Harper v. Hall

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-17

No. 413PA21

Filed 14 February 2022

REBECCA HARPER; AMY CLARE OSEROFF; DONALD RUMPH; JOHN

ANTHONY BALLA; RICHARD R. CREWS; LILY NICOLE QUICK; GETTYS

COHEN, JR.; SHAWN RUSH; JACKSON THOMAS DUNN, JR.; MARK S.

PETERS; KATHLEEN BARNES; VIRGINIA WALTERS BRIEN; and DAVID

DWIGHT BROWN

v.

REPRESENTATIVE DESTIN HALL, in his official capacity as Chair of the House

Standing Committee on Redistricting; SENATOR WARREN DANIEL, in his

official capacity as Co-Chair of the Senate Standing Committee on Redistricting

and Elections; SENATOR RALPH HISE, in his official capacity as Co-Chair of the

Senate Standing Committee on Redistricting and Elections; SENATOR PAUL

NEWTON, in his official capacity as Co-Chair of the Senate Standing Committee

on Redistricting and Elections; SPEAKER OF THE NORTH CAROLINA HOUSE

OF REPRESENTATIVES, TIMOTHY K. MOORE; PRESIDENT PRO TEMPORE

OF THE NORTH CAROLINA SENATE, PHILIP E. BERGER; THE NORTH

CAROLINA STATE BOARD OF ELECTIONS; and DAMON CIRCOSTA, in his

official capacity

NORTH CAROLINA LEAGUE OF CONSERVATION VOTERS, INC.; HENRY M.

MICHAUX, JR.; DANDRIELLE LEWIS; TIMOTHY CHARTIER; TALIA FERNÓS;

KATHERINE NEWHALL; R. JASON PARSLEY; EDNA SCOTT; ROBERTA

SCOTT; YVETTE ROBERTS; JEREANN KING JOHNSON; REVEREND

REGINALD WELLS; YARBROUGH WILLIAMS, JR.; REVEREND DELORIS L.

JERMAN; VIOLA RYALS FIGUEROA; and COSMOS GEORGE

v.

REPRESENTATIVE DESTIN HALL, in his official capacity as Chair of the House

Standing Committee on Redistricting; SENATOR WARREN DANIEL, in his

official capacity as Co-Chair of the Senate Standing Committee on Redistricting

and Elections; SENATOR RALPH E. HISE, JR., in his official capacity as Co-Chair

of the Senate Standing Committee on Redistricting and Elections; SENATOR

PAUL NEWTON, in his official capacity as Co-Chair of the Senate Standing

Committee on Redistricting and Elections; REPRESENTATIVE TIMOTHY K.

MOORE, in his official capacity as Speaker of the North Carolina House of

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Representatives; SENATOR PHILIP E. BERGER, in his official capacity as

President Pro Tempore of the North Carolina Senate; THE STATE OF NORTH

CAROLINA; THE NORTH CAROLINA STATE BOARD OF ELECTIONS;

DAMON CIRCOSTA, in his official capacity as Chairman of the North Carolina

State Board of Elections; STELLA ANDERSON, in her official capacity as

Secretary of the North Carolina State Board of Elections; JEFF CARMON III, in

his official capacity as Member of the North Carolina State Board of Elections;

STACY EGGERS IV, in his official capacity as Member of the North Carolina State

Board of Elections; TOMMY TUCKER, in his official capacity as Member of the

North Carolina State Board of Elections; and KAREN BRINSON BELL, in her

official capacity as Executive Director of the North Carolina State Board of

Elections

Appeal pursuant to N.C.G.S. § 7A-27(b)(1) from the unanimous decision of a

three-judge panel of the Superior Court in Wake County, denying plaintiffs’ claims

and requests for Declaratory Judgment and Permanent Injunctive Relief. On 8

December 2021, pursuant to N.C.G.S. § 7A-31 and Rule 15(e) of the North Carolina

Rules of Appellate Procedure, the Supreme Court allowed plaintiffs’ petitions for

discretionary review prior to determination by the Court of Appeals. Heard in the

Supreme Court on 2 February 2022.

Patterson Harkavy LLP, by Narendra K. Ghosh, Burton Craige, and Paul E.

Smith; Elias Law Group LLP, by Abha Khanna, Lalitha D. Madduri, Jacob D.

Shelly, and Graham W. White; and Arnold and Porter Kaye Scholer LLP, by

Elisabeth S. Theodore, R. Stanton Jones, and Samuel F. Callahan, for Harper

plaintiff-appellants.

Robinson, Bradshaw & Hinson, P.A., by Stephen D. Feldman, John R. Wester,

Adam K. Doerr, and Erik R. Zimmerman; and Jenner & Block LLP, by Sam

Hirsch, Jessica Ring Amunson, Zachary C. Schauf, Karthik P. Reddy, and Urja

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Mittal, for North Carolina League of Conservation Voters, Inc. plaintiff-

appellants.

Southern Coalition for Social Justice, by Hilary H. Klein, Allison J. Riggs,

Mitchell Brown, Katelin Kaiser, Jeffrey Loperfido, and Noor Taj; and Hogan

Lovells US LLP, by J. Tom Boer and Olivia T. Molodanof, for Common Cause

plaintiff-appellant.

North Carolina Department of Justice, by Amar Majmundar, Senior Deputy

Attorney General, and Terence Steed, Mary Carla Babb, and Stephanie A.

Brennan, Special Deputy Attorneys General, for State defendant-appellees.

Nelson Mullins Riley & Scarborough, LLP, by Phillip J. Strach, Alyssa M.

Riggins, John Branch, and Thomas A. Farr; and Baker & Hostetler LLP, by

Katherine L. McKnight and E. Mark Braden, for Legislative Defendants

defendant-appellees.

Abraham Rubert-Schewel, Chris Lamar, and Orion de Nevers, for Campaign

Legal Center, amicus curiae.

Haynsworth Sinkler Boyd, P.A., by William C. McKinney, Jonathan D. Klett

and Sara A. Sykes; and States United Democracy Center, by Christine P. Sun

and Ranjana Natarajan, for former governors, amici curiae.

Poyner Spruill LLP, by Edwin M. Speas Jr. and Caroline P. Mackie, for

Buncombe County Board of Commissioners, amicus curiae.

Joshua H. Stein, Attorney General, by Ryan Y. Park, Solicitor General, James

W. Doggett, Deputy Solicitor General, and Zachary W. Ezor, Solicitor General

Fellow, for Governor Roy A. Cooper II and Attorney General Joshua H. Stein,

amici curiae.

Phelps Dunbar LLP, by Nathan A. Huff and Jared M. Burtner, for National

Republican Congressional Committee, amicus curiae.

Forward Justice, by Kathleen E. Roblez, Caitlin A. Swain, Daryl V. Atkinson,

Ashley M. Mitchell, and Aviance Brown; and Irving Joyner for NC NAACP,

amicus curiae.

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Poyner Spruill LLP, by Caroline P. Mackie, for Professor Charles Fried, amicus

curiae.

HUDSON, Justice.

¶1 Today, we answer this question: does our state constitution recognize that the

people of this state have the power to choose those who govern us, by giving each of

us an equally powerful voice through our vote? Or does our constitution give to

members of the General Assembly, as they argue here, unlimited power to draw

electoral maps that keep themselves and our members of Congress in office as long

as they want, regardless of the will of the people, by making some votes more powerful

than others? We hold that our constitution’s Declaration of Rights guarantees the

equal power of each person’s voice in our government through voting in elections that

matter.

¶2 In North Carolina, we have long understood that our constitution’s promise

that “[a]ll elections shall be free” means that every vote must count equally. N.C.

Const. art. I, § 10. As early as 1875, this Court declared it “too plain for argument”

that the General Assembly’s malapportionment of election districts “is a plain

violation of fundamental principles.”1 People ex rel. Van Bokkelen, v. Canaday, 73

N.C. 198, 225 (1875). Likewise, this Court has previously held that judicial review

1 Even earlier, in 1787, this Court held that the courts must interpret the constitution

and invalidate laws that violate it. Bayard v. Singleton, 1 N.C. (Mart.) 5, 7 (1787).

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was appropriate in legislative redistricting cases to enforce the requirements of the

state constitution, even when doing so means interpreting state constitutional

provisions more expansively than their federal counterparts. See Stephenson v.

Bartlett, 355 N.C. 354, 379–82 (2002).

¶3 “A system of fair elections is foundational to self-government.” Comm. to Elect

Dan Forest v. Emps. Pol. Action Comm., 376 N.C. 558, 2021-NCSC-6, ¶ 86 (Newby,

C.J., concurring in the result). While partisan gerrymandering is not a new tool,

modern technologies enable mapmakers to achieve extremes of imbalance that, “with

almost surgical precision,”2 undermine our constitutional system of government.3

Indeed, the programs and algorithms now available for drawing electoral districts

have become so sophisticated that it is possible to implement extreme and durable

partisan gerrymanders that can enable one party to effectively guarantee itself a

supermajority for an entire decade, even as electoral conditions change and voter

2 We note this expression was coined to describe the precision with which the North

Carolina General Assembly targeted African American voters through the identification and

exclusion of various forms of voter photo identification. N.C. State Conf. of NAACP v.

McCrory, 831 F.3d 204, 214 (4th Cir. 2016). We believe it is equally apt as a description of

the technical proficiency with which legislators across the country dilute the power of votes

through the drawing of district lines.

3 In fact, the term “gerrymander” was coined in 1812 after the redrawing of

Massachusetts Senate election districts to ensure the advantage of the Democratic-

Republican Party under then-Governor Elbridge Gerry, in reference to a district drawn in a

manner so contrived that it was said to resemble a salamander. The gerrymander was

successful, as although the Federalist Party ousted Governor Gerry and flipped the

Massachusetts House in the 1812 election, the Democratic-Republicans retained control of

the state senate under this map. See Elmer C. Griffith, The Rise and Development of the

Gerrymander 73–77 (1907).

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preferences shift. Fortunately, the technology that makes such extreme

gerrymanders possible likewise makes it possible to reliably evaluate the partisan

asymmetry of such plans and review the extent to which they depart from and

subordinate traditional neutral redistricting principles.

¶4 Partisan gerrymandering creates the same harm as malapportionment, which

has previously been held to violate the state constitution: some peoples’ votes have

more power than others. But a legislative body can only reflect the will of the people

if it is elected from districts that provide one person’s vote with substantially the

same power as every other person’s vote. In North Carolina, a state without a citizen

referendum process and where only a supermajority of the legislature can propose

constitutional amendments, it is no answer to say that responsibility for addressing

partisan gerrymandering is in the hands of the people, when they are represented by

legislators who are able to entrench themselves by manipulating the very democratic

process from which they derive their constitutional authority. Accordingly, the only

way that partisan gerrymandering can be addressed is through the courts, the branch

which has been tasked with authoritatively interpreting and enforcing the North

Carolina Constitution.

¶5 Here, the General Assembly enacted districting maps for the United State

Congress, the North Carolina House of Representatives, and the North Carolina

Senate that subordinated traditional neutral redistricting criteria in favor of extreme

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partisan advantage by diluting the power of certain people’s votes.4 Despite finding

that these maps were “extreme partisan outliers[,]” “highly non-responsive” to the

will of the people, and “incompatible with democratic principles[,]” the three-judge

panel below allowed the maps to stand because it concluded that judicial action

“would be usurping the political power and prerogatives” of the General Assembly.

¶6 We emphatically disagree. Although the task of redistricting is primarily

delegated to the legislature, it must be performed “in conformity with the State

Constitution.” Stephenson, 355 N.C. at 371. It is thus the solemn duty of this Court

to review the legislature’s work to ensure such conformity using the available

judicially manageable standards. We will not abdicate this duty by “condemn[ing]

complaints about districting to echo into a void.” Rucho v. Common Cause, 139 S. Ct.

2484, 2507 (2019). Today, we hold that the enacted maps violate several rights

guaranteed to the people by our state constitution. Accordingly, we reverse the

judgment of the trial court below and remand this case back to that court to oversee

the redrawing of the maps by the General Assembly or, if necessary, by the court.

¶7 Our dissenting colleagues have overlooked the fundamental reality of this case.

Rather than stepping outside of our role as judicial officers and into the policymaking

realm, here we are carrying out the most fundamental of our sacred duties: protecting

4 The 2021 enacted plans for Congress, the North Carolina House of Representatives,

and the North Carolina Senate have been attached in an appendix for ease of reference.

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the constitutional rights of the people of North Carolina from overreach by the

General Assembly. Rather than passively deferring to the legislature, our

responsibility is to determine whether challenged legislative acts, although presumed

constitutional, encumber the constitutional rights of the people of our state. Here, our

responsibility is to determine whether challenged apportionment maps encumber the

constitutional rights of the people to vote on equal terms and to substantially equal

voting power. This role of the courts is not counter to precedent but was one of the

earliest recognized. In 1787, in Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787), in a

passage quoted by the dissenters, the Court held that it must step in to keep the

General Assembly from taking away the state constitutional rights of the people, and

“if the members of the General Assembly could do this, they might with equal

authority . . . render themselves the Legislators of the State for life, without any

further election of the people[,]” id. at 7. This we cannot countenance.

¶8 The dissenters here do not challenge in any way, as Legislative Defendants

presented no evidence at trial to disprove, the extensive findings of fact of the trial

court, to the effect that the enacted plans are egregious and intentional partisan

gerrymanders, designed to enhance Republican performance, and thereby give a

greater voice to those voters than to any others. Instead, they attempt at some length

to justify our taking no action to correct the constitutional violations or to ignore them

altogether. For example, while acknowledging that the “right to vote on equal terms

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is a fundamental right,” citing Northampton Cnty. Drainage Dist. No. One v. Bailey,

326 N.C. 742, 747 (1990) (emphasis by the dissent), the dissent asserts, contrary to

the findings and the extensive evidence at the trial and with no citation to the record

or other authority, that “partisan gerrymandering has no significant impact upon the

right to vote on equal terms.”

¶9 Our contrary view is the beating heart of this case. Accordingly, we must act

as a Court to make sure that the rights of the people are treated with proper respect.

In so doing, we are protecting the individual rights of voters to cast votes that matter

equally, as guaranteed by our constitution in article I, sections 10, 12, 14, and 19:

Sec. 10. Free elections.

All elections shall be free.

Sec. 12. Right of assembly and petition.

The people have a right to assemble together to

consult for their common good, to instruct their

representatives, and to apply to the General Assembly for

redress of grievances; . . . .

Sec. 14. Freedom of speech and press.

Freedom of speech and of the press are two of the

great bulwarks of liberty and therefore shall never be

restrained, but every person shall be held responsible for

their abuse.

Sec. 19. Law of the land; equal protection of the laws.

. . . No person shall be denied the equal protection of

the laws; . . . .

N.C. Const. art. I, §§ 10, 12, 14, 19. We ground our decision in the text, structure,

history, and intent of these provisions from the Declaration of Rights.

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¶ 10 Despite the dissenters’ repeated assertions, we seek neither proportional

representation for members of any political party, nor to guarantee representation to

any particular group. We are only upholding the rights of individual voters as

guaranteed by our state constitution. As the dissenters have noted, in Deminski and

Corum, this Court has recently recognized and even expanded the role of the Court

to interpret and protect individual rights enumerated in the state constitution.

¶ 11 In this opinion, we give as much direction as appropriate to the General

Assembly while fully respecting their authority to proceed first in the effort to draw

maps that meet constitutional standards. Should they be unable to do so or if they

produce maps that fail to protect the constitutional rights of the people, the trial court

may select maps by the process it deems best, subject to our review, in accordance

with the timeline already set out in our order of 4 February 2022.

I. Factual and Procedural Background

A. Redistricting Process

¶ 12 Article II, sections 3 and 5 of the North Carolina Constitution require that

“[t]he General Assembly, at the first regular session convening after the return of

every decennial census of population taken by order of Congress, shall revise the

[legislative] districts and the apportionment of Senators [and Representatives]

among those districts, subject to [certain] requirements[.]” N.C. Const. art. II § 3, 5.

This redistricting authority is subject to limitations contained in the North Carolina

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Constitution, including both in the provisions allocating the initial redistricting

responsibility to the General Assembly and in other provisions which have been

interpreted by this Court to be applicable to the redistricting process. See, e.g.,

Stephenson, 355 N.C. 354; Blankenship v. Bartlett, 363 N.C. 518 (2009). Additionally,

the General Assembly must comply with all applicable provisions of federal law,

including federal one-person-one-vote requirements and the Voting Rights Act, under

Article I, sections 3 and 5 of the North Carolina Constitution. See id.

¶ 13 On 12 February 2021, the United States Census Bureau announced that its

release of the 2020 census data would be delayed by the COVID-19 pandemic and

would not be released until the fall of 2021. On 24 February 2021, North Carolina

State Board of Elections Executive Director Karen Brinson Bell recommended to the

House Elections Law and Campaign Finance Reform Committee that the 2022

primary elections be delayed to a 3 May primary, 12 July second primary, and 8

November general election. The Committee, however, “did not follow the Board’s

recommendations to delay the primaries and provide more time for the redistricting

cycle.” The full census data was ultimately released to the states on 12 August 2021.

¶ 14 On 5 August 2021, the General Assembly’s Senate Committee on Redistricting

and Elections and House Redistricting Committee convened a Joint Meeting to begin

the discussion on the redistricting process. On 9 August 2021, the chairs of the Joint

Redistricting Committee released its “2021 Joint Redistricting Committee Proposed

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Criteria.” During the subsequent public comment period and committee debate,

several citizens (including counsel for plaintiff Common Cause) and legislators

(including Senate Minority Leader Dan Blue Jr.) urged the committee to change the

criteria, which mandated a “race-blind” approach, to allow for the consideration of

racial data in order to ensure compliance with the Voting Rights Act (VRA). The Joint

Committee rejected these proposals. On 12 August 2021, the Joint Committee

adopted the final redistricting criteria (Adopted Criteria), which were as follows:

Equal Population. The Committees will use the 2020

federal decennial census data as the sole basis of

population for the establishment of districts in the 2021

Congressional, House, and Senate plans. The number of

persons in each legislative district shall be within plus or

minus 5% of the ideal district population, as determined

under the most recent federal decennial census. The

number of persons in each congressional district shall be as

nearly as equal as practicable, as determined under the

most recent federal decennial census.

Contiguity. No point contiguity shall be permitted in any

2021 Congressional, House, and Senate plan.

Congressional, House, and Senate districts shall be

compromised of contiguous territory. Contiguity by water

is sufficient.

Counties, Groupings, and Traversals. The Committees

shall draw legislative districts within county groupings as

required by Stephenson v. Bartlett, 355 N.C. 354, 562

S.E.2d 377 (2002) (Stephenson I), Stephenson v. Bartlett,

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

Dickson v. Rucho, 367 N.C. 542, 766 S.E.2d 238 (2014)

(Dickson I) and Dickson v. Rucho, 368 N.C. 481, 781 S.E.2d

460 (2015) (Dickson II). Within county groupings, county

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lines shall not be traversed except as authorized by

Stephenson I, Stephenson II, Dickson I, and Dickson II.

Division of counties in the 2021 Congressional plan shall

only be made for reasons of equalizing population and

consideration of double bunking. If a county is of sufficient

population size to contain an entire congressional district

within the county’s boundaries, the Committees shall

construct a district entirely within that county.

Racial Data. Data identifying the race of individuals or

voters shall not be used in the construction or consideration

of districts in the 2021 Congressional, House, and Senate

plans. The Committees will draw districts that comply with

the Voting Rights Act.

VTDs. Voting districts (“VTDs”) should be split only when

necessary.

Compactness. The Committees shall make reasonable

efforts to draw legislative districts in the 2021

Congressional, House and Senate plans that are compact.

In doing so, the Committee may use as a guide the

minimum Reock (“dispersion”) and Polsby-Popper

(“permitter”) scores identified by Richard H. Pildes and

Richard G. Neimi in Expressive Harms, “Bizarre Districts,”

and Voting Rights: Evaluating Election-District

Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483

(1993).

Municipal Boundaries. The Committees may consider

municipal boundaries when drawing districts in the 2021

Congressional, House, and Senate plans.

Election Data. Partisan considerations and election

results data shall not be used in the drawing of districts in

the 2021 Congressional, House, and Senate plans.

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Member Residence. Member residence may be

considered in the formation of legislative and congressional

districts.

Community Consideration. So long as a plan complies

with the foregoing criteria, local knowledge of the character

of communities and connections between communities may

be considered in the formation of legislative and

congressional districts.

¶ 15 On 5 October 2021, after thirteen public hearings across the state during the

month of September, the House and Senate redistricting committees convened

separately to begin the redistricting process. The committee chairs announced that

beginning on 6 October 2021, computer stations would be available in two rooms for

legislators to draw potential maps. These stations would be open during business

hours, and both the rooms and the screens of the station computers would be live-

streamed and available for public viewing while the stations were open. In an

apparent effort to show transparency and instill public confidence in the redistricting

process, Legislative Defendants “requir[ed] legislators to draw and submit maps

using software on computer terminals in the redistricting committee hearing rooms.

That software did not include political data, and the House and Senate Committees

would only consider maps drawn and submitted on the software.” “According to

Representative [Destin] Hall, [Chair of the House Standing Committee on

Redistricting,] the Committee and ‘the House as a whole’ would ‘only consider maps

that are drawn in this committee room, on one of the four stations.’ ”

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¶ 16 However, “[w]hile the four computer terminals in the committee hearing room

did not themselves have election data loaded onto them, the House and Senate

Committees did not actively prevent legislators and their staff from relying on pre-

drawn maps created using political data, or even direct consultation of political data.”

For instance, between sessions at the public computer terminals, Representative

Hall, who “personally drew nearly all of the House map [later] enacted[,] . . . met with

his then-General Counsel . . . and others about the map-drawing in a private room

adjacent to the public map-drawing room.” During these meetings, and sometimes

while sitting at the public terminals, Representative Hall viewed “concept maps”

created on an unknown computer and using unknown software and data.5 Further,

“Representative Hall and Senator Ralph E. Hise, Jr., one of the Chairs of the Senate

Redistricting Committee, confirmed that no restrictions on the use of outside maps

were ever implemented or enforced.”

¶ 17 Proposed versions of the congressional and House maps were filed on 28 and

29 October 2021 and then passed several readings in each chamber without

alteration. A proposed version of the Senate map was filed on 29 October 2021. On 1

November 2021 the Senate Redistricting Committee adopted a substitute map. On 2

5 On 21 December 2021, during trial, the court ordered Legislative Defendants to

produce these “concept maps” and related materials. Legislative Defendants never did so.

Instead, Legislative Defendants asserted in verified interrogatory responses that “the

concept maps that were created were not saved, are currently lost[,] and no longer exist.”

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November 2021, the Committee adopted two amendments offered by Senator

Natasha Marcus and Senator Ben Clark, respectively. On 3 and 4 November 2021,

the final versions of each map passed several readings in each chamber without

further alteration.

¶ 18 On 4 November 2021, the congressional, House, and Senate reapportionment

maps were ratified into law as S.L. 2021-174, S.L. 2021-175, and S.L. 2021-173,

respectively. Each map passed along strict party-line votes in each chamber.

B. Litigation

¶ 19 On 16 November 2021, plaintiffs North Carolina League of Conservation

Voters, Inc., Henry M. Michaux Jr., Dandrielle Lewis, Timothy Chartier, Talia

Fernos, Katherine Newhall, R. Jason Parsley, Edna Scott, Roberta Scott, Yvette

Roberts, Jereann King Johnson, Reverend Reginald Wells, Yarbrough Williams Jr.,

Reverend Deloris L. Jerman, Viola Ryals Figueroa, and Cosmos George (NCLCV

Plaintiffs) filed a complaint against Legislative Defendants (Civil Action No. 21 CVS

015426) contemporaneously with a Motion for Preliminary Injunction pursuant to

Rules 7(b) and 65 of the North Carolina Rules of Civil Procedure. NCLCV Plaintiffs’

complaint alleged

that the 2021 districting plans for Congress, the North

Carolina Senate, and the North Carolina House of

Representatives violate the North Carolina Constitution

by establishing severe partisan gerrymanders in violation

of the Free Elections Clause, Art. I, § 10, the Equal

Protection Clause, Art. I, § 19, and the Freedom of Speech

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and Assembly Clauses, Art. I, §§ 12, 14; by engaging in

racial vote dilution in violation of the Free Elections

Clause, Art. I, § 10, and the Equal Protection Clause, Art.

I, § 19; and by violating the Whole County Provisions, Art.

II, §§ 3(3), 5(3).

¶ 20 On 18 November 2021, plaintiffs Rebecca Harper, Amy Clare Oseroff, Donald

Rumph, John Anthony Balla, Richard R. Crews, Lily Nicole Quick, Gettys Cohen Jr.,

Shawn Rush, Mark S. Peters, Kathleen Barnes, Virginia Walters Brien, Eileen

Stephens, Barbara Proffitt, Mary Elizabeth Voss, Chenita Barber Johnson, Sarah

Taber, Joshua Perry Brown, Laureen Floor, Donald M. MacKinnon, Ron Osborne,

Ann Butzner, Sondra Stein, Bobby Jones, Kristiann Herring, and David Dwight

Brown (Harper Plaintiffs) filed a complaint against Legislative Defendants (Civil

Action No. 21 CVS 500085) and a Motion for Preliminary Injunction pursuant to Rule

65 and N.C.G.S. § 1-485. On 13 December 2021, Harper Plaintiffs amended their

complaint. Harper Plaintiffs’ complaint “allege[d] that the 2021 districting plans for

Congress, the North Carolina Senate, and the North Carolina House of

Representatives violate the North Carolina Constitution―namely its Free Elections

Clause, Art. I, § 10; its Equal Protection Clause, Art. I, § 19; and its Freedom of

Speech and Freedom of Assembly Clauses, Art. I, §§ 12, 14.”

¶ 21 On 19 and 22 November 2021, “the NCLCV and Harper actions, respectively,

were assigned to [a] three-judge panel of Superior Court, Wake County, pursuant to

N.C.G.S. § 1-267.1.” On 3 December 2021, the panel consolidated the two cases

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pursuant to Rule 42 of the North Carolina Rules of Civil Procedure and heard NCLCV

Plaintiffs’ and Harper Plaintiffs’ motions for preliminary injunction. On 3 December

2021, “after considering the extensive briefing and oral arguments on the motions,

the [panel] denied [the parties’] Motion for Preliminary Injunction.”

¶ 22 NCLCV Plaintiffs and Harper Plaintiffs subsequently filed a notice of appeal

with the North Carolina Court of Appeals. On 6 December 2021, “[a]fter initially

partially granting a temporary stay of the candidate filing period for the 2022

elections, the North Carolina Court of Appeals denied the requested temporary stay.”

NCLCV Plaintiffs and Harper Plaintiffs subsequently filed several items with this

Court: two petitions for discretionary review prior to determination by the Court of

Appeals; a motion to suspend appellate rules to expedite a decision; and a motion to

suspend appellate rules and expedite schedule. On 8 December 2021, this Court

granted a preliminary injunction and temporarily stayed the candidate filing period

“until such time as a final judgment on the merits of plaintiffs’ claims, including any

appeals, is entered and remedy, if any is required, has been ordered.” “The Order

further directed [the panel] to hold proceedings on the merits of NCLCV Plaintiffs’

and Harper Plaintiffs’ claims and provide a written ruling on or before [11 January

2022].”

¶ 23 On 13 December 2021, the panel “entered a scheduling order . . . expediting

discovery and scheduling [a] trial to commence on [3 January 2022].” That same day,

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“Common Cause moved to intervene in the[ ] consolidated cases as a plaintiff,

challenging the process undertaken by the General Assembly to create and enact the

state legislative and congressional districts as a product of intentional racial

discrimination undertaken for the purpose of racial vote dilution and to further the

legislature’s partisan gerrymandering goals.” On 15 December 2021, the panel

granted plaintiff Common Cause’s motion. On 16 December 2021, plaintiff Common

Cause filed its complaint, alleging

that the 2021 districting plans for Congress, the North

Carolina Senate, and the North Carolina House of

Representatives violate the North Carolina Constitution—

namely its Equal Protection Clause, Art. I, § 19; its Free

Elections Clause, Art. I, § 10; and its Freedom of Speech

and Freedom of Assembly Clauses, Art. I, §§ 12, 14—and

seeks, among other relief, a declaratory ruling under the

Declaratory Judgment Act.

¶ 24 On 17 December 2021 “Defendants Representative Destin Hall, in his official

capacity as Chairman of the House Standing Committee on Redistricting; Senators

Ralph E. Hise, Jr., Warren Daniel, Paul Newton, in their official capacities as Co-

Chairmen of the Senate Committee on Redistricting and Elections; Philip E. Berger,

in his official capacity as President Pro Tempore of the North Carolina Senate;

Timothy K. Moore, in his official capacity as Speaker of the North Carolina House of

Representatives (hereinafter “Legislative Defendants”) filed their Answer to NCLCV

Plaintiffs’ Complaint.” Legislative Defendants asserted numerous affirmative

defenses, including, inter alia, that: (1) granting the requested relief will violate the

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VRA and the Constitution of the United States; (2) granting the requested relief will

violate the rights of Legislative Defendants, Republican voters, and Republican

candidates under the United States and North Carolina Constitutions; (3) the court

cannot lawfully prevent the General Assembly from considering partisan advantage

and incumbency protection; (4) plaintiffs seek to require districts where Democratic

candidates are elected where such candidates are not currently elected; (5) plaintiffs’

claims are barred by the doctrine of laches; (6) plaintiffs have failed to state claims

upon which relief can be granted; (7) plaintiffs seek a theory of liability that will act

to impose a judicial amendment to the North Carolina Constitution; (8) the only

limitations on redistricting legislation are found in article II, sections 2, 3, 4, and 5 of

the North Carolina Constitution; (9) plaintiffs’ request for a court-designed

redistricting plan violates the separation of powers doctrine; (10) plaintiffs’ claims

are nonjusticiable and fail to provide judicially manageable standards; (11) plaintiffs

lack standing; and (12) plaintiffs have unclean hands and therefore are not entitled

to equitable relief.

¶ 25 On 17 December 2021, defendants North Carolina State Board of Elections and

its members Damon Circosta, in his official capacity as Chairman of the Board of

Elections; Stella Anderson, in her official capacity as Secretary of the Board of

Elections; and Jeff Carmon III, Stacy Eggers IV, and Tommy Tucker, in their official

capacities as Members of the Board of Elections filed their answer to Harper

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Plaintiffs’ amended complaint. That same day, these same defendants along with

defendant State of North Carolina and defendant Karen Brinson Bell, in her official

capacity as Executive Director of the North Carolina State Board of Elections filed

their answer to NCLCV Plaintiffs’ complaint.

¶ 26 “Throughout the intervening and expedited two-and-a-half-week period

reserved for discovery, the parties filed and the [c]ourt expeditiously ruled upon over

ten discovery-related motions . . . .” “Plaintiffs collectively designated eight

individuals as expert witnesses and submitted accompanying reports[, and]

Legislative Defendants designated two individuals as expert witnesses and

submitted accompanying reports.” The parties’ discovery period closed on 31

December 2021, and a three-and-one-half day trial commenced on 3 January 2022.

C. Trial Court’s Judgment

1. Findings of Fact

¶ 27 First, the trial court made extensive factual findings based on the evidence

presented at trial. In short, these factual findings confirmed plaintiffs’ assertions that

each of the three enacted maps were “extreme partisan outliers” and the product of

“intentional, pro-Republican partisan redistricting.”

a. Plaintiffs’ Extreme Partisan Gerrymandering Claims

¶ 28 After reviewing the factual and procedural history summarized above, the trial

court made factual findings regarding plaintiffs’ constitutional claims of extreme

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partisan gerrymandering. First, the court considered whether the evidence presented

showed partisan intent and effects. Addressing direct evidence, the court found that

“[t]here is no express language showing partisan intent within the text of the session

laws establishing the Enacted Plans” and noted that “[t]he Adopted Criteria

expressly forbade partisan considerations and election results data from being used

in drawing districts in the Enacted Plans.” Further, the court noted that “[n]o

elections have been conducted under the Enacted Plans to provide direct evidence of

partisan effects that could be attributed as a result of the Enacted Plans.” However,

the lack of direct evidence of intent did not stop the trial court from determining that

the enacted plans were intentionally constructed to yield a consistent partisan

advantage for Republicans in a range of electoral environments.

¶ 29 Instead, the trial court turned to circumstantial evidence of partisan intent

and effects. After surveying the recent history of partisan redistricting litigation and

legislation and the neutral districting criteria Legislative Defendants claimed they

had adhered to, the court reviewed plaintiffs’ and Legislative Defendants’ expert

analyses of the enacted plans. The court’s extensive factual findings regarding each

expert’s analysis are summarized below.

¶ 30 Harper Plaintiffs’ Expert Dr. Jowei Chen. “Dr. Chen was qualified and

accepted as an expert at trial in the fields of redistricting, political geography,

simulation analyses, and geographic information systems.” “Dr. Chen analyzed the

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partisan bias of the enacted congressional plan on a statewide and district-by-district

basis.” Specifically, Dr. Chen analyzed the congressional plans using

various computer simulation programming techniques

that allow him to produce a large number of nonpartisan

districting plans that adhere to traditional districting

criteria using U.S. Census geographies as building blocks.

Dr. Chen’s simulation process ignores all partisan and

racial considerations when drawing districts, and the

computer simulations are instead programmed to draw

districting plans following various traditional districting

goals, such as equalizing population, avoiding county and

Voting Tabulation District (VTD) splits, and pursuing

geographic compactness. By randomly generating a large

number of districting plans that closely adhere to these

traditional districting criteria, Dr. Chen assesses an

enacted plan drawn by a state legislature and determines

whether partisan goals motivated the legislature to deviate

from these traditional districting criteria. Specifically, by

holding constant the application of nonpartisan,

traditional districting criteria through the simulations, he

is able to determine whether the enacted plan could have

been the product of something other than partisan

considerations.

¶ 31 “Based on his analysis, Dr. Chen concluded that partisan intent predominated

over the 2021 Adopted Criteria in drawing the adopted congressional plan, and that

the Republican advantage in the enacted plan cannot be explained by North

Carolina’s political geography or adherence to the Adopted Criteria.”

¶ 32 Harper Plaintiffs’ Expert Dr. Christopher Cooper. “Dr. Cooper was

qualified and accepted as an expert at trial in the field of political science with a

specialty in the political geography and political history of North Carolina.” Using

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statewide voting data from the 2020 election, “Dr. Cooper analyzed the 2021

Congressional Plan [and] the partisan effects of each district’s boundaries.” Based on

Dr. Cooper’s analysis, the court observed that “[a]lthough North Carolina gained an

additional congressional seat as a result of population growth that came largely from

the Democratic-leaning Triangle (Raleigh-Durham-Chapel Hill) and the Charlotte

metropolitan areas, the number of anticipated Democratic seats under the enacted

map actually decreases, with only three anticipated Democratic seats, compared with

the five seats that Democrats won in the 2020 election.” This decrease, the court

observed, is enacted “by splitting the Democratic-leaning counties of Guilford,

Mecklenburg, and Wake among three congressional districts each.” The court further

noted that “[t]here was no population-based reason” for these splits.

¶ 33 After reviewing Dr. Cooper’s maps showing these redistricted congressional

lines as compared to county boundaries and VTD boundaries, the court noted that

“[t]he congressional district map is best understood as a single organism given that

the boundaries drawn for a particular congressional district in one part of the state

will necessarily affect the boundaries drawn for the districts elsewhere in the state.”

Accordingly, the court found “that the ‘cracking and packing’ of Democratic voters in

Guilford, Mecklenburg, and Wake counties has ‘ripple effects throughout the map.’ ”

¶ 34 Reviewing Dr. Cooper’s analysis of a few specific congressional districts within

the new map as exemplars, the court noted that “[t]he 2021 Congressional Plan places

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the residences of an incumbent Republican representative and an incumbent

Democratic representative within a new, overwhelmingly Republican district, NC-11,

‘virtually guaranteeing’ that the Democratic incumbent will lose her seat.” Similarly,

the court observed that “[t]he 2021 Congressional Plan includes one district where no

incumbent congressional representative resides . . . [which] ‘overwhelmingly favors’

the Republican candidate based on the district’s partisan lean.”

¶ 35 The court then found that the 2021 North Carolina House and Senate Plans

“similarly benefit the Republican party.” The court noted that “Legislative

Defendants’ exercise of . . . discretion in the Senate and House 2021 Plans resulted

in Senate and House district boundaries that enhanced the Republican candidates’

partisan advantage, and this finding is consistent with a finding of partisan intent.”

Finally, the court noted Dr. Cooper’s finding that the “partisan redistricting carried

out across the State has led to a substantial disconnect between the ideology and

policy preferences of North Carolina’s citizenry and their representatives in the

General Assembly.”

¶ 36 Harper Plaintiffs and Plaintiff Common Cause’s Expert Dr. Jonathan

Mattingly.

Dr. Mattingly was qualified and accepted as an expert at

trial in the fields of applied math, statistical science, and

probability.

. . . Dr. Mattingly used the Metropolis-Hasting

Markov Chain Monte Carlo (“MCMC”) Algorithm to create

a representative set, or “ensemble,” of 100,000 maps for the

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state legislative districts and 80,000 maps for

congressional districts as benchmarks against which he

could compare the enacted maps. The algorithm produced

maps that accorded with traditional districting criteria. Dr.

Mattingly tuned his algorithm to ensure that the

nonpartisan qualities of the simulated maps were similar

to the nonpartisan qualities of the enacted map with

respect to compactness and, for his primary ensembles,

municipality splits.

“After generating the sample of maps, Dr. Mattingly used votes from multiple prior

North Carolina statewide elections reflecting a range of electoral outcomes to

compare the partisan performance and characteristics of the 2021 Congressional Plan

to the simulated plans.”

¶ 37 The trial court found, “based upon Dr. Mattingly’s analysis, that the

Congressional map is the product of intentional, pro-Republican partisan

redistricting.” The court further determined that “[t]he Congressional map is ‘an

extreme outlier’ that is ‘highly non-responsive to the changing opinion of the

electorate.’ ”

¶ 38 Regarding the North Carolina legislative districts, the court likewise found,

“based upon Dr. Mattingly’s analysis, that the State House and Senate plans are

extreme outliers that ‘systematically favor the Republican Party to an extent which

is rarely, if ever, seen in the non-partisan collection of maps.’ ” The court found that

“[t]he intentional partisan redistricting in both chambers is especially effective in

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preserving Republican supermajorities in instances in which the majority or the vast

majority of plans in Dr. Mattingly’s ensemble would have broken it.”

¶ 39 Regarding the North Carolina House map, the court further found that “the

enacted plan shows a systematic bias toward the Republican party, favoring

Republicans in every single one of the 16 elections [Dr. Mattingly] considered.” The

court determined that the North Carolina House “map is also especially anomalous

under elections where a non-partisan map would almost always give Democrats the

majority in the House because the enacted map denied Democrats that majority. The

probability that this partisan bias arose by chance, without an intentional effort by

the General Assembly, is ‘astronomically small.’ ” The court determined that

[t]he North Carolina House maps show that they are the

product of an intentional, pro-Republican partisan

redistricting over a wide range of potential election

scenarios. Elections that under typical maps would

produce a Democratic majority in the North Carolina

House give Republicans a majority under the enacted

maps. Likewise, maps that would normally produce a

Republican majority under nonpartisan maps produce a

Republican supermajority under the enacted maps. Among

every possible election that Dr. Mattingly analyzed, the

partisan results were more extreme than what would be

seen from nonpartisan maps. In every election scenario,

Republicans won more individual seats tha[n] they

statistically should under nonpartisan maps.

. . . The 2021 House Plan’s partisan bias creates

firewalls protecting the Republican supermajority and

majority in the House, and this effect is particularly robust

when the Republicans are likely to lose the supermajority:

the enacted plan sticks at 48 democratic seats or fewer,

even in situations where virtually all of the plans in the

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nonpartisan ensemble would elect 49 Democratic seats or

more.

¶ 40 Regarding the North Carolina Senate, the court found that

the results are the same: the enacted plan is an outlier or

extreme outlier in elections where Democrats win a vote

share between 47.5% and 50.5%. This range is significant

because many North Carolina elections have this vote

fraction, and this is the range where the non-partisan

ensemble shows that Republicans lose the super-majority.

But the enacted map in multiple elections used in Dr.

Mattingly’s analysis sticks at less than 21 Democratic

seats, preserving a [Republican] supermajority. Notably,

the enacted map never favors the Democratic party in

comparison to the non-partisan ensemble in a single one of

the 16 elections that Dr. Mattingly considered.

¶ 41 The court then considered Dr. Mattingly’s “cracking and packing” analysis of

the congressional, House, and Senate maps. Here, the court found

that cracking Democrats from the more competitive

districts and packing them into the most heavily

Republican and heavily Democratic districts is the key

signature of intentional partisan redistricting and it is

responsible for the enacted congressional plan’s non-

responsiveness when more voters favor Democratic

candidates, as shown in [Dr. Mattingly’s] charts. Across his

80,000 simulated nonpartisan plans, not a single one had

the same or more Democratic voters packed into the three

most Democratic districts—i.e., the districts Democrats

would win no matter what—in comparison to the enacted

plan. And not a single one had the same or more

Republican voters in the next seven districts—i.e., the

competitive districts—in comparison to the enacted plan.

¶ 42 The trial court found similar “cracking and packing” in the House maps, noting

that “the enacted maps, as compared to the sample maps, there is an

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overconcentration of Democratic voters in the least Democratic districts and in the

most Democratic districts.” The court found that “the districts with the highest

concentration of Democrats have far more Democratic voters than expected in

nonpartisan maps, and threshold districts have far fewer Democratic voters than

expected in nonpartisan maps.” In contrast, the court found that

[i]n the middle districts—between the 60th most

Democratic seat and the 80th most democratic seat—the

Democratic vote fraction in the enacted plan is far below

the . . . nonpartisan plans. These are the seats that

determine the supermajority line and the majority line (if

Republicans win the 61st seat, they win the majority, and

if they win the 72nd most Democratic seat, they win the

supermajority). The [c]ourt [found] that the systematic

depletion of Democratic votes in those districts signals

packing, does not exist in the non-partisan ensemble, and

is responsible for the map’s partisan outlier behavior.

Those Democrat[ic] votes are instead placed in the 90th to

105th most Democratic district[s], where they are wasted

because those seats are already comfortably Democratic.

¶ 43 Regarding cracking and packing in the Senate maps, the court found that “the

same structure appears where virtually all of the seats in the middle range that

determines majority and supermajority control have abnormally few Democrats.”

¶ 44 Next, the court determined that “a desire to prevent the pairing of incumbents

cannot explain the extreme outlier behavior of the enacted plan.”

¶ 45 The court also observed that the General Assembly selectively prioritized

preserving municipalities within the maps, choosing to do so “only when doing so

advantaged Republicans.” “Put differently, prioritizing municipality preservation in

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the Senate plans appears to enable more maps that favor Republicans. By contrast,

for the House plan, where the enacted map does not prioritize preserving

municipalities, . . . prioritizing municipalities would not have favored the Republican

party in comparison.”

¶ 46 Finally, the court found that “[t]he partisan bias that Dr. Mattingly identified

by comparing the enacted plans to his nonpartisan ensemble could not be explained

by political geography or natural packing.”

¶ 47 Harper Plaintiffs’ Expert Dr. Wesley Pegden. “Dr. Pegden was qualified

and accepted as an expert at trial in probability.”

In this case, Dr. Pegden used . . . outlier analysis to

evaluate whether and to what extent the 2021 Plans were

drawn with the intentional and extreme use of partisan

considerations. To do so, using a computer program, Dr.

Pegden began with the enacted plans, made a sequence of

small random changes to the maps while respecting certain

nonpartisan constraints, and then evaluated the partisan

characteristics of the resulting comparison maps.

The trial court noted that “Dr. Pegden applied these constraints in a ‘conservative’

way, to ‘avoid second-guessing the mapmakers’ choices in how they implemented the

districting criteria.” The court observed that Dr. Pegden’s algorithm repeated this

process “billions or trillions of times”: “begin[ning] with the enacted map, mak[ing] a

small random change complying with certain constraints, and us[ing] historical

voting data to evaluate the partisan characteristics of the resulting map.”

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¶ 48 Based on Dr. Pegden’s analysis, the court found “that the enacted

congressional plan is more favorable to Republicans than 99.9999% of the comparison

maps his algorithm generated.” Accordingly, the court determined that “the enacted

congressional map is more carefully crafted to favor Republicans than at least

99.9999% of all possible maps of North Carolina satisfying the nonpartisan

constraints imposed in [Dr. Pegden’s] algorithm.” In every “run” of the analysis, the

court found, “the enacted congressional plan was in the most partisan 0.000031% of

the approximately one trillion maps generated by making tiny random changes to the

district’s boundaries.” “[I]f the districting had not been drawn to carefully optimize

its partisan bias,” the court stated, “we would expect naturally that making small

random changes to the districting would not have such a dramatic and consistent

partisan effect.”

¶ 49 The court found similar extremes regarding North Carolina’s legislative

districts. Regarding the North Carolina House, the court determined based on Dr.

Pegden’s analysis that “the enacted House map was more favorable to Republicans

than 99.99999% of the comparison maps generated by his algorithm making small

random changes to the district boundaries.” Accordingly, the court found “that the

enacted map is more carefully crafted for Republican partisan advantage than at

least 99.9999% of all possible maps of North Carolina satisfying [the nonpartisan]

constraints.” Regarding the North Carolina Senate, the court determined “that the

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enacted Senate map was more favorable to Republicans than 99.9% of comparison

maps.” Accordingly, the court found “that the enacted Senate map is more carefully

crafted for Republican partisan advantage than at least 99.9% of all possible maps of

North Carolina satisfying [the nonpartisan] constraints.” “These results,” the court

determined, “cannot be explained by North Carolina’s political geography.”

¶ 50 NCLCV Plaintiffs’ Expert Dr. Moon Duchin. “Dr. Duchin was qualified and

accepted as an expert at trial in the field of redistricting.” The trial court noted that

Dr. Duchin’s analysis “uses a Close-Votes-Close-Seats principle, [in which] ‘an

electoral climate with a roughly 50-50 split in partisan preference should produce a

roughly 50-50 representational split.’ ” The trial court observed that “Close-Votes-

Close-Seats is not tantamount to a requirement for proportionality. Rather, it is

closely related to the principle of Majority Rule, which is where ‘a party or group with

more than half of the votes should be able to secure more than half of the seats.’ ”

¶ 51 Based on Dr. Duchin’s analysis, the trial court found “that the political

geography of North Carolina today does not lead only to a district map with partisan

advantage given to one political party.” Rather, the court determined, “[t]he Enacted

Plans behave as though they are built to resiliently safeguard electoral advantage for

Republican candidates.” The results of Dr. Duchin’s analysis, the court found, “reveal

a partisan skew in close elections.” For instance, the court determined that in a recent

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statewide election in which the Republican candidate won by less than 500 total

votes,

[t]he Enacted Plans would have converted that near tie at

the ballot box into a resounding Republican victory in seat

share across the board: Republicans would have won 10

(71%) of North Carolina’s congressional districts, 28 (56%)

of North Carolina’s Senate districts, and 68 (57%) of North

Carolina’s House districts. Nor is that election unusual.

In fact, the court found “that in every single one of the 52 elections decided within a

6-point margin, the Enacted Plans give Republicans an outright majority in the

state’s congressional delegation, the State House, and the State Senate.” “This is

true[,]” the court noted, “even when Democrats win statewide by clear margins.” Or,

more plainly, “more Democratic votes usually do not mean more [D]emocratic seats.”

Accordingly, the trial court determined that “[t]he Enacted Plans resiliently

safeguard electoral advantage for Republican candidates. This skewed result is not

an inevitable feature of North Carolina’s political geography.” Rather, the court

found, “[t]he plan is designed in a way that safeguards Republican majorities in any

plausible election outcome, including those where Democrats win more votes by clear

margins.”

¶ 52 Next, the court specified that these findings were consistent across all three of

the enacted maps. First, regarding the enacted congressional plan, the court found

that “a clear majority of Democratic votes does not translate into a majority of seats.”

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The court determined “that the Enacted Congressional Plan achieves these results

by the familiar means of ‘packing’ and ‘cracking’ Democratic voters across the state.”

¶ 53 Second, the court found that

[t]he Enacted Senate Plan effectuates the same sort of

partisan advantage as the Enacted Congressional Plan.

The Enacted Senate Plan consistently creates Republican

majorities and precludes Democrats from winning a

majority in the Senate even when Democrats win more

votes. Even in an essentially tied election or a close

Democratic victory, the Enacted Senate Plan gives

Republicans a Senate majority, and sometimes even a veto-

proof 30-seat majority. And that result holds even when

Democrats win by larger margins.

“As with the Enacted Congressional Plan, the [c]ourt [found] that the Enacted Senate

Plan achieves its partisan goals by packing Democratic voters into a small number of

Senate districts and then cracking the remaining Democratic voters by splitting them

across other districts . . . .”

¶ 54 Third, the court likewise determined that

the Enacted House Plan is also designed to systematically

prevent Democrats from gaining a tie or a majority in the

House. In close elections, the Enacted House Plan always

gives Republicans a substantial House majority. That

Republican majority is resilient and persists even when

voters clearly express a preference for Democratic

candidates.

“As with the Enacted Congressional Plan and the Enacted Senate Plan, the [c]ourt

[found] that the Enacted House Plan achieves this resilient pro-Republican bias by

the familiar mechanisms of packing and cracking Democratic voters . . . .”

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¶ 55 Plaintiff Common Cause’s Expert Dr. Daniel Magleby. “Dr. Magleby was

qualified and accepted as an expert at trial in the fields of political geography and

legislative and congressional elections, mathematical modeling and political

phenomena and measurements of gerrymandering.” Like plaintiffs’ previous experts,

Dr. Magleby “used a peer-reviewed algorithm . . . to generate a set of unbiased maps

against which he compared the enacted House, Senate, and congressional maps.” “Dr.

Magleby . . . used this algorithm to develop a set of between 20,000 and 100,000 maps,

from which he took a random sample of 1,000 maps that roughly met the North

Carolina Legislature’s 2021 criteria for drawing districts.” Using voting data from

statewide races between 2016 and 2020, Dr. Magleby compared expected performance

under the enacted maps with performance in the neutral sample maps. More

specifically, Dr. Magleby’s analysis utilized “median-mean” calculations. Median-

mean calculations compare “the average Democratic vote share” in districts statewide

with “the median Democratic vote share” in those districts “by lining up the enacted

. . . districts from least Democratic to most Democratic and identifying the districts

that fell in the middle. In a nonpartisan map, a low median-mean difference is

expected.”

¶ 56 Based on Dr. Magleby’s analysis, the trial court found “that the level of

partisan bias in seats in the House maps went far beyond expected based on the

neutral political geography of North Carolina.” Specifically, the court determined

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“that the median-mean bias in the enacted maps was far more extreme than expected

in nonpartisan maps.” In fact, the court found, “[n]o randomly generated map had

such an extreme median-mean share—meaning that . . . no simulated map . . . was

as extreme and durable in terms of partisan advantage.”

¶ 57 Legislative Defendants’ Expert Dr. Michael Barber.

Dr. Barber was qualified and accepted as an expert at trial

in the areas of political geography, partisanship statistical

analysis, and redistricting.

. . . Dr. Barber analyzed the Enacted Plans, as well

as NCLCV Plaintiffs’ Optimized Maps, in the context of the

partisan gerrymandering claims brought by Plaintiffs

challenging the North Carolina Senate and North Carolina

House of Representatives Districts.

. . . Dr. Barber utilized a publicly-available and peer-

reviewed redistricting simulation algorithm to generate

50,000 simulated district maps in each county grouping in

which there are multiple districts in both the North

Carolina House of Representatives and the North Carolina

Senate. In Dr. Barber’s simulations, the model generates

plans that adhere to the restrictions included in the North

Carolina Constitution as well as the Stephenson criteria of

roughly equal population, adherence to county cluster

boundaries, minimization of county traversals within

clusters, and geographic compactness. Only after the

simulated district plans are complete is the partisan lean

of each district in each plan computed . . . .

¶ 58 Although Dr. Barber was qualified as an expert, the trial court found that “Dr.

Barber’s method is not without limitations.” “Because it is impossible for a

redistricting algorithm to account for all non-partisan redistricting goals[,]” the court

noted, “differences between the range of his simulated plans and the 2021 Plans may

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be the result of non-partisan goals the algorithm failed to account for, rather than of

partisan goals.” The court observed that “under Dr. Barber’s analysis, it is plausible

that the 2021 Plans were prepared without partisan data or considerations.” The

court noted Dr. Barber’s subsequent conclusion that “the advantage between the

expected Republican seat share in the state legislature compared to the statewide

Republican vote share in the recent past is more due to geography than partisan

activity by Republican map drawers.” Notably, the court did not adopt Dr. Barber’s

findings as its own as it did for plaintiffs’ experts and later explicitly rejected his

conclusions regarding the impact of political geography on the enacted maps.

¶ 59 Legislative Defendants’ Expert Dr. Andrew Taylor. “Dr. Taylor was

qualified and accepted as an expert at trial in the areas of political science, political

history of North Carolina[ ] and its constitutional provisions, and the comparative

laws and Constitutions in other states and jurisdictions.” The trial court reviewed Dr.

Taylor’s analysis of the enacted maps under political science principles, including

noting that “in political science, an election is generally regarded as ‘equal’ so long as

‘[e]ach person has one vote to elect one legislator who has one vote in the legislature,’

and departures even from that ideal are tolerated.” Likewise, the court noted Dr.

Taylor’s opinion that “[i]n political science, equal outcomes are not generally accepted

as a necessary facet of equal elections, administering such a rule would seem to be

unworkable, and voting is not a feature of party participation but of individual

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participation as a citizen.” The court further noted Dr. Taylor’s opinion that

“purportedly ‘fair’ redistricting plans are not understood in the political-science field

as germane to free speech, [because free speech] can occur regardless of the shapes

and sizes of districts.” “For many of these reasons,” the court noted, “measuring

gerrymanders can be elusive, problematic, and beyond the consensus of political

scientists.”

¶ 60 The trial court also noted Dr. Taylor’s opinion that the “significant change in

North Carolina’s political geography over the past thirty years . . . ‘is not the result

of redistricting[,]’ ” but is instead “a function of slow social and economic forces,

changes in the state’s citizenry, and party ideology.” As with Dr. Barber’s similar

conclusion noted above, the trial court again later explicitly rejected Dr. Taylor’s

conclusions regarding the impact of political geography on the enacted maps.

¶ 61 Legislative Defendants’ Rebuttal Expert Sean Trende. “Mr. Trende was

qualified and accepted as an expert at trial in the areas of political science,

redistricting, drawing redistricting maps[,] and analyzing redistricting maps.” The

trial court noted that Mr. Trende used color-coded maps of North Carolina counties

“noting the number of counties in which a majority of voters voted for the Republican

presidential candidate in the past decade (between 70 and 76 counties) and whether

the Republican candidate performed better in a county than nationally.” It is unclear

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how, if at all, the trial court considered Mr. Trende’s testimony. This concluded the

trial court’s review of the expert testimony.

¶ 62 After considering the analysis of each expert, the trial court engaged in a

district-by-district analysis of each of the three enacted maps: those for the North

Carolina Senate, North Carolina House, and Congress, respectively.

¶ 63 North Carolina Senate Districts. The trial court found that the following

North Carolina Senate district groupings minimized Democratic districts and

maximized safe Republican districts through the “packing” and “cracking” of

Democratic voters as the “result of intentional, pro-Republican partisan

redistricting”: the Granville-Wake Senate County Grouping; the Cumberland-Moore

Senate County Grouping; the Guilford-Rockingham Senate County Grouping; the

Forsyth-Stokes Senate County Grouping; the Iredell-Mecklenburg Senate County

Grouping; the Northeastern Senate County Grouping (Bertie County, Camden

County, Currituck County, Dare County, Gates County, Hertford County,

Northampton County, Pasquotank County, Perquimans County, Tyrrell County,

Carteret County, Chowan County, Halifax County, Hyde County, Martin County,

Pamlico County, Warren County, and Washington County); and the Buncombe-

Burke-McDowell Senate County Grouping. The trial court did not find any of the

Senate district groupings to not be the result of intentional, pro-Republican

redistricting through packing and cracking.

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¶ 64 North Carolina House of Representatives District. The trial court found

that the following North Carolina House district groupings minimized Democratic

districts and maximized safe Republican districts through the “packing” and

“cracking” of Democratic voters as the “result of intentional, pro-Republican partisan

redistricting”: the Guilford House County Grouping; the Buncombe House County

Grouping; the Mecklenburg House County Grouping; the Pitt House County

Grouping; the Durham-Person House County Grouping; the Forsyth-Stokes House

County Grouping; the Wake House County Grouping; the Cumberland House County

Grouping; and the Brunswick-New Hanover House County Grouping. Notably,

however, the trial court found the Duplin-Wayne House County Grouping and the

Onslow-Pender House County Grouping “to not be the result of intentional, pro-

Republican partisan redistricting.”

¶ 65 North Carolina Congressional Districts. Next, the trial court found “that

the 2021 Congressional plan is a partisan outlier intentionally and carefully designed

to maximize Republican advantage in North Carolina’s Congressional delegation.”

The court found that the enacted congressional map “fails to follow and subordinates

the Adopted Criteria’s requirement[s]” regarding splitting counties and VTDs.

Further, the court found

that the enacted congressional plan fails to follow, and

subordinates, the Adopted Criteria’s requirement to draw

compact districts. The [c]ourt [found] that the enacted

congressional districts are less compact than they would be

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under a map-drawing process that adhered to the Adopted

Criteria and prioritized the traditional districting criteria

of compactness.

Further, “when compared to the 1,000 computer-simulated plans[,]” the court found

that “the enacted congressional plan is a statistical outlier” in regard to the total

number of Republican-favoring districts it creates.

¶ 66 Next, the court noted four types of analyses in particular that confirm the

“extreme partisan outcome” of the congressional map that “cannot be explained by

North Carolina’s political geography or by adherence to Adopted Criteria”: (1) “mean-

median difference” analysis ; (2) “efficiency gap” analysis (“measur[ing] . . . the degree

to which more Democratic or Republican votes are wasted across an entire districting

plan”); (3) “the lopsided margins test”; and (4) “partisan symmetry” analysis. Based

on these methods, the trial court found “that the enacted congressional plan

subordinates the Adopted Criteria and traditional redistricting criteria for partisan

advantage.”

¶ 67 Next, the trial court considered “whether the congressional plan is a statistical

partisan outlier at the regional level.” Here, the court found “that the enacted

congressional plan’s districts in each region examined exhibit[ed] political bias when

compared to the computer-simulated districts in the same regions.” These included

the Piedmont Triad area, the Research Triangle area, and the Mecklenburg County

area. “The [c]ourt [found] that the packing and cracking of Democrats in [these

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regions] could not have resulted naturally from the region’s political geography or the

districting principles required by the Adopted Criteria.” “The enacted congressional

map[,]” the court determined, “was therefore designed in order to accomplish the

legislature’s predominant partisan goals.” Later, the court again confirmed “that the

enacted congressional plan’s partisan bias goes beyond any ‘natural’ level of electoral

bias caused by North Carolina’s political geography or the political composition of the

state’s voters, and this additional level of partisan bias . . . can be directly attributed

to the map-drawer’s intentional efforts to favor the Republican Party.”

¶ 68 Next, as it did for the North Carolina House and Senate districts, the trial

court engaged in a district-by-district analysis of all fourteen enacted congressional

districts. After individual analysis, the court found all fourteen districts “to be the

result of intentional, pro-Republican partisan redistricting.”

¶ 69 Finally, the trial court noted that “elections are decided by any number of

factors.” Statistical analyses, the court observed, “treat the candidates as inanimate

objects” and “assume that voters will vote along party lines.” In essence, the court

doubted that a computer analysis could ever “take the human element out of the

human.” “Notwithstanding these doubts,” though, the court “conclude[d] based upon

a careful review of all of the evidence that the Enacted Maps are a result of

intentional, pro-Republican partisan redistricting.” This concluded the court’s factual

findings regarding plaintiffs’ partisan gerrymandering claims.

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b. Plaintiffs’ Intentional Racial Discrimination and Racial Vote Dilution

Claims

¶ 70 Second, the trial court considered plaintiffs’ intentional racial discrimination

and racial vote dilution claims. Beginning with intentional racial discrimination, the

court found that “[t]here is no express language showing discriminatory intent within

the text of the session laws establishing the Enacted Plans.” Next, the court noted

plaintiffs’ circumstantial evidence of racial discrimination, including testimony from

plaintiff Common Cause’s expert James Leloudis II, regarding the historical

connection between North Carolina’s past racial gerrymandering practices and the

current plans.

¶ 71 The trial court then considered plaintiffs’ racial vote dilution claims. After

reviewing the evidence presented by plaintiffs’ and Legislative Defendants’ experts

on this matter, the court found that “[r]ace was not the predominant, overriding factor

in drawing the districts in the Enacted Plans.” The court found that “[t]he General

Assembly did not subordinate traditional race-neutral districting principles,

including compactness, contiguity, and respect for political subdivisions to racial

considerations.” Accordingly, the court found that a district-by-district analysis of

racial vote dilution, as it had previously performed for the extreme partisan

gerrymandering claim, was not necessary. This concluded the trial court’s findings

regarding plaintiffs’ intentional racial discrimination and racial vote dilution claims.

c. Plaintiffs’ Whole County Provision Claims

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¶ 72 Finally, the court made findings regarding plaintiffs’ whole county provision

claim. Here, the court noted that under the enacted plans, 35 senate districts and 107

North Carolina House districts split counties. The court observed that the Senate

districts divided 15 total counties, while the House districts divided 37 total counties.

The court noted that in instances where “multiple county groupings were possible

under the Supreme Court’s interpretation of the Whole County Provision[,] . . .

groupings were chosen from the range of legally possible groupings.” “Within each

remaining county grouping containing a district challenged under the Whole County

Provision,” the court found, “the district line’s traversal of a county line occurs

because of the need to comply with the equal-population rule required by law and

memorialized in the Adopted Criteria.”

2. Trial Court’s Conclusions of Law

¶ 73 After making these extensive findings of fact, the trial court concluded as a

matter of law that claims of extreme partisan gerrymandering present purely

political questions that are nonjusticiable under the North Carolina Constitution.

Accordingly, the court concluded that the enacted maps are not unconstitutional as a

result of partisan gerrymandering.

a. Standing

¶ 74 First, the court addressed plaintiffs’ standing to bring their various claims.

Because “[i]ndividual private citizens and voters of a county have standing to sue to

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seek redress from an alleged violation of N.C. Const. art II, §§ 3 and 5[,]” the court

held, “the Individual NCLCV Plaintiffs challenging a district based upon the Whole

County Provision have standing.” However, based on its legal conclusion that

“Plaintiffs have not stated any cognizable claim for partisan gerrymandering under

the various provisions of the North Carolina Constitution[,]” the court concluded that

all plaintiffs lack standing for these claims.

¶ 75 Finally, the court addressed NCLCV Plaintiffs’ and Common Cause Plaintiffs’

standing to bring claims of intentional racial discrimination and racial vote dilution

under the North Carolina Constitution. Because the court found “there to be no

factual basis underlying these asserted claims,” it concluded that “there is a lack of

the requisite ‘direct injury’—i.e., the deprivation of a constitutionally guaranteed

personal right. Accordingly, [the court concluded that] these Plaintiffs do not have

standing for these claims.” Similarly, the court concluded that “Plaintiff Common

Cause lacks standing for its claim requesting a declaratory judgment . . . directing

the legislative process to be undertaken in redistricting.”

b. Partisan Gerrymandering Claims

¶ 76 Next, the court addressed plaintiffs’ partisan gerrymandering claims under

various provisions of the North Carolina Constitution. Here, the court determined

that plaintiffs’ claims amounted to political questions that are nonjusticiable under

the North Carolina Constitution. Specifically, after surveying the history of the

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constitutional provisions under which plaintiffs brought their claims, the court

concluded that “redistricting is an inherently political process” that “is left to the

General Assembly.”

¶ 77 The court then addressed each of plaintiffs’ constitutional claims. First, the

court held that the enacted maps do not violate the free elections clause, which

mandates that “[a]ll elections shall be free.” N.C. Const. art. I, § 10. The court noted

that “[w]hile the Free Elections Clause has been part of our constitutional

jurisprudence since the 1776 Constitution, there are very few reported decisions that

construe the clause.” Based on a survey of the clause’s history, the court “conclude[d]

that the Free Elections Clause does not operate as a restraint on the General

Assembly’s ability to redistrict for partisan advantage.”

¶ 78 Second, the trial court addressed plaintiffs’ claims under the free speech clause

and the equal protection clause. After reviewing the historical background of the

addition of these clauses to the constitution in 1971, the court concluded that “the

incorporation of the Free Speech Clause and the Equal Protection Clause to the North

Carolina Constitution of 1971 was not intended to bring about a fundamental change

to the power of the General Assembly.” Accordingly, the court refused to “assume that

. . . the Equal Protection Clause and Free Speech Clause impose new restrictions on

the political process of redistricting.”

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¶ 79 From this historical foundation, the court concluded that “the Enacted Maps

do not violate the Equal Protection Clause.” The court concluded that although “[i]t

is true that there is a fundamental right to vote[,] . . . [r]edistricting and the political

considerations that are part of that process do not impinge on the right to vote.

Nothing about redistricting affects a person’s right to cast a vote.” Accordingly, and

because political affiliation is not a suspect class, the court concluded that “[a]ny

impingement is limited and distant and as such is subject to rational basis review.”

The court then concluded “that the plans are amply supported by a rational basis and

thus do not violate the Equal Protection Clause.”

¶ 80 Third, the court likewise concluded that “the Enacted Plans do not violate the

Free Speech Clause.” Specifically, the court concluded that “plaintiffs are free to

engage in speech no matter what the effect the Enacted Plans have on their district.”

¶ 81 Fourth, the trial court concluded that “the Enacted Plans do not violate the

Right of Assembly Clause.” Specifically, the court noted that “Plaintiffs remain free

to engage in their associational rights and rights to petition no matter what effect the

Enacted Plans have on their district.”

¶ 82 In total, the trial court concluded that “[t]he objective constitutional

constraints that the people of North Carolina have imposed on legislative

redistricting are found in Article II, Sections 3 and 5 of the 1971 Constitution and not

in the Free Elections, Equal Protection, Freedom of Speech[,] or Freedom of Assembly

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Clauses found in Article I of the 1971 Constitution.” “Therefore, the [c]ourt

conclude[d] that our Constitution does not address limitations on considering

partisan advantage in the application of its discretionary redistricting decisions and

Plaintiffs’ claims on the basis of ‘extreme partisan advantage’ fail.”

c. Justiciability

¶ 83 Next, the court again addressed justiciability. First, the court considered

whether the North Carolina Constitution delegates the responsibility and oversight

of redistricting exclusively to the General Assembly. Citing article II, sections 3, 5,

and 20, the court concluded that “[t]he constitutional provisions relevant to the issue

before [it] establish that redistricting is in the exclusive province of the legislature.”

¶ 84 Second, the court considered “whether satisfactory and manageable criteria or

standards exist for judicial determination of the issue.” Here, relying on its analysis

of the Supreme Court of the United States in Rucho, 139 S. Ct. at 2506–07, regarding

the justiciability of partisan gerrymandering claims in federal courts, the trial court

“determine[d] that satisfactory and manageable criteria or standards do not exist for

judicial determination of the issue and thus the partisan gerrymandering claims

present a political issue beyond our reach.”

¶ 85 In reaching this conclusion, the court noted that it

agree[s] with the United States Supreme Court that

excessive partisanship in districting leads to results that

are incompatible with democratic principles. Rucho, 139 S.

Ct[.] at 2504. Furthermore, it has the potential to violate

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“the core principle of republican government . . . that the

voters should choose their representatives, not the other

way around.” Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n, 567 U.S. 787, 824 . . . (2015). Also,

it can represent “an abuse of power that, at its core, evinces

a fundamental distrust of voters, serving the self-interest

of the political parties at the expense of the public good.”

LULAC v. Perry, 548 U.S. 399, 456 . . . (2006) (Stevens, J.[,]

concurring in part and dissenting in part) (quotation and

citation omitted)).

The Court then added that it “neither condones the enacted maps nor their

anticipated potential results” and that it has a “disdain for having to deal with issues

that potentially lead to results incompatible with democratic principles and subject

our State to ridicule.” Nevertheless, the court concluded that because redistricting “is

one of the purest political questions which the legislature alone is allowed to

answer[,]” judicial action “in the manner requested . . . would be usurping the political

power and prerogatives of an equal branch of government.” Accordingly, the trial

court concluded that plaintiffs’ partisan gerrymandering claims are nonjusticiable.

d. Intentional Racial Discrimination and Racial Vote Dilution

¶ 86 Next, the trial court addressed plaintiffs’ claims of intentional racial

discrimination and racial vote dilution. The court “conclude[d] that based upon the

record before [it], Plaintiffs have failed to prove the merit of their claim.”

¶ 87 Here, the court noted that “[t]he North Carolina Constitution’s guarantees of

‘substantially equal voting power’ and ‘substantially equal legislative representation’

are violated when a redistricting plan deprives minority voters of ‘a fair number of

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districts in which their votes can be effective,’ measured based on ‘the minority’s

rough proportion of the relevant population[,]’ ” quoting Bartlett v. Strickland, 556

U.S. 1, 28–29 (2009) (Souter, J., dissenting). The court then stated that “[a]n act of

the General Assembly can violate North Carolina’s Equal Protection Clause if

discriminatory purpose was ‘a motivating factor.’ ” “And whether discriminatory

purpose was a motivating factor[,]” the court observed, “can be ‘inferred from the

totality of the relevant facts, including the fact, if it is true, that the law bears more

heavily on one race than another.’ ” “To determine whether this is true,” the court

stated, “the court may weigh the law’s historical background, the sequence of events

leading up to the law, departures from normal procedure, legislative history, and the

law’s disproportionate impact.”

¶ 88 Based upon these standards, the court then concluded that “NCLCV Plaintiffs

and Plaintiff Common Cause have failed to satisfy their burden of establishing that

race was the predominant motive behind the way in which the Enacted Plans were

drawn.” The court first reached this conclusion based on plaintiffs’ “fail[ure] to show

a predominant racial motive through direct [or circumstantial] evidence.” Second, the

court concluded, “Plaintiffs have failed to establish that the General Assembly failed

to adhere to traditional districting principles on account of racial considerations.”

Third, the court concluded that “Plaintiffs have failed to make the requisite

evidentiary showing that the General Assembly sought to dilute the voting strength

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of Blacks based upon their race, or that Blacks have less of an opportunity to vote for

or nominate members of the electorate less than those of another racial group.”

Although the court agreed with plaintiffs’ showing “that a substantial number of

Black voters are affiliated with the Democratic Party[,]” it nevertheless concluded

that plaintiffs had not shown

how the General Assembly targeted this group on the basis

of race instead of partisanship. Black voters who also

happen to be Democrats have therefore been grouped into

the partisan intent of the General Assembly. There is

nothing in the evidentiary record before th[e] [c]ourt

showing that race and partisanship were coincident goals

predominating over all other factors in redistricting.

Accordingly, the court rejected plaintiffs’ claims of intentional racial discrimination

within the enacted plans.

¶ 89 Second, the court addressed plaintiffs’ claims of racial vote dilution in violation

of the free elections clause. Having previously concluded that the free elections clause

should be narrowly interpreted to not apply in the redistricting context, the court

concluded that “NCLCV Plaintiffs’ claim that the Enacted Plans unnecessarily dilute

the voting power of citizens on account of race in violation of the Free Elections Clause

of Art. I, § 10 is without an evidentiary or legal basis.” Accordingly, the court rejected

this claim.

e. Whole-County Provision Claims

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¶ 90 Next, the trial court addressed plaintiffs’ claims under the whole county

provision of article II, sections 3 and 5 of the North Carolina Constitution. Although

the boundaries of certain legislative districts under the enacted plans indeed crossed

county lines, the court “conclude[d] that the counties grouped and then divided in the

formation of the specific districts at issue for this claim were the minimum necessary,

and contained the minimum number of traversals and maintained sufficient

compactness, to comply with the one-person-one-vote standard in such a way that it

met the equalization of population requirements set forth in Stephenson v. Bartlett,

355 N.C. 354, 383[–]84 . . . (2002).” Accordingly, the court “conclude[d] that the

manner by which the counties at issue for this specific claim were traversed was not

unlawful because it was predominantly for traditional and permissible redistricting

principles, including for partisan advantage, which are allowed to be taken into

account in redistricting.”

f. Declaratory Judgment Claim

¶ 91 Finally, the trial court addressed plaintiff Common Cause’s declaratory

judgment claim regarding the redistricting process laid out in Stephenson and

Dickson v. Rucho, 368 N.C. 481 (2015). On this issue, the court stated that “[t]he

requirement in Stephenson that districts required by the VRA be drawn first was put

in place to alleviate the conflict and tension between the WPC and VRA.” But, the

court noted, “[t]here is nothing in Stephenson that requires any particular analysis

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prior to making a decision as to whether VRA districts are necessary.” Accordingly,

the court concluded that “[t]he fact is, whether correct or not, the Legislative

Defendants made a decision that no VRA Districts are required.” The court then

stated that, in this situation, “[w]hat Plaintiff Common Cause asks of this [c]ourt is

to impose a judicially-mandated preclearance requirement . . . [that] does not exist in

Stephenson.” Therefore, the court concluded as a matter of law “that Plaintiff

Common Cause is not entitled to a Declaratory Judgment or Injunctive Relief.”

3. Trial Court’s Decree

¶ 92 Following these extensive factual findings and conclusions of law, the trial

court issued its ultimate decree. Specifically, the trial court ordered that (1) plaintiffs’

requests for declaratory judgment are denied; (2) plaintiffs’ requests for permanent

injunctive relief are denied; (3) the court’s judgment fully and finally resolves all

claims of plaintiffs, judgment is entered in favor of Legislative Defendants, and

plaintiffs’ claims are dismissed with prejudice; and (4) the candidate filing period for

the 2022 primary and municipal elections is set to resume at 8:00 a.m. on Thursday,

24 February 2022, and shall continue through and end at 12:00 noon on Friday, 4

March 2022.

D. Present Appeal

¶ 93 Pursuant to this Court’s 8 December 2021 order certifying the case for

discretionary review prior to determination by the Court of Appeals, all plaintiffs filed

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notices of appeal to this Court from the trial court’s final judgment on 11 and 12

January 2022. The parties’ briefs and arguments before this Court largely echoed the

arguments made before the trial court. Namely, plaintiffs asserted that the enacted

plans constitute extreme partisan gerrymandering in violation of the free elections

clause, equal protection clause, free speech clause, and freedom of assembly clause of

the North Carolina Constitution and that these state constitutional claims were

justiciable in state court. Legislative Defendants argued that plaintiffs’ claims

presented nonjusticiable political questions and therefore did not violate any of the

asserted state constitutional provisions. The Court also accepted amicus briefs from

several interested parties. Due to the time-sensitive nature of this case, oral

arguments were calendared and heard in a special session on 2 February 2022.

II. Legal Analysis

¶ 94 Now, this Court must determine whether plaintiffs’ claims are justiciable

under the North Carolina Constitution and, if so, whether Legislative Defendants’

enacted plans for congressional and state legislative districts violate the free elections

clause, equal protection clause, free speech clause, and freedom of assembly clause of

our constitution. After careful consideration, we conclude that partisan

gerrymandering claims are justiciable under the North Carolina Constitution and

that Legislative Defendants’ enacted plans violate each of these provisions of the

North Carolina Constitution beyond a reasonable doubt.

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A. Standing

¶ 95 As a threshold issue, we must determine whether plaintiffs have standing to

bring their claims. As noted above, the trial court ruled that individual NCLCV

Plaintiffs had standing to challenge the enacted plans under the whole county

provision but that plaintiffs lacked standing to bring their partisan gerrymandering

claims because they had “not stated any cognizable claim for partisan

gerrymandering under the various provisions of the North Carolina Constitution.”

The court further determined that NCLCV Plaintiffs and plaintiff Common Cause

likewise lacked standing to bring their intentional racial discrimination and racial

vote dilution claims under the North Carolina Constitution. Specifically, the court

ruled that “[b]ecause . . . there [is] no factual basis underlying these asserted claims,

there is a lack of the requisite ‘direct injury’—i.e., the deprivation of a constitutionally

guaranteed personal right.”

¶ 96 We cannot agree. As this Court held in Committee to Elect Dan Forest v.

Employees Political Action Committee, “the federal injury-in-fact requirement has no

place in the text or history of our Constitution.” 376 N.C. 558, 2021-NCSC-6, ¶ 73.

Rather, in the case of direct constitutional challenges to statutes or other acts of

government, we require only the requisite “concrete adverseness which sharpens the

presentation of issues upon which the court so largely depends for illumination of

difficult constitutional questions.” Id. ¶ 64 (quoting Stanley v. Dep’t of Cons. and Dev.,

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284 N.C. 15, 28 (1973)). Accordingly, as a “prudential principle of judicial self-

restraint” and not as a limitation on the judicial power, we have required that a

person challenging government action be directly injured or adversely affected by it.

Id. ¶ 63. This prudential requirement that the person challenging a statute be

directly injured or adversely affected thereby is purely to ensure that the putative

injury belongs to them and not another, and hence that they “can be trusted to battle

the issue.” Id. ¶ 64 (citing Stanley, 284 N.C. at 28). Accordingly, “[t]he ‘direct injury’

required in this context could be, but is not necessarily limited to, ‘deprivation of a

constitutionally guaranteed right or an invasion of his property rights,’ ” id. ¶ 62

(emphasis added), and “[w]hen a person alleges the infringement of a legal

right . . . arising under . . . the North Carolina Constitution, . . . the legal injury itself

gives rise to standing,” id. ¶ 82 (emphasis added). This direct injury requirement does

not require a showing that a party will in fact prevail under the constitutional theory

they advance. Rather, alleging the violation of a legal right which belongs to them,

even if widely shared with others and even if they are not entitled to relief under their

theory of the legal right, is sufficient to show the requisite “concrete adverseness” in

our courts which we, for purely pragmatic reasons, require in the resolution of

constitutional questions. To hold otherwise would resuscitate an injury-in-fact

requirement as a barrier to remedy by the courts in another form.

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¶ 97 The trial court contravened the concrete adverseness rationale for the direct

injury requirement by concluding that plaintiffs lacked standing because their

partisan gerrymandering claims, which they contended violated their constitutional

rights under the free elections clause, equal protection clause, free speech clause, and

freedom of assembly clause, were not “cognizable.”6 The allegation of violations of

these constitutional rights was sufficient to generate an actual controversy and hence

concrete adverseness, whether or not their theory of the violation ultimately

prevailed in the courts. For example, in Baker v. Carr, from which this Court in part

derived its concrete adverseness rationale, see Comm. to Elect Dan Forest, ¶ 64, the

Supreme Court of the United States announced for the first time that claims of vote

dilution were cognizable and justiciable under the Equal Protection Clause. See

generally Baker v. Carr, 369 U.S. 186 (1962); see also Comm. to Elect Dan Forest, ¶

46 (“[T]he only injury asserted [in Baker] is the impairment of a constitutional right

broadly shared and divorced from any ‘factual’ harm experienced by the plaintiffs”).

The constitutional right to equal protection of the laws existed although the Baker

Court had not yet extended it to the precise theory the plaintiffs advanced. Similarly,

here, the plaintiffs all had standing to challenge the maps based on their allegation

of violations of their constitutional rights under the free elections clause, equal

6 The trial court also conflated the existence of a “cognizable” claim under the state

constitution with one that is justiciable. A claim may violate the constitution yet not be

justiciable because it is a political question.

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protection clause, free speech clause, and freedom of assembly clause of our

Declaration of Rights, which are injuries to legal rights that they directly suffered,

irrespective of whether courts previously or the court below determined their

particular theory under those rights ultimately entitled them to prevail.

¶ 98 Finally, the court also determined that “the organizational Plaintiffs each seek

to vindicate rights enjoyed by the organization under the North Carolina

Constitution” and that “organizational Plaintiffs each have members who would

otherwise have standing to sue in their own right, the interests each seeks to protect

are germane to the organization’s purpose, and neither the claim asserted nor the

relief requested requires the participation of individual members in the lawsuit.” We

agree.

¶ 99 Taken together, the trial court’s findings are sufficient to establish that each

individual and organizational plaintiff here meets the standing requirements under

the North Carolina Constitution as summarized above. Accordingly, the trial court

erred in ruling to the contrary.

B. The Political Question Doctrine

¶ 100 We next address Legislative Defendants’ contention that plaintiffs’ claims

present only nonjusticiable political questions. Whether partisan gerrymandering

claims present a nonjusticiable “purely political question” under North Carolina law

is a question of first impression. We have held that certain claims raising “purely

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political question[s]” are “nonjusticiable under separation of powers principles.” Hoke

Cnty. Bd. of Educ. v. State, 358 N.C. 605, 618 (2004). Purely political questions are

those questions which have been wholly committed to the “sole discretion” of a

coordinate branch of government, and those questions which can be resolved only by

making “policy choices and value determinations.” Bacon v. Lee, 353 N.C. 696, 717

(2001) (quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986)).

Purely political questions are not susceptible to judicial resolution. When presented

with a purely political question, the judiciary is neither constitutionally empowered

nor institutionally competent to furnish an answer. See Hoke Cnty. Bd. of Educ., 358

N.C. at 638–39 (declining to reach the merits after concluding that “the proper age at

which children should be permitted to attend public school is a nonjusticiable political

question reserved for the General Assembly”).

¶ 101 The trial court and Legislative Defendants rely in part on Rucho and other

federal cases. These cases may be instructive, but they are certainly not controlling.

We have previously held that “[w]hile federal standing doctrine can be instructive as

to general principles . . . and for comparative analysis, the nuts and bolts of North

Carolina standing doctrine are not coincident with federal standing doctrine.”

Goldston v. State, 361 N.C. 26, 35 (2006). This principle extends to all justiciability

doctrines. “Federal justiciability doctrines—standing, ripeness, mootness, and the

prohibition against advisory opinions—are not explicit within the constitutional text,

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but are the fruit of judicial interpretation of Article III’s extension of the ‘judicial

Power’ to certain ‘Cases’ or ‘Controversies.’ ” Comm. to Elect Dan Forest, 376 N.C.

558, 2021-NCSC-6, ¶ 35. Originally, federal courts showed great reluctance to involve

themselves in policing redistricting practices at all. The result was both the grossly

unequal apportionment of representation of legislative and congressional seats and

the drawing of district lines in pursuit of partisan advantage.7 The judicial

repudiation of any role in redistricting was summarized in Colegrove v. Green, where

the Supreme Court declared a challenge to the drawing of congressional districting

lines in Illinois nonjusticiable under the Fourteenth Amendment. 328 U.S. 549, 556

(1946). Writing for the Court, Justice Frankfurter reasoned that “effective working of

our Government revealed this issue to be of a peculiarly political nature and therefore

not [fit] for judicial determination.” Id. at 552. “Authority for dealing with such

problems resides elsewhere.” Id. at 554. The Court concluded, revealing the

prudential basis of its reasoning, that “[c]ourts ought not to enter this political

7 Before the “reapportionment revolution” of Baker v. Carr and its progeny in the

1960s, “states had much more leeway over when, and even if, to redraw district boundaries.

One result was that in many states, district lines remained frozen for decades—often leading

to gross inequalities in district populations and substantial partisan biases.” Erik J.

Engstrom, Partisan Gerrymandering and the Construction of American Democracy 13 (2013).

“Connecticut, for instance, kept the exact same congressional district lines for 70 years (1842–

1912).” Id. at 8. Other state legislatures redrew maps whenever they wanted. “In every year

from 1862 to 1896, with one exception, at least one state redrew its congressional district

boundaries. Ohio, for example, redrew its congressional district boundaries six times between

1878 and 1890.” Id. Moreover, “parties were willing to push partisan advantage to the edge.

To do so, partisan mapmakers carved states into districts with narrow, yet winnable,

margins.” Id.

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thicket.” Id. at 556 (emphasis added).

¶ 102 In the landmark decision of Baker v. Carr, the Supreme Court reversed course

and held in a case involving claims that malapportionment violates the Equal

Protection Clause of the Fourteenth Amendment that such claims are justiciable

since they do not present political questions. 369 U.S. 186, 209 (1962). The Baker

Court began its justiciability analysis by noting that “the mere fact that the suit seeks

protection of a political right does not mean it presents a political question. Such an

objection is little more than a play upon words.” Id. (cleaned up). After reviewing

cases to discern the threads that, in various formulations, comprise a nonjusticiable

political question, the Court identified what has become the standard definition of

the political question doctrine under federal law:

Prominent on the surface of any case held to involve a

political question is found a textually demonstrable

constitutional commitment of the issue to a coordinate

political department; or a lack of judicially discoverable

and manageable standards for resolving it; or the

impossibility of deciding without an initial policy

determination of a kind clearly for nonjudicial discretion;

or the impossibility of a court’s undertaking independent

resolution without expressing lack of the respect due

coordinate branches of government; or an unusual need for

unquestioning adherence to a political decision already

made; or the potentiality of embarrassment from

multifarious pronouncements by various departments on

one question.

Id. at 217. The Court in Baker held that the plaintiffs’ claim under the Equal

Protection Clause, unlike prior claims under the Guaranty Clause, was justiciable

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because it presented, inter alia, “no question decided, or to be decided, by a political

branch of government coequal with th[e] Court” and no “policy determinations for

which judicially manageable standards are lacking,” as “[j]udicial standards under

the Equal Protection Clause are well developed and familiar,” which are “that a

discrimination reflects no policy, but simply arbitrary and capricious action.” Id. at

226. Accordingly, over a dissent written by Justice Frankfurter and joined by Justice

Harlan, the Court entered the political thicket. The Court did not in that decision

announce a remedy for the violation of the Equal Protection Clause but in later cases

held that the principle of “one person, one vote” required as close to mathematical

equality as practicable in the drawing of congressional districts and “substantial

equality” in the drawing of legislative districts. Cf. Wesberry v. Sanders, 376 U.S. 1,

7–8 (1964) (holding that “as nearly as is practicable one man’s vote in a congressional

election is to be worth as much as another’s”); Reynolds v. Sims, 377 U.S. 533, 579

(1964) (“So long as the divergences from a strict population standard are based on

legitimate considerations incident to the effectuation of a rational state policy, some

deviations from the equal-population principle are constitutionally permissible with

respect to the apportionment of seats in either or both of the two houses of a bicameral

state legislature.”).

¶ 103 Although federal courts concluded that malapportionment claims were

justiciable, the Supreme Court of the United States did not expressly hold that a

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partisan gerrymandering claim was justiciable until Davis v. Bandemer, where it

held that a partisan gerrymandering claim existed under the Fourteenth Amendment

that did not present a nonjusticiable political question.8 478 U.S. 109, 124 (1986)

(plurality opinion), abrogated by Rucho, 139 S. Ct. 2484. The plurality opinion in

Bandemer identified the claim as being “that each political group in a State should

have the same chance to elect representatives of its choice as any other political

group,” and although the claim was distinct from that in Reynolds involving districts

of unequal size, “[n]evertheless, the issue is one of representation, and we decline to

hold that such claims are never justiciable.” Id. The plurality adopted as a test that

“unconstitutional discrimination occurs only when the electoral system is arranged

in a manner that will consistently degrade a voter’s or a group of voters’ influence on

the political process as a whole.” Id. at 132. Justice O’Connor concurred in the

judgment, arguing in part that the Court’s decision would result in a requirement for

“roughly proportional representation.”9 Id. at 147 (O’Connor, J., concurring in the

judgment).

8 As noted in the plurality opinion in Bandemer, the Supreme Court did address a

partisan gerrymandering claim in Gaffney v. Cummings, by holding that a districting plan

which incorporated a “political fairness principle” across the plan did not violate the Equal

Protection Clause; however, no concern about justiciability was raised in Gaffney. 412 U.S.

735, 751–52 (1973).

9 The plurality responded that their decision did not reflect “a preference for

proportionality per se but a preference for a level of parity between votes and representation

sufficient to ensure that significant minority voices are heard and that majorities are not

consigned to minority status.” Davis v. Bandemer, 478 U.S. 109, 125 n.9 (1986).

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¶ 104 Eighteen years later the Supreme Court overruled Bandemer in Vieth v.

Jubelirer, 541 U.S. 267 (2004), a challenge to Pennsylvania’s 2001 congressional

redistricting plan on the grounds that it was a political gerrymander. Justice Scalia

wrote the plurality opinion, in which three other justices joined, and would have also

held partisan gerrymandering claims to be nonjusticiable political questions because

they lack a “judicially discernable and manageable standard[,]” id. at 306—“judicially

discernible in the sense of being relevant to some constitutional violation[,]” id. at

288. Justice Kennedy concurred in the judgment but refused to hold partisan

gerrymandering nonjusticiable because “in another case a standard might emerge.”

Id. at 312 (Kennedy, J., concurring in the judgment).

¶ 105 In Rucho, completing its retreat from Bandemer, the Supreme Court of the

United States abandoned the field in policing partisan gerrymandering claims. The

Supreme Court held that claims alleging that North Carolina’s and Maryland’s

congressional districts were unconstitutionally gerrymandered for partisan gain were

nonjusticiable in federal court. Rucho, 139 S. Ct. at 2493–2508. It reached this

conclusion because it could find “no legal standards discernible in the [United States]

Constitution for” resolving partisan gerrymandering claims, “let alone limited and

precise standards that are clear, manageable, and politically neutral.” Id. at 2500.

¶ 106 Three concerns appear to have motivated the Court in Rucho. The first premise

which concerned the Court in Rucho was the absence of a “judicially discernable”

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standard, that is, one that is “relevant to some constitutional violation.” Vieth, 541

U.S. at 288; see Rucho, 139 S. Ct. at 2507 (“ ‘[J]udicial action must be governed by

standard, by rule,’ and must be ‘principled, rational, and based upon reasoned

distinctions’ founded in the [United States] Constitution or laws.” (first alteration in

original) (quoting Vieth, 541 U.S. at 278)). In essence, the Supreme Court concluded

that no provision of the United States Constitution supplied a cognizable legal basis

for challenging the practice of partisan gerrymandering. See, e.g., Rucho, 139 S. Ct.

at 2501 (“[T]he one-person, one-vote . . . requirement does not extend to political

parties.”); id. at 2502 (“[O]ur racial gerrymandering cases [do not] provide an

appropriate standard for assessing partisan gerrymandering.”); id. at 2504 (“[T]here

are no restrictions on speech, association, or any other First Amendment activities in

the districting plans at issue.”); id. at 2506 (“The North Carolina District Court

further concluded that the 2016 Plan violated the Elections Clause and Article I, § 2.

We are unconvinced by that novel approach.”).

¶ 107 The second premise underpinning Rucho’s political-question holding was the

absence of a standard that the Court deemed to be “clear, manageable[,] and

politically neutral.” Id. at 2500. This rationale was particularly pressing because,

“while it is illegal for a jurisdiction to depart from the one-person, one-vote rule, or to

engage in racial discrimination in districting, ‘a jurisdiction may engage in

constitutional political gerrymandering’ ” under federal law. Id. at 2497 (quoting

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Hunt v. Cromartie, 526 U.S. 541, 551 (1999)). According to the Court, “the question

is one of degree,” and “it is vital in such circumstances that the Court act only in

accord with especially clear standards.” Id. at 2498. However, the Court held the

plaintiffs had not supplied standards to answer the question, “At what point does

permissible partisanship become unconstitutional?” Id. at 2501. Moreover, the tests

adopted by the lower courts were unsatisfactory because they failed to articulate such

a standard that was sufficiently “clear” and “manageable.” Id. at 2503–05. Finally,

the dissent’s proposed test, using “a State’s own districting criteria as a neutral

baseline” was unmanageable because “it does not make sense to use criteria that will

vary from State to State and year to year.” Id. at 2505.

¶ 108 A third consideration animating the Court’s decision was a prudential

evaluation of the role of federal courts in the constitutional system. Rucho, 139 S. Ct.

at 2494 (framing the question presented as “whether there is an ‘appropriate role for

the Federal Judiciary’ in remedying the problem of partisan gerrymandering”

(emphasis added) (quoting Gill v. Whitford, 138 S. Ct. 1916, 1926 (2018))); id. at 2507

(“Consideration of the impact of today’s ruling on democratic principles cannot ignore

the effect of the unelected and politically unaccountable branch of the Federal

Government assuming such an extraordinary and unprecedented role.”); id.

(advocating action through states, including by state supreme courts on state law

grounds); id. at 2508 (suggesting Congress could act); id. at 2499 (“But federal courts

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are not equipped to apportion political power as a matter of fairness, nor is there any

basis for concluding that they were authorized to do so.”).

¶ 109 In summary, federal courts initially forswore virtually any role in the “political

thicket” of apportionment. See Colegrove, 328 U.S. at 556. However, in Baker and its

progeny, the Supreme Court of the United States entered that thicket at least to the

extent of policing malapportionment. See Baker, 369 U.S. 186. The Court’s reasons

for entering the thicket are relevant today: the Supreme Court recognized that absent

its intervention to enforce constitutional rights, our system of self-governance would

be representative and responsive to the people’s will in name only. The Court entered

the political thicket for a time as well to review partisan gerrymandering claims in

Bandemer, but ultimately rejected that decision in Vieth, and in Rucho, the Court

removed such claims from the purview of federal courts altogether. The premises that

animated the Court in Rucho are substantially the same as those that kept it from

policing malapportionment claims in the first place: the perception that there is no

“discernable” right to such claims cognizable in the federal Constitution, a prudential

evaluation that courts are ill-equipped to hear such claims, and a belief that courts

should not involve themselves in “political” matters.

¶ 110 However, simply because the Supreme Court has concluded partisan

gerrymandering claims are nonjusticiable in federal courts, it does not follow that

they are nonjusticiable in North Carolina courts, as Chief Justice Roberts himself

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noted in Rucho. Rucho, 139 S. Ct. at 2507 (“Provisions in state statutes and state

constitutions can provide standards and guidance for state courts to apply.”). First,

our state constitution “is more detailed and specific than the federal Constitution in

the protection of the rights of its citizens.” Corum v. Univ. of N.C. Through Bd. of

Governors, 330 N.C. 761, 783 (1992). Second, state law provides more specific neutral

criteria against which to evaluate alleged partisan gerrymanders, and those criteria

would not require our court system to consider fifty separate sets of criteria, as would

federal court involvement. Finally, Rucho was substantially concerned with the role

of federal courts in policing partisan gerrymandering, while recognizing the

independent capacity of state courts to review such claims under state constitutions

as a justification for judicial abnegation at the federal level. The role of state courts

in our constitutional system differs in important respects from the role of federal

courts.

¶ 111 Having canvassed relevant federal decisions, we now consider whether as a

matter of state law plaintiffs’ partisan gerrymandering claims are justiciable under

the North Carolina Constitution. We conclude that they are.

C. The Question Presented Is Not Committed to the “Sole Discretion” of

the General Assembly

¶ 112 Under North Carolina law, courts will not hear “purely political questions.”

This Court has recognized two criteria of political questions: (1) where there is “a

textually demonstrable constitutional commitment of the issue” to the “sole

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discretion” of a “coordinate political department[,]” Bacon v. Lee, 353 N.C. 696, 717

(2001) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)); and (2) those questions that

can be resolved only by making “policy choices and value determinations[,]” id.

(quoting Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 230 (1986)).

¶ 113 We first consider the issue of whether there is a textually demonstrable

commitment of the issue to the “sole discretion” of a coordinate branch of government.

The constitution vests the responsibility for apportionment of legislative districts in

the General Assembly under article II of our state constitution. Article II provides:

“The General Assembly . . . shall revise the senate districts and the apportionment of

Senators among those districts.” N.C. Const. art. II, § 3; see N.C. Const. art. II, § 5

(stating the same requirement for the North Carolina House). Legislative Defendants

contend that “a delegation of a political task to a single political branch of government

impliedly forecloses the other branches of government from undertaking that task”

and that these provisions evidence such a textual commitment. They argue that this

Court “has repeatedly acknowledged that this constitutional text is a grant of

unreviewable political discretion to the legislative branch.” This argument—that

gerrymandering claims are categorically nonjusticiable because reapportionment is

committed to the sole discretion of the General Assembly—is flatly inconsistent with

our precedent interpreting and applying constitutional limitations on the General

Assembly’s redistricting authority. We have interpreted and applied both the

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expressly enumerated limitations contained in article II, sections 3 and 5, and the

limitations contained in other constitutional provisions such as the equal protection

clause. Stephenson v. Bartlett, 355 N.C. 354, 370–71, 378–81 (2002) (determining

whether the General Assembly’s use of its article II power to apportion legislative

districts complied with federal law in accordance with article I, sections 3 and 5 of

our constitution, and our state’s equal protection clause in article I, section 19);

Blankenship v. Bartlett, 363 N.C. 518, 525–26 (2009) (holding that General

Assembly’s exercise of its power under article IV, section 9 to establish the election of

superior court judges in judicial districts must comport with our state’s equal

protection clause in article I, section 19). Legislative defendants’ argument is,

essentially, an effort to turn back the clock to the time before courts entered the

political thicket to review districting claims in Baker v. Carr. Yet, as the facts of this

case demonstrate, the need for this Court to continue to enforce North Carolinians’

constitutional rights has certainly not diminished in the intervening years.

¶ 114 Relatedly, but more specifically, Legislative Defendants argue that even if

certain gerrymandering claims may be justiciable, claims alleging partisan

gerrymandering in violation of state constitutional provisions are nonjusticiable

because this Court has endorsed the consideration of partisan advantage in the

redistricting process. In support of this proposition, Legislative Defendants cite to our

decision in Stephenson, where we stated the following in full:

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The General Assembly may consider partisan advantage

and incumbency protection in the application of its

discretionary redistricting decisions, see Gaffney v.

Cummings, 412 U.S. 735, 93 S. Ct. 2321, 37 L. Ed. 2d 298

(1973), but it must do so in conformity with the State

Constitution. To hold otherwise would abrogate the

constitutional limitations or “objective constraints” that

the people of North Carolina imposed on legislative

redistricting and reapportionment in the State

Constitution.

355 N.C. at 371. Legislative Defendants misread this statement. We did not conclude

that the text of our state constitution permits the General Assembly to “consider

partisan advantage and incumbency protection”; we concluded that federal law

permitted that consideration by citing to the decision of Gaffney v. Cummings, 412

U.S. 735 (1973). See Stephenson, 355 N.C. at 371. Moreover, Gaffney in no way

supports Legislative Defendants’ argument that we have endorsed their interest in

securing partisan advantage to any extent and which results in systematically

disfavoring voters of one political party. In Gaffney, the Supreme Court of the United

States rejected a partisan gerrymandering claim to an apportionment plan that

pursued a principle of “political fairness” in order to “allocate political power to the

parties in accordance with their voting strength.” Gaffney, 412 U.S. at 754 (emphasis

added). We expressly reserved the question of whether the General Assembly could

consider such criteria “in conformity with the State Constitution,” while also

affirming the applicability of “constitutional limitations” that the people imposed on

the legislative redistricting process in other provisions of the North Carolina

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Constitution, such as the equal protection clause. Stephenson, 355 N.C. at 371.

Simply put, resolving Stephenson did not require us to decide the legality of partisan

gerrymandering under the North Carolina Constitution.

¶ 115 The commitment of responsibility for apportionment to the General Assembly

in article II provides no support for the Legislative Defendants’ argument. First, the

list of criteria the General Assembly is required to consider by that section does not

include “partisan advantage.” See N.C. Const. art. II, § 3. Furthermore, we cannot

infer the non-justiciability of partisan gerrymandering purely from the structural fact

that the decennial apportionment of legislative districts is committed to a “political”

branch. The General Assembly has the legislative power of apportionment under

article II, but exercise of that power is subject to other “constitutional limitations.”

Stephenson, 355 N.C. at 371. Put another way, the mere fact that responsibility for

reapportionment is committed to the General Assembly does not mean that the

General Assembly’s decisions in carrying out its responsibility are fully immunized

from any judicial review. That startling proposition is, again, entirely inconsistent

with our modern redistricting precedents and, on a more fundamental level,

inconsistent with this Court’s obligation to enforce the provisions of the North

Carolina Constitution dating to 1787.

¶ 116 Stephenson itself is incompatible with Legislative Defendants’ argument.

Stephenson was a vote-dilution challenge under the equal protection clause of our

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state constitution. If Stephenson concluded that redistricting decisions were

exclusively constitutionally committed to the General Assembly because of article II,

then no other constitutional limitations would be applicable. Plainly they are. See id.

at 379.

¶ 117 This case does not ask us to remove all discretion from the redistricting

process. The General Assembly will still be required to make choices regarding how

to reapportion state legislative and congressional districts in accordance with

traditional neutral districting criteria that will require legislators to exercise their

judgment. Rather, this case asks how constitutional limitations in our Declaration of

Rights limit the General Assembly’s power to apportion districts under article II. It

is thus analogous to Cooper v. Berger, 370 N.C. 392 (2018), in that it “involves a

conflict between two competing constitutional provisions,” and it “involves an issue

of constitutional interpretation, which this Court has a duty to decide.” Id. at 412.

¶ 118 More fundamentally, Legislative Defendants’ argument that the textual grant

of a power to a “political” branch is sufficient to render exercise of that power

unreviewable strikes at the foundation stone of our state’s constitutional caselaw—

Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787). In Bayard, the courts of North Carolina

first asserted the power and duty of judicial review of legislative enactments for

compliance with the North Carolina Constitution, and to strike down laws in conflict

therewith. Id. at 7. In holding that we had the power of judicial review we specifically

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reasoned that if “members of the General Assembly” could violate some constitutional

rights, “they might with equal authority, not only render themselves the Legislators

of the State for life, without any further election of the people, [but] from thence

transmit the dignity and authority of legislation down to their heirs male forever.”

Id. It was out of concern for the very possibility that the legislature might intercede

in the elections for their own office, which our constitution delegates the legislature

power over, in contravention of the constitutional rights of the people to elect their

own representatives that led this Court to assert the power of judicial review. To

conclude that the mere commitment of the apportionment power in article II to the

General Assembly renders its apportionment decisions unreviewable would require

us to betray our most fundamental constitutional duty. “It is the state judiciary that

has the responsibility to protect the state constitutional rights of the citizens; this

obligation to protect the fundamental rights of individuals is as old as the State.”

Corum v. Univ. of N.C., 330 N.C. 761, 783 (1992).

¶ 119 The General Assembly has the power to apportion legislative and

congressional districts under article II and state law, but exercise of that power is

subject to other “constitutional limitations,” including the Declaration of Rights. The

question is whether the General Assembly complied with provisions of the

Declaration of Rights in its exercise of the apportionment power. There is no textually

demonstrable commitment of that issue to the legislative branch.

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¶ 120 In determining whether plaintiffs’ claims would require the court to make

“policy choices and value determinations,” Bacon, 353 N.C. at 717, we must determine

whether, as plaintiffs argue, the Declaration of Rights of the North Carolina

Constitution prohibits partisan gerrymandering and, if so, whether the application of

those claims would require such determinations. As we long ago established and have

since repeatedly affirmed, “[t]his Court is the ultimate interpreter of our State

Constitution.” Corum, 330 N.C. at 783 (citing Bayard, 1 N.C. (Mart.) 5). So too when

it comes to reapportionment. Stephenson, 355 N.C. at 370–71, 378–81; Blankenship,

363 N.C. at 525–26.

D. Partisan Gerrymandering Violates the Declaration of Rights in the

North Carolina Constitution and Is Justiciable

¶ 121 Plaintiffs argue that Legislative Defendants’ districting plans violate the free

elections clause, equal protection clause, free speech clause, and freedom of assembly

clause of our constitution’s Declaration of Rights. Accordingly, we must examine the

text and structure of the Declaration of Rights as well as the intent and history of

these constitutional provisions to determine whether the rights plaintiffs allege are

protected by the Declaration of Rights and whether this Court is empowered by the

constitution to guarantee those rights.

¶ 122 Before examining specific provisions in detail, we make some general

observations about the Declaration of Rights in article I of our constitution. First,

“[t]he Declaration of Rights was passed by the Constitutional Convention on 17

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December 1776, the day before the Constitution itself was adopted, manifesting the

primacy of the Declaration in the minds of the framers.”10 Corum, 330 N.C. at 782.

The Declaration of Rights preceded the constitution, and hence the rights reserved

by the people preceded the division of power among the branches therein. “The

relationship is not that exhibited by the U.S. Constitution with its appended Bill of

Rights, the latter adding civil rights to a document establishing the basic institutions

of government. Instead, North Carolina’s declaration of rights . . . is logically, as well

as chronologically, prior to the constitutional text.” John V. Orth & Paul M. Newby,

The North Carolina Constitution 5–6 (2d ed. 2013). That logical and chronological

primacy is preserved in our present constitution, with the Declaration of Rights now

incorporated in the text of the constitution itself as article I.

¶ 123 Second, early in this Court’s history we “recognized the supremacy of rights

protected in Article I and indicated that [we] would only apply the rules of decision

10 The primacy of the Declaration of Rights over the powers allocated in the

constitutional text in the minds of the framers is fitting for a people so opposed to government

tyranny coalesced in any source. North Carolinians preceded the Revolution by ten years

through the Regulator Movement opposing the Royal Governor William Tryon. They

preceded the Declaration of Independence with the Halifax Resolves. After the Revolution

they only belatedly approved by convention the federal Constitution because of its failure to

include a Bill of Rights, an implicit rejection of the notion that structural protections of rights,

like the separation and division of powers, would suffice. It is worth noting that a leading

argument for the adoption of a federal Bill of Rights, in the words of Thomas Jefferson, was

“the legal check which [such a Bill would put] into the hands of the judiciary,” as “a body,

which if rendered independent, and kept strictly to their own department merits great

confidence for their learning and integrity.” Laurence H. Tribe, American Constitutional Law

8 & n.8 (3d ed. 2000) (quoting 14 The Papers of Thomas Jefferson 659 (Julian P. Boyd ed.,

1958)).

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derived from the common law and such acts of the legislature that are consistent with

the Constitution.” Corum, 330 N.C. at 783 (citing Trs. of the Univ. of N.C. v. Foy, 5

N.C. 57 (1805)). In tying judicial review to the primacy of the Declaration of Rights,

we recognized that

[t]he fundamental purpose for [the Declaration’s] adoption

was to provide citizens with protection from the State’s

encroachment upon these rights. Encroachment by the

State is, of course, accomplished by the acts of individuals

who are clothed with the authority of the State. 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

of the State.

Id. at 782–83 (citing State v. Manuel, 20 N.C. 144 (1838)); see also id. at 782 (“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 . . . .”).

¶ 124 Finally, the framers of our Declaration of Rights and constitution guarded

against not only abuses of executive power but also the tyrannical accumulation of

power that subverts democracy in the legislative branch. William Hooper, a North

Carolina delegate to the Continental Congress, urged that the state constitution

prevent legislators from making “their own political existence perpetual.” Letter from

William Hooper to the Provincial Congress of North Carolina (Oct. 26, 1776), in 10

Colonial and State Records of North Carolina 867–68, available at

https://docsouth.unc.edu/csr/index.php/document/csr10-0407. John Adams, “already

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a renowned authority on constitutionalism,” Orth & Newby at 5, submitted two

letters of advice to the Convention, recommending that to prevent the legislature

from “vot[ing] itself perpetual” the constitution must divide the General Assembly

into two chambers so each could check the other. Essay by John Adams on “Thoughts

on Government” (March 1776), in 11 Colonial and State Records of North Carolina

321, 324, available at https://docsouth.unc.edu/csr/index.php/document/csr11-0189.

And so the framers did create two chambers, and we have maintained that division

to this day. See N.C. Const. of 1776, § 1; N.C. Const. art. II, § 1.

¶ 125 Despite these protections, the primacy of the Declaration of Rights suggests

that our framers did not believe that division of power alone would be sufficient to

protect their civil and political rights and prevent tyranny. Accordingly, they

enshrined their rights in the Declaration of Rights. They also created a state judiciary

invested with the “judicial power.” See N.C. Const. of 1776, § 1; N.C. Const. art. IV,

§ 1. This independent judiciary was another structural protection. In Bayard, we

concluded that our courts have the power, and indeed the obligation, to review

legislative enactments for compliance with the North Carolina Constitution and to

strike down unconstitutional laws. 1 N.C. (Mart.) at 7. The Court reasoned that if we

abdicated this power and obligation, legislators could make themselves “Legislators

of the State for life” and insulate themselves from “any further election of the people.”

Id. Giving effect to the will of the people through popular sovereignty and the rights

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protected by the Declaration of Rights, including the rights to free and frequent

elections, were central to our recognition of the necessity of judicial review.

¶ 126 Having reviewed these structural and historical aspects of the Declaration of

Rights, we now turn to the text to analyze whether plaintiffs’ partisan

gerrymandering claims have a discernible basis therein. Indeed, the very text of the

Declaration of Rights calls us back time and again to itself, the source of

constitutional meaning, by providing that “[a] frequent recurrence to fundamental

principles is absolutely necessary to preserve the blessings of liberty.” N.C. Const. art

I, § 35.11 In a leading case from Virginia, construing a cognate provision of the

Virginia Declaration of Rights, Judge Roane defined “fundamental principles” as

those great principles growing out of the Constitution, by

the aid of which, in dubious cases, the Constitution may be

explained and preserved inviolate; those landmarks, which

it may be necessary to resort to, on account of the

impossibility to

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