 17. Mr. Bensen denies that he conducted any partisan analysis of any
simulated districts in the data provided and did not provide any information to counsel or
anyone else about partisan performance of the simulated districts. Id., 18.

Plaintiffs also object to the utilization of Dr. Janet R. Thornton during the remedial
map drawing process without prior authorization of the Court. Dr. Thornton testified as an
expert on behalf of the Legislative Defendants during the liability phase of this litigation.
Like Mr. Bensen, Dr. Thornton has provided an affidavit stating that her role, at all times
prior to the enactment of the Remedial House and Senate Maps, was limited to the single
task, on September 10, 2019, of verifying that the datasets provided to the General

Assembly were in fact the same datasets that Dr. Chen had produced for the purposes of

the litigation. Thornton Affidavit, 1W 3- 6. She further states that between September 3,
2019, and September 29, 2019, she did not ?review the partisan make-up or review political
information for the county groupings for the remedial plan.? Id., 1] 7.

Legislative Defendants respond to Plaintiffs? objection by stating, in summary, that
the fact that outside personnel would be verifying that the data received by the General
Assembly were identical to the data Dr. Chen had utilized during the liability phase of the
litigation was discussed in public redistricting committee meetings (see, e.g. Tr. S.
Redistricting Comm, Sept. 10, 2019, at Moreover, Legislative Defendants argue,
the authentication of data is not ?assistance in the map-drawing process.? Reply Brief at 10.
The Court agrees. There is no direct evidence contradicting the affidavits of Mr. Bensen
and Dr. Thornton, and taking their sworn testimony as true, the Court concludes that their
assistance in authenticating and verifying data does not Violate the specific mandate of the
Court. As such, the Court overrules the objections of Plaintiffs to the extent the objections
challenge the General Assembly?s compliance with the mandate of the Court that
Legislative Defendants obtain prior approval of the Court to retain outside individuals to
assist with the remedial process.

II. Compliance with the Substantive Requirements of the September 3,
2019, Judgment of the Court.

The Court, in its Judgment of September 3, 2019, required that any remedial maps
enacted by the General Assembly comport with a number of substantive criteria. The
criteria are as follows:

a. Equal Population. The mapmakers shall use the 2010 federal
decennial census data as the sole basis of population for drawing
legislative districts in the Remedial Maps. The number of persons
in each legislative district shall comply with the 5 percent

population deviation standard established by Stephenson U.
Bartlett, 355 NC. 354, 562 SE. 2d 377 (2002).

10

b. Contiguity. Legislative districts shall be comprised of contiguous
territory. Contiguity by water is sufficient.

c. County Groupings and Traversals. The mapmakers shall draw
legislative districts in the Remedial Maps within county groupings
as required by Stephenson U. Bartlett, 355 N.C. 354, 562 SE. 2d 377
(2002) (Stephenson I), Stephenson 1). Bartlett, 357 N.C. 301, 582
247 (2003) (Stephenson II), Dickson v. Rucho, 367 N.C. 542,
766 238 (2014) (Dickson I) and Dickson v. Rucho, 368 N.C.
481, 781 460 (2015) (Dickson II). Within county groupings,
county lines shall not be traversed except as authorized by
Stephenson I, Stephenson II, Dickson I, and Dickson II. The county
groupings utilized in the 2017 House and Senate Maps shall be
utilized in the Remedial Maps.

d. Compactness. The mapmakers shall make reasonable efforts to
draw legislative districts in the Remedial Maps that improve the
compactness of the districts when compared to districts in place
prior to the 2017 Enacted Legislative Maps. In doing so, the
mapmaker may use as a guide the minimum Reock (?dispersion?)
and Polsby-Popper (?perimeter?) scores identified by Richard H.
Pildes and Richard G. Neimi in Expressive Harms, ?Bizarre
Districts,? and Voting Rights: Evaluating Election-District
Appearances After Shaw 0. Reno, 92 Mich. L. Rev. 483 (1993).

e. Fewer Split Precincts. The mapmakers shall make reasonable
efforts to draw legislative districts in the Remedial Maps that split

fewer precincts when compared to districts in place prior to the 2017
Enacted Legislative Maps.

f. Municipal Boundaries. The mapmakers may consider municipal
boundaries when drawing legislative districts in the Remedial
Maps.

g. Voting Rights Act. Any Remedial Maps must comply with the VRA
and other federal requirements concerning the racial composition of

districts.

h. Incumbencv Protection. The mapmakers may take reasonable
efforts to not pair incumbents unduly in the same election district.

With respect to each criteria through as to the maps as a whole, there is no
evidence that the General Assembly did not comply, and Plaintiffs do not object to the
Remedial Maps as a whole on these grounds. As such, the Court finds and concludes that

the Remedial House and Senate Maps, as a whole, comport with the legal requirements of

11

equal population, contiguity, and the Stephenson county grouping and traversal
requirements, and reasonably optimize the traditional redistricting criteria of compact ness,
fewer split precincts, and consideration of municipal boundaries when compared to the
districts in place prior to the 2017 Enacted Maps.

a. Mandate that the Remedial Maps comply with the VRA and other
federal requirements concerning the racial composition of districts.

The Court further finds and concludes that the Remedial Maps comply with
criterion above, namely that the Remedial Maps comply with the Voting Rights Act and
other federal requirements concerning the racial composition of districts. In the Court?s
Judgment of September 3, 2019, the Court stated that any parties ?may submit briefing,
which may attach expert analysis, on whether the Gingles factors are met in particular
counties and county groupings and/or the minimum BVAP needed in particular counties
and county groupings for African Americans to be able to elect candidates of their choice to
the General Assembly.? Plaintiffs submitted such a brief, including expert analysis of
Jowei Chen, (report dated September 17, 2019) and Lisa Handley, (report
dated September 17, 2019). No other parties submitted briefs or expert analysis on this
issue within the time allowed by the Court. The Court finds the analysis performed by Dr.
Chen and Dr. Handley to be credible and adopts their conclusions. A separate Order shall
be issued by this Court detailing the findings of fact that support these conclusions.

b. Mandate that the General Assembly may take reasonable

efforts to not pair incumbents unduly in the same election
district.

In its September 3, 2019, Judgment, the Court adopted the criterion that the
General Assembly ?may take reasonable efforts to not pair incumbents unduly in the same
election district.? The Court recognizes that this criterion permits a degree of legislative

discretion to enter into the remedial process and, indeed, a degree of political discretion. It

12

is not surprising, therefore, that each of Plaintiffs? challenges to the enacted House
Remedial Maps namely, their objections to five of fourteen House county groups redr awn
pursuant to the Court?s Judgment arise largely as a result of the exercise of this
legislative discretion to unpair incumbent legislators who had been paired by Dr. Chen?s
simulated maps.

In applying this criterion, the Court finds noteworthy and appropriate that the
House Redistricting Committee recognized that changes made to base maps to unpair
incumbents ought to be ?extremely narrow, tailored, precise, and thoughtful.? Video record
of House Redistricting Committee, Sept. 12, 201.9, 3:24:19-3:26. Accordingly, the Committee
adopted the following directives: (1) no changes would be made to the House base maps
derived from Dr. Chen?s dataset where no incumbent members were paired; (2) where
incumbent members were paired in a single district, the paired district and the
corresponding empty district would be the sole districts altered to unpair the paired
members, and those alterations should be as few as possible; and, (3) a legislator who
informed the Committee that he or she did not intend to run for re-election would not be
treated as an incumbent for the purposes of unpairing. See, Legislative Defendants?Memo
Re House and Senate Remedial Maps, at 16 and n. 3; Video record, Sept. 12, 2019, 3:07:00-
3:0.9:44; 3:22:48; These directives were applied uniformly by the House
Redistricting Committee to all county groupings under its consideration. The Court finds
and concludes that these directives re?ect a reasonable effort by members of the Committee
to preserve the nonpartisan and traditional redistricting criteria optimized in Dr. Chen?s
maps and are therefore consistent with the Court?s mandate.

In its September 8, 2019, Judgment, the Court observed that its most basic
level, partisan gerrymandering is defined as: ?the drawing of legislative district lines to

subordinate adherents of one political party and entrench a rival party in power?? Ariz.

13

State Legislature U. Ariz. Indep. Redistricting Comm?n, 135 S. Ct. 2652, 2658 (US. 2016).
With this in mind, the Court finds it significant that the House Redistricting Committee
voted unanimously to adopt twelve of the fourteen remedial county groupings under its
consideration and one other grouping received only one ?no? vote. Only one county
grouping, the Robeson-Columbus-Pender county grouping, provoked disagreement among
the Committee members. The House Redistricting Committee is comprised of seventeen
members seven Democrats and ten Republicans. The Speaker Pro Tempore, a
Republican, participated as an ex officio voting member as well. The Court finds and
concludes that unanimous or nearly unanimous consensus across party lines within the
Committee for thirteen of fourteen remedial county groupings is signi?cant evidence that,
for at least those thirteen groupings, partisan gerrymandering has been significantly
abated.

Plaintiffs, in their Objections to the Remedial Maps, challenge five county groupings
in the House Remedial Maps. Four of the groupings challenged were altered from Dr.
Chen?s base map to unpair incumbents. One county grouping, Brunswick New Hanover,
is challenged by Plaintiffs because the General Assembly did not unpair incumbents. The
Court considers each of Plaintiffs? objections to these five county groupings in the House
Remedial Map.

i. Brunswick?New Hanover County Grouping (HD-17, 
and 

The base map for this county grouping, which was selected in accordance with the
methodology described above from Dr. Chen?s simulated maps, paired two Republican
incumbents in House District 20: Representative Holly Grange and Representative Ted
Davis. The base map had the highest Reock score most compact) of all possible

simulations, split no VTDs, and split the lowest number of municipalities (one). The

14

simulated map created three Republican districts and one Democratic district, as did every
other simulated map generated by Dr. Chen?s Set 1 algorithm for that county grouping
except one, which created four Republican districts.

Plaintiffs object to adoption of this county grouping map because the General
Assembly did not unpair Rep. Grange and Rep. Davis in HD-20. Plaintiffs do not propose
an alternative map that unpairs the incumbents in HD-20, but suggest that had Rep.
Grange and Rep. Davis been unpaired, Democratic voters might have been distributed more
efficiently in HD-18, ?19 and -20, presumably making one of the three Republican districts
more competitive for a Democratic candidate. By failing to unpair Rep. Grange and Rep.
Davis, Plaintiffs contend, Legislative Defendants perpetuated a partisan gerrymander in
this county grouping.

Rep. Grange, however, announced her intention to run for Governor in 2020 several
months prior to the drafting of the Remedial Map. Although Rep. Grange initially asked
the House Redistricting Committee that she be unpaired from Rep. Davis, she later
withdrew her request. Tr. House Floor, Sept. 13, 2019, Vol. II at Because a
person cannot file for both a House seat and the Office of Governor, it was reasonable for
the General Assembly to disregard Rep. Grange?s incumbency and treat the county
grouping as one with no paired incumbents. Therefore, consistent with the directives
adopted by the House Redistricting Committee, no changes were made to the simulated
base map for this county grouping. The base map for Brunswick-New Hanover, with no
alterations, was unanimously adopted by the bipartisan House Redistricting Committee.

In weighing all of these factors, the Court finds and concludes that the Brunswick-
New Hanover remedial districts were not adopted in violation of the Court?s mandate
because: (1) the remedial map for the Brunswick-New Hanover county grouping was chosen

from Dr. Chen?s simulated maps through a process that the Court has found to reasonably

15

comply with its mandate; (2) the districts within the county grouping comport with the
legal requirements of equal population, contiguity, and the Stephenson county grouping and
traversal requirements, and reasonably optimize the traditional redistricting criteria of
compactness, fewer split precincts, and consideration of municipal boundaries; (3) the
decision not to alter the base map was consistent with a self-imposed limitation on the
Redistricting Committee?s discretion that the Court has found to be appropriate and
uniformly applied; (4) no alternative map that better achieved these objectives was offered
by Plaintiffs; and, (5) the remedial county grouping map was adopted unanimously by the
House Redistricting Committee. Therefore, the objection of Plaintiffs to this county
grouping is denied.

ii. Guilford County Grouping (HD-58, and HD-60)

The Guilford County grouping contains six total House districts, but three of these
districts (HD-57, HD-61, and HD-62) are frozen in both the computer-simulated plans as
well as in the enacted House Remedial Map pursuant to the Court?s September 3, 2019,
Judgment. The base map for this county group, which was selected from Dr. Chen?s
simulated maps in accordance with the methodology described above, paired two
incumbents in House District 59. To unpair these two incumbents, one VTD from HD-59
was moved in HD-58. No other changes were required. The House Redistricting
Committee unanimously adopted the Guilford County remedial map.

Plaintiffs object to the Guilford County remedial map adopted by the General
Assembly because, they contend, in the name of unpairing incumbents, the House
substantially recreated one of the invalidated 2017 districts in this grouping (HD-58),
rendering this grouping a statistical outlier with respect to compactness. Plaintiffs do not
contend that the alteration to the base map rendered the county grouping a statistical

outlier with respect to partisanship, and the change had no effect on the number of split

16

VTDs (0) or split municipalities (0). Plaintiffs do not propose an alternative map that
unpairs the incumbents in HD-59.

In weighing all of these factors, the Court finds and concludes that the Guilford
county remedial districts were not adopted in Violation of the Court?s mandate because (1)
the remedial map for the Guilford county grouping was chosen from Dr. Chen?s simulated
maps through a process that the Court has found to reasonably comply with its mandate;
(2) the districts within the county grouping comport with the legal requirements of equal
population, contiguity, and the Stephenson county grouping and traversal requirements,
and reasonably optimize the traditional redistricting criteria of fewer split precincts, and
consideration of municipal boundaries; (3) the decision to unpair the incumbents in HD-59
was achieved by as few alterations as possible (in this case, one VTD), which was consistent
with a self-imposed limitation on the Redistricting Committee?s discretion that the Court
has found to be appropriate and uniformly applied; (4) the modest reduction in compactness
of HD-58 and HD-59 to achieve unpairing of incumbents was not unreasonable; (5) no
alternative map that better achieved these objectives was offered by Plaintiffs; and, (6) the
remedial county grouping map was adopted unanimously by the House Redistricting
Committee. Therefore, the objection of Plaintiffs to this county grouping is denied.

Cleveland-Gaston County Grouping and
HD-111)

The base map for the Cleveland-Gaston county grouping, which was selected from
Dr. Chen?s simulated maps in accordance with the methodology described above, paired two
incumbents in House District 111. To unpair these two incumbents, a total of thirteen
VTDs were moved from the base plan and one VTD was split. Every simulated map created
by Dr. Chen?s algorithm for this county grouping results in four Republican districts, three

of which have more than 60% Republican vote share and the fourth has more than 55%

17

Republican vote share in all but a handful of the 1000 maps simulated by Dr. Chen. The
House Redistricting Committee unanimously adopted the Cleveland?Gaston county
grouping remedial map.

Plaintiffs object to the Cleveland-Gaston county grouping remedial map adopted by
the General Assembly because, they contend, the alterations made to unpair incumbents
return this county grouping to the prior gerrymander by cracking the municipality of
Gastonia into three districts. Plaintiffs point out that the net partisan effect is a swing
downward in Democratic vote share in HD-108 from 41.24% to 35.62%, and a swing upward
in Democratic vote share in HD-ll 1 from 26.63% to 31.10%. Plaintiffs also establish the
districts in the county grouping are made less compact by the alterations made to the base
map. Plaintiffs do not propose an alternative map that unpairs the incumbents in 

Legislative Defendants contend the choices made by the House Redistricting
Committee to alter the map to unpair incumbents required a policy decision to either split
Gastonia into three districts or to split many other smaller municipalities in northern and
western Gaston County. Ultimately, by altering the base map as enacted, no other
municipalities were split to achieve the unpairing of the incumbents in 
Legislative Defendants further note that there is no incentive to engage in partisan
gerrymandering in this county grouping because of the heavy Republican concentration
throughout the entire grouping.

In weighing all of these factors, the Court finds and concludes that the Cleveland-
Gaston county grouping remedial districts were not adopted in Violation of the Court?s
mandate because: (1) the remedial map for the Cleveland-Gaston county grouping was
chosen from Dr. Chen?s simulated maps through a process that the Court has found to
reasonably comply with its mandate; (2) the districts within the county grouping comport

with the legal requirements of equal population, contiguity, and the Stephenson county

18

grouping and traversal requirements, and reasonably optimize the traditional redistricting
criteria of fewer split precincts, and consideration of municipal boundaries; (3) the decision
to unpair the incumbents in HD-ll 1 was achieved by alterations only to the district wi th
the paired incumbents 11) and to the district with no incumbent (HD-108), which was
consistent with a self-imposed limitation on the Redistricting Committee?s discretion that
the Court has found to be appropriate and uniformly applied; (4) the division of Gastonia so
as to avoid the division of other municipalities to achieve unpairing of incumbents was not
unreasonable; (5) no alternative map that better achieved these objectives was offered by
Plaintiffs; (6) no motive to disadvantage Democratic voters can be discerned in the
alterations made; and, (7) the remedial county grouping map was adopted unanimously by
the House Redistricting Committee. Therefore, the objection of Plaintiffs to this county
grouping is denied.

iv. County Grouping (HD-71, HD-72, 4 and
HD-7 5)

The base map for the county grouping, which was selected from Dr.
Chen?s simulated maps in accordance with the methodology described above, paired two
incumbents in House District 75 (one Democrat and one Republican) and two incumbents in
House District '72 (one Democrat and one Republican).3 In HD-7 5, the incumbents each
resided two VTDs away from the nearest border of the base district. In order to attempt to
unpair the four incumbents, the bipartisan House delegation proposed to
alter the base map by moving four VTDs in HD-75, and one VTD in HD-72. During the
course of the discussions amongst the members of the delegation at the mapmaking

terminal, which was carried out in full public View, Representative Donny Lambeth, the

 

3 The House Districts were renumbered in the enacted Remedial House Maps: HD-71 to HD-72, HD-
72 to HD-74, HD-74 to HD-75 and HD-75 to HD-71. For consistency, the Court uses the original
district numbers in this discussion.

19

Republican incumbent paired in HD-7 5, asked to ?take the 75th out to Kernersville because
I?ve represented it in the past.? Video Record of House Redistricting Committee, Sept. 12,
201.9, 7:12:00-10. Rep. Lambeth?s request was implemented by an alteration to the base
map. As a result, two VTDs were removed from HD-7 5 and added to HD-74 (which
includes Kernersville) and, to balance the population between the two districts, two VTDs
from HD-74 were moved to HD-75. The base map for the county grouping,
as altered to unpair four incumbents, was unanimously adopted by the House Redistricting
Committee.

Plaintiffs object to the county grouping remedial map adopted by
the General Assembly because, they contend, the alterations made to unpair incumbents
were the result of partisan gerrymandering and resulted in districts that preserved cores of
House districts that were declared unconstitutional. Plaintiffs show that as a result of
altering four VTDs to unpair the incumbents in HD-75, the Democratic vote share in HD-75
increased from 69.09% to 71.37%, while in HD-74, the Democratic vote share decreased
from 39.72% to 36.24%. This, Plaintiffs contend, is evidence of packing and cracking
condemned by the Court in its September 3, 2019, Judgment. The alterations further had
the effect of decreasing compactness, as compared to the base county grouping map, and
split two more municipalities than the base map. Plaintiffs do not propose an alternative
map that unpairs the incumbents in HD-75 and HD-7 2.

While there is no evidence that election result data was used by the 
legislative delegation as they decided how to propose to unpair the incumbents in it
is reasonable to assume that the incumbents paired in HD-75, Rep. Lambeth (Republican)
and Rep. Evelyn Terry (Democrat), both of whom have served in the House for four terms,
knew from their extensive political experience that the two VTDs that were moved to place

Rep. Lambeth into the Republican leaning HD-7 4 were two Republican-leaning VTDs, and

20

conversely, the two VTDs moved from HD-74 into HD-7 5 to rebalance the population Were
two Democratic-leaning VTDs. It is also reasonable to assume that Rep. Lambeth and Rep.
Terry knew that the alternative means by which they could be unpaired would be to place
Rep. Terry, the Democrat, into a safe Republican district, and to leave Rep. Lambeth, the
Republican, in a safe Democratic district.

The Court concurs that the decision to alter HD-74 and HD-7 5 so as to place Rep.
Lambeth in HD-7 4 and leave Rep. Terry in HD-75 was one that was likely made with
partisan considerations in mind, although not with past election data on hand. The Court
further recognizes that this is an example of where the Court?s mandate that allows
?reasonable efforts to not pair incumbents unduly in the same election district? permits, as
noted above, a degree of legislative discretion to enter into the remedial process and,
indeed, a degree of political discretion. And the Court concurs that traditional redistricting
criteria of compactness and preserving municipal boundaries were subordinated to
unpairing incumbents.

However, the constitutional defect at issue in this litigation is extreme partisan
gerrymandering which, as the United States Supreme Court has said is, its most basic
level . . . the drawing of legislative district lines to subordinate adherents of one political
party and entrench a rival party in power.? Ariz. State Legislature, 135 S. Ct. at 2658.
Here, the Court cannot conclude that the choice of how to unpair Rep. Lambeth and Rep.
Terry was done to subordinate Democrats or entrench the Republican party in power. The
fact that the alterations inured to the mutual benefit of both Democrats and Republicans in
a plan that was proposed to the House Redistricting Committee by the bipartisan 
Yadkin House delegation, and that the plan was unanimously adopted by the full
bipartisan Committee, shows that these alterations were not the result of extreme partisan

gerrymandering.

21

In weighing all of these factors, the Court finds and concludes that the 
Yadkin county grouping remedial districts were not adopted in violation of the Court?s
mandate because: 1) the remedial map for the county grouping was chosen
from Dr. Chen?s simulated maps through a process that the Court has found to reasonably
comply with its mandate; (2) the districts within the county grouping comport with the
legal requirements of equal population, contiguity, and the Stephenson county grouping and
traversal requirements, and reasonably optimize the traditional redistricting criteria of
fewer split precincts, and consideration of municipal boundaries; (3) the decision to unp air
the incumbents in HD-71, HD-72, HD-7 4, and HD-75 was achieved by alterations only to
the districts with the paired incumbents (HD-75 and HD-7 2) and the districts with no
incumbent (HD-74 and HD-71), and by making the fewest alterations possible, which were
consistent with self-imposed limitations on the Redistricting Committee?s discretion that
the Court has found to be appropriate and uniformly applied; (4) the decision to place Rep.
Lambeth in HD-74 and leave Rep. Terry in HD-7 5 was not unreasonable; (5) no alternative
map that better achieved these objectives was offered by Plaintiffs; (6) no motive to
disadvantage Democratic voters can be discerned in the alterations made; and, the
remedial county grouping map was adopted unanimously by the House Redistricting
Committee. Therefore, the objection of Plaintiffs to this county grouping is denied.

v. Columbus-Pender?Robeson County Grouping (HD-16, HD-46 and HD-
47)

The base map for the Columbus-Pender-Robeson county grouping, which was
selected from Dr. Chen?s simulated maps in accordance with the methodology described
above, paired two incumbents in HD-16. To unpair these two incumbents, eleven VTDs
were altered from the base plan. Of the simulated maps created by Dr. Chen?s algorithm

for this county grouping, 99.5% of those simulated maps result in two Democratic districts

22

and one Republican district, and both the base map and enacted Remedial Map for this
county grouping have this same ratio.

Plaintiffs object to the Columbus-Pender-Robeson county grouping remedial map
adopted by the General Assembly because, they contend, the alterations made to unpair
incumbents was an attempt to dilute Democratic voters in HD-46 by moving the Town of
Whiteville VTDs into HD-16, thereby making HD-46 more competitive for Republicans-
Plaintiffs show that the alterations to the base map resulted in a decrease of the
Democratic vote share in HD-46 from 53.30% to 51.37% and an increase in the Democratic
vote share in HD-16 from 39.44% to 40.64%.

This county grouping was the subject of extensive negotiation among the members of
the House Redistricting Committee, and extensive discussion on the House Floor. Several
amendments were offered by Representative Darren Jackson (D-Wake), which failed. The
Columbus-Pender-Robeson county grouping remedial map was adopted by the House
Redistricting Committee by a divided vote. Plaintiffs have not proposed an alternative map
to the Court.

Legislative Defendants contend each possible alternative for unpairing the
incumbents in HD-46 and HD-16 would have resulted in municipal splits and VTD splits.
They contend that the policy decision of the Committee to preserve traditional redistricting
criteria was a sound decision and should not be altered by the Court. The remedial maps
proposed by Rep. Jackson would divide one municipality, Tabor City, or, alternatively,
divide two VTDs. The enacted Remedial Map for the Columbus-Pender-Robeson county
grouping splits no municipalities and splits no VTDs. The compactness scores, when

comparing the base map to the enacted Remedial Map, are essentially the same.

23

In weighing all of these factors, the Court finds and concludes that the Columbus-
Pender-Robeson county grouping remedial districts were not adopted in violation of the
Court?s mandate because: (1) the remedial map for the Columbus-Pender-Robeson county
grouping was chosen from Dr. Chen?s simulated maps through a process that the Court has
found to reasonably comply with its mandate; (2) the districts within the county grouping
comport with the legal requirements of equal population, contiguity, and the Stephenson
county grouping and traversal requirements, and reasonably optimize the traditional
redistricting criteria of compactness, fewer split precincts, and consideration of municipal
boundaries; (3) the decision unpair the incumbents in HD-16 was achieved by alterations
only to the district with the paired incumbents (HD-16) and the district with no incumbent
(HD-46), which were consistent with a self-imposed limitation on the Redistricting
Committee?s discretion that the Court has found to be appropriate and uniformly applied;
(4) the decision to place the Town of Whiteville in one district, and the Town of Chadbourn
in another was not an unreasonable exercise of the discretion in the General Assembly?s
efforts to unpair incumbents while respecting traditional redistricting criteria; and, (5) no
alternative map that better achieved these objectives was offered by Plaintiffs. Therefore,
the objection of Plaintiffs to this county grouping is denied.

Senate Remedial Maps

Despite receiving no objections from Plaintiffs to the enacted Senate Remedial Maps,
the Court has examined the seven county groupings and twenty-one Senate districts that
were redrawn in the Senate remedial process. After reviewing the record of the Senate
proceedings, the Court ?nds and concludes that each Senate district redrawn and enacted
in the Remedial Maps comports with the Court?s mandate because: (1) the Remedial Map
for each Senate county grouping was chosen from Dr. Chen?s simulated maps through a

process that the Court has found to reasonably comply with its mandate; (2) the districts

24

within each county grouping comport with the legal requirements of equal population,
contiguity, and the Stephenson county grouping and traversal requirements, and
reasonably optimize the traditional redistricting criteria of compactness, fewer split
precincts, and consideration of municipal boundaries; (3) all decisions to alter the base
maps were narrow, reasonable, and received broad bipartisan support; (4) the entire
process was conducted in full public View; and, (5) the Senate Remedial Maps were adopted
by the Senate with broad bipartisan support.

BASED UPON THE FOREGOING findings and conclusions, the Court ORDERS
that the House redistricting plan, N.C. Sess. Laws 2019-220 (House Bill 1020) enacted into
law on September 17, 2019, and the Senate redistricting plan, N.C. Sess. Laws 2019-219
(Senate Bill 692) enacted into law on September 17, 2019, are hereby APPROVED by the
Court.

SO ORDERED, this the 28th day of October, 2019.

Paul C. Ridgeway

 

Paul C. Ridgeway, Superior Court Judge

ls/ Joseph N. Crosswhite

 

Joseph N. Crosswhite, Superior Court Judge

Alma L. Hinton

 

Alma L. Hinton, Superior Court Judge

25

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the persons
indicated below by emailing a copy thereof to the address below, in accordance with the March
13, 2019 Case Management Order:

Edwin M. Speas, Jr.

Caroline P. Mackie

POYNER SPRUILL LLP

espeas@poynerspruill.com

cmackie@poynerspruill.com

Counsel for Common Cause, the North Carolina Democratic Party, and the Individual
Plaintiffs

R. Stanton Jones

David P. Gersch

Elisabeth S. Theodore

Daniel F. Jacobson

ARNOLD PORTER KAYE SCHOLER LLP
Stanton.jones@arnoldporter.com
David.gersch@arnoldporter.com



Counsel for Common Cause and the Individual Plaintiffs

Marc E. Elias

Aria C. Branch

Abha Khanna

PERKINS COIE LLP

melias@perkinscoie.com

abranch@perkinscoie.com

akhanna@perkinscoie.com

Counsel for Common Cause and the Individual Plaintiffs

Phillip J. Strach

Thomas A. Farr

Michael McKnight

Alyssa Riggins

OGLETREE DEAKINS NASH SMOAK STEWART PC

Tom.farr@ogletreedeakins.com

Alyssa.riggins@ogletree.com

Counsel for Legislative Defendants

Richard Raile

Mark Braden

Trevor Stanley

Katherine McKnight
Elizabeth Scully

BAKER HOSTETLER LLP


tstanley@bakerlaw.com


Counsel for Legislative Defendants

Stephanie A. Brennan

Amar Majmundar

PaulCox

NC DEPARTMENT OF JUSTICE

sbrennan@ncdoj.gov

amajmundar@ncdoj.gov

pcox@ncdoj.gov

Counsel for the State of North Carolina and members of the State Board of Elections

Katelyn Love

NC STATE BOARD OF ELECTIONS
legal@ncsbe.gov

Counsel for the State Board of Elections

John E. Branch, Ill

Nathaniel J. Pencook

Andrew D. Brown

SHANAHAN LAW GROUP PLLC
jbranch@shanahanlawgroup.com
npencook@shanahanlawgroup.com
abrown@shanahanlawgroup.com
Counsel for Defendant-Intervenors

This the 28th day of October, 2019.

mm

KEllie' Zl/lVIyers 
Trial Court Administrator 10th Judicial District
kellie.z.myers@nccourts.org

Exhibit 6

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
No. 1:15-cv-00399-TDS-JEP
SANDRA LITTLE COVINGTON, et al.,
 

Plaintiffs,
v.

PLAINTIFFS’ RESPONSE TO

 

THE STATE OF NORTH CAROLINA, et al.,

MOTION TO QUASH

 

Defendants.
NOW COME SANDRA LITTLE COVINGTON, et al., Plaintiffs herein, and
respond to the Legislative Defendants’ Motion to Quash or Modify Subpoena as follows:
1.

This Court invited the parties to address four specific issues in connection

with Plaintiffs’ motions a) to establish a timeline for the adoption of remedial districts
and b) to order special elections in the affected districts. Notice 3-4 (Doc. 153, June 9,
2017). Of particular relevance here, those issues included:
 Describing what steps, if any, the State of North Carolina has taken
to satisfy its remedial obligations under this Court’s August 15,
2016, Memorandum Opinion and Order; and
 If the State has failed to take any meaningful steps to satisfy its
remedial obligations under this Court’s August 15, 2016,
Memorandum Opinion and Order, addressing whether the State is
entitled to any additional time to comply with the Court’s August 15,
2016, Memorandum Opinion and Order.
Id. at 4.

Case 1:15-cv-00399-TDS-JEP Document 177 Filed 07/26/17 Page 1 of 7

 2.

The Legislative Defendants ignored the Court’s request in June, and instead

opposed Plaintiffs’ request to the U.S. Supreme Court to expedite the issuance of a
certified copy of its opinion and judgment, asserting that they needed the full twenty-five
days accorded by the Supreme Court Rules to determine if they intended to file a motion
for reconsideration of the Court’s unanimous summary affirmance of the trial court’s
judgment in this case. See Response to Application for Issuance of Mandate Forthwith,
at 8, North Carolina v. Covington, No. 16A1202, 16A1203 (Doc. 156-1, June 13, 2017).
No such motion for reconsideration was filed. Defendants’ opposition was intended only
to delay this Court resuming jurisdiction and to thereby further delay consideration of
Plaintiffs’ motions for additional relief.
3.

In their statement filed on July 6, 2017, the Legislative Defendants indicate

that they have appointed new redistricting committees and envision “completing the
redistricting process no later than November 15, 2017.” Leg. Defs. Position Statement 2
(Doc. 161). However, there is evidence in the record in this case to suggest that the
Legislative Defendants have already drawn remedial districts and are using the ability to
delay making those districts public to obtain a political advantage.
4.

On October 28, 2016, a Declaration of Thomas B. Hofeller, Ph.D.

[hereinafter “Hofeller Decl.”was filed with the Court, containing a “Map 3 Comparison
of 2011 Enacted to Optimum Senate County Groups” and a “Map 6 Comparison of 2011
Enacted to Optimum House County Groups”. Hofeller Decl. 18, 21 (Doc. 136-1, Oct. 28,
2016). (Copies attached hereto as Exhibit 1). Map 3 shows the whole county groupings
“which must be used to conform to the Optimum WCG structure” divided into three
2 
 

Case 1:15-cv-00399-TDS-JEP Document 177 Filed 07/26/17 Page 2 of 7

 classes: those colored green “will remain unchanged”, those colored yellow “will also
remain unchanged but the districts within them must be redrafted” and those colored
white are changed groupings “requiring that all the districts within them must be
redrafted”. Hofeller Decl. 6-7. In short, according to Dr. Hofeller, these are the county
groupings that must be used in order to comply with the Whole County Provisions of the
North Carolina Constitution. All that remains to be done is to subdivide those counties
and groupings that contain more than one district.
5.

Plaintiffs subpoenaed Representative Lewis to ask him to describe the 2016

redistricting process for drawing remedial congressional districts that was completed in
two weeks, and to inform the court, based on his personal knowledge, about the extent to
which Dr. Hofeller has already subdivided the county groupings containing multiple
districts in the two maps that Defendants submitted to this court last October. The
answers to those questions are relevant to both of the issues referenced above from the
Court’s Notice. That is, if Dr. Hofeller has already drawn the remedial districts in the
multi-district groupings shown in Map 3 and Map 6, it indicates what steps have been
taken to comply with the Defendants’ remedial obligations and it is relevant to
determining what additional time is needed to comply with a remedial order.
Representative Lewis and the other legislative leaders in control of the redistricting
process are, to the best of Plaintiffs’ knowledge, the only people who have this
information.

3 
 

Case 1:15-cv-00399-TDS-JEP Document 177 Filed 07/26/17 Page 3 of 7

 6.

Rather than a “blatant fishing expedition” designed to “chill the

policymaking rights of Rep. Lewis and other legislators”, Plaintiffs sought information
relevant to the issues currently before the court that only those legislators would know.
7.

Plaintiffs’ most recent brief includes the legal authority for their contention

that Representative Lewis cannot waive his legislative privilege concerning this matter in
order to offer evidence defending the districts drawn by the legislature but then assert it
when issues regarding an appropriate remedy arise.

See Pls. Supplemental Br. on

Remedy 8-9 (Doc. 173, July 21, 2017). Alternatively, these are circumstances in which
the privilege should give way to the court’s need for the information. Id.
8.

Given that Representative Lewis has asserted legislative privilege regarding

what steps the legislature has taken to date and whether new districts have, in fact,
already been drawn by Dr. Hofeller, thus denying this Court information relevant to the
balancing test it is charged with performing, the court should draw the inference that
completing those maps in two weeks is entirely possible. Indeed, given the fact that Map
3 and Map 6 demonstrate that the clusters for the remedial maps are already drawn, it
would also be a reasonable inference to draw that the remedial maps are already
completely drawn. Even if the Court grants the motion to quash, the Court is entitled to
make any necessary inferences on the issue in question in favor of the party seeking
disclosure. “[W]hen a party has relevant evidence within his control which he fails to
produce, that failure gives rise to an inference that the evidence is unfavorable to him.”
Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. (UAW) v. NLRB,
459 F.2d 1329, 1336 (D.C. Cir. 1972); see also Dist. 65, Distributive Workers of Am. v.
4 
 

Case 1:15-cv-00399-TDS-JEP Document 177 Filed 07/26/17 Page 4 of 7

 NLRB, 593 F.2d 1155, 1163-64, 1164 n.21 (D.C. Cir. 1978) (affirming an adverse
inference against an employer alleged to have committed discriminatory discharge where
the employer failed to put on testimony of the discharged employees’ supervisors to
bolster its defense that the discharges were the result of non-discriminatory performance
issues). “[P]rivilege cannot be used both as a sword and as a shield.” Navajo Nation v.
Peabody Holding Co., 255 F.R.D. 37, 44 (D.D.C. 2009) (citation omitted); Recycling
Solutions, Inc. v. District of Columbia, 175 F.R.D. 407, 408 (D.D.C. 1997); see also
United States v. Rylander, 460 U.S. 752, 758 (1983). This rule derives from concerns for
fundamental fairness and just judicial outcomes.
9.

The assertion of privilege to shield information from discovery “poses

substantial problems for an adverse party who is deprived of a source of information that
might conceivably be determinative in a search for the truth.” United States v. 4003-4005
5th Ave, Brooklyn NY, 55 F.3d 78, 82 (2d Cir. 1995) (quoting SEC v. Greystone Nash.
Inc., 25 F.3d 187, 190 (3d Cir. 1994)). Thus, because privilege assertions hinder courts’
truth-seeking goal, courts have prevented litigants from using privilege assertions as “a
tool for selective disclosure”—that is, allowing in evidence from a resisting party that
may be “helpful to his cause” but then allowing that resisting party to assert “privilege as
a shield” to prevent meaningful inquiry on the subject matter in question to assess the
truthfulness of the party’s limited public explanations. Computer Network Corp. v.
Spohler, 95 F.R.D. 500, 502 (D.D.C. 1982).
10.

While not required to do so, a court can properly draw an adverse inference

against a party claiming a privilege to resist producing relevant evidence. For instance,
5 
 

Case 1:15-cv-00399-TDS-JEP Document 177 Filed 07/26/17 Page 5 of 7

 an inference will be drawn against a party to a civil suit that invokes the Fifth
Amendment privilege against self-incrimination. See Baxter v. Palmigiano, 425 U.S.
308, 318-20 (1976); see also Int’l Chemical Workers Union v. Columbian Chemicals Co.,
331 F.3d 491, 497 (5th Cir. 2003). Thus, the Court here would be well within its
discretion to draw an adverse inference from Rep. Lewis’ invocation of legislative
privilege, particularly where it impedes this Court’s investigation of any potential burden
on the state relating to special elections.
11.

While Plaintiffs’ subpoena is well-grounded in the facts and seeks highly

relevant information, this Court still has ample evidence in the record before it that the
legislature would not be unduly burdened by being required to produce remedial maps
promptly.
Respectfully submitted this the 26th day of July, 2017.
POYNER SPRUILL LLP

SOUTHERN COALITION FOR
SOCIAL JUSTICE

By: s/ Edwin M. Speas, Jr.
Edwin M. Speas, Jr.
N.C. State Bar No. 4112
espeas@poynerspruill.com
Caroline P. Mackie
N.C. State Bar No. 41512
cmackie@poynerspruill.com
P.O. Box 1801 (27602-1801)
301 Fayetteville St., Suite 1900
Raleigh, NC 27601
Telephone: (919) 783-6400
Facsimile: (919) 783-1075

By: s/ Anita S. Earls
Anita S. Earls
N.C. State Bar No. 15597
anita@southerncoalition.org
Allison J. Riggs
State Bar No. 40028
allisonriggs@southerncoalition.org
Southern Coalition for Social Justice
1415 Highway 54, Suite 101
Durham, NC 27707
Telephone: 919-323-3380
Facsimile: 919-323-3942

Counsel for Plaintiffs
Counsel for Plaintiffs
6 
 

Case 1:15-cv-00399-TDS-JEP Document 177 Filed 07/26/17 Page 6 of 7

 CERTIFICATE OF SERVICE

I hereby certify that on this date I have electronically filed the foregoing
PLAINTIFFS’ RESPONSE TO MOTION TO QUASH with the Clerk of Court using
the CM/ECF system which will provide electronic notification of the same to the
following:
Alexander M. Peters
Special Deputy Attorney General
Office of the Attorney General
P.O. Box 629
Raleigh, NC 27602
apeters@ncdoj.gov
Counsel for Defendants

Thomas A. Farr
Phillip J. Strach
Michael D. McKnight
Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.
4208 Six Forks Road, Suite 1100
Raleigh, NC 27602
thomas.farr@ogletreedeakins.com
phillip.strach@ogletreedeakins.com
michael.mcknight@ogletreedeakins.com
Counsel for Defendants

This the 26th day of July, 2017.
/s/ Anita S. Earls
Anita S. Earls

7 
 

Case 1:15-cv-00399-TDS-JEP Document 177 Filed 07/26/17 Page 7 of 7

 EXHIBIT 1

Case Document 177-1 Filed 07/26/17 Pace 1 of 3

 

 

MAP 3

Comparison of 2011 Enacted to Optimum Senate County Groups

 

 

 

 

 

 

 

I 2093-92 '1 
Mill swin- h?kln?i?l?' ?uwoll mil Gm: A 
11-0342 I i 5mm 
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Fumll-II IrvinLamn? M. Franklin 15-03-01? 
. I
21mm .. us mm? 234m: "mm; emf
\?xnsTIE?m Wm Martin 4:23-114?
mum? Burk: '31th Min? ?ln?l?h El ll . Wilson I . WI
i 1?5-02-01 air-02411 m. 
5m- Him? :zz-ua-m Um? . 12432-0? - 
24-06-03 MM 
18.30.5412,. sun}, 1 Win: Gum]- Hid-
chm?l? - all? 14"? I ma?a:- #135 13-02-01 ..
them Caliban-Lind a . ?mm .
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(I . 11512-01. i
Mi" 4 
Mn I
Bulb 
19-04-12; 
Green indicates groups unchanged without unlawful districts. ?we 
- - I 
Yellow Indlcates group unchange, but With unlawful 
White indicates groups changed by using groups. awn

Case Document 177-1 Filed 07/26/17 Pace 2 of 3

 

Case Document 136-1 Filed 10/28/16 Pace 18 of 34

 

 

MAP 6

Comparison of 2011 Enacted to Optimum House County Groups

 

     
  

  

L1 
?urry Shh- 
27-07 35-05-04

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Imue?- W'prln

9:
MI 
02-0112-
42?412-03 I

 

 

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OTW ?mm: 
"x

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13-02-01 11-"

Green indicates groups unchanged without unlawful districts.
Yellow indicates group unchange, but with unlawful districts.
White indicates groups changed by using groups.

mm] 
salami I. r'

Case Document 177-1 Filed 07/26/17 Pace 3 of 3

 

Case Document 136-1 Filed 10/28/16 Paoe 21 of 34

Exhibit 7

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NO. 1:15-CV-00399
SANDRA LITTLE COVINGTON, et al., )
)
Plaintiffs,
)
)
v.
)
)
STATE OF NORTH CAROLINA, et al. )
)
Defendants.
)
)

PLAINTIFFS AND LEGISLATIVE
DEFENDANTS’ JOINT
STIPULATION ON WITHDRAWAL
OF SUBPOENA AND MOTION TO
QUASH OR MODIFY SUBPOENA

Plaintiffs and the legislative defendants enter into the following stipulation:
1.

On July 20, 2017, plaintiffs issued a subpoena to Representative David

Lewis (“Rep. Lewis”) directing Rep. Lewis to appear as a witness at the hearing
scheduled for July 27, 2017 (the “Subpoena”).
2.

On July 25, 2017, the legislative defendants filed a Motion to Quash or

Modify the Subpoena (“Motion”).
3.

On July 26, 2017 the plaintiffs filed a Response to the Motion to Quash.

4.

Through this joint stipulation, plaintiffs agree to withdraw the Subpoena

and the legislative defendants agree to withdraw the Motion.
5.

The legislative defendants stipulate that (1) between February 5, 2016 and

February 19, 2016, Dr. Tom Hofeller was retained to redraw the North Carolina
congressional map (consisting of 13 congressional districts), a redistricting committee
was appointed, public hearings held, written criteria adopted and a new map enacted; and
(2) Dr. Hofeller has been retained by the legislative leadership to consult on the
1

Case 1:15-cv-00399-TDS-JEP Document 178 Filed 07/26/17 Page 1 of 4

 legislative remedial maps; Rep. Lewis has not assigned Dr. Hofeller to fill in the House
and Senate grouping maps filed with the Court on October 31, 2016 (D.E. 137-1) with
district lines, nor has he seen or approved such a map and does not know if Dr. Hofeller
has drawn such a map. Neither Rep. Lewis nor any other legislative defendant waives
legislative privilege with regard to the remedial redistricting process for the state
legislative districts and does not do so by or through this stipulation.
This the 26th day of July, 2017.
OGLETREE, DEAKINS, NASH
SMOAK & STEWART, P.C.
/s/ Phillip J. Strach
Thomas A. Farr
N.C. State Bar No. 10871
Phillip J. Strach
N.C. State Bar No. 29456
thomas.farr@ogletreedeakins.com
phil.strach@ogletreedeakins.com
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Telephone: (919) 787-9700
Facsimile: (919) 783-9412
Counsel for Legislative Defendants

/s/ Edwin M. Speas, Jr.
Edwin M. Speas, Jr.
Poyner Spruill LLP
P.O. Box 1801 (27602-1801)
301 Fayetteville St., Suite 1900
Raleigh, NC 27601
espeas@poynerspruill.com
Attorneys for Plaintiffs

2

Case 1:15-cv-00399-TDS-JEP Document 178 Filed 07/26/17 Page 2 of 4

 /s/ Anita S. Earls
Anita S. Earls
Allison J. Riggs
Southern Coalition for Social Justice
1415 Highway 54, Suite 101
Durham, NC 27707
anita@southerncoalition.org
allisonriggs@southerncoalition.org
Attorneys for Plaintiffs

3

Case 1:15-cv-00399-TDS-JEP Document 178 Filed 07/26/17 Page 3 of 4

 CERTIFICATE OF SERVICE
I, Phillip J. Strach, hereby certify that I have this day electronically filed the
foregoing PLAINTIFFS’ AND LEGISLATIVE DEFENDANTS’ JOINT
STIPULATION OF WITHDRAWAL OF SUBPOENA AND MOTION TO QUASH
OR MODIFY SUBPOENA with the Clerk of Court using the CM/ECF system which
will provide electronic notification of the same to the following:
Edwin M. Speas, Jr.
Carolina P. Mackie
Poyner Spruill LLP
P.O. Box 1801 (27602-1801)
301 Fayetteville St., Suite 1900
Raleigh, NC 27601
espeas@poynerspruill.com
cmackie@poymerspruill.com
Attorneys for Plaintiffs

Anita S. Earls
Allison J. Riggs
Southern Coalition for Social Justice
1415 Highway 54, Suite 101
Durham, NC 27707
anita@southerncoalition.org
allisonriggs@southerncoalition.org
Attorneys for Plaintiffs

Alexander McC. Peters
Senior Deputy Attorney General
N.C. Department of Justice
apeters@ncdoj.gov
P.O. Box 629
Raleigh, NC 27602
This the 26th day of July 2017.
OGLETREE, DEAKINS, NASH
SMOAK & STEWART, P.C.
/s/ Phillip J. Strach
Phillip J. Strach
N.C. State Bar No. 29456
4208 Six Forks Road, Suite 1100
Raleigh, NC 27609
Telephone: 919.787.9700
Facsimile: 919.783.9412

30659408.1

4

Case 1:15-cv-00399-TDS-JEP Document 178 Filed 07/26/17 Page 4 of 4

 Exhibit 8

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LEAGUE OF WOMEN VOTERS OF
NORTH CAROLINA, et al.,
Plaintiffs,
v.
CIVIL ACTION
ROBERT A. RUCHO, in his official
NO. 1:16-CV-1164
capacity as Chairman of the North Carolina
Senate Redistricting Committee for the
THREE-JUDGE COURT
2016 Extra Session and Co-Chairman of
the 2016 Joint Select Committee on
Congressional Redistricting, et al.,
Defendants.
LEAGUE OF WOMEN VOTERS PLAINTIFFS’ POST-TRIAL BRIEF
TABLE OF CONTENTS
INTRODUCTION ............................................................................................................ 1
I.

STANDING. .......................................................................................................... 3

II.

DISCRIMINATORY INTENT. ............................................................................ 5

III.

A.

“Predominant” or “Sole” Partisan Intent Is Not Required.......................... 5

B.

Plaintiffs Presented Overwhelming Evidence of Discriminatory Intent .... 7

C.

Defendants’ Objections Are Meritless........................................................ 8

DISCRIMINATORY EFFECT ............................................................................. 10
A.

Supreme Court Precedent Requires a Large and Durable Partisan
Asymmetry ................................................................................................. 10

Case 1:16-cv-01164-WO-JEP Document 111 Filed 11/06/17 Page 1 of 34

 IV.

B.

Plaintiffs Presented Overwhelming Evidence of Discriminatory Effect .... 12

C.

Defendants’ Objections Are Meritless........................................................ 17

JUSTIFICATION .................................................................................................. 21
A.

Supreme Court Precedent Requires a Justification Inquiry ........................ 21

B.

Plaintiffs Presented Overwhelming Evidence of Unjustifiability .............. 22

C.

Defendants’ Objections Are Meritless........................................................ 25

CONCLUSION ................................................................................................................. 27

ii
 

Case 1:16-cv-01164-WO-JEP Document 111 Filed 11/06/17 Page 2 of 34

 TABLE OF AUTHORITIES
Cases

Page(s)

Bethune-Hill v. Va. State Bd. of Elections,
137 S. Ct. 788 (2017) .....................................................................................................…9
Brown v. Thomson,
462 U.S. 835 (1983) .................................................................................................. 21,22
Davis v. Bandemer,
478 U.S. 109 (1986) .................................................................................................. passim
Easley v. Cromartie,
532 U.S. 234 (2001) .......................................................................................................... 10
Gaffney v. Cummings,
412 U.S. 735 (1973) .......................................................................................................... 6
Karcher v. Daggett,
462 U.S. 725 (1983) ............................................................................................6, 22, 26
Larios v. Perdue,
306 F. Supp. 2d 1190 (N.D. Ga. 2003) ............................................................................ 4
LULAC v. Perry,
548 U.S. 399 (2006) .............................................................................................. 6, 10, 12
Miller v Johnson,
515 U.S. 900 .................................................................................................................... 11
Pope v. Cty. of Albany,
No. 11-cv-0736, 2014 WL 316703 (N.D.N.Y. Jan. 28, 2014) .......................................…4
Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections,
827 F.3d 333 (4th Cir. 2016) ............................................................................................23
United States v. Hays,
515 U.S. 737 (1995) .......................................................................................................... 4
Vieth v. Jubelirer,
541 U.S. 267 (2004) .................................................................................................. .passim
iii
 

Case 1:16-cv-01164-WO-JEP Document 111 Filed 11/06/17 Page 3 of 34

 Cases

Page(s)

Village of Arlington Heights v. Metro Hous. Dev. Corp.,
429 U.S. 252 (1977) ........................................................................................................…5
Voinovich v. Quilter,
507 U.S. 146 (1993) ..........................................................................................................22
Whitford v. Gill,
218 F. Supp. 3d 837 (W.D. Wis. 2016) .................................................................... .passim
Whitford v. Nichol,
151 F. Supp. 3d 918 (W.D. Wis. 2015) ............................................................................18

iv
 

Case 1:16-cv-01164-WO-JEP Document 111 Filed 11/06/17 Page 4 of 34

 INTRODUCTION
At trial, all of Plaintiffs’ claims about North Carolina’s current Congressional plan
(the “2016 Plan”) were borne out. The evidence confirmed what Defendants had already
conceded: that “in adopting the Plan, the General Assembly intended to favor Republican
voters and disadvantage voters who voted for non-Republican candidates.” Dkt. 50:7
(emphasis added). The evidence also thoroughly documented the Plan’s discriminatory
effect: an extraordinarily large and durable pro-Republican partisan asymmetry. The
evidence showed as well that this asymmetry cannot be justified by North Carolina’s
political geography or legitimate redistricting objectives. As for Defendants’
counterarguments, they were unable to survive scrutiny.
Starting with discriminatory intent, there is no dispute that under the Adopted
Criteria for the 2016 Plan, the “Partisan Advantage” factor required a congressional
delegation with “10 Republicans and 3 Democrats.” PFOF 68. Nor is there any
disagreement about the boast of Rep. David Lewis, the Co-Chair of the 2016 Joint Select
Committee on Congressional Redistricting (the “Committee”), that “this would be a
political gerrymander.” PFOF 73. At trial, Defendants’ only response to these damning
facts was that Plaintiffs are “blowing them up” and “ignoring all the other criteria.” Tr.IV
169:5-9.1 But admissions that a law was enacted to disadvantage a particular party—not

                                                             
1

The Roman numeral in citations to the trial transcript indicates the day of trial.

 
 

1 

Case 1:16-cv-01164-WO-JEP Document 111 Filed 11/06/17 Page 5 of 34

 to promote the public welfare—should be highlighted. They should also be condemned
by the courts.
Next, with respect to discriminatory effect, Professor Simon Jackman testified that
social scientists use several metrics to assess the partisan asymmetry of a district map. All
of these metrics agree that the 2016 Plan exhibited a nearly unprecedented asymmetry in
the 2016 election. Its efficiency gap was the largest in the country in 2016, and its
partisan bias was the second-largest since 1972. Prof. Jackman also explained that social
scientists use sensitivity testing to evaluate the durability of a map’s asymmetry. This
testing shows that the Plan’s asymmetry would persist under all plausible electoral
conditions. At trial, Defendants did not criticize any of these analyses. Their only riposte
was that the efficiency gap allegedly has limitations in states other than North Carolina—
a claim that is both irrelevant and wrong.
Lastly, with respect to justification, Professor Jowei Chen testified about his
thousands of district map simulations. All of these simulations were based on the spatial
patterns of North Carolina’s voters. All of the simulations also used as criteria the very
factors (other than partisan advantage) relied on by the 2016 Plan’s authors. Yet not one
of Prof. Chen’s simulated maps had an efficiency gap as large as the Plan, and the typical
simulated map had an efficiency gap of zero. At trial, Defendants did not challenge any
of Prof. Chen’s methods. Instead, they concocted a series of additional criteria that, in
their view, Prof. Chen should have used. Missing from this post hoc list, though, was any

 

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 evidence that the newly devised factors could possibly have led to the Plan’s enormous
asymmetry.
The Court should therefore hold that Plaintiffs’ proposed test—requiring (1)
discriminatory intent, (2) a large and durable discriminatory effect, and (3) a lack of a
legitimate justification for this effect—is justiciable under the First and Fourteenth
Amendments. The Court should also hold that the 2016 Plan is unconstitutional under
this test.
I.

STANDING

Before discussing the three prongs of Plaintiffs’ test, it is necessary to establish
Plaintiffs’ standing. In a partisan gerrymandering challenge to a statewide district plan,
voters who support the candidates and policies of the disadvantaged party have standing.
These voters’ electoral influence is intentionally diluted because of their political beliefs.
As a result, they are not “able to translate their votes into seats as effectively” as the
favored party’s supporters, and they “suffer[] a personal injury . . . that is both concrete
and particularized.” Whitford v. Gill, 218 F. Supp. 3d 837, 928 (W.D. Wis. 2016)
(Whitford II). Moreover, “there can be no dispute that a causal connection exists between
[the plan] and the plaintiffs’ inability to translate their votes into seats as efficiently,” and
that if a symmetric plan were adopted, it “would redress the constitutional violation.” Id.
Under this approach, standing works the same way in partisan gerrymandering
cases as it does in other vote dilution proceedings. In a one-person, one-vote suit, for
example, the constitutional injury is the vote dilution caused by district overpopulation.

 

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 Accordingly, “any underrepresented plaintiff may challenge in its entirety the
redistricting plan that generated his harm.” Larios v. Perdue, 306 F. Supp. 2d 1190, 1209
(N.D. Ga. 2003). In a suit under Section 2 of the Voting Rights Act, similarly, the usual
injury is that minority voters in a certain region have been denied an equal opportunity to
elect the representatives of their choice. Thus, minority voters who “reside in a[n] . . .
area that could support additional [majority-minority districts]” have standing to sue.
Pope v. Cty. of Albany, No. 11-cv-0736, 2014 WL 316703, at *5 (N.D.N.Y. Jan. 28,
2014).
It is true that standing in partisan gerrymandering cases does not work the same
way as in racial gerrymandering cases. But partisan and racial gerrymandering have
nothing in common except an evocative word. Partisan gerrymandering is “intentional
vote dilution,” Vieth v. Jubelirer, 541 U.S. 267, 298 (2004) (plurality opinion)—a
“burden[] . . . on the representational rights of voters and parties,” id. at 313 (Kennedy, J.,
concurring in the judgment). In contrast, racial gerrymandering is the “racial
classification” of voters, regardless of whether their votes are diluted or even enhanced.
United States v. Hays, 515 U.S. 737, 744 (1995). This is why “[t]he rationale and holding
of Hays have no application here.” Whitford II, 218 F. Supp. 3d at 929. Vote dilution is
simply unrelated to racial classification.
In any event, Plaintiffs have standing here on any theory. Individual Plaintiffs like
Carol Faulkner-Fox and Aaron Sarver are committed Democrats who support, and work
toward, the election of Democratic candidates throughout North Carolina. PFOF 2, 5-6,

 

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 17. The League of Women Voters of North Carolina is a statewide organization whose
pursuit of civic engagement and nonpartisan redistricting reform is handicapped by the
2016 Plan. PFOF 3-4, 18-19. And even if an individual plaintiff is needed in each
congressional district, the parties have stipulated that the League “has individual
members who are registered Democrats living in each of North Carolina’s thirteen
congressional districts.” PFOF 4. “Each of those registered Democrats support and vote
for Democratic candidates and have an interest in furthering policies at the national level
that are consistent with the Democratic Party Platform.” Id.
II.
A.

DISCRIMINATORY INTENT

“Predominant” or “Sole” Partisan Intent Is Not Required.
Turning to the merits of Plaintiffs’ proposed test, its first prong is discriminatory

intent: the enactment of a district plan with the aim of disadvantaging one party’s (and
favoring the other party’s) voters and candidates. Several legal points about this prong are
worth noting. First, the prong is derived from foundational First and Fourteenth
Amendment principles. The First Amendment prohibits “burdening or penalizing citizens
because of . . . their voting history [or] their association with a political party.” Vieth, 541
U.S. at 314 (Kennedy, J., concurring in the judgment). Likewise, under the Fourteenth
Amendment, “[p]roof of discriminatory intent or purpose is required to show a violation
of the Equal Protection Clause.” Village of Arlington Heights v. Metro Hous. Dev. Corp.,
429 U.S. 252, 265 (1977).

 

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 Second, Supreme Court precedent bars formulations that call for “predominant” or
“sole” partisan intent to be shown. In Vieth, both the appellants and Justice Stevens
advocated a predominance requirement. The plurality (joined here by Justice Kennedy)
explicitly rejected this idea, observing that a “‘predominant motivation’ test” is too
“[v]ague” and “indeterminate.” Vieth, 541 U.S. at 284-85 (plurality opinion). In LULAC
v. Perry, the appellants argued that a district plan “solely motivated by partisan
objectives” is unlawful. 548 U.S. 399, 416 (2006) (opinion of Kennedy, J.). This proposal
fared no better, because “affixing a single label” to “acts arising out of mixed motives” is
a “complex” and “daunting” task. Id. at 418.
Third, only one kind of political motivation—the pursuit of partisan advantage—
fails Plaintiffs’ discriminatory intent prong. The prong is not violated when a state
government uses electoral data “fairly to allocate political power to the parties.” Gaffney
v. Cummings, 412 U.S. 735, 754 (1973). Nor is the prong necessarily offended when
mapmakers’ aim is “making districts compact, respecting municipal boundaries,
preserving the cores of prior districts, [or] avoiding contests between incumbent
Representatives.” Karcher v. Daggett, 462 U.S. 725, 740 (1983). “As long as the criteria
are nondiscriminatory,” they are permissible. Id.
And fourth, control of the redistricting process is highly probative evidence of
discriminatory intent. When a single party draws the lines, “it should not be very difficult
to prove that the likely political consequences of the reapportionment were intended.”
Davis v. Bandemer, 478 U.S. 109, 129 (1986) (plurality opinion). Conversely, “a plaintiff

 

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 would naturally have a hard time showing requisite intent” when a plan is designed by a
court, a commission, or a divided state government. Vieth, 541 U.S. at 351 (Souter, J.,
dissenting). Since 1972, about half of all congressional maps have been crafted by an
institution other than a unified state government. PFOF 241. Plaintiffs’ discriminatory
intent prong therefore does “meaningful” work because it insulates the bulk of these
plans from liability. Tr.II 145:15-18 (Osteen, J.).
B.

Plaintiffs Presented Overwhelming Evidence of Discriminatory Intent.
The evidence of discriminatory intent in the record is overwhelming and

uncontested. Plaintiffs thus summarize it quickly before responding to Defendants’
counterarguments. With respect to the North Carolina congressional plan adopted in July
2011 (the “2011 Plan”), its architect, Dr. Thomas Hofeller, wrote in an expert report that
“[p]olitics was the primary policy determinant in the drafting of the . . . Plan.” PFOF 32.
He added that “[t]he General Assembly’s overarching goal in 2011 was to create as many
safe [or] competitive districts for Republican candidates or potential candidates as
possible.” PFOF 33-34.
With respect to the 2016 Plan, its “Partisan Advantage” criterion expressly
required “[t]he partisan makeup of the congressional delegation” to be “10 Republicans
and 3 Democrats.” PFOF 68. Its “Political Data” criterion elaborated that, “other than
population data,” only “election results in statewide contests” would “be used to
construct congressional districts.” PFOF 67. These criteria were approved by the
Committee on party-line votes. PFOF 69. The General Assembly subsequently did not

 

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 “add” to, or subtract from, these criteria or any others. Tr.II 155:9-12 (Wynn, J.). To the
contrary, the only change made to the Plan after the Adopted Criteria’s adoption was a
tweak to a single district boundary to avoid an incumbent pairing. PFOF 58, 89.
At each meeting of the Committee, Lewis confirmed that the 2016 Plan sought a
Republican advantage. He “acknowledge[d] freely that this would be a political
gerrymander.” PFOF 73. He “propose[d] 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 Republicans and 2 Democrats.” PFOF 75. And he “ma[d]e clear that
we to the extent are going to use political data in drawing the map, it is to gain partisan
advantage.” PFOF 77. Lewis’s deposition testimony, like that of Hofeller and of the
Committee’s other co-chair, Sen. Bob Rucho, was consistent with Lewis’s public
statements. PFOF 242.
The Committee approved the 2016 Plan on a party-line vote on February 17, 2016.
PFOF 85. Votes by the full House and Senate followed on February 19, in which every
Democrat opposed the Plan and every Republican (but one) supported it. PFOF 99.
C.

Defendants’ Objections Are Meritless.
Defendants do not deny that the 2016 Plan was enacted with discriminatory intent.

Instead, they contend that partisan advantage did not predominate over other redistricting
goals. Tr.I 17:18-14. Even if this were true, it is legally irrelevant. As discussed above,
five Justices rejected a predominance requirement in Vieth, deeming it judicially

 

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 unmanageable. It thus suffices for purposes of Plaintiffs’ first prong if partisan gain was a
motivation for the Plan. It need not be compared to, or weighed against, any other aim.
Defendants also assert that the 2016 Plan is immune from scrutiny because its
authors intended to comply with traditional redistricting criteria. Tr.II 25:15-29:7. Again,
even if this claim were accurate, it is legally immaterial. In Vieth, Justice Souter proposed
a test requiring a plaintiff to show that districts “paid little or no heed to . . . traditional
districting principles.” 541 U.S. at 348 (Souter, J., dissenting). A majority of the Supreme
Court rebuffed this suggestion. The plurality asked, “How much disregard of traditional
districting principles,” id. at 296 (plurality opinion), while Justice Kennedy observed that
these criteria are not “sound as independent judicial standards” because “[t]hey cannot
promise political neutrality,” id. at 308 (Kennedy, J., concurring in the judgment).
Vieth is consistent with the Court’s earlier decision in Bandemer, where Justice
Powell emphasized “the shapes of voting districts and adherence to established political
subdivision boundaries.” 478 U.S. at 173 (Powell, J., concurring in part and dissenting in
part). The plurality “disagree[d] with [Justice Powell’s] conception of a constitutional
violation” because noncompliance with traditional criteria does “not show any actual
disadvantage beyond that shown by the election results.” Id. at 138-40 (plurality opinion).
Vieth is also consistent with the Court’s racial gerrymandering cases, which have made
clear that “inconsistency between the enacted plan and traditional redistricting criteria is
not a threshold requirement.” Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788,
799 (2017). Under all of these precedents, “compliance with traditional districting

 

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 principles” is simply not a “‘safe harbor’ for state legislatures.” Whitford II, 218 F. Supp.
3d at 888.
Lastly, defendants invoke Easley v. Cromartie, 532 U.S. 234 (2001), where the
Court concluded that politics, not race, was the predominant motivation for an earlier
iteration of North Carolina’s Twelfth District. Tr.II 114:19-115:1. Defendants’ reliance
on Cromartie is odd because it did not involve a partisan gerrymandering challenge. That
the Twelfth District was not an unconstitutional racial gerrymander says nothing about
whether it (or the map to which it belonged) may have been an unlawful partisan
gerrymander.
III.
A.

DISCRIMINATORY EFFECT

Supreme Court Precedent Requires a Large and Durable Partisan
Asymmetry.

 

The second prong of Plaintiffs’ proposed test is discriminatory effect: whether a
district plan exhibits a large and durable partisan asymmetry. Five Justices expressed
interest in partisan symmetry—the symmetric treatment of the parties’ voters, allowing
their ballots to translate into representation with equal ease—in LULAC. Justice Stevens,
for instance, noted that symmetry is “widely accepted by scholars as providing a measure
of fairness in electoral systems.” 548 U.S. at 466 (Stevens, J., concurring in part and
dissenting in part). Justice Kennedy, similarly, did not “discount[] its utility in
redistricting planning and litigation.” Id. at 420 (opinion of Kennedy, J.).
A discriminatory effect prong is required under both the First and Fourteenth
Amendments. Under the First Amendment, “a successful claim . . . must do what [an
 

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 intent-only] theory explicitly disavows: show a burden, as measured by a reliable
standard, on the complainants’ representational rights.” Id. at 418; see also Vieth, 541
U.S. at 315 (Kennedy, J., concurring in the judgment) (“The [First Amendment] inquiry
is not whether political classifications were used. The inquiry instead is whether political
classifications were used to burden a group’s representational rights.”). Likewise, “in
order to establish a partisan gerrymandering claim under the Equal Protection Clause, a
plaintiff must show both (a) discriminatory intent and (b) discriminatory effects.” Dkt.
50:21.
The doctrinal consensus that a discriminatory effect prong is necessary has a good
practical explanation. A ruling that “all election district lines drawn for partisan reasons”
are unconstitutional “would commit federal and state courts to unprecedented
intervention in the American political process.” Vieth, 541 U.S. at 306 (Kennedy, J.,
concurring in the judgment). After all, parties in full control of redistricting typically use
electoral data and seek partisan advantage. If all of these efforts are unlawful, this would
“throw into doubt the vast majority of the Nation’s 435 congressional districts.” Miller v
Johnson, 515 U.S. 900 at 928 (O’Connor, J., concurring).
The doctrinal consensus extends not just to the size of a plan’s discriminatory
effect but also to its persistence. The Bandemer plurality made a durable disadvantage an
explicit element of its test: whether a plan “will consistently degrade . . . a group of
voters’ influence,” resulting in the “continued frustration of the will . . . of the voters.”
478 U.S. at 132-33 (plurality opinion) (emphasis added). Analogously, both Justice

 

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 Breyer’s opinion in Vieth and Justice Kennedy’s in LULAC stressed the harm of
entrenchment. See LULAC, 548 U.S. at 419 (opinion of Kennedy, J.) (criticizing a plan
that “entrenched a party on the verge of minority status”); Vieth, 541 U.S. at 360 (Breyer,
J., dissenting) (condemning the “use of political factors to entrench a minority”).
B.

Plaintiffs Presented Overwhelming Evidence of Discriminatory Effect.
At trial, Prof. Jackman testified that social scientists use several metrics to assess

the partisan asymmetry of a district plan. The efficiency gap is the difference between the
parties’ respective “wasted votes” (ballots that do not contribute to a candidate’s
election), divided by the total number of votes cast. PFOF 139. Partisan bias is the
difference between a party’s seat share and 50% in a hypothetical tied election. PFOF
141. And the mean-median difference subtracts a party’s median vote share, across a
plan’s districts, from its mean vote share. PFOF 143. All of these metrics generally point
in the same direction in competitive states like North Carolina. PFOF 157, 182. But in
uncompetitive states, where one party is much more popular, partisan bias and the meanmedian difference are unreliable and should not be used. PFOF 158.
Prof. Jackman also testified that both the 2011 Plan and the 2016 Plan exhibited
enormous, nearly unprecedented, pro-Republican partisan asymmetries. North Carolina
recorded efficiency gaps of -21%, -21%, and -19% in 2012, 2014, and 2016. PFOF 185186. The 2011 Plan had the largest average efficiency gap of any of the 136 maps,
spanning the 1972-2016 period, in Prof. Jackman’s database. PFOF 188. The 2016 Plan
had the largest efficiency gap in the country in the 2016 election. PFOF 189. As the

 

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 below chart indicates, both maps are stark outliers, with efficiency gaps far above Prof.
Jackman’s suggested 12% threshold. PFOF 187.

 
North Carolina also registered partisan biases of -27%, -27%, and -27%, and
mean-median differences of -8%, -7%, and -5%, in 2012, 2014, and 2016. PFOF 185186. These scores too are extraordinarily severe. The partisan biases, for example, are the
second-largest since 1972, roughly three standard deviations from the historical mean.
PFOF 190. Thus no matter how they are evaluated, the 2011 Plan and the 2016 Plan are
extremely, almost uniquely, asymmetric.
Record evidence reveals how this huge Republican advantage was achieved.
Throughout North Carolina, clusters of Democratic voters were either sliced in two or
enclosed within a single district. Democrats, that is, were systematically cracked and
packed while Republicans were allocated more efficiently across the State’s districts. The
 

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 first map below shows the fate of Greensboro under the 2016 Plan. A Democratic cluster
large enough to anchor a district is split down the middle, and each half of the city is
submerged in a safely Republican district. PFOF 128. The second map below depicts the
Charlotte metropolitan area. A Democratic cluster that could yield two Democratic
districts is instead circumscribed in one highly uncompetitive district. PFOF 129; see also
PFOF 127 (cracking of Asheville); PFOF 131 (cracking of Fayetteville); PFOF 130
(packing of Raleigh).

 

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 Prof. Jackman further testified about the durability of large efficiency gaps, both
specifically as to the 2016 Plan and generally based on his database of congressional
maps. For the Plan, he conducted rigorous sensitivity testing, swinging the 2016 election
results by up to ten points in each party’s direction and then recalculating the Plan’s
efficiency gap for each incremental shift. PFOF 193-194. As illustrated below, this
testing indicated that it would take a six-point pro-Democratic swing for Democrats to
capture just one more seat. For the Plan’s efficiency gap to disappear, Democrats would
have to improve on their 2016 showing by nine points—a wave whose only precedent is
the Watergate election of 1974. PFOF 195-196. The Plan’s pro-Republican asymmetry is

 

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 thus nearly impervious to any effort by voters “to vote the rascals out at the next
election.” Tr.II 108:16-17 (Osteen, J.).
For his entire database, Prof. Jackman examined how maps’ initial efficiency gaps
are related to their average efficiency gaps over the rest of their lifetimes. This link is
quite strong, meaning that a plan that is highly asymmetric in its first election can be
expected to remain asymmetric in the future. PFOF 167. Prof. Jackman also carried out a
series of prognostic tests for the efficiency gap. Notably, the rate of “false positives”—
maps with large initial efficiency gaps but small remainder-of-plan average efficiency
gaps—approaches zero near his suggested 12% threshold. PFOF 168-169. And Prof.
Jackman performed sensitivity testing for all plans used in this redistricting cycle. This
testing confirms that maps with large efficiency gaps would remain skewed even if the
electoral environment changed substantially. PFOF 170-172.

 

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 C.

Defendants’ Objections Are Meritless.
Defendants’ experts do not dispute the accuracy of Prof. Jackman’s calculations or

analyses. They concede, in other words, that the 2016 Plan exhibited an exceptionally
large partisan asymmetry in the 2016 election, and that based on sensitivity testing, this
asymmetry will likely endure for the rest of the decade. Ex. 5101 at 80. These admissions
confirm that the Plan fails the discriminatory effect prong of Plaintiffs’ test.
Instead of contesting whether the prong is satisfied, Defendants offer a scattershot
series of counterarguments. Plaintiffs group these claims into three categories, involving:
(1) the foreseeability of elections; (2) assertions that apply to all measures of partisan
asymmetry; and (3) points relevant to the efficiency gap alone. Defendants’ main
contention in the first category is that the partisan implications of the 2016 Plan are
unknowable. The Plan may have produced a 10-3 Republican advantage in 2016, but past
performance does not guarantee future results. Tr.IV 181:13-18.
This assertion ignores Prof. Jackman’s sensitivity testing, which establishes that
the 2016 Plan’s skew would persist under all plausible electoral conditions. PFOF 195196. Defendants’ agnosticism is also at odds with every analysis of the Plan in the record.
Whether the Plan is assessed using congressional election results, Hofeller’s sets of seven
and twenty prior elections, Prof. M.V. Hood III’s set of ten prior elections, or Prof.
Chen’s predictive regression model, the outcome is always the same: a 10-3 Republican
edge. PFOF 180. Nor is Defendants’ doubt shared by Hofeller, the Plan’s own author. He

 

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 testified that “past election results are the best . . . indicator of what future results may
be.” PFOF 112.
Turning to the second category, Defendants argue that measures of partisan
asymmetry are tantamount to requirements of proportional representation. Tr.III 66:1867:15; Tr.II 33:10-18. As Defendants’ own experts conceded, they are not. PFOF 146.
Indeed, the metrics were created in the first place to quantify partisan unfairness in
single-member-district systems that do not typically produce “equal representation in
government [for] equivalently sized groups.” Vieth, 541 U.S. at 288 (plurality opinion).
The efficiency gap, for instance, compares the parties’ respective wasted votes in an
election. It does not compare their statewide seat and vote shares, meaning that “an
election’s results may have a small efficiency gap without being proportional or they may
be proportional and still have a large efficiency gap.” Whitford v. Nichol, 151 F. Supp. 3d
918, 929-30 (W.D. Wis. 2015) (Whitford I). Similarly, a low partisan bias score arises
when both parties would win about the same share of seats if they each received the same
fraction of the statewide vote. A party’s seats can thus be highly disproportionate to its
votes—as long as the other party’s seats would be as disproportionate to its votes if the
parties’ performances flipped. PFOF 147.
Defendants also claim that measures of partisan asymmetry can yield
counterintuitive conclusions. Defendants’ leading examples are North Carolina’s
congressional plans in the 1990s and 2000s, which allegedly aimed to benefit Democrats
and featured highly noncompact districts, yet were not particularly asymmetric. Tr.II

 

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 108:11-120:11; Tr.II 177:3-10. But these cases are not actually troubling. If
discriminatory effect is a distinct prong of the analysis (as Supreme Court precedent
requires), then it is obviously possible for discriminatory intent to be shown but for
liability not to follow due to the lack of a large and durable partisan asymmetry. This
result is not odd at all; in fact, it is what transpired in Bandemer itself, where the Court
“assumed that there was discriminatory intent,” but nevertheless “found that there was
insufficient discriminatory effect.” 478 U.S. at 141-42 (plurality opinion); see also
Whitford II, 218 F. Supp. 3d at 908 (“[A] challenge to a map enacted with egregious
partisan intent but demonstrating a low [asymmetry] also will fail because the plaintiffs
cannot demonstrate the required discriminatory effect.”).
Defendants further contend that measures of partisan asymmetry cannot be
calculated prospectively. Tr.II 84:20-85:9. As Prof. Jackman explained, of course they
can be. Expected election results just have to be used for the computation instead of
actual tallies. PFOF 178. That this analysis is feasible is evidenced by Sen. Robert Clark,
who recently worked out efficiency gaps himself, without any expert assistance, for
North Carolina’s new state legislative plans. Id. What Sen. Clark did on his own can also
be done by a map’s drafters, so that “the outcome is known . . . before the election takes
place.” Tr.II 173:18-19 (Osteen, J.).
Defendants assert as well that measures of partisan asymmetry do not reflect
candidate quality, fundraising, electoral waves, or many other factors. Tr.II 83:21-84:19.
Prof. Jackman pointed out why this argument is wrong too. All of his asymmetry scores

 

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 are based on actual congressional election results—in fact, on 512 elections in 25 states
over 44 years. PFOF 165. These actual results are the product of “the rich tapestry of
American politics [from] 1972 to 2016,” including “incumbents getting into trouble,”
“well-funded challenges,” “[t]he Watergate wave election,” “[t]he ’94 wave,” and so on.
Id. This entire tapestry is captured by the asymmetry scores.
This leaves only the claims in the third category, involving the efficiency gap
alone.2 Defendants state that the metric has an “error rate” of 33%. Tr.II 168:1. But there
are no mistakes in the efficiency gap’s calculation. What this figure refers to is the share
of district plans that exhibit efficiency gaps above Prof. Jackman’s suggested thresholds
in their first elections, but that go on to produce average efficiency gaps below his cutoffs
over the rest of their lifetimes. Ex. 4002 at 54. Even for this analysis, the correct
proportion, for all of the relevant maps rather than a subset, is 18%. Id. Put another way,
of the seventeen plans that initially exhibited large efficiency gaps, fourteen continued to
do so, on average, as long as they were in effect. Id. As for the three maps that did not,
their volatility would have been flagged in advance by sensitivity testing. Tr.II 134:9-19.
Defendants also note that Prof. Jackman did not analyze (and so did not
recommend efficiency gap thresholds for) congressional maps with six or fewer seats.
Tr.II 176:16-19. With its thirteen seats, of course, North Carolina is not part of this group.
                                                             
2

Two of Defendants’ arguments in this category can be addressed summarily: A plan can
have a low efficiency gap but be uncompetitive, Tr.II 116:13-117:5, because partisan
symmetry and competitiveness are simply different concepts, Tr.II 132:4-20. And if a
plan’s large initial efficiency gap disappeared in its second election, Tr.II 96:24-97:4, this
possibility would have been noted ahead of time by sensitivity testing, Tr.II:134:9-19.
 

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 The group also makes up a small proportion (less than 20%) of the House of
Representatives. And that Prof. Jackman did not study these delegations here does not
mean they cannot be studied. As he explained, in a future case, he could easily focus on
small states, tailoring his analysis to their circumstances. Tr.II 56:5-24.
Lastly, Defendants observe that Prof. Jackman’s methods differ in some respects
from those of earlier scholars who calculated efficiency gaps. Tr.II 92:9-94:23; Tr.II
175:15-21. But these differences are substantively trivial. There is a 98% correlation
between Prof. Jackman’s scores and those of the other academics. Ex. 4003 at 17.
Additionally, the whole point of social science is that it does not stand still. Unlike the
earlier scholars, Prof. Jackman used the more rigorous “full method” to compute his
efficiency gaps, included more states in his database, and incorporated durability into his
suggested thresholds. Ex. 4003 at 16-17; Tr.II 62:13-67:25, 134:20-135:22. These are
technical advances that should be welcomed by the courts.
IV.
A.

JUSTIFICATION

Supreme Court Precedent Requires a Justification Inquiry.
The final prong of Plaintiffs’ proposed test is justification: whether the State can

justify a district plan’s asymmetry based on the State’s political geography or valid
redistricting goals. This prong has two doctrinal bases. One is reapportionment law,
which relies on an identical inquiry to determine when “larger disparities in population”
can be “justified by the State.” Brown v. Thomson, 462 U.S. 835, 842-43 (1983). Justices’
opinions in partisan gerrymandering cases are the other source. They have stressed that

 

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 “political classifications” are unlawful only if they are “unrelated to any legitimate
legislative objective,” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment),
and that defendants should have a chance “to justify their decision by reference to
objectives other than naked partisan advantage,” id. at 351 (Souter, J., dissenting).
Importantly, the burden of justification is on the State under this approach. This is
because, by the time the justification prong is reached, plaintiffs have already
“established a prima facie case of discrimination” by proving discriminatory intent and
effect. Voinovich v. Quilter, 507 U.S. 146, 161 (1993). This burden allocation also
reflects the State’s greater familiarity with its “consistently applied legislative policies”
and greater ability “to show with some specificity that a particular objective required the
specific [asymmetry] in its plan.” Karcher, 462 U.S. at 741.
Importantly as well, it is the map’s asymmetry that must be justified by the State,
not its overall layout. Almost every plan is underpinned by at least some legitimate
considerations. But these factors do not save the map unless they actually explain its
asymmetry. This is why the Supreme Court’s reapportionment cases have referred over
and over to the “deviations” or “variations” for which the State must account. See, e.g.,
Voinovich, 507 U.S. at 161-62; Brown, 462 U.S. at 842-43; Karcher, 462 U.S. at 740-41.
B.

Plaintiffs Presented Overwhelming Evidence of Unjustifiability.
Even though it was their burden to justify the 2016 Plan’s asymmetry, Defendants

made no effort to do so. Plaintiffs, though, presented three kinds of evidence showing
that no legitimate factor can explain the Plan’s enormous skew. First, Prof. Chen used a

 

22 

Case 1:16-cv-01164-WO-JEP Document 111 Filed 11/06/17 Page 26 of 34

 simulation technique on which the Fourth Circuit has previously relied, see Raleigh Wake
Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333, 344-45 (4th Cir. 2016), to
produce three thousand different congressional plans for North Carolina. PFOF 200. All
of these maps matched or surpassed the 2016 Plan’s performance in terms of the
nonpartisan Adopted Criteria. Their districts were “as equal as practicable” in population,
“comprised of contiguous territory,” and generated without “[d]ata identifying the race of
individuals.” PFOF 203. Their districts also did at least as good a job “improv[ing] the
compactness” and “keep[ing] more counties and VTDs whole.” Id.
Yet not one of the three thousand maps ever resulted in a 10-3 Republican
advantage or an efficiency gap as large as the 2016 Plan’s. Whether Prof. Chen analyzed
the maps’ partisan implications using Hofeller’s full set of twenty prior elections,
Hofeller’s seven-election subset, or a predictive regression model, all of the maps were
more symmetric than the Plan. PFOF 207. In fact, as the below chart illustrates, the maps
tilted slightly in a Democratic direction. PFOF 208. Thus far from justifying the Plan’s
pro-Republican asymmetry, North Carolina’s political geography and the nonpartisan
Adopted Criteria seem mildly to favor Democrats.

 

23 

Case 1:16-cv-01164-WO-JEP Document 111 Filed 11/06/17 Page 27 of 34

 Second, Hofeller himself, the architect of the 2016 Plan, created two draft maps
that performed as well as the Plan in terms of traditional criteria but were far less skewed.
Both of these drafts were more compact, on average, than the Plan. PFOF 235. The “STB” map divided three fewer counties than the Plan; the “17A” map divided two more. Id.
But using Hofeller’s own set of twenty prior elections, both drafts yielded seven
Republican seats and six Democratic seats. Id.
And third, during the 2000s, North Carolina’s congressional plan had an average
efficiency gap of just 2%, or very close to perfect symmetry. PFOF 236. This plan also
complied with all federal and state requirements. Indeed, it was so plainly compliant that
it was not even challenged in court.

 

24 

Case 1:16-cv-01164-WO-JEP Document 111 Filed 11/06/17 Page 28 of 34

 C.

Defendants’ Objections Are Meritless.
Defendants’ response to this evidence is to invent a series of additional criteria

that, in their view, Prof. Chen should have used in his simulations. He should have
matched the 2016 Plan’s compactness. Tr.I 250:9-12. He should have taken race into
account. Tr.I 259:1-10. He should have ensured that all incumbents would win their new
districts. Tr.I 235:12-25. He should have kept Mecklenburg County whole. Tr.I 260:1625. He should have split large rather than small counties. Tr.I 227:8-230:6. And so on.
This ever-shifting list of requirements demonstrates why the burden of
justification is (and should be) on the State. Otherwise plaintiffs are put in an impossible
position as the State announces another condition every time they analyze the parameters
the State previously specified. Defendants also do not even try to provide cites to the
legislative record for their late-discovered criteria. And for good reason. The new criteria
were never even mentioned by the Committee, let alone adopted by it or the full House
and Senate.
Factually as well, there is no reason to think the additional requirements could
possibly justify the 2016 Plan’s massive skew. Take matching the Plan’s “reasonable”
level of compactness. Tr.II 158:7-9 (Osteen, J.). The compactness of Prof. Chen’s
simulated maps is completely uncorrelated with the maps’ efficiency gaps. PFOF 205.
There is thus no basis for hypothesizing that had the maps been merely as compact as the
Plan (rather than more compact), they would have become drastically more asymmetric.

 

25 

Case 1:16-cv-01164-WO-JEP Document 111 Filed 11/06/17 Page 29 of 34

 Or consider the racial makeup of North Carolina’s districts. The Adopted Criteria
explicitly barred racial data from being used. PFOF 105. Hofeller, Lewis, and Rucho also
could not have been clearer that, in their view, “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.” PFOF 108-109. Nevertheless, in an abundance of caution, Prof. Chen
identified all of his maps that contained one district with a black voting-age population of
at least 40%. (According to Defendants, “a congressional district with a BVAP between
40% and 50%” gives black voters “an equal ability to elect their candidates of choice.”
Dkt. 61:10). These 262 maps were indistinguishable from the full array of 3,000 in their
partisan implications. Again, not a single one had ten Republican seats, and again, the
modal map using Hofeller’s twenty-election set had seven Democratic seats. PFOF 237.
Lastly, “avoiding contests between incumbent Representatives” is a valid goal
only if it is pursued in a “nondiscriminatory” manner. Karcher, 462 U.S. at 740. Here,
preventing incumbent pairings is inherently discriminatory because the incumbents won
their offices under the 2011 Plan, the most extreme partisan gerrymander of the last halfcentury. PFOF 188. Even so, Prof. Chen matched the 2016 Plan’s incumbent pairings in
one simulation set, bettered its performance in another, and conducted robustness tests
that incorporated the incumbency advantage into a predictive regression model. Once

 

26 

Case 1:16-cv-01164-WO-JEP Document 111 Filed 11/06/17 Page 30 of 34

 more, none of the resulting maps were remotely as asymmetric as the 2016 Plan, and
most were neutral or slightly tilted in a Democratic direction. PFOF 207-208.3
CONCLUSION
For the foregoing reasons, the Court should hold that Plaintiffs’ proposed test—
requiring (1) discriminatory intent, (2) a large and durable discriminatory effect, and (3) a
lack of a legitimate justification for this effect—is justiciable. The Court should also
make clear that this test vindicates both voters’ First Amendment right not to be
discriminated against because of their political beliefs and their Fourteenth Amendment
right not to be subjected to intentional vote dilution. The Court should further hold that
the 2016 Plan is unconstitutional under the test.
However, to avoid “commit[ting] federal and state courts to unprecedented
intervention,” the Court should not recognize an intent-only standard under any
constitutional provision. Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the
judgment). Nor should the Court announce that any particular measure of partisan
asymmetry, or any particular asymmetry threshold, must be used. These are technical
issues that should be “ironed out over time,” Tr.II 180:4-7 (Osteen, J.)—not in the first
partisan gerrymandering case involving a congressional plan ever to go to trial.

                                                             
3

As for core retention: It is mentioned neither by the Adopted Criteria nor by the
legislative record. It is discriminatory since it would preserve the layout of the
gerrymandered 2011 Plan. And it was violated anyway by the 2016 Plan, several of
whose districts failed to retain their prior cores (yet were still won by Republicans).
PFOF 240.
 

27 

Case 1:16-cv-01164-WO-JEP Document 111 Filed 11/06/17 Page 31 of 34

 Respectfully submitted this 6th day of November, 2017.
/s/ Anita S. Earls
Anita S. Earls (State Bar # 15597)
Allison J. Riggs (State Bar # 40028)
Emily Seawell (State Bar # 50207)
Southern Coalition for Social Justice
anitaearls@southerncoalition.org
allisonriggs@southerncoalition.org
emilyseawell@southerncoalition.org
1415 Highway 54, Suite 101
Durham, NC 27707
Telephone: 919-323-3380 ext. 115
Facsimile: 919-323-3942
Counsel for All Plaintiffs
/s/ Ruth M. Greenwood
Ruth Greenwood
Annabelle Harless
Campaign Legal Center
73 W Monroe St, Suite 322
Chicago IL 60603
(312) 561-5508
rgreenwood@campaignlegalcenter.org
aharless@campaignlegalcenter.org
/s/ Nicholas O. Stephanopoulos
Nicholas O. Stephanopoulos
University of Chicago Law School
1111 E 60th St.
Chicago, IL 60637
(773) 702-4226
nsteph@uchicago.edu

 

Case 1:16-cv-01164-WO-JEP Document 111 Filed 11/06/17 Page 32 of 34

 Exhibit 9

UNITED STATES DISTRICT COURT FOR THE ?E?t?tvm 
EASTERN DISTRICT OF NORTH ?9

 

 

 

 

 

 

 

US DISTRICT COURT. 

EB 2 8 2005
NORTH CAROLINA RIGHT TO LIFE, INC, (?mm
et (11., 3" amour

Plaintiffs, 

v. No. 


LARRY LEAKE, et al., FILED

Defendants. MW



 

MEMORANDUM OF THE CAMPAIGN LEGAL CENTER
AND DEMOCRACY 21 AS AMICI CURIAE
IN SUPPORT OF DEFENDANTS

The Campaign Legal Center and Democracy 21 respectfully submit this brief
limited to the issue of whether contribution limits imposed on independent expenditure
political committees (hereafter are constitutional. For the reasons set forth
below, we urge this Court to reject plaintiffs? constitutional challenge to those limits.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff, North Carolina Right to Life, Inc., brought this action in
November 1999 challenging the constitutionality under the First Amendment of several
North Carolina General Statutes: N.C. GEN. STAT. (de?nes the term
"political committee"), 163-278.13 (limits contributions to candidates and political
committees to $4,000 per primary or general election), and 

(establishes means of proving that a communication constituted electoral advocacy

Case Document 126 Filed 03/11/05 Page 1 of 19 [w

triggering disclosure and other requirements). More speci?cally, NCRL challenged
North Carolina's de?nition of political committee on the ground that it unconstitutionally
presumed that an entity has as a major purpose to support or oppose a candidate when an
entity contributes or expends more than $3,000.00 during an election cycle. NCRL also
challenged the $4,000 contribution limit to independent expenditure political committees
on the ground that such contributions do not present the risk of quid pro quo corruption
or its appearance.

This Court rendered its decision on October 24, 2001, granting summary
judgment to Plaintiffs and determining that NO GEN. STAT. was
unconstitutionally overbroad because it impermissibly broadened the scope of express
advocacy as de?ned in Buckley v. Valeo, 424 US. 1 (1976). Speci?cally, this Court held
that 163 was unconstitutional because it ?does not limit the scope of
?express advocacy to communications that literally include words that, in an of
themselves, advocate the election or defeat of a candidate, as was required in Buckley.?
Order of October 24, 2001. This Court also held, in an amended Order of August 8,
2002, that N.C. was severable from the remainder of
NC. GEN. STAT. 163-278.14 (which had incorporated The
Court?s amended Order then went on to hold that the remainder of 163.278.6(14) was
constitutional, including the provision that created a presumption of political committee
status based on an entity?s expenditures. Thus, this Court?s amended decision rejected
NCRL's position that Section presumption of political committee status

based on an entity's expenditures violated the First Amendment.

Case Documen12126 Filed 03/11/05 Page 2 of 19

Both sides appealed. The court of appeals af?rmed in part and reversed in part. It
?rst concluded that NO GEN. STAT. was unconstitutionally vague
and overbroad under "a bright-line test for determining whether communications may
constitutionally be regulated as electoral advocacy." 344 F.3d at 424 (citing Buckley v.
Valeo, 424 US. 1, 43 (1976)).1 The court of appeals also reversed this Court?s judgment
on what it characterized as a "close question," concluding that the statutory rebuttable
presumption used in determining whether a major purpose of an entity may be to support
or oppose candidates in NC. GEN. STAT. was vague and overbroad
under the First Amendment. 344 F.3d at 429. It also concluded that the contribution
limit of $4,000 per election that may be made to IEPCs was substantially overbroad and
could not be constitutionally applied to a political committee, such as the one formed by
NCRL, which had the stated intent to make only independent expenditures.344 F.3d at
434.

The defendants herein petitioned the Supreme Court to issue a writ of certiorari.
On April 26, 2004, the Court granted the petition, vacated the court of appeals? decision
and remanded the case to the Fourth Circuit for reconsideration in light of the Court?s
decision in McConnell v. FEC, 540 US. 93 (2003). Therea?er, on September 7, 2004,
the United States Court of Appeals for the Fourth Circuit remanded the case to this Court

for further consideration.

 

Judge Michael dissented, reasoning that the ?rst sentence of the statute should be upheld as "an
explicative de?nition of express advocacy that passes muster under Federal Election Comm v.
Massachusetts Citizens for Life, Inc., 479 US. 238 (1986) (MCFL) and Buckley v. Valeo, 424 US. 1
(1976), but agreeing that the second sentence of the statute should be stricken. 344 F.3d at 436-37
(Michael, J. dissenting).

Case Documem3126 Filed 03/11/05 Page 3 of 19

FACTSZ

Plaintiff North Carolina Right to Life, Inc., is a non-pro?t membership
corporation incorporated under North Carolina law, and North Carolina Right to Life
Political Action Committee is a longstanding political committee registered
in North Carolina as a state political committee for which NCRL serves as the parent
entity pursuant to NC. GEN. STAT. (2003). In 1999, NCRL resolved
?to form a separate segregated fund of to be known as North Carolina Right to
Life Committee Fund for Independent Political Expenditures (hereafter 
for the sole purpose of making independent expenditures in North Carolina state elections
in order to further the goals and purposes of North Carolina Right to Life, Inc.? See
Complaint, at Exhibit E. North Carolina law does not distinguish among political
committees that make only contributions, those that make only independent expenditures,
and those that make both. Nevertheless, has represented that it intends
only to make independent expenditures.

In North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 708-09 (4th
Cir.1999), cert. denied, 528 US. 1153, 120 S. Ct. 1156 (2000) (NCRL I), the Fourth
Circuit described the activities of NCRL and The corporation maintained in
that case that it wished to make contributions and independent expenditures in support of
political candidates directly from its corporate treasury without going through its political
action committee. The Fourth Circuit held that North Carolina's prohibition against

corporate contributions and expenditures in political campaigns could not be applied to

 

2 Nearly all of the facts set forth in this Memorandum were obtained either from this Court?s October 24,
2001 decision, or from the 2003 decision of the United States Court of Appeals for the Fourth Circuit. See
North Carolina Right to Life v. Leake, 344 13.3" 418 Cir. 2003).

Case Document4126 Filed 03/11/05 Page 4 of 19

NCRL under its interpretation of the decision in MCFL. Thereafter, North Carolina
amended its statutes to conform to the Fourth Circuit's opinion in 1999, and now has an
exception that allows NCRL-type entities to make both contributions and expenditures in
support of political candidates directly from its corporate treasury. See N.C. GEN. STAT.
(2003). North Carolina has taken no action to change its statutes since the
Supreme Court ruled that Congress may prohibit NCRL and similar non-pro?t
corporations from making corporate contributions to federal campaigns. Federal Election
Comm v. Beaumont, 539 US. 146 (2003).

Based on the results of the NCRL v. Bartlett litigation, and according to its
representations in this case, NCRL has made contributions and independent expenditures
directly ?om its corporate funds in political campaigns for state of?ces and wishes to
continue doing so. (Complaint pp. 31-32). NCRL may not make contributions to
campaigns for federal of?ces from its corporate treasury, but may make independent
expenditures. Beaumont, 539 US. at 151, n.2. In the past, it has had both state and
federal political committees that can and do make contributions to either state or federal
political campaigns. In addition, NCRL has formed a third political committee that it
intends will make only independent expenditures. All of entities have a history
of the same PAC Directors, overlapping treasurers, the same president, and the same
membership base.

ARGUMENT
This brief is limited to one issue raised in this case: whether North Carolina may

constitutionally limit contributions to political committees which would use those

contributions solely for independent expenditures. We submit that the State may do so.

Case Document5126 Filed 03/11/05 Page 5 of 19

I. McConnell Held that Contributions Made for lndemndent Expenditures
May Be Regulated

In its earlier decision in this case addressing the constitutionality of contribution
limits imposed on this Court relied on the Supreme Court?s decision in
California Medical Ass ?n v. FEC, 453 US. 182 (1981)(CalMed). In CalMed, supra, the
Supreme Court upheld $5,000 limit on contributions to multicandidate political
committees. Initially this Court, and later the court of appeals, reasoned that the decision
in CalMed could not be read as authorizing limits on contributions to entities that would
use them solely for independent expenditures.

This issue has now been put to rest by the Supreme Court?s decision in
McConnell v. Federal Election Commission, 540 US. 93 (2003). In McConnell, the
Supreme Court made clear that in its earlier CalMed decision, the Court had actually
upheld limits on contributions to independent expenditure political committees:

[In CalMed], we upheld 5,000 limit on contributions to

multicandidate political committees. It is no answer to say that such limits

were justi?ed as a means of preventing individuals from using parties and

political committees as pass-throughs to circumvent $1,000 limit

on individual contributions to candidates. Given de?nition of

?contribution,? the $5,000 limi[t] restricted not only the source and

amount of funds available to parties and political committees to make

candidate contributions, but also the source and amount of funds available

to engage in express advocacy and numerous other noncoordinated
expenditures.

540 US. at 151-152 n. 48 (emphasis added). As the last sentence makes unmistakably
clear, CalMed held that Congress could limit contributions to entities that would use them

solely for independent expenditures.

Case Document6126 Filed 03/11/05 Page 6 of 19

Moreover, the decision in McConnell continues by noting that Buckley and
CalMed could not have upheld broad limit on contributions to party and
multicandidate committees without necessarily deciding this point. With respect to party
committees, the type of committee at issue in this portion of McConnell itself, the Court
wrote in the very next sentence after the passage quoted above:

If indeed the First Amendment prohibited Congress from regulating

contributions to fund [express advocacy and numerous other

noncoordinated expenditures], the otherwise-easy?to?remedy exploitation

of parties as pass-throughs g. a strict limit on donations that could be

used to fund candidate contributions) would have provided insuf?cient
justi?cation for such overbroad legislation.

Id. at 152 note 48. In other words, if contributions ultimately used to make independent
expenditures had no corruptive potential, the overall limit on contributions to
multicandidate committees would have been unsustainable. Congress could have
justi?ed the limit only insofar as it remedied so-called ?pass-through? corruption and
much more narrowly tailored remedies, like ?a strict limit on donations that could be used
to fund candidate contributions,? could have addressed such pass-through corruption
concerns. Thus, the overall limit on contributions to multicandidate committees would
have been unconstitutionally overbroad if contributions to IEPCs were sacrosanct.
McConnell, then, makes clear that CalMed necessarily stands for two propositions
previously rejected by the court of appeals: that contributions can corrupt even when
they are only used as independent expenditures independently of their ultimate use);
and (ii) a state may limit contributions to political committees that eventually will be used
to make independent expenditures.

McConnell ?s own treatment of soft money provisions reinforces both of

these CalMed holdings. If contributions that were eventually used as independent

Case Document7126 Filed 03/11/05 Page 7 of 19

expenditures in federal elections posed no corruptive potential?if they were always and
necessarily sacrosanct??then the Court would have had to strike down many of the soft
money provisions it upheld in McConnell, particularly 323(a), the ?core? soft money
provision. Id., at 142. Section 323(a) subjects all ?mds raised by the national parties to
the same contribution limits regardless of their ultimate use whether for independent
expenditures or even advertising that does not mention a candidate at all. Section 323(b)
analogously imposes contribution limits on state and local party committees where funds
are used to help ?nance ?Federal election activity,? 2 U.S.C.A. 441i(b) (Supp. 2003),
including voter registration, voter identi?cation, and public communications promoting
or opposing a clearly identi?ed federal candidate, even if done independently of a
candidate. See McConnell, 540 US. at 162.

It is true, of course, that independent expenditures have been afforded greater
First Amendment protection than coordinated expenditures and direct candidate
contributions. See FEC v. Colorado Republican Federal Campaign Comm, 533 US.
431, 442, 457?60 (2001)(Colorado cf Colorado Republican Federal Campaign
Comm. v. FEC, 518 US. 604, 615 (1996)(Colorado I)(opinion of Breyer, 
Nevertheless, McConnell holds that contributions to political parties may be regulated
whether ultimately used in coordination with, or independently of, candidates?
campaigns. As an initial matter, McConnell applies deferential review because limits on
contributions including those ultimately used for independent expenditures do not
substantially infringe First Amendment rights of speech and association. See McConnell,

540 US. at 138 (?like the contribution limits we upheld in Buckley, 323?s restrictions

 

3 In Colorado 1, supra, it is signi?cant to note that while the Court held that political parties could make
unlimited independent expenditures, the Court nevertheless upheld the requirement that political parties use
funds subject to contribution limits to make those expenditures. 518 US. at 61.

Case Document8126 Filed 03/11/05 Page 8 of 19

have only a marginal impact on the ability of contributors, candidates, of?ceholders and
parties to engage in effective political speech?).

More fundamentally, the contribution?s ultimate use was not the basis for
identifying its corruptive potential. Rather, the potential for corruption stemmed from the
ability of donors to gain access and in?uence over candidates as a result of their
contributions to a political party. See McConnell, supra, 540 US. at 146-148 (in?uence),
149-150 (access and in?uence), and 151 (access). In upholding central soft
money provision, then, McConnell necessarily found that contributions to party political
committees can corrupt, even when used for independent expenditures.

The same analysis applies to McConnell?s treatment of restriction on the
use of soft money contributions by state and local party committees for federal election
activities. Section 323(b) restricts the use of nonfederal funds by state and local party
committees to help ?nance ?Federal election activity.? 2 U.S.C. 441i(b)(1) (Supp.
2003). As the Court noted in McConnell,

[t]he term ?Federal election activity? encompasses four distinct categories

of electioneering: (1) voter registration activity during the 120 days

preceding a regularly scheduled federal election; (2) voter identi?cation,

get-out-the?vote (GOTV), and generic campaign activity that is

?conducted in connection with an election in which a candidate for federal

of?ce appears on the ballot?; (3) any ?public communication? that ?refers

to a clearly identi?ed candidate for Federal of?ce? and ?promotes,?

?supports,? ?attacks,? or ?opposes? a candidate for that of?ce; and (4) the

services provided by a state committee employee who dedicates more than

25% of his or her time to ?activities in connection with a Federal

election.? 

540 US. at 162. Signi?cantly, none of these four categories necessarily involves

contributions to candidates and categories 1, 2, and 3 necessarily do not unless there is

coordination. Thus, if Congress could restrict the use of only those contributions to state

Case Document9126 Filed 03/11/05 Page 9 of 19

and local party committees that the committees in turn contribute to candidates, 323(b),
just like 323(a), would have necessarily been overbroad and unconstitutional.
McConnell held, however, that Congress could restrict the use of all nonfederal
contributions by state party committees ?for the purpose of in?uencing federal elections.?
Id. at 167. The reason was clear. Although these activities might not pose a threat of
state and local parties themselves corrupting federal candidates, they would allow the
contributors to corrupt through these committees. As the Court explained:

Congress made a prediction. Having been taught the hard lesson of

circumvention by the entire history of campaign ?nance regulation,

Congress knew that soft-money donors would react to the

national party committee ban,] by scrambling to ?nd another way to

purchase in?uence. It was neither novel nor implausible for Congress to

conclude that political parties would react to ?323(a) by directing so??

money contributions to the state committees, and that federal candidates

would be just as indebted to these contributors as they had been to those

who had formerly contributed to the national parties. Preventing

corrupting activity from shifting wholesale to state committees and

thereby eviscerating FECA clearly quali?es as an important governmental
interest.

Id. at 165-166 (internal citations and quotation marks omitted). Section 323(b) is
premised on the simple ?judgment that if a large donation is capable of putting a federal
candidate in the debt of the contributor, it poses a threat of corruption or the appearance
of corruption.? Id. at 167.

Contributions to non?party political committees are equally capable of putting a
candidate ?in the debt of the contributor?, and that is true whether the political committee
operates at the federal or state level, and whether the political committee actually uses the
contributions for direct candidate contributions, coordinated expenditures, or independent
expenditures. Contributions to political committees will be used to bene?t candidates,

and thus can create gratitude and debt to the donors. Moreover, those who make

Case Documentli?ze Filed 03/11/05 Page 10 of 19

contributions to a political committee, whose chief aim is to nominate or elect candidates,
often do so in an attempt to purchase in?uence. Candidates know where large

contributions come from, particularly those that bene?t them or harm their opponent,
even those made to so-called independent political committees. For the same reason that

federal limits on contributions to political committees are constitutional, North
Carolina?s attempt to impose reasonable limits on such contributions to state political
committees in order to safeguard the integrity of the political process is constitutional

6?

because its limits are closely drawn? to match a ?suf?ciently important interest.??
McConnell, 540 US. at 136 (quoting Federal Election Comm ?n v. Beaumont, 539 US.
146, 162 (quoting Shrink Missouri, 528 US. at 387?88)).

II. McConnell Requires Reconsideration of Evidence Erroneouslv Reiected
by this Court

McConnell undercuts this Court?s earlier holding on IEPCs in yet another way.
This Court initially held that North Carolina?s limit on contributions to IEPCS was
unconstitutional because the State had failed to proffer suf?ciently compelling evidence
which showed a danger of corruption due to the presence of unchecked contributions to
IEPCs. The State, however, had actually proffered such evidence to this Court in its
summary judgment papers. See this Court?s Order of October 24, 2001 at 25?26. The
State, for example, produced evidence that, among other things, an advocacy group
?threatened the legislative leadership that it would run advertisements [in] retaliation for
votes against the hog industry in North Carolina.? Id. at 25.

This Court rejected this evidence, however. Speci?cally, this Court reasoned:

Defendants claim that this [evidence] supports a ?nding that allowing

unlimited contributions to committees that will run such advertisements
will encourage ?corruption.? However, in Perry v. Bartlett, the Fourth

Case Filed 03/11/05 Page 11 of 19

Circuit determined that the Farmers for Fairness group engaged solely in
?issue advocacy,? which is speech that is afforded the ?broadest
protection? under the First Amendment. Perry v. Bartlett, 231 F.3d 155,
158?59 (4th Cir. Farmers does make expenditures that may
incidentally in?uence an election, it does not in explicit words 
advocate the election or defeat of a candidate?). Therefore, the Fourth
Circuit held that the actions of Farmers for Fairness were not ?corruptive,?
but, rather, constituted protected Speech under the First Amendment.

Id. at 25-26. In other words, this Court, following the Fourth Circuit?s decision in Perry,
rejected the preferred evidence because it believed ?explicit words advocat[ing] the
election or defeat of a candidate? were necessary to constitute an expenditure and thus
implicate the concerns of corruption that are within the reach of campaign ?nance laws.

McConnell forcefully and unequivocally rejected this view. In upholding the
?electioneering communication? provisions of the Bipartisan Campaign Reform Act of
2002, the Supreme Court made clear that no ?explicit words? were necessary:

[T]he unmistakable lesson is that [the] magic-words requirement is

functionally meaningless. Not only can advertisers easily evade the line

by eschewing the use of magic words, but they would seldom choose to

use such words even if permitted. And although the resulting

advertisements do not urge the viewer to vote for or against a candidate

in so many words, they are no less clearly intended to in?uence the

election. [The] express advocacy line, in short, has not aided the

legislative effort to combat real or apparent corruption, and Congress

enacted BCRA to correct the ?aws it found in the existing system.?
540 US. at 193-194. We respectfully submit that this Court wrongly rejected the State?s

evidence on the grounds that ?magic words? were not present.

111. lumendent Expenditure Political Committees Play A Signi?cant and
Effective Role in In?uencing Elections

The State defendants in this case will offer facts in their summary judgment

papers on the impact that IEPCs such as plaintiff North Carolina Right to Life, play in

Case Documentlf26 Filed 03/11/05 Page 12 of 19

elections in North Carolina, and the justi?cation for upholding limits on the amount of
money that may be contributed to them by individuals and other groups.

We believe that ?irther support for limiting contributions to state political
committees such as NCRL can be gleaned from an examination of the role that 527
organizations have played in federal elections.4 As this Court is no doubt aware, 527
organizations are organized for the purpose of making independent expenditures, and
thus function essentially the same as although they have avoided registering as
federal political committees. While 527?s organizations purport to be independent of the
major political parties, the evidence is strongly to the contrary. Indeed, the major
political parties have played a signi?cant role in the formation of a number of 527
groups.

Two major 527?s, the Media Fund (aligned with Democrats) and the Progress for
America (aligned with Republicans), demonstrate the close ties between these supposedly
?independent? 527?s and the national parties.

The Media Fund was organized to aid the Democratic presidential nominee
through political advertising. It was formed from a BCRA task force that had been
established by the then?Chairman of the Democratic National Committee, Terry
McAuliffe. This Task Force was comprised of Democratic Party operatives: Harold
Ickes, who had served as Deputy Chief of Staff to former President Clinton, and a paid
advisor to Chairman McAuliffe, and a Member of the Executive Committee;

Minyon Moore, DNC Chief Operating Of?cer; Josh Wachs, DNC Chief of Staff, Joseph

 

4 The term ?527?s? or ?527 organizations? refers to the provision of the Internal Revenue Tax Code that
governs the tax treatment of political organizations. These are de?ned by the IRS as entities ?organized
and operated primarily? for the purpose of in?uencing the selection of candidates to elective or appointive
of?ce.

Case Document1f26 Filed 03/11/05 Page 13 of 19

Sandler, legal counsel, and former White House of?cials John Podesta and Doug
Sosnik. Mann Declaration at 3.5

Two years before the 2004 election cycle, DNC Chairman McAuliffe had
discussed with Democratic Party donors the plans to establish the Media Fund, which
Ickes later was named to head. Id. Ickes? leadership of the Media-Fund, given his
extensive ties to the Democratic Party and national leaders in the Party such as President
Clinton, established a reliable connection between the Media Fund and the Democratic
Party in the eyes of many donors. Even President Clinton encouraged donors to
contribute to the Media Fund. Attachment 2, page 8 to Mann Declaration.

For his part, Ickes? fundraising activities fueled the link between the Media Fund
and the national party. During the Democratic National Convention, Ickes served as a
DNC delegate and visibly made the rounds at the convention soliciting party donors for
the Media Fund and circulating with party of?cials. He even ran the Media Fund?s
Convention activities from an of?ce in the Four Seasons Hotel in Boston, just down the
hall from the ?nance division, which focused on large Democratic donors.
Though nominally independent ?om the DNC, the Media Fund was very much aligned
with the DNC, and these ties would have been especially obvious to potential large
donors. Mann Declaration at 4.

There was a similar alignment between the Republican Party and Progress for
America (PFA), another supposedly independent 527 group. Although Republicans
started their 527 effort later than Democrats, they too proved themselves to be adept at
using this vehicle. As detailed in the Weissman?Hassan study appended to Dr. Mann?s

Declaration, PFA was initially formed pursuant to Section 501(c)(4) of the tax code and,

 

5 The Declaration of Thomas Mann is attached to the defendants? summary judgment papers.

14
Case Document 126 Filed 03/11/05 Page 14 of 19

from its inception, it had close ties with the Republican National Committee, the Bush
Administration, and well-known Republican political consultants. Mann Declaration at
4-5.

For example, the founder of PFA was Tony Feather, a partner at Feather, Larson
and Synhorst?DCI (FLS-DCI), which had ties to the RNC. Feather picked the former
director of the National Republican Senatorial Committee (Chris LaCivita) to be 
President. Id. While President, LaCivita was paid as a contractor by a consultant group
called DCI, which shared a partner (Tom Synhorst) with Feather?s group, FLS-DCI.
Synhorst too has strong Bush-Cheney campaign ties, having advised the campaign in
2000 and held important roles at the Republican conventions in 1996 and 2000.

When the FEC decided not to regulate 527?s in May 2004, PFA reorganized as a
pro?Bush 527 organization. Its hub was Synhorst, who played a role with PFA similar to
the one Ickes played with the Media Fund and the DNC. Synhorst was a strategic advisor
and leading fundraiser for PFA, both before and after its conversion from a 501(c)(4) to a
527 organization. He was also a partner at which received $19 million for
telemarketing and message phone calling for the RNC and the Bush campaign. Like
Ickes, Synhorst?s efforts ?were certainly visible to his ?rm?s political clients and his
political relationships were presumably known to many donors.? Ex. 2, page 9 attached
to Mann Declaration.

The RNC initially took the position that the Federal Election Commission should
regulate 527 groups. But when, in May, 2004, the FEC refused to do so, Republican
Party leaders sent an unmistakable message to Republican donors to give to 527 groups

like PFA. Both the chairman of the Bush-Cheney ?04 campaign (Marc Racicot) and the

Case 5:99-cv-00798-BO Document1f26 Filed 03/11/05 Page 15 of 19

RNC Chairman (Ed Gillespie) declared that FEC inaction on the issue ?had given a green
light to all non-federal 527?s to forge full steam ahead in their efforts to affect this year?s
Federal elections, and in particular, the Presidential Id., at 8. And that is
precisely what PFA did in the 2004 election cycle.

The close connections between the party committees and these 527 groups raise
concerns that 527 groups have provided and, unless regulated, will continue to provide a
means for circumventing the soft money ban on the national parties. Donors who
previously gave large soft money donations to the national parties have now shifted their
giving to 527 groups that operate in close alignment with the parties.

For example, a recent study showed that total contributions to 527?s rose from
$151 million in 2002 to over $400 million?an increase of roughly Moreover,
donations from wealthy individuals to 527?s also have sharply risen. Between 2002 and
2004, for example, the number of contributors who gave more than $100,000 to 527?s
grew from 66 to 265?an increase of over 300 percent. The number of ?superrich
donors? grew even more, from no donors of more than $2 million in 2002, to 24 such
donors in 2004.

Many of these large individual donors to 527 groups had previously given large
amounts of so? money to the political parties before BCRA banned such practices. As
noted in the Mann Declaration, of the 113 individuals who contributed at least $250,000
to 527 groups in the 2004 cycle, 73 (over 64 percent) had been active soft money donors
to the political parties, giving a total of over $49 million dollars of soft money in the

previous two election cycles. Mann Declaration at 2. What appears to have happened is

 

6 This Study, and the 527 Groups? by Steve Weissman and Ruth Hassan, is appended as Exhibit 2
to the Report of Dr. Thomas E. Mann, which is attached to the defendants? summary judgment papers.

Case Documentl?G Filed 03/11/05 Page 16 of 19

that donors who had previously given soft money to the national political parties have
now shifted a signi?cant amount of their giving to 527 groups in the wake of 
ban on party soft money fundraising. These supposedly independent groups are thus

being used as vehicles for circumvention of the limits imposed by BCRA.

And because the candidates who are bene?ted by the spending of the 527 groups
are fully aware of who these large donors are, unlimited contributions to 527 groups can
be used as a means of buying access and in?uence to candidates and of?ceholders, just as
similar soft money contributions to parties previously did.

Finally, there is no reason to believe that this potential for the circumvention of
meaningful contribution limits on candidates and parties by the use of supposedly
independent committees is a problem that is limited to federal elections. We submit that
the experience at the federal level has potential to take place at the state level as well. If
supposedly independent political committees are allowed to receive unlimited
contributions, donors will use those contributions to buy access to and in?uence with
those candidates aided by the committee. Such unlimited contributions, even if given to
supposedly independent committees, create the potential for the same kind of corruption
that was at the heart of the Supreme Court?s analysis in McConnell upholding restrictions
on donations to party committees. This danger of real or potential corruption arising
from unlimited donations to political committees is suf?cient to justify the contribution

limits imposed on such gifts.

17
Case Document 126 Filed 03/11/05 Page 17 of 19

CONCLUSION
For the reasons set forth above, this Court should reject plaintiff?s constitutional
challenge to North Carolina?s contribution limits to independent expenditure political

committees.
Respectfully submitted this 28th day of February, 2005.

For The Campaign Legal Center and Democracy 21:

ANITA S. EARLS

N.C. Bar No. 15597

CB #3380, Van Hecke-Wettach Hall
Chapel Hill, NC 27599-3380

(919) 843-7896
For The Campaign Legal Center:

TREVOR POTTER

J. GERALD HEBERT

PAUL S. RYAN

Campaign Legal Center, Inc.

1640 Rhode Island Avenue, NW, Suite 650
Washington, DC 20036

Tel.: (202) 736-2200

Fax: (202) 736-2222

DANIEL R. ORTIZ

University of Virginia School of Law
580 Massie Rd.

Charlottesville, VA 22903

Tel.: (434) 924-3127

Fax: (434) 982-2643

For Democracy 21:

FRED WERTHEIMER
Democracy 21

1825 I St., NW, Suite 400
Washington, DC 20006
Tel.: (202) 429-2008

Fax: (202) 293?2660

Case 5:99-cv-00798-BO Documentl?G Filed 03/11/05 Page 18 of 19

DONALD J. SIMON

Sonosky, Chambers, Sachse,
Endreson Perry LLP

1425 Street, Suite 600

Washington, DC 20005

Tel.: (202) 682-0240

Fax: (202) 682?0249

CERTIFICATE OF SERVICE

 

This is to certify that on February 28, 2005, a copy of the foregoing Motion for

Leave to Participate as Amici Curiae, Memorandum, and proposed Order were served on
the following counsel of record, by placing a true copy of the same in the United States
mail, ?rst-class, postage prepaid:

Susan Kelly Nichols, Esq.

Special Deputy Attorney General

PO. Box 629

Raleigh, NC 27602-0629

James Bopp, Jr., Esq.

Bopp, Coleson Bostrom

1 South Sixth Street
Terre Haute, IN 47807-3510

?ax/5M;

ANITA S. EARLS

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Case Document 126 Filed 03/11/05 Page 19 of 19