Harper v. Hall

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-121

No. 413PA21

Filed 16 December 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

HARPER V. HALL

2022-NCSC-121

Opinion of the Court

Committee on Redistricting and Elections; REPRESENTATIVE TIMOTHY K.

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

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 entered on 23 February 2022 in the Superior Court, Wake County,

approving Legislative Defendants’ Remedial House and Senate Plans, rejecting their

Remedial Congressional Plan, and adopting a Modified Remedial Congressional Plan.

Heard in the Historic 1767 Chowan County Courthouse on 4 October 2022.

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

Smith; Elias Law Group LLP, by Lalitha D. Madduri, Jacob D. Shelly, Graham

W. White, and Abha Khanna; and Arnold & Porter Kaye Scholer LLP, by

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

Plaintiffs.

Robinson, Bradshaw & Hinson, P.A., by John R. Wester, Adam K. Doerr,

Stephen D. Feldman, and Erik R. Zimmerman; and Jenner & Block LLP, by

Sam Hirsch, Jessica Ring Amunson, Karthik K. Reddy, and Urja Mittal, for

Plaintiff North Carolina League of Conservation Voters.

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

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

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

Cause.

Nelson Mullins Riley & Scarborough LLP, by Phillip J. Strach, Thomas A.

Farr, John Branch, and Alyssa M. Riggins; and Baker & Hostetler LLP, by E.

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

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

Attorney General, Terence Steed, Special Deputy Attorney General, Mary Carla

Babb, Special Deputy Attorney General, and Stephanie Brennan, Special

Deputy Attorney General, for State Defendants.

HUDSON, Justice.

¶1 The foundational democratic principles of equality and popular sovereignty

enshrined in our Constitution’s Declaration of Rights vest in the people of this state

the fundamental right to vote on equal terms. N.C. Const. art. I, §§ 1 (equality and

rights of persons), 2 (sovereignty of the people), 10 (free elections), 12 (freedom of

assembly), 14 (freedom of speech), 19 (equal protection of the laws); see Harper v.

Hall, 380 N.C. 317, 2022-NCSC-17, ¶ 158–59 (summarizing these principles and

rights). This fundamental right “encompasses the opportunity to aggregate one’s vote

with likeminded citizens to elect a governing majority of elected officials who reflect

those citizens’ views.” Harper, ¶ 160. Put differently, it requires that “voters of all

political parties [have] substantially equal opportunity to translate votes into seats.”

Id. ¶ 163. Therefore, when a districting plan systematically makes it harder for

individuals of one political party to elect a governing majority than individuals of

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another party of equal size based upon that partisanship, it deprives a voter of his or

her fundamental right to equal voting power. Id. “[S]uch a plan is subject to strict

scrutiny and is unconstitutional unless the General Assembly can demonstrate that

the plan is ‘narrowly tailored to advance a compelling governmental interest.’ ” Id. ¶

161 (citing Stephenson v. Bartlett, 355 N.C. 354, 377 (2002)).

¶2 In accordance with these principles, on 4 February 2022, this Court struck

down the General Assembly’s 2021 Congressional Map, State Senate Map, and State

House Map as unconstitutional partisan gerrymanders that failed strict scrutiny. See

generally Harper, 2022-NCSC-17. In doing so, we noted a few potential statistical

measures that could be used by the General Assembly and reviewing courts in

determining whether redistricting plans demonstrate “a significant likelihood . . . [of]

giv[ing] the voters of all political parties substantially equal opportunity to translate

votes into seats across the plan.” Id. ¶ 163. However, we expressly declined to

“identify an exhaustive set of metrics or precise mathematical thresholds which

conclusively demonstrate or disprove the existence of an unconstitutional partisan

gerrymander.” Id. Rather than relying on certain measures dispositively, we

emphasized that ultimately “[w]hat matters here . . . is that each voter’s vote carries

roughly the same weight when drawing a redistricting plan that translates votes into

seats in a legislative body.” Id. 169.

¶3 This was neither accident nor oversight. An individual statistical measure

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standing alone, though helpful, is not dispositive of constitutional compliance.

Rather, it constitutes one datapoint within a broader constellation of principles that

a court may consider in reaching its ultimate constitutional determination: whether

the proposed maps uphold or violate the fundamental right of all voters to vote on

equal terms. Id. ¶¶ 163–69.

¶4 After determining that the 2021 Maps failed strict scrutiny, this Court gave

the General Assembly the opportunity to submit remedial maps in accordance with

N.C.G.S. § 120-2.4(a). Id. ¶ 178. We remanded the case to the trial court to oversee

and assess the constitutionality of those remedial maps. Id. ¶ 223.

¶5 On 23 February 2022, the trial court issued its remedial order assessing the

General Assembly’s remedial maps. Therein, the trial court rejected the General

Assembly’s Remedial Congressional Plan but approved its Remedial House Plan and

Remedial Senate Plan. The parties appealed each of these rulings to this Court.

¶6 Now, this Court must review the alignment of the trial court’s remedial order

with the foundational principles established in Harper. We determine that the trial

court properly concluded that the Remedial Congressional Plan fell short of

constitutional standards and that the Remedial House Plan met constitutional

standards. These conclusions of law were supported by adequate factual findings,

which were in turn supported by competent evidence. However, we hold that the trial

court erred in its approval of the Remedial Senate Plan. Unlike the trial court’s

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conclusions regarding the other plans, the trial court’s conclusion of law regarding

the Remedial Senate Plan lacked adequate factual findings supported by competent

evidence. Indeed, the evidence dictates the opposite finding and conclusion.

Therefore, we affirm the trial court’s rejection of the Remedial Congressional Plan,

affirm the trial court’s approval of the Remedial House Plan, and reverse the trial

court’s approval of the Remedial Senate Plan.

¶7 In accordance N.C.G.S. § 120-2.4(a1), we now remand this case to the trial

court to oversee the creation and adoption of a Modified Remedial Senate Plan that

modifies Legislative Defendants’ Remedial Senate Plan only to the extent necessary

to achieve constitutional compliance. See N.C.G.S. § 120-2.4(a1) (2021).

¶8 In so doing, we expressly and emphatically reaffirm the fundamental right of

citizens to vote on equal terms enshrined within our Constitution’s Declaration of

Rights, and this Court’s constitutional responsibility and authority to assess

legislative compliance therewith. See Corum v. Univ. of N.C., 330 N.C. 761, 783 (1992)

(“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.”). These principles are—and must remain—the enduring

bedrock of our sacred system of democratic governance, and may be neither

subordinated nor subverted for the sake of passing political expediency.

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I. Factual and Procedural Background

¶9 A complete factual and procedural background of the liability phase of this

litigation can be found in Harper, ¶¶ 12–93. Here, we briefly restate that background

and summarize the subsequent remedial proceedings leading to the present appeal.

A. Liability Phase: 2021 Maps and Harper I

¶ 10 Every ten years, following the national census, the General Assembly is tasked

with redrawing North Carolina’s congressional and state legislative districts. See

U.S. Const. art. I, § 4; N.C. Const. art. II, §§ 3, 5. Accordingly, on 4 November 2021,

the General Assembly enacted new maps for North Carolina’s congressional districts

and state House of Representatives and Senate districts (2021 Maps). S.L. 2021-174,

S.L. 2021-175, S.L. 2021-173; see Harper, 2022-NCSC-17, ¶¶ 14–18 (describing the

2021 redistricting process).

¶ 11 On 16 and 18 November 2021, NCLCV Plaintiffs1 and Harper Plaintiffs2

respectively filed complaints against Legislative Defendants challenging the

1 NCLCV Plaintiffs include the 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 Reginal Wells, Yarbrough Williams Jr., Reverend Deloris L. Jerman, Viola Ryals

Figueroa, and Cosmos George.

2 Harper Plaintiffs include 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.

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constitutionality of the 2021 Maps under the North Carolina Constitution.

Specifically, Plaintiffs asserted that the 2021 Maps engaged in extreme partisan

gerrymandering and racial vote dilution in violation of the Free Elections Clause, art.

I, § 10, the Equal Protection Clause, art. I, § 19, and the Freedom of Speech and

Assembly Clauses, art. I, §§ 12, 14. Plaintiffs sought a declaratory judgment, a

permanent injunction against the use of the 2021 Maps, and the creation and

implementation of new, constitutionally compliant maps.

¶ 12 Plaintiffs’ cases were consolidated and assigned to a three-judge panel of the

Superior Court, Wake County, pursuant to N.C.G.S. § 1-267.1 and Rule 42 of the

North Carolina Rules of Civil Procedure.3 On 15 December 2021, the trial court

granted Plaintiff Common Cause’s motion to intervene in the consolidated case. In

response to Plaintiffs’ claims, Legislative Defendants asserted, inter alia, that the

only limitations on redistricting legislation are those expressly found in article II,

sections 2, 3, 4, and 5 of the North Carolina Constitution, and that Plaintiffs’ claims

were nonjusticiable.

¶ 13 From late December 2021 to early January 2022, the trial court conducted an

expedited and extensive discovery and trial process. Plaintiffs and Legislative

Defendants submitted evidence from several expert witnesses and accompanying

3 We take a moment of privilege to express the Court’s gratitude to the panel for their

diligent service to the state in this case: Judge A. Graham Shirley, Judge Nathaniel J.

Poovey, and Judge Dawn M. Layton.

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reports regarding the 2021 Maps.

¶ 14 On 11 January 2022, the trial court issued its final judgment. Therein, the trial

court found that all three of the 2021 Maps indeed constituted extreme partisan

outliers that were the product of intentional, pro-Republican redistricting at the

subordination of traditional, neutral redistricting principles. However, the trial court

concluded that claims of partisan gerrymandering present purely political questions

that are nonjusticiable under the North Carolina Constitution. Accordingly, the trial

court held that the 2021 Maps were not unconstitutional and denied Plaintiffs’

requests for declaratory and injunctive relief. Plaintiffs appealed to this Court from

the trial court’s judgment.

¶ 15 In February 2022, this Court reversed.4 Harper, ¶ 223. The Court concluded

that partisan gerrymandering claims are justiciable under the North Carolina

Constitution, that our Constitution’s Declaration of Rights enshrines the

fundamental right to vote on equal terms, and that the 2021 Maps violated that right.

Id. ¶¶ 7, 94.

¶ 16 First, the Court addressed Plaintiffs’ standing. Id. ¶ 95. The Court noted that

in accordance with Committee to Elect Dan Forest v. Employees Political Action

Committee, 376 N.C. 558, 2021-NCSC-6, “direct constitutional challenges to statutes

4 On 4 February 2022, the Court issued a preliminary order. On 14 February 2022,

the Court issued its subsequent full opinion.

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or other acts of government . . . 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.” Harper, ¶ 96 (cleaned up). Here,

the Court determined that the parties’ allegations of the violation of their legal rights,

even if widely shared with others, were sufficient to show such concrete adverseness.

Id. The Court thus concluded that each individual and organizational plaintiff met

the requirements for legal standing under our Constitution. Id. ¶ 99.

¶ 17 Second, the Court addressed justiciability. Id. ¶ 100. The Court noted that

“simply because the Supreme Court [of the United States] has concluded partisan

gerrymandering claims are nonjusticiable in federal courts, it does not follow that

they are nonjusticiable in North Carolina courts.” Id. ¶ 110 (emphasis added) (citing

Rucho v. Common Cause, 139 S. Ct. 2484, 2507 (2019)). Further, “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.” Id. ¶ 115. Rather, the General Assembly’s

reapportionment power is subject to constitutional limitations, including compliance

with the fundamental rights enshrined in the Declaration of Rights. Id. ¶ 119.

¶ 18 Then, the Court considered whether partisan gerrymandering violates those

rights. Id. ¶ 121. After surveying the history of our Declaration of Rights generally,

id. ¶¶ 122–32, the Court considered each pertinent clause in turn. First, the Court

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concluded that partisan gerrymandering “is cognizable under the free elections clause

because it can prevent elections from reflecting the will of the people impartially and

. . . diminish[ ] or dilut[e] voting power on the basis of partisan affiliation.” Id. ¶ 141;

N.C. Const. art. I, § 10. Second, the Court concluded that partisan gerrymandering is

cognizable under the equal protection clause because it “diminishes or dilutes a

voter’s opportunity to aggregate with likeminded voters to elect a governing

majority[,]” thus “infring[ing] upon that voter’s fundamental rights to vote on equal

terms and to substantially equal voting power.” Id. ¶ 150; N.C. Const. art. I, § 19.

Third, the Court concluded that partisan gerrymandering is cognizable under the free

speech and freedom of assembly clauses because it imposes a burden on the

fundamental right to equal voting power based on political viewpoint. Id. ¶ 157.

¶ 19 The Court summarized the intersection of the Declaration of Rights and

partisan gerrymandering, emphasizing that together, the fundamental principles of

equality and popular sovereignty “reflect the democratic theory of our constitutional

system: the principle of political equality.” Id. ¶ 158. In order to realize this principle,

the channeling of “political power” from the people to their

representatives in government through the democratic

processes envisioned by our constitutional system must be

done on equal terms. If through state action the ruling

party chokes off the channels of political change on an

unequal basis, then government ceases to “derive[ ]” its

power from the people or to be “founded upon their will

only,” and the principle of political equality that is

fundamental to our Declaration of Rights and our

constitutionally enacted represented system of government

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is violated.

Id. Accordingly, “[t]o comply with the constitutional limitations contained in the

Declaration of Rights which are applicable to redistricting plans, the General

Assembly must not diminish or dilute on the basis of partisan affiliation any

individual’s vote.” Id. ¶ 160. Therefore, “when a districting plan systematically makes

it harder for individuals [of one party] to elect a governing majority than individuals

in a favored party of equal size[,] the General Assembly deprives on the basis of

partisan affiliation a voter of his or her right to equal voting power.” Id. “[S]uch a

plan is subject to strict scrutiny and is unconstitutional unless the General Assembly

can demonstrate that the plan is narrowly tailored to advance a compelling

governmental interest.” Id. ¶ 161 (cleaned up).

¶ 20 The Court also noted various ways to measure partisan vote dilution. The

Court explained that partisan vote dilution

can be measured either by comparing the number of

representatives that a group of voters of one partisan

affiliation can plausibly elect with the number of

representatives that a group of voters of the same size of

another partisan affiliation can plausibly elect, or by

comparing the relative chances of voters from each party

electing a supermajority or majority of representatives

under various possible electoral conditions.

Id. However, the Court did “not believe it prudent or necessary to . . . identify an

exhaustive list of metrics or precise mathematical thresholds which conclusively

demonstrate or disprove the existence of an unconstitutional partisan gerrymander.”

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Id. ¶ 163 Rather, the Court observed that

as the trial court’s findings of fact indicate[d], there are

multiple reliable ways of demonstrating the existence of an

unconstitutional partisan gerrymander. In particular,

mean-median difference analysis; efficiency gap analysis;

close-votes, close-seats analysis; and partisan symmetry

analysis may be useful in assessing whether the mapmaker

adhered to traditional neutral districting criteria and

whether a meaningful partisan skew necessarily results

from North Carolina’s unique political geography. If some

combination of these metrics demonstrates there is a

significant likelihood that the districting plan will give the

voters of all political parties substantially equal

opportunity to translate votes into seats across the plan,

then the plan is presumptively constitutional.

Id. While the Court identified “a mean-median difference of 1% or less” and an

efficiency gap of 7% or less as potential “threshold[s] [for] a presumption of

constitutionality . . . absent other evidence,” we emphasized that ultimately “[w]hat

matters here, as in the one-person, one-vote context, is that each voter’s vote carries

roughly the same weight when drawing a redistricting plan that translates votes into

seats in a legislative body.” Id. ¶¶ 166, 167, 169.

¶ 21 The Court then held that “[o]nce a plaintiff shows that a map infringes on their

fundamental right to equal voting power . . . or that it imposes a burden on that right

based on their views[,] . . . the map is subject to strict scrutiny and is presumptively

unconstitutional.” Id. ¶ 170. At that point, the government must demonstrate that

the plan is nevertheless necessary to promote a compelling governmental interest. Id.

¶ 22 The Court then applied this constitutional standard to the 2021 Maps. Id. ¶¶

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178–213. Based on the trial court’s extensive factual findings, the Court determined

that all three of the 2021 Maps constituted partisan gerrymanders in violation of the

North Carolina Constitution’s Declaration of Rights. Id. Because Legislative

Defendants failed to show that the 2021 Maps were nevertheless narrowly tailored to

a compelling governmental interest, the Court concluded that each of the plans failed

strict scrutiny. Id. ¶¶ 195 (Congressional Map), 205 (State House Map), 213 (State

Senate Map).

¶ 23 Finally, the Court addressed the General Assembly’s compliance with

Stephenson requirements regarding racially polarized voting. Id. ¶¶ 214–16. The

Court concluded that compliance with article I, sections 3 and 5, and article II,

sections 3 and 5 of our Constitution “requires the General Assembly to conduct

racially polarized voting analysis within their decennial redistricting process in order

to assess whether any steps must be taken to avoid the dilution of minority voting

strength.” Id. ¶ 216.

¶ 24 In compliance with N.C.G.S. § 120-2.4(a), the Court then remanded the case to

the trial court “to oversee the redrawing of the maps by the General Assembly or, if

necessary, by the court.” Id. ¶ 223. In so doing, the Court ordered that “the General

Assembly shall now have the opportunity to submit new congressional and state

legislative districting plans that satisfy all provisions of the North Carolina

Constitution.” Id. The Court concluded by noting its “sincere hope . . . that these new

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maps ensure that the channeling of ‘political power’ from the people to their

representatives in government through elections . . . is done on equal terms so that

ours is a ‘government of right’ that ‘originates from the people’ and speaks with their

voice.” Id.

B. Remedial Phase: Remedial Plans and Trial Court’s Remedial Order

¶ 25 Thus began the remedial phase of this case. On 16 February 2022, the trial

court issued an order appointing three former North Carolina jurists—Justice Robert

F. Orr (ret.), Justice Robert H. Edmunds Jr. (ret.), and Judge Thomas W. Ross (ret.)—

to serve as Special Masters.5 The Special Masters’ task was twofold. First, they

assisted the trial court in reviewing the parties’ proposed remedial plans via a written

report. Second, they were to assist the trial court in developing an alternative,

constitutionally compliant remedial plan in the event that the General Assembly’s

proposed remedial plan fell short.

¶ 26 To assist in these tasks, the Special Masters were authorized to hire advisors

(Special Masters’ Advisors). They hired Dr. Bernard Grofman, Dr. Tyler Jarvis, Dr.

Eric McGhee, and Dr. Samuel Wang.

¶ 27 On 18 February 2022, Legislative Defendants timely submitted their Remedial

Plans to the trial court. These included the Remedial Congressional Plan (RCP),

5 We take a moment of privilege to express the Court’s gratitude to the Special Masters

for their diligent service to the state in this case.

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Remedial House Plan (RHP), and Remedial Senate Plan (RSP).

¶ 28 On 21 February 2022, Legislative Defendants filed a motion to disqualify two

of the Special Masters’ Advisors, Dr. Wang and Dr. Jarvis, because they had engaged

in prohibited ex parte communications with Plaintiffs’ experts.

¶ 29 On 21 February 2022, Plaintiffs timely submitted their comments and

objections to Legislative Defendants’ Remedial Plans. NCLCV Plaintiffs objected to

the RCP and RSP. NCLCV Plaintiffs did not specifically object to the RHP, but

instead requested that the trial court conduct its own analysis of the RHP. Harper

Plaintiffs objected to the RCP and RSP but did not object to the RHP. Plaintiff

Common Cause generally objected to all three Remedial Plans, and specifically

contended that House District 10 of the RHP and Senate District 4 of the RSP must

be redrawn.

¶ 30 Thereafter, the Special Masters’ Advisors submitted their analysis of each of

the proposed remedial plans. Because this analysis served as the foundational

evidence for the Special Masters’ and trial court’s subsequent findings of fact, we

briefly summarize this evidence here.

¶ 31 RCP Analysis. Dr. Grofman determined that the RCP “creates a distribution

of voting strength across districts that is very lopsidedly Republican.” He determined

that “[b]ecause they all point in the same direction, the political effects statistical

indicators of partisan gerrymandering strongly suggest the conclusion that this

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congressional map should be viewed as a pro-Republican gerrymander.” He

determined that the RCP yielded an efficiency gap of 6.37% but noted that that this

was “not . . . proof that there is no vote dilution” because, based on other measures,

“legislative map drawers have apparently sought to draw a congressional map that

just narrowly pass[es] a supposed threshold test for partisan gerrymandering.”

¶ 32 Dr. McGhee determined that the RCP yielded an efficiency gap of 6.4%, a

mean-median difference of 1.1%, a partisan asymmetry of 4.9%, and a declination

metric of 0.14, all favoring Republicans. He noted that “[t]he values with incumbency

factored in all lean more Republican . . . , and this incumbency effect is greater than

it was in the [2021] enacted plan.” Relatively, he noted that while the RCP shows

improvement from the 2021 enacted plan on several measures of partisan symmetry,

it is “clearly worse” than the remedial congressional plans proposed by Plaintiffs.

¶ 33 Dr. Wang determined that the RCP yields an average efficiency gap of 6.8%

and an average mean-median difference of 1.2%, both favoring Republicans. He

determined that in nine out of ten sample elections, “Republicans won more seats

than the Democrats with the same vote share.” “Averaging across all 10 elections, the

advantage was 1.7 more seats for Republicans, or 12% of the 14-seat Congressional

delegation.”

¶ 34 Finally, Dr. Jarvis determined that the RCP “consistently favors Republicans”

across all applicable measures. He determined that the RCP yields an efficiency gap

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of 8.8%, a mean-median difference of 0.9%, a partisan bias of 5.2%, and a declination

metric of 11.6%, all favoring Republicans.

¶ 35 RHP Analysis. Dr. Grofman determined that although the RHP “creates a

distribution of voting strength across districts that is very lopsidedly Republican,” it

“is genuinely far more competitive than either of the other two legislatively proposed

maps.” He observed that under the RHP, “unlike the other maps, the Democrats do

not have to win all of the competitive seats to win a majority in the House. Moreover,

unlike the [RCP and RSP], . . . the competitive seats [in the RHP] are substantially

Democrat in directionality.” He further noted that

quit[e] important in judging the constitutionality of this

map in the full context are the facts that: (a) the Harper

plaintiffs have not chosen to offer an alternative [RHP] but

are apparently content to see the legislative map

implemented by the Court, (b) the map was passed by a

clear bipartisan consensus in the legislature, including

members of the legislature who belong to particular

minority communities, and (c) that while it still is further

from being non-dilutive than the NCLCV [RHP]

alternative, it is far closer to Plaintiffs’ map than it is to

the rejected [2021] enacted NC House map.

He determined that while the RHP’s efficiency gap “remains in a pro-Republican

direction,” it is “at the low level of 2.72[%].”In considering “the totality of the

circumstances . . . and recognizing that this map is still not ideal (nor need it be),” he

concluded that the RHP “simply lacks the same clear indicia of egregious bias found

in the previously rejected maps and still found . . . in the [RCP] and [RSP].”

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¶ 36 Dr. McGhee likewise determined that the RHP “still favors Republicans when

all seats are open, but substantially less [than the 2021 congressional map].” He

determined that the RHP yields an efficiency gap of 3.0%, a mean-median difference

of 1.4%, a partisan asymmetry of 2.9%, and a declination metric of 0.16, all favoring

Republicans. Dr. McGhee concluded that the RHP “still favors Republicans: the party

would likely hold about 64 of 120 seats with half the vote, and it would take the

Democrats somewhere close to 52% of the vote to bring that number down to 60.”

Relatively, he determined that the RHP “is very similar to” NCLCV Plaintiffs’

proposed remedial house map on metrics of partisan symmetry, that it “do[es] a

reasonably good job of respecting traditional geographic principles,” and that it

reflects “very similar compactness” as Plaintiffs’ proposed remedial House map. He

concluded that the RHP’s partisan symmetry is “closer [to NCLCV’s proposed

remedial plan] than was the case for either the [RSP] or the [RCP],” noting that the

NCLCV Plaintiffs’ plan is only “a little better.” He concluded that this “relatively

marginal improvement hints that it may be difficult to do better while still abiding

by other constraints.”

¶ 37 Dr. Wang determined that the RHP favors Republicans in all six metrics

evaluated: seat partisan asymmetry, mean-median difference, partisan bias, lopsided

wins, declination angle, and efficiency gap. Specifically, he determined that the RHP

yielded an efficiency gap of 3.1%, a mean-median difference of 0.9%, a partisan

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asymmetry of 7.2 seats, and a declination angle of 4.5 degrees.

¶ 38 Finally, Dr. Jarvis determined that the RHP “appear[s] to be mostly typical in

terms of the number of seats won.” He determined that the RHP yields an efficiency

gap of 2.7%, a mean-median difference of 1.5%, an average partisan bias of 2.7%, and

a declination metric of 5.7%.

¶ 39 RSP Analysis. Dr. Grofman determined that the RSP “creates a distribution

of voting strength across districts that is very lopsidedly Republican.” He determined

the RSP’s vote bias indicates “a substantial pro-Republican bias” in which a statewide

majority of Republican voters would be able to win a majority of the seats while “only

a win by considerably more than 50% of the statewide vote can yield the Democrats

a majority of the seats.” He determined that “[b]ecause they all point in the same

direction, the political effects statistical indicators of partisan gerrymandering argue

for the conclusion that th[e] [RSP] should be viewed as a pro-Republican

gerrymander.” He concluded that “the dilutive effects of th[e] RSP] . . . are still . . .

quite substantial.”

¶ 40 Dr. McGhee determined that the RSP “still favors Republicans when all seats

are open.” He concluded that the RSP yields an efficiency gap of 4.8%, a mean-median

difference of 2.2%, a partisan asymmetry of 4.8%, and a declination metric of 0.20, all

favoring Republicans. He observed that “[t]he [efficiency gap] value now clearly falls

below the commonly identified threshold of 7%, though the [mean-median difference]

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value falls well above the 1% number cited by Legislative Defendants.” He

determined that “[a]ll the metric values for both the open seat and incumbency

scenarios are more than 50% likely to favor Republicans throughout the decade.” He

concluded that

the [mean-median difference] and [partisan symmetry]

metrics, which are more relevant for a state legislative plan

because they connect directly to control of the chamber,

suggest that in a tied election Republicans would still hold

27 or 28 [of 50 total] seats, and that Democrats would need

to win as much as 53 percent of the vote to claim 25 seats.

The odds are about three to one that Republicans would

maintain this advantage throughout the decade.

Relatively, Dr. McGhee observed that the Republican advantage within Plaintiffs’

proposed RSP “is often less than half the size of the same advantage in the Legislative

Defendants’ [RSP].” “This suggests that there is nothing foreordained about the

advantages in the Legislative Defendants’ plan.”

¶ 41 Dr. Wang determined that the RSP favors Republicans in all six metrics

evaluated: seat partisan asymmetry, mean-median difference, partisan bias, lopsided

wins, declination angle, and efficiency gap. Specifically, he determined that the RSP

yields an efficiency gap of 2.2%, a mean-median difference of 0.8%, and an average

partisan asymmetry of 2.1 seats, all favoring Republicans.

¶ 42 Finally, Dr. Jarvis determined that analysis of the RSP reveals that it “is often

a significant outlier in favor of the Republicans.” He determined that the RSP yields

an efficiency gap of 4.0%, a mean-median difference of 1.4%, an average partisan bias

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of 4.0%, and a declination metric of 7.0%.

¶ 43 Based upon this evidence, the Special Masters submitted their report to the

trial court on 23 February 2022 (Special Masters’ Report). As an initial matter, the

Special Masters addressed Legislative Defendants’ motion to disqualify Drs. Wang

and Jarvis. While the Special Masters “acknowledge[d] the technical breach of th[e]

[c]ourt’s mandate that no ex parte communication occur between parties and non-

parties,” they “respectfully recommend[ed] that the [c]ourt deny the motion.” Denial

was proper, the Special Masters contended, because: (1) the communications were not

made in bad faith; (2) the communications were solely for the purpose of proceeding

as quickly as possible; (3) the information sought was all publicly available; and (4)

the analysis provided by Drs. Wang and Jarvis, though helpful, was not

determinative in any of the Special Masters’ recommendations.

¶ 44 Next, the Special Masters recommended that the trial court approve the RHP

and RSP but reject the RCP.

¶ 45 Regarding the RHP, the Special Masters’ Report stated as follows:

The advisors as well as the experts of the parties (“experts”)

all found the efficiency gap of the proposed [RHP] to be less

than 7%. The majority of the advisors and experts found

the mean-median difference of the proposed [RHP] to be

less than 1%. In addition to these facts, the Special Masters

considered the findings of the advisors on the partisan

symmetry analysis, the declination metrics, and their

opinions on partisan bias and evidence of partisan

gerrymandering. Considering all of this information as

well as the totality of the circumstances, the Special

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Masters conclude under the metrics identified by the North

Carolina Supreme Court that the proposed [RHP] meets

the test of presumptive constitutionality. Further the

Special Masters did not find substantial evidence to

overcome the presumption of constitutionality and

recommend to the trial court that it give appropriate

deference to the General Assembly and uphold the

constitutionality of the [RHP].

¶ 46 Similarly, regarding the RSP, the Special Masters’ Report stated as follows:

All of advisors and experts found the efficiency gap of the

proposed [RSP] to be less than 7%. The majority of the

advisors and experts found the mean-median difference of

the proposed [RSP] to be less than 1%. In addition to these

facts, the Special Masters considered the findings of the

advisors on the partisan symmetry analysis, the

declination metrics, and their opinions on partisan bias

and evidence of partisan gerrymandering. Considering all

of this information as well as the totality of the

circumstances, the Special Masters conclude under the

metrics identified by the North Carolina Supreme Court

[that] the [RSP] meets the test of presumptive

constitutionality. Further the Special Masters did not find

substantial evidence to overcome the presumption of

constitutionality and recommend to the trial court that it

give appropriate deference to the General Assembly and

uphold the constitutionality of the [RSP].

¶ 47 Regarding the RCP, however, the Special Masters’ Report stated as follows:

Unlike the proposed [RHP] and [RSP], there is substantial

evidence from the findings of the advisors that the

proposed congressional plan has an efficiency gap above 7%

and a mean-median difference of greater than 1%. The

Special Masters considered this evidence along with the

advisors’ findings on the partisan symmetry analysis and

the declination metrics. There is disagreement among the

parties as to whether the proposed [RCP] meets the

presumptively constitutional thresholds suggested by the

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Supreme Court. The Special Masters, considering the

reports of their advisors and the experts of the parties

while giving appropriate deference to the General

Assembly, are of the opinion that the proposed [RCP] fails

to meet the threshold of constitutionality and recommend

that the [t]rial [c]ourt reject the proposed [RCP] as being

unconstitutional.

¶ 48 As instructed, the Special Masters therefore submitted to the trial court “a

modified version of the proposed [RCP] submitted by Legislative Defendants.”

(Modified RCP). The Report stated that “[i]t is [the Special Masters’] opinion that the

[Modified RCP] satisfies the requirements of the Supreme Court.” Specifically, the

Special Masters noted that because

the Constitution of North Carolina provides that the

General Assembly has the responsibility of redistricting,

[they] focused on the [RCP] submitted by the Legislative

Defendants. On that basis, the Special Masters worked

solely with [Advisor] Dr. Bernard Grofman and his

assistant to amend the Legislative Defendants’ plan to

enhance its consistency with the opinion of the Supreme

Court of North Carolina, the Constitutions of the United

States and of North Carolina, and the expressed will of the

General Assembly.

The Special Masters then determined that

the [M]odified [RCP] recommended for adoption to the

[t]rial [c]ourt achieves the partisan fairness and

“substantially equal voting power” required by the

Supreme Court of North Carolina without diluting votes

under the Voting Rights Act while maintaining the number

of county splits, retaining equal populations, compactness,

and contiguity, as well as respecting municipal boundaries.

Dr. Grofman’s analysis of the [M]odified [RCP]

recommended by the Special Masters indicates that the

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plan has an efficiency gap of 0.63%, a mean-median

difference of 0.69%, seat bias of 0.28%, and vote bias of

0.10%. According to Dr. Grofman, “this is the most non-

dilutive plan in partisan terms of any map that has been

submitted to the [c]ourt.”

Accordingly, the Special Masters recommend[ed] to the

[t]rial [c]ourt that it order the State of North Carolina to

utilize the [M]odified [RCP] prepared by the Special

Masters in the 2022 Congressional election.

¶ 49 On 23 February 2022, the trial court issued its subsequent remedial order. In

alignment with the recommendations of the Special Masters, the trial court approved

Legislative Defendants’ RHP and RSP but rejected their RCP and implemented the

Special Masters’ Modified RCP.

¶ 50 First, the trial court summarized the General Assembly’s remedial process.

The trial court noted that in addition to the traditional neutral redistricting criteria

considered in the creation of the 2021 Maps, the General Assembly intentionally used

partisan election data in the creation of the Remedial Plans in compliance with this

Court’s remedial order. The trial court further noted that “[t]he General Assembly

conducted an abbreviated racially polarized voting (“RPV”) analysis to determine

whether racially polarized voting is legally sufficient in any area of the state such

that Section 2 of the Voting Rights Act requires the drawing of a district to avoid

diluting the voting strength of African American voters during the remedial process.”

The trial court subsequently found “that the General Assembly satisfied the directive

in the Supreme Court Remedial Order to determine whether the drawing of a district

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in an area of the state is required to comply with Section 2 of the Voting Rights Act.”

¶ 51 The trial court then summarized the Special Masters’ Report. The trial court

found that while “[t]he Special Masters’ findings demonstrate that the [RHP] and

[RSP] meet the requirements of the Supreme Court’s Remedial Order and full

opinion[,] . . . [t]he Special Masters’ findings demonstrate that the [RCP] does not

meet [those] requirements.” The trial court then “adopt[ed] in full the findings of the

Special Masters.”

¶ 52 The trial court went on to review each of Legislative Defendants’ Remedial

Plans. First, the court assessed the RCP. The trial court observed that the RCP

passed both chambers of the General Assembly by a strict party-line vote, with

Republicans voting for and Democrats voting against. Assessing the partisanship of

the RCP, the trial court observed that “[t]he Supreme Court Remedial Order stated

that a combination of different methods could be used to evaluate the partisan

fairness of a districting plan; of those methods, the General Assembly used the ‘mean-

median’ test and the ‘efficiency gap’ test to analyze the partisan fairness of the

Remedial Plans.” The trial court then found, based upon “the analysis performed by

the Special Masters and their advisors, that the [RCP] is not satisfactorily within the

statistical ranges set forth in the Supreme Court’s full opinion. See Harper v. Hall,

2022-NCSC-17, ¶ 166 (mean-median difference of 1% or less) and ¶ 167 (efficiency

gap less than 7%).” The trial court further determined “that the partisan skew in the

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[RCP] is not explained by the political geography of North Carolina.”

¶ 53 Second, the trial court addressed the RSP. The court noted that the plan passed

both chambers of the General Assembly by a strict party-line vote, with Republicans

voting for and Democrats voting against. The court subsequently found, based upon

“the analysis performed by the Special Masters and their advisors, that the [RSP] is

satisfactorily within the statistical ranges set forth in the Supreme Court’s full

opinion. See Harper v. Hall, 2022-NCSC-17, ¶ 166 (mean-median difference of 1% or

less) and ¶ 167 (efficiency gap less than 7%).” The court found that “to the extent

there remains a partisan skew in the [RSP], that partisan skew is explained by the

political geography of North Carolina.” The court determined that “the measures

taken by the General Assembly for the purposes of incumbency protection in the

[RSP] are consistent with the equal voting power requirements of the North Carolina

Constitution” and that “the General Assembly did not subordinate traditional neutral

districting criteria to partisan criteria or considerations in the [RSP].”

¶ 54 Third, the trial court addressed the RHP. The court noted that six amendments

to the plan were offered by Democratic Representatives and passed, and the RHP

then proceeded to pass the House by a vote of 115-5 and pass the Senate by a vote of

41-3. The court observed that “[t]he ‘aye’ votes in the House and Senate were by

members of both political parties[,]” while “[t]he ‘no’ votes in the House and Senate

were solely by members of the Democratic Party.” Regarding the RHP’s use of

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partisanship, the court found, based upon and confirmed by “the analysis performed

by the Special Masters and their advisors, that the [RHP] [is] satisfactorily within

the statistical ranges set forth in the Supreme Court’s full opinion. See Harper v.

Hall, 2022-NCSC-17, ¶ 166 (mean-median difference of 1% or less) and ¶ 167

(efficiency gap less than 7%).” The court found that “to the extent there remains a

partisan skew in the [RHP], that partisan skew is explained by the political

geography of North Carolina.” The court determined that “the measures taken by the

General Assembly for the purposes of incumbency protection in the [RHP] are

consistent with the equal voting power requirements of the North Carolina

Constitution” and that “the General Assembly did not subordinate traditional neutral

districting criteria to partisan criteria or considerations in the [RHP].”

¶ 55 Next, the trial court considered the proposed alternative remedial plans.

Because the court was “satisfied with the [RHP] and [RSP], [it] did not need to

consider an alternative plan” for those maps. In accordance with N.C.G.S. § 120-

2.4(a1), the trial court ordered the use of the Special Masters’ “interim districting

plan for the 2022 North Carolina Congressional election that differs from the [RCP]

to the extent necessary to remedy the defects identified by the [c]ourt.” The trial court

determined that the Modified RCP “was developed in an appropriate fashion, is

consistent with N.C.G.S. § 120-2.4(a1), and is consistent with the North Carolina

Constitution and the Supreme Court’s full opinion.” (Footnote omitted).

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¶ 56 Based on these factual findings, the trial court then reached its legal

conclusions. First, the trial court noted this Court’s ruling in Harper that “there are

multiple reliable ways of demonstrating the existence of an unconstitutional partisan

gerrymander” and that “[i]f some combination of these metrics demonstrates there is

a significant likelihood that the districting plan will give the voters of all political

parties substantially equal opportunity to translate votes into seats across the plan,

then the plan is presumptively constitutional.” Harper, ¶ 163.

¶ 57 The trial court then specified its legal conclusions regarding the Remedial

Plans. The trial court concluded that the RSP and RHP “satisf[y] the Supreme Court’s

standards” and therefore concluded that the RHP and RSP “are presumptively

constitutional.” The trial court concluded that “no evidence presented to the [c]ourt is

sufficient to overcome this presumption for the [RSP] and [RHP], and those plans are

therefore constitutional and will be approved.

¶ 58 However, the trial court “conclude[d] that the [RCP] does not satisfy the

Supreme Court’s standards.” Accordingly, the court concluded that the RCP “is not

presumptively constitutional and is therefore subject to strict scrutiny.” The court

concluded that “[t]he General Assembly has failed to demonstrate that [the RCP] is

narrowly tailored to a compelling governmental interest, and . . . therefore . . .

conclude[d] that the [RCP] is unconstitutional.”

¶ 59 Accordingly, the trial court was required to adopt a new, constitutionally

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compliant congressional plan. “Given that the ultimate authority and directive is

given to the Legislature to draw redistricting maps,” the trial court declined to adopt

Plaintiffs’ proposed plans. Instead, it concluded “that the appropriate remedy is to

modify the [RCP] to bring it into compliance with the Supreme Court’s order. See

N.C.G.S. § 120-2.4(a1).” The trial court concluded that the Modified RCP “as proposed

by the Special Masters satisfies the Supreme Court’s standards and should be

adopted . . . for the 2022 North Carolina Congressional elections.”

¶ 60 Based on these factual findings and legal conclusions, the trial court then

ordered the following:

1. The [RSP] and [RHP] . . . are hereby APPROVED by the

[c]ourt.

2. The [RCP] . . . is hereby NOT APPROVED by the

[c]ourt.

3. The [Modified RCP] as recommended by the Special

Masters is hereby ADOPTED by the [c]ourt and

approved for the 2022 North Carolina Congressional

elections.

¶ 61 On 23 February 2022, contemporaneously with its remedial order, the trial

court issued an order denying Legislative Defendants’ motion to disqualify Drs. Wang

and Jarvis “for the reasons expressed in the Special Masters’ Report.”

C. Present Appeal

¶ 62 Following the trial court’s remedial order, all parties appealed to this Court.

Harper Plaintiffs and NCLCV Plaintiffs appealed the trial court’s acceptance of the

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RSP. Plaintiff Common Cause appealed the trial court’s acceptance of both the RSP

and RHP and the trial court’s determination that the General Assembly satisfied

racially polarized voting requirements. Legislative Defendants appealed the trial

court’s rejection of the RCP. We briefly summarize each party’s arguments in turn.

¶ 63 First, Harper Plaintiffs and NCLCV Plaintiffs argue that the trial court erred

in approving the RSP. They argue that the evidence shows that the RSP constitutes

a partisan gerrymander that violates the Harper standard by creating stark partisan

asymmetry; that is, by failing to give voters of all parties substantially equal

opportunity to translate votes into seats. They contend that under Harper, individual

statistical metrics can inform but not replace the determination as to whether a map

complies with this foundational principle. They assert that the trial court erroneously

used two statistical measures (mean-median difference and efficiency gap) as a

substitute for constitutional compliance, and therefore that its approval of the RSP

must be rejected. Specifically, they contend that two of the trial court’s factual

findings—those finding that the RSP falls within certain statistical ranges and that

any remaining partisan skew can be explained by political geography—lack

competent evidence, and indeed are contrary to the evidence. Approving the trial

court’s approach, they warn, would greenlight partisan gerrymandering and

gamesmanship by allowing the General Assembly to create maps that meet certain

metrics but nevertheless still create stark partisan asymmetry. Finally, they argue

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that after rejecting the RSP, this Court should ensure that lawful maps endure by

ordering that a new remedial map be adopted not just for this year, but until the next

redistricting cycle following the 2030 census. This result is required, they assert,

based on the prohibition against mid-decade redistricting within article II, sections 3

and 5 of the North Carolina Constitution.6

¶ 64 Second, Plaintiff Common Cause argues that the trial court failed to evaluate

whether the RHP and RSP comport with all constitutional requirements by failing to

fully consider evidence of racially polarized voting. They contend that the RHP and

RSP dilute the voting strength of Black voters and destroy functioning crossover

districts in violation of equal protection principles.7 Separately, they argue that both

the RHP and RSP must be struck down as unconstitutional partisan gerrymanders

in violation of the Harper standard. They assert that the RHP and RSP deny

substantially equal voting power, that the trial court’s attribution of the plans’

partisan bias to political geography is legally and factually erroneous, and that the

plans therefore must receive and necessarily fail strict scrutiny. Accordingly, they

argue that this Court should ensure constitutional compliance by adopting Common

6 In response, Legislative Defendants argue that the trial court’s approval of the RHP

and RSP should be affirmed and that this Court lacks the authority to adopt an alternative

remedial plan.

7 In response, Legislative Defendants argue that the General Assembly properly

performed RPV analysis, which showed that majority-minority districts are not required to

comply with Section 2 of the Voting Rights Act.

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Cause’s proposed remedial maps.

¶ 65 Third, Legislative Defendants argue that the trial court erred in rejecting the

RCP and adopting the Modified RCP. They contend that the trial court failed to give

the RCP proper deference accorded to legislative enactments, and that the Special

Masters’ findings regarding the RCP were clearly erroneous. Further, Legislative

Defendants argue that the trial court abused its discretion in denying Legislative

Defendants’ motion to disqualify Special Masters’ Advisors Drs. Wang and Jarvis.

Accordingly, they assert that this Court should reverse the trial court’s approval of

the Modified RCP and its denial of their motion to disqualify.8

¶ 66 On 13 July 2022, Legislative Defendants filed with this Court a motion to

dismiss “the entirety of their portion of” this appeal. Therein, Legislative Defendants

asserted that dismissal of their own previous appeal was appropriate because the

Modified RCP “ordered by the trial court is only applicable to the 2022 election, and

that map will apply to the 2022 election regardless of the outcome of the appeal in

this Court.” In response, Harper Plaintiffs and NCLCV Plaintiffs opposed Legislative

Defendants’ motion to dismiss, arguing that the motion constitutes “a transparent

effort to prevent this Court from addressing important questions—questions that

Legislative Defendants have erroneously told the U.S. Supreme Court are

8 In response, Plaintiffs argue that the trial court properly rejected the RCP and

denied Legislative Defendants’ motion to disqualify.

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unresolved—about the meaning of North Carolina statutes that authorize North

Carolina courts to conduct state constitutional review of congressional-districting

plans, including [N.C.G.S.] §§ 1-267.1(a), 120-2.3, and 120-2.4.”

¶ 67 This case came before this Court for oral argument again on 4 October 2022.

II. Analysis

¶ 68 Now, this Court must review the alignment of the trial court’s remedial order

with the foundational principles established in Harper. “When the trial court

conducts a trial without a jury, the trial court’s findings of fact have the force and

effect of a jury verdict and are conclusive on appeal if there is competent evidence to

support them . . . .” Stephenson v. Bartlett, 357 N.C. 301, 309 (2003) (cleaned up). If

this Court determines “that the findings of fact are supported by the evidence, we

must then determine whether those findings of fact support the conclusions of law.”

Id. This Court reviews a trial court’s conclusions of law de novo. Sykes v. Health

Network Sols., Inc., 372 N.C. 326, 332 (2019). After consideration, we affirm the trial

court’s rejection of the RCP, affirm the trial court’s approval of the RHP, and reverse

the trial court’s approval of the RHP. Before reaching these determinations, we must

address Legislative Defendants’ motion to dismiss this appeal, which we deny.

Finally, we must also address Plaintiff Common Cause’s equal protection arguments,

which we reject.

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A. Legislative Defendants’ Motion to Dismiss Appeal

¶ 69 As an initial matter, we must address Legislative Defendants’ motion to

dismiss their own appeal. Because this motion was raised for the first time in this

Court, we review it within our own discretion. After consideration, we deny

Legislative Defendants’ motion.

¶ 70 In essence, Legislative Defendants contend that their appeal should be

dismissed because its outcome will have limited impact. That is, regardless of

whether this Court affirms or reverses the portion of the trial court’s order rejecting

of the RCP and adopting the Modified RCP, the Modified RCP has already been used

in the November 2022 elections and will ostensibly be replaced before future

elections. Harper Plaintiffs and NCLCV Plaintiffs, by contrast, contend that

Legislative Defendants’ motion seeks to “have it both ways” by “arguing about the

meaning of North Carolina law to the U.S. Supreme Court while simultaneously

withdrawing any attempts to have this Court address their misinterpretation of state

statutes and the state constitution.”

¶ 71 Lacking a crystal ball with which to divine Legislative Defendants’ purpose,

we turn to context. While Legislative Defendants’ motion correctly notes that “2022

is the only election to which the [Modified RCP] will apply,” that has been true since

the trial court issued its remedial order adopting the Modified RCP on 23 February

2022. Since then, Legislative Defendants not only appealed the trial court’s ruling

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regarding the RCP, but have continued to move their appeal forward through motions

practice throughout the spring and into the summer.

¶ 72 On 30 June 2022, however, the Supreme Court of the United States granted

Legislative Defendants’ petition for certiorari in Moore v. Harper. cert. granted, 142

S. Ct. 2901 (2022). There, the Court will consider whether the federal Constitution’s

Elections Clause prohibits state courts from resolving state constitutional challenges

to a state legislature’s congressional redistricting plans. Within their petition,

Legislative Defendants rebut Plaintiffs’ claim that certain state statutes expressly

authorize state courts to review challenges to congressional redistricting plans for

compliance with the state Constitution. On 8 July 2022, Plaintiffs each filed a notice

with this Court noting this development. Legislative Defendants filed their motion to

dismiss their own appeal in this Court three business days later.

¶ 73 This chronology is impossible to ignore, and indicates that Legislative

Defendants sought to dismiss their own appeal in order to avoid a ruling by this Court

that might affect their arguments before the Supreme Court of the United States. In

any event, this issue is of great significance to the jurisprudence of our state and is

squarely and properly before this Court through the trial court’s remedial order and

Legislative Defendants’ subsequent appeal. Accordingly, we deny Legislative

Defendants’ motion to dismiss.

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B. Harper’s Constitutional Standard

¶ 74 Next, before reviewing the Remedial Plans, we take this opportunity to clarify

and reaffirm the constitutional standard recognized by this Court in Harper v. Hall,

380 N.C. 317, 2022-NCSC-17.

¶ 75 Constitutional compliance is not grounded in narrow statistical measures, but

in broad fundamental rights. Therefore, a trial court reviewing the constitutionality

of a challenged proposed districting plan must assess whether that plan upholds the

fundamental right of the people to vote on equal terms and to substantially equal

voting power. Harper, ¶ 7. This fundamental right “encompasses the opportunity to

aggregate one’s vote with likeminded citizens to elect a governing majority of elected

officials who reflect those citizens’ views.” Id. ¶ 160. Put differently, it requires that

“voters of all political parties [have] substantially equal opportunity to translate votes

into seats.” Id. ¶ 163.

When, on the basis of partisanship, the General Assembly

enacts a districting plan that diminishes or dilutes a voter’s

opportunity to aggregate with likeminded voters to elect a

governing majority―that is, when a districting plan

systematically makes it harder for individuals because of

their party affiliation to elect a governing majority than

individuals in a favored party of equal size―the General

Assembly deprives on the basis of partisan affiliation a

voter of his or her right to equal voting power.

Id. ¶ 160.

¶ 76 Although Harper mentions several potential datapoints that may be used in

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assessing the constitutionality of a proposed districting plan, those measures are not

substitutes for the ultimate constitutional standard noted above. See id. ¶¶ 165–69.

That is, a trial court may not simply find that a districting plan meets certain factual,

statistical measures and therefore dispositively, legally conclude based on those

measures alone that the plan is constitutionally compliant. Constitutional compliance

has no magic number. Rather, the trial court may consider certain datapoints within

its wider consideration of the ultimate legal conclusion: whether the plan upholds the

fundamental right of the people to vote on equal terms and to substantially equal

voting power.

¶ 77 This is for good reason. As both Plaintiffs and Legislative Defendants

recognize, individual datapoints are vulnerable to manipulation and are not

independently dispositive of whether a map gives all voters a substantially equal

opportunity to translate votes into seats. Rather, it is only when these metrics and

record evidence align to “demonstrate[ ] [that] there is a significant likelihood that

the districting plan will give the voters of all political parties substantially equal

opportunity to translate votes into seats across the plan” that a challenged plan may

again be considered presumptively constitutional. Id. ¶ 163.

¶ 78 Contrary to the claims of the dissent, applying this standard, though of course

imperfect, is not impossible. There are many possible redistricting maps that could

uphold the fundamental right of all voters to vote on equal terms, just as there are

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many possible factors that a trial court may consider in assessing the ultimate

constitutionality of those maps. This is because our constitution speaks in broad

foundational principles, not narrow statistical calculations. As in other realms, the

absence of any one dispositive mathematical metric in redistricting does not absolve

the judiciary of its constitutional duty to interpret and protect the constitutional

rights of the citizens of our state. See Corum, 330 N.C. at 783 (“It is the state judiciary

that has the responsibility to protect the state constitutional rights of the citizens . .

. .”). Indeed, the very history of this case itself reveals that the judiciary, though not

always in perfect agreement, may meaningfully engage with these principles toward

the shared goal of ensuring the preservation of constitutional rights and the

maintenance of our sacred system of democratic governance.

¶ 79 Here, the trial court appears to have leaned very heavily upon its factual

findings regarding two datapoints, mean-median difference and efficiency gap, in

reaching its ultimate legal conclusion that the RHP and RSP “satisfy the Supreme

Court’s standards.”9 However, the trial court also expressly adopted into its factual

findings the findings within the Special Masters’ Report. That Report, in turn,

considered within its determination not just these two datapoints, but also “the

findings of the advisors on the partisan symmetry analysis, the declination metrics, .

To be clear, the ultimate standard for constitutional compliance originates from the

9

fundamental rights enshrined in the Constitution itself, not from this Court.

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. . their opinions on partisan bias and evidence of partisan gerrymandering[,]” and

“the totality of the circumstances.” Further, the trial court acknowledged the broader

constitutional standard at least in passing in its factual findings regarding

incumbency protection and traditional neutral districting criteria, which noted “the

equal voting power requirements of the North Carolina Constitution.” In so doing,

the remedial order indicates that the trial court functionally considered how the

evidence presented supported or undermined the compliance of the plans with the

broader constitutional standard, rather than using two datapoints as substitutes for

constitutional compliance.10 However, we encourage future trial courts considering

the constitutionality of districting plans to specify how the evidence does or does not

support the plan’s alignment with the broader constitutional standard of upholding

the fundamental right to vote on equal terms and avoiding partisan asymmetry, not

merely where its falls within certain statistical ranges.

C. Remedial Congressional Plan

¶ 80 With the proper constitutional standard clarified, we must now review the trial

court’s legal conclusions regarding the constitutionality of the RCP, RHP, and RSP

in alignment with that standard. We review conclusions of law de novo to determine

whether they are supported by findings of fact. Stephenson, 357 N.C. at 309; Sykes,

10 The trial court’s brevity here must also be considered within the context of its

extremely compressed schedule on remand.

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372 N.C. at 332. Factual findings are conclusive on appeal if they are supported by

competent evidence. Stephenson, 357 N.C. at 309. We first address the trial court’s

rejection of Legislative Defendants’ RCP. After consideration, we affirm.

¶ 81 In Conclusion of Law 7, the trial court “conclude[d] that the [RCP] does not

satisfy the Supreme Court’s standards” for constitutional compliance. The trial court

subsequently concluded that “the [RCP] is not presumptively constitutional and is

therefore subject to strict scrutiny.” The court ultimately concluded that because

“[t]he General Assembly has failed to demonstrate that the[ ] [RCP] is narrowly

tailored to a compelling governmental interest, . . . [it] is unconstitutional.”

¶ 82 These conclusions of law are supported by Findings of Fact 28 through 35.

Therein, the trial court found that the RCP was passed on a strict party-line vote,

that the RCP “is not satisfactorily within the statistical ranges set forth” in Harper,

and that “the partisan skew in the [RCP] is not explained by the political geography

of North Carolina.” Further, the Special Masters’ Report, as expressly adopted in full

into the trial court’s remedial order, found that “there is substantial evidence from

the findings of the advisors that the [RCP] has an efficiency gap above 7% and a

mean-median difference of greater than 1%.” After consideration of this evidence

“along with the advisors’ findings on the partisan symmetry analysis and the

declination metrics,” the Special Masters stated their “opinion that the [RCP] fails to

meet the threshold of constitutionality.” They therefore “recommend[ed] that the

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[t]rial [c]ourt reject the [RCP] as being unconstitutional.”

¶ 83 These factual findings are supported by competent evidence in the record.

Specifically, none of the Special Masters’ Advisors determined that the RCP yielded

both an efficiency gap below 7% and a mean-median difference below 1%. Beyond

these two measures, the Advisors determined that the RCP reflects stark and durable

partisan asymmetry, as illustrated by their observations that Republicans would

consistently win more seats than Democrats with the same share of votes across a

variety of electoral conditions. More broadly, the Advisors determined that the RCP

“consistently favors Republicans” across all applicable measures, “creates a

distribution of voting strength across districts that is very lopsidedly Republican,”

and “should be viewed as a pro-Republican gerrymander.” Finally, the Advisors

determined that the RCP created far worse partisan asymmetry than possible

alternatives.11

¶ 84 Collectively, this evidence amply supports the trial court’s factual findings that

the RCP does not satisfy constitutional standards. Those factual findings, in turn,

adequately support the trial court’s subsequent conclusion of law that the RCP must

11 Of course, because there are any number of potential maps that could satisfy

constitutional standards, the existence of an alternative plan with greater partisan

symmetry does not dispositively prove the unconstitutionality of a less symmetrical plan.

However, as with any other piece of evidence, the existence or absence of an alternative plan

with significantly greater partisan symmetry—especially one that still honors traditional

neutral districting criteria—may serve as one datapoint within the trial court’s broader

constitutional determination.

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be assessed under, and fails, strict scrutiny. Accordingly, we affirm the trial court

order’s rejection of the RCP.

¶ 85 Next, we must address the trial court’s subsequent remedy: the adoption of the

Modified RCP. In Conclusion of Law 8, the trial court stated that “[g]iven the ultimate

authority and directive is given to the Legislature to draw redistricting maps, we

conclude that the appropriate remedy is to modify the Legislative [RCP] to bring it

into compliance with the Supreme Court’s order. See N.C.G.S. § 120-2.4(a1).”

Subsequently, the court concluded that “[t]he [Modified RCP] as proposed by the

Special Masters satisfies the Supreme Court’s standards and should be adopted by

th[e] [c]ourt for the 2022 North Carolina Congressional elections.”

¶ 86 As an initial matter, the trial court is correct: N.C.G.S. § 120-2.4(a1) states, in

pertinent part, that “[i]n the event the General Assembly does not act to remedy [a

previously] identified defect[ ] to its [redistricting] plan within th[e] [required] period

of time, the court may impose an interim districting plan.” N.C.G.S. § 120-2.4(a1)

(2021). The statute further clarifies that this interim plan “may differ from the

districting plan enacted by the General Assembly only to the extent necessary to

remedy any defects identified by the court.” Id. In alignment with its broader

statutory framework including N.C.G.S. § 1-267.1 (entitled “Three-judge panel for

actions challenging plans apportioning or redistricting State legislative or

congressional districts; claims challenging the facial validity of an act of the General

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Assembly”) and N.C.G.S. § 120-2.3 (entitled “Contents of judgments invalidating

apportionment or redistricting acts), N.C.G.S. § 120-2.4 expressly authorizes judicial

review of legislative redistricting plans for state constitutional compliance and

judicial adoption of modified remedial plans in the event that the General Assembly

fails to remedy constitutional defects within its own proposed plans. Accordingly, the

trial court properly complied with N.C.G.S. § 120-2.4(a1) in adopting the Modified

RCP.

¶ 87 Further, the trial court’s conclusion of law that the Modified RCP satisfies the

constitutional standard is supported by its findings of fact. These factual findings

determined that the Modified RCP “was developed in an appropriate fashion, is

consistent with N.C.G.S. § 120-2.4(a1), and is consistent with the North Carolina

Constitution and the Supreme Court’s full opinion.” (Footnote omitted). The Special

Masters’ Report, as expressly adopted in full into the trial court’s remedial order,

likewise found that the Modified RCP “satisfies the requirements of the Supreme

Court” and “achieves the partisan fairness and ‘substantially equal voting power’

required by the Supreme Court of North Carolina.”

¶ 88 These findings of fact are supported by competent evidence. The evidence

indicates that the Modified RCP “has an efficiency gap of 0.63%, a mean-median

difference of 0.69%, seat bias of 0.28%, and vote bias of 0.10%.” According to Dr.

Grofman, “this is the most non-dilutive plan in partisan terms of any map that has

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been submitted to the [c]ourt.” Finally, the evidence indicates that the Modified RCP

achieves this level of partisan symmetry while still complying with traditional

neutral districting criteria such as “maintaining the number of county splits,

retaining equal population, compactness, and contiguity, as well as respecting

municipal boundaries.”

¶ 89 Collectively, this evidence amply supports the trial court’s factual findings that

the Modified RCP was developed in an appropriate fashion, is consistent with

N.C.G.S. § 120-2.4(a1), and meets constitutional standards. Those factual findings,

in turn, adequately support the trial court’s subsequent conclusion of law that

adopting the Modified RCP is legally and constitutionally appropriate remedy.

Accordingly, we affirm the trial court order’s adoption of the Modified RCP.

D. Remedial House Plan

¶ 90 Second, we address the trial court’s approval of Legislative Defendants’

Remedial House Plan (RHP). After consideration, we affirm.

¶ 91 In Conclusion of Law 4, the trial court “conclude[d] that the [RHP] satisfies the

Supreme Court’s standards” for constitutional compliance. It subsequently concluded

that “the [RHP is] presumptively constitutional” and that because “no evidence

presented to the [c]ourt is sufficient to overcome this presumption[,] . . . th[e] [RHP

is] therefore constitutional and will be approved.”

¶ 92 These conclusions of law are supported by Findings of Fact 51 through 63, none

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of which have been specifically challenged as unsupported by evidence. Therein, the

trial court found that the RHP was “amended by six amendments offered by

Democratic Representatives” and ultimately passed the House and Senate with

sweeping bipartisan approval. The trial court found, “based upon and confirmed by

the analysis of the Special Masters and their advisors, that the [RHP is] satisfactorily

within the statistical ranges set forth in the Supreme Court’s full opinion.” The court

found that “to the extent there remains a partisan skew in the [RHP], that partisan

skew is explained by the political geography of North Carolina.” Regarding the

General Assembly’s consideration of incumbency protection, the trial court found that

“the measures taken by the General Assembly for the purposes of incumbency

protection in the [RHP] were applied evenhandedly” and “are consistent with the

equal voting power requirements of the North Carolina Constitution.” The trial court

found “that the General Assembly did not subordinate traditional neutral districting

criteria to partisan criteria or considerations in the [RHP].” Further, the Special

Masters’ Report, as expressly adopted in full into the trial court’s remedial order,

found that “[t]he advisors as well as the experts of the parties . . . all found the

efficiency gap of the [RHP] to be less than 7%” and “[t]he majority of the advisors and

experts found the mean-median difference of the [RHP] to be less than 1%.” The

Special Masters determined, based on these facts and “the findings of the advisors on

the partisan symmetry analysis, the declination metrics, and their opinions on

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partisan bias and evidence of partisan gerrymandering,” that “the [RHP] meets the

test of presumptive constitutionality.”

¶ 93 Moreover, these factual findings are supported by competent evidence. The

Special Masters’ Advisors determined that the RHP yields an average efficiency gap

of about 2.88%, an average mean-median difference of about 1.27%, a partisan

asymmetry of 2.9%, and a declination metric of 0.16. Although the RHP shows some

Republican bias, the Advisors determined that the RHP “is genuinely far more

competitive than either of the other two legislatively proposed maps” and “simply

lacks the same clear indicia of egregious bias found in the previously rejected maps

and still found . . . in the [RCP] and [RSP].” Dr. Jarvis determined that the RHP

“appear[s] to be mostly typical in terms of the number of seats won,” and Dr. McGhee

observed that the RHP’s similarity to the NCLCV proposed plan “hints that it may

be difficult to do better while still abiding by other constraints.” Contextually, the

Advisors observed that neither the Harper Plaintiffs nor the NCLCV Plaintiffs

challenged the RHP on appeal, and that the RHP “was passed by a clear bipartisan

consensus in the legislature.”

¶ 94 Collectively, this evidence supports the trial court’s factual findings that the

RHP meets constitutional standards. Those factual findings, in turn, adequately

support the trial court’s subsequent conclusion of law that the RHP is constitutional

and should be approved. Accordingly, we affirm the trial court’s order approving the

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RHP. In accordance with article II section 5(4) of our Constitution, the RHP is now

“established” under law and therefore “shall remain unaltered until the return of

another decennial census of population taken by order of Congress.”

E. Remedial Senate Plan

¶ 95 Third, we address the trial court’s approval of Legislative Defendants’

Remedial Senate Plan (RSP). After consideration, we reverse.

¶ 96 In Conclusion of Law 3, the trial court “conclude[d] that the [RSP] satisfies the

Supreme Court’s standards.” It subsequently concluded that “the [RSP is]

presumptively constitutional,” and that because “no evidence presented to the [c]ourt

is sufficient to overcome this presumption[,] . . . th[e] [RSP is] therefore constitutional

and will be approved.”

¶ 97 These conclusions of law are based on Findings of Fact 36 through 50, but,

unlike for the RHP, are not supported by all of those findings. For instance, Finding

of Fact 36 found that the RSP kept many of the same county groupings as the

unconstitutional 2021 Senate plan. Finding of Fact 38 found that the RSP passed

both chambers of the General Assembly on strict party-line votes. Finding of Fact 39

found that suggested Senate plans drawn by Democrats were rejected and only “the

plan proposed by the Republican Redistricting and Election Committee members was

then put to a vote by the Senate Committee and advanced to the full chamber.”

Though far from dispositive, these contextual factual findings undermine, rather

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than support, the trial court’s subsequent conclusion that the RSP meets

constitutional standards of partisan symmetry. These contrary factual findings, in

part, distinguish the trial court’s analysis of the RSP from its analysis of the RHP,

¶ 98 Other findings of fact regarding the RSP, though supportive of the trial court’s

legal conclusions, are expressly challenged by Plaintiffs and, we conclude, are

unsupported by competent evidence.12 For instance, Finding of Fact 42 found that

“based upon the analysis performed by the Special Masters and their advisors, . . .

the [RSP] is satisfactorily within the statistical ranges set forth in the Supreme

Court’s full opinion.” Finding of Fact 43 found “that to the extent there remains a

partisan skew in the [RSP], that partisan skew is explained by the political geography

of North Carolina.” These two findings constitute the keystone of the trial court’s

factual support for its legal conclusion that the RSP is constitutionally compliant, but

neither are supported by competent evidence.

¶ 99 First, Finding of Fact 42 is not supported by competent evidence. Far from

supporting the constitutionality of the RSP, the analysis performed by the Special

Masters and their Advisors strongly indicates that the RSP reflects “a substantial

pro-Republican bias” that “should be viewed as a pro-Republican gerrymander” and

constitutes “a significant outlier in favor of the Republicans.” Statistically, all but one

12 Because these factual findings are expressly challenged as lacking competent

evidence, they require a more careful review than findings or conclusions that are more

generally rebutted or wholly unmentioned.

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Advisor, Dr. Wang, determined that the RSP yields a mean-median difference of over

1%, and the average of all four advisors’ mean-median difference calculation is also

above 1%. Even Dr. Wang concluded that the RSP indicates notable partisan bias in

all six metrics evaluated. And because the Special Masters expressly noted that Dr.

Wang’s analysis “was not determinative of any recommendations made by the Special

Masters to the court,” it is clear that this finding of fact cannot rest on his single

calculation alone. Further, the evidence indicates the RSP’s durable partisan

asymmetry is such that “in a tied election Republicans would still hold 27 or 28 seats,

and that Democrats would need to win as much as 53 percent of the vote to claim 25

seats.”

¶ 100 Finding of Fact 43 is likewise unsupported by competent evidence. There, the

trial court found “that to the extent there remains a partisan skew in the [RSP], that

partisan skew is explained by the political geography of North Carolina.” As an initial

matter, this finding is an incomplete statement of the requirement established in

Harper, which stated that a court may use statistical measures in assessing “whether

a meaningful partisan skew necessarily results from North Carolina’s unique political

geography.” Harper, ¶ 163 (emphasis added). In any event, the evidence shows the

opposite. The Advisors specifically determined that alternative remedial Senate

plans often reflect “less than half the size of the [partisan] advantage in the

Legislative Defendants’ [RSP],” indicating “that there is nothing foreordained about

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the advantages in the Legislative Defendants’ plan.” This evidence likewise

distinguishes the RSP from the RHP, which was found to reflect very similar partisan

symmetry as alternative plans, thus “hint[ing] that it may be difficult to do better

while still abiding by [traditional] constraints.” Indeed, when alternative plans reflect

substantially less partisan asymmetry while adhering equally or better to traditional

neutral redistricting criteria, it indicates that the more asymmetrical plan is

necessarily not explained by political geography.

¶ 101 To be clear, none of these datapoints are individually dispositive.

Cumulatively, though, they directly and significantly undermine, rather than

support, the trial court’s factual findings that the RSP satisfies constitutional

standards. Given this lack of competent evidentiary support, these challenged

findings of fact must be rejected as support for their subsequent legal conclusions.

¶ 102 Without these keystone factual findings, the trial court’s subsequent

conclusions of law crumble. That is, without any findings that the RSP satisfies

constitutional standards, the trial court’s conclusion affirming the RSP’s

constitutionality is wholly unsupported and likewise fails. Accordingly, we reverse

the trial court’s approval of the RSP.

¶ 103 Given this reversal, this Court must now implement a remedy. Under N.C.G.S.

§ 120-2.4(a1), when “the General Assembly does not act to remedy any identified

defects” to a remedial districting plan, “the court may impose an interim districting

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plan . . . that . . . differ[s] from the districting plan enacted by the General Assembly

only to the extent necessary to remedy any defects identified by the court.” In

accordance with this express statutory authorization and the Court’s constitutional

authority to remedy the violation of fundamental rights, see Corum, 330 N.C. at 783,

we remand this case to the trial court to oversee the creation of a Modified RSP. This

plan must modify Legislative Defendants’ RSP only to the extent necessary to achieve

constitutional compliance by ensuring that individuals “of all political parties are

given substantially equal opportunity to translate votes into seats across the plan.”

Harper, ¶ 163. Upon its review, if the trial court concludes that the proposed Modified

RSP meets this constitutional standard, then we instruct the trial court to adopt the

Modified RSP.

F. Legislative Defendants’ Motion to Disqualify Special Masters’ Advisors

¶ 104 Next, we must address Legislative Defendants’ contention that the trial court

abused its discretion in denying Legislative Defendants’ motion to disqualify two of

the Special Masters’ Advisors. This Court reviews a trial court’s discretionary ruling

for an abuse of that discretion. Davis v. Davis, 360 N.C. 518, 523 (2006). “A trial court

may be reversed for abuse of discretion only upon a showing that its actions are

‘manifestly unsupported by reason.’ ” Id. (quoting Clark v. Clark, 301 N.C. 123, 129

(1980)). We hold that the trial court did not abuse its discretion in denying Legislative

Defendants’ motion to disqualify for three reasons.

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¶ 105 First, while “the analysis provided by Drs. Wang and Jarvis was helpful . . . ,

it was not determinative of any recommendations made by the Special Masters to the

[c]ourt.” Second, the ex parte communications between the Advisors and Plaintiffs’

experts “do not appear to have been made in bad faith” and “were solely for the

purpose of proceeding as quickly as possible within the abbreviated time frame

allotted for the remedial process.” Third, all of the information sought by the Advisors

“was publicly available . . . at the time of the communications questioned.”

Accordingly, the trial court’s denial of Legislative Defendants’ motion to disqualify

was amply supported by reason. We therefore affirm the trial court’s denial of

Legislative Defendants’ motion.

G. Equal Protection Challenge

¶ 106 Finally, we must address Plaintiff Common Cause’s equal protection

arguments. Specifically, Common Cause contends that RHP District 10 and RSP

District 4 violate state equal protection requirements by failing to protect against

vote dilution for Black voters and due to the intentional destruction of functioning

crossover districts for Black voters. In response, Legislative Defendants assert the

General Assembly satisfactorily performed a racially polarized voting analysis which

showed that majority-minority districts are not required for Voting Rights Act (VRA)

compliance, and that the General Assembly lacked good reason to conclude that

drawing remedial districts without reference to race was required to protect from

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VRA Section 2 liability. Because this Court has already reversed the trial court’s

constitutional approval of the RSP, we focus primarily on Plaintiff Common Cause’s

RHP challenge. After consideration, we reject Plaintiff Common Cause’s claim.

¶ 107 In Harper, this Court held “that under Stephenson, the General Assembly was

required to conduct a racially polarized voting analysis prior to drawing district

lines.” Harper, ¶ 214. We further noted that this responsibility “arises from our state

constitution and decisions of this Court, including primarily Stephenson, and not from

the VRA itself, or for that matter from any federal law.” Id.

¶ 108 Here, the trial court concluded that the RHP satisfied constitutional

standards, which include principles of equal protection. This conclusion of law, as it

relates to equal protection principles, was supported by Findings of Fact 16 and 17.

Therein, the trial court found that “[t]he General Assembly conducted an abbreviated

racially polarized voting (“RPV”) analysis to determine whether racially polarized

voting is legally sufficient in any area of the state such that Section 2 of the [VRA]

requires the drawing of a district to avoid diluting the voting strength of African

American voters during the remedial process.” The trial court found that “Legislative

Defendants’ expert Dr. Jeffery B. Lewis ran an analysis and concluded that all three

Remedial Plans provide African Americans with proportional opportunity to elect

their candidates of choice.” Accordingly, the trial court determined “that the General

Assembly satisfied the directive in the Supreme Court Remedial Order to determine

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whether the drawing of a district in an area of the state is required to comply with

Section 2 of the [VRA].”

¶ 109 The evidence on this issue, though limited, supports the trial court’s limited

findings of fact and conclusion of law. Specifically, the record reflects that the General

Assembly conducted RPV analysis during its remedial process in compliance with

this Court’s order and opinion in Harper, and that this analysis concluded that the

RHP met threshold requirements of providing Black voters with proportional

opportunity to elect candidates of their choice. Although Plaintiff Common Cause

notes contrary evidence indicating decreases in Black voting age population

percentages within the two challenged districts under the RHP and RSP, this

evidence does not lead to a conclusion that the trial court’s findings are unsupported

by competent evidence. Further, because the federal authorities cited by Plaintiff

Common Cause do not require the General Assembly to create functioning crossover

districts based on this data under state equal protection principles, this Court is not

in a position to consider Plaintiff’s requested remedy within an exclusively state law

claim in state court. Accordingly, we affirm the trial court’s approval of the RHP on

equal protection principles.

III. Conclusion

¶ 110 Our Constitution’s Declaration of Rights vests in the people of this state the

fundamental right to vote on equal terms. N.C. Const. art. I, §§ 1 (equality and rights

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of persons), 2 (sovereignty of the people), 10 (free elections), 12 (freedom of assembly),

14 (freedom of speech), 19 (equal protection of the laws); see Harper, ¶ 158–59

(summarizing these principles and rights). In exercising its redistricting authority,

the General Assembly is required to respect and uphold this fundamental right. Id. ¶

160. Therefore, when the General Assembly enacts a districting plan that

systematically makes it harder for certain voters to elect a governing majority based

on partisan affiliation, that plan “is subject to strict scrutiny and is unconstitutional

unless the General Assembly can demonstrate that the plan is narrowly tailored to

advance a compelling governmental interest.” Id. ¶ 161 (cleaned up). While individual

datapoints about a districting plan may be helpful toward assessing constitutional

compliance, they are not substitutes for constitutional compliance. Ultimately, a

districting plan must comply with the broader constitutional standard of upholding

the right to vote on equal terms and to substantially equal voting power. Id. ¶ 160.

¶ 111 Here, the trial court properly determined that Legislative Defendants’

Remedial Congressional Plan fell short of that standard. In accordance with N.C.G.S.

§ 120-2.4(a1), it then properly adopted a Modified RCP. Therefore, we affirm the trial

court’s rejection of the RCP and adoption of the Modified RCP.

¶ 112 Next, the trial court properly determined that Legislative Defendants’

Remedial House Plan met constitutional standards. We therefore affirm the trial

court’s approval of the RHP for use through the next decennial redistricting cycle.

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¶ 113 However, the trial court erred in its determination that Legislative

Defendants’ Remedial Senate Plan met constitutional standards. Specifically, the

trial court’s legal conclusion that the RSP is constitutionally compliant is

unsupported by findings of fact that are supported by competent evidence. Rather,

the evidence strongly indicates that the RSP creates stark partisan asymmetry in

violation of the fundamental right to vote on equal terms. We therefore reverse the

trial court’s approval of the RSP.

¶ 114 In accordance N.C.G.S. § 120-2.4(a1), we now remand this case to the trial

court to oversee the creation of a Modified RSP that modifies Legislative Defendants’

RSP only to the extent necessary to achieve constitutional compliance. After

assessing the Modified RSP for constitutional compliance, we instruct the trial court,

in accordance with N.C.G.S. § 120-2.4(a1), to adopt this Modified RSP.

¶ 115 If our state is to realize its foundational ideals of equality and popular

sovereignty, it must first “ensure that the channeling of ‘political power’ from the

people to their representatives in government through elections, the central

democratic process envisioned by our constitutional system, is done on equal terms.”

Harper, ¶ 223. Only then will ours truly be “a ‘government of right’ that ‘originates

from the people’ and speaks with their voice.” Id. As expressed in Harper, it remains

the sincere hope of this Court that our state’s leaders will exercise their constitutional

authority—in redistricting and all other realms—in a manner that upholds these

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fundamental rights and principles. Id. Until then, it remains the solemn

constitutional duty of this Court and our state judiciary to stand in the breach.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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Chief Justice NEWBY dissenting.

¶ 116 To which branch of government does our constitution place the role of

redistricting? The constitution expressly gives that responsibility to the legislative

branch; even the majority so concedes. While paying lip service to this express grant

of authority, the majority retains for itself the ultimate redistricting responsibility.

As previously warned in the initial dissent in this case,

[t]he majority replaces established principles with

ambiguity, basically saying that judges alone know which

redistricting plan will be constitutional and accepted by

this Court based on analysis by political scientists. This

approach ensures that the majority now has and

indefinitely retains the redistricting authority, thereby

enforcing its policy preferences.

Harper v. Hall (Harper I), 380 N.C. 317, 2022-NCSC-17, ¶ 229 (Newby, C.J.,

dissenting).

¶ 117 Today this prediction is fulfilled. In Harper I the majority effectively amended

the state constitution to establish a redistricting commission composed of judges and

political science experts. When, however, this commission, using the majority’s

redistricting criteria, reached an outcome with which the majority disagrees, the

majority freely reweighs the evidence and substitutes its own fact-finding for that of

the three-judge panel. Again, as predicted, “[t]he four members of this Court alone

will approve a redistricting plan which meets their test of constitutionality.” Id.

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¶ 118 On remand, despite very challenging deadlines established by the majority,

the General Assembly redrew its redistricting maps, this time using the guidelines

discussed by this Court in Harper I. The General Assembly made the policy decision

to use various approved, constitutionally compliant procedures. It chose appropriate

county groupings, utilized the most widely accepted redistricting software available,

Maptitude, and adopted for its use the twelve statewide races suggested by one of

plaintiffs’ experts. It made the policy decision to rely on the two, extensively peer-

reviewed, political science tests suggested by the majority. The majority said that if

a redistricting plan met these tests, it would be “presumptively constitutional.” Id.

¶¶ 166−67 (majority opinion). All of the General Assembly’s remedial plans met these

tests according to the Maptitude software.

¶ 119 The three-judge panel, its Special Masters, and their advisors did not give any

deference to the General Assembly’s policy choices listed above. Each advisor used

his own preferred software and set of elections to analyze the remedial plans.

Nevertheless, the Special Masters recommended, and the three-judge panel

concluded, that the remedial House plan (RHP) and the remedial Senate plan (RSP)

complied with the majority’s criteria from Harper I. The three-judge panel, however,

summarily rejected the remedial Congressional plan (RCP), as recommended by the

Special Masters, and judicially adopted a plan created by the Special Masters in

consultation with their advisors.

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¶ 120 Now the majority agrees with the three-judge panel’s acceptance of the RHP

and its rejection of the RCP. The majority, however, holds unconstitutional beyond a

reasonable doubt the RSP. While accepting the three-judge panel’s findings of fact for

the RHP, the majority wrongly reweighs the evidence, determines credibility, and

substitutes its own judgment for that of the three-judge panel in order to strike down

the RSP.

¶ 121 Despite the majority’s judicial amendments to our constitution to create an

active role for itself in redistricting, our case law directs that the General Assembly’s

policy determinations in enacting laws are entitled to a presumption of

constitutionality. See State ex rel. McCrory v. Berger, 368 N.C. 633, 639, 781 S.E.2d

248, 252 (2016). Showing that a policy decision is unconstitutional requires proof

beyond any reasonable doubt. See, e.g., Jenkins v. State Bd. of Elections, 180 N.C.

169, 172, 104 S.E. 346, 348 (1920). In compliance with the majority’s directive, the

General Assembly chose Maptitude, a set of twelve statewide elections, and two

political science tests, Mean-Median Difference and Efficiency Gap, which were

specifically approved in Harper I.

¶ 122 No one has challenged the General Assembly’s policy choices as

unconstitutional. According to Maptitude, all three remedial maps satisfied the

Mean-Median Difference and Efficiency Gap criteria, thus meeting the majority’s own

test for presumptive constitutionality—this test being in addition to the

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long-standing requirement that we treat all acts of the General Assembly as

constitutional.

¶ 123 Neither the majority nor the three-judge panel gave any deference to these

policy choices. Instead, they disrespect another branch of government by treating the

General Assembly as just another participant in their redistricting process. While the

three-judge panel correctly upheld the RHP and the RSP, it wrongly rejected the RCP.

The majority now wrongly rejects the RSP and upholds the three-judge panel’s

rejection of the RCP. The majority has effectively overturned its own decision in

Harper I. There it said that if the Remedial Plans met specified thresholds for certain

political science-based tests, the plans would be “presumptively constitutional.”

Harper I, 2022-NCSC-17, ¶¶ 166−67. Now, reversing course, it says none of these test

scores can entitle a proposed redistricting plan to a presumption of constitutionality.

It appears the majority seeks to apply strict scrutiny to all of Legislative defendants’

Remedial Plans.

¶ 124 By its actions today, the majority confirms the dangers of judicial usurpation

of the legislative redistricting role. By intentionally stating vague standards, it

ensures that four members of this Court alone understand what redistricting plan is

constitutionally compliant. Apparently, the General Assembly, the three Special

Masters (each a former jurist), and the three-judge panel were unable to discern the

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constitutional “standard” set out in Harper I. Only the four justices here know what

meets their standard.

¶ 125 When the constitution expressly assigns a task to a particular branch of

government, the constitution prohibits the judicial branch from intruding into that

task. Such intrusion violates separation of powers; the issue is nonjusticiable.

Similarly, a matter is nonjusticiable if there is “a lack of judicially discoverable and

manageable standards for resolving it.” Id. ¶ 237 (Newby, C.J., dissenting) (quoting

Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710 (1962)). While the presence of

either factor makes a matter nonjusticiable, both are present here.1

¶ 126 As previously stated,

[t]he majority ignores [the Supreme Court’s] warnings,

fails to articulate a manageable standard, and seems

content to have the discretion to determine when a

redistricting plan is constitutional. This approach is

radically inconsistent with our historic standard of review,

which employs a presumption that acts of the General

Assembly are constitutional, requiring identification of an

express constitutional provision and a showing of a

violation of that provision beyond a reasonable doubt.

The Supreme Court cautioned that embroiling

courts in cases involving partisan gerrymandering claims

1 The majority wrongly states that the presence of both factors is required to render

an issue nonjusticiable. Harper I, 2022-NCSC-17, ¶ 112 (majority opinion) (“This Court has

recognized two criteria of political questions: (1) where there is ‘a textually demonstrable

constitutional commitment of the issue’ to the ‘sole discretion’ of a ‘coordinate political

department[,]’ and (2) those questions that can be resolved only by making ‘policy choices

and value determinations.’ ” (first alteration in original) (emphasis added) (quoting Bacon v.

Lee, 353 N.C. 696, 717, 549 S.E.2d 840, 854 (2001))).

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by applying an “expansive standard” would amount to an

“unprecedented intervention in the American political

process.”

Id. ¶¶ 310−11 (quoting Rucho v. Common Cause, 139 S. Ct. 2484, 2498 (2019)). Sadly,

the majority continues to do just that. I respectfully dissent.

I. Factual and Procedural History

A. Initial Litigation

¶ 127 As required by both our state constitution and the Federal Constitution, the

General Assembly, following the 2020 census, enacted redistricting plans for the

North Carolina Senate and House of Representatives and for the North Carolina

districts for the United States House of Representatives on 4 November 2021 (2021

Plans). North Carolina League of Conservation Voters (NCLCV) plaintiffs and

Harper plaintiffs each challenged the legality of these plans, arguing they

“establish[ed] severe partisan gerrymanders” and “engag[ed] in racial vote dilution”

in violation of the Free Elections Clause, the Equal Protection Clause, the Freedom

of Speech and Assembly Clauses, and the Whole County Provisions of the North

Carolina Constitution. See N.C. Const. art. I, §§ 10, 19, 12, 14; id. art. II, §§ 3(3), 5(3).

Both groups of plaintiffs also sought a preliminary injunction to enjoin use of the 2021

Plans.

¶ 128 The NCLCV and Harper actions were consolidated and assigned to a

three-judge panel of the Superior Court in Wake County. On 3 December 2021, the

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three-judge panel denied both NCLCV plaintiffs’ and Harper plaintiffs’ motions for

preliminary injunction. NCLCV plaintiffs and Harper plaintiffs filed a notice of

appeal with the North Carolina Court of Appeals.

¶ 129 The Court of Appeals denied NCLCV plaintiffs’ and Harper plaintiffs’ request

for a temporary stay. NCLCV plaintiffs and Harper plaintiffs then filed several items

with this Court, including 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 allowed NCLCV plaintiffs’ and Harper plaintiffs’

petitions for discretionary review, granted a preliminary injunction, and temporarily

stayed the candidate filing period for the 2022 election cycle “until such time as a

final judgment on the merits of [NCLCV and Harper] plaintiffs’ claims, including any

appeals, is entered and [a] remedy, if any is required, has been ordered.” In the same

order, this Court also directed the three-judge panel to hold proceedings on “the

merits of plaintiffs’ claims and to provide a written ruling on or before . . . January

11, 2022.”

¶ 130 Subsequently, Common Cause moved to intervene in the consolidated

proceedings as a plaintiff on 13 December 2021. The three-judge panel granted

Common Cause’s motion to intervene, and on 16 December 2021, Common Cause

filed its complaint alleging the 2021 Plans violated the Equal Protection Clause, the

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Free Elections Clause, and the Freedom of Speech and Freedom of Assembly Clauses

of the North Carolina Constitution. Hereinafter, NCLCV plaintiffs, Harper plaintiffs,

and Common Cause are collectively referred to as “plaintiffs.”

¶ 131 Legislative defendants filed their Answers on 17 December 2021. Thereafter,

the parties engaged in an “expedited two-and-a-half-week” discovery period, during

which the three-judge panel ruled on ten discovery-related motions and the parties

collectively designated ten expert witnesses and submitted accompanying reports.

Altogether, the parties collectively submitted over 1000 pages of reports and

materials to the three-judge panel. After the discovery period closed on 31 December

2021, the three-judge panel commenced a three-and-one-half day trial on 3 January

2022 during which it received approximately 1000 exhibits into evidence and

testimony from numerous fact and expert witnesses.

¶ 132 On 11 January 2022, the three-judge panel entered a judgment concluding that

plaintiffs’ partisan gerrymandering claims presented nonjusticiable, political

questions because redistricting “is one of the purest political questions which the

legislature alone is allowed to answer.” Additionally, the three-judge panel concluded

that the 2021 Plans did not violate North Carolina’s Declaration of Rights because

“[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

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1971 Constitution and not the Free Elections, Equal Protection, Freedom of Speech

or Freedom of Assembly Clauses found in Article I of the 1971 Constitution.”

¶ 133 Pursuant to this Court’s 8 December 2021 order certifying the case for review

prior to determination by the Court of Appeals, all plaintiffs filed notices of appeal to

this Court from the three-judge panel’s judgment. The case was argued before this

Court on 2 February 2022. On 4 February 2022, in a four-to-three decision, this Court

entered an Order (Remedial Order) adopting the findings of fact from the three-judge

panel’s judgment but concluding that the 2021 Plans were “unconstitutional beyond

a reasonable doubt under the free elections clause, the equal protection clause, the

free speech clause, and the freedom of assembly clause of the North Carolina

Constitution.” The Remedial Order reversed and remanded the matter to the

three-judge panel for remedial proceedings and noted that a full opinion would follow.

Three justices filed a dissent to the Remedial Order.

B. Harper I

¶ 134 Ten days later, the four-justice majority issued its full opinion. See Harper I,

380 N.C. 317, 2022-NCSC-17. The majority opinion first held that “partisan

gerrymandering claims are justiciable in North Carolina courts under the . . . [North

Carolina] Declaration of Rights” because there are “several manageable standards

for evaluating the extent to which districting plans dilute votes on the basis of

partisan affiliation.” Id. ¶ 174. Specifically, the majority determined that various

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political science metrics could serve as a sufficient standard. See id. ¶¶ 163, 166–67.

It indicated that a 1% or less Mean-Median Difference score and a 7% or less

Efficiency Gap score could indicate a redistricting map is “presumptively

constitutional.” See id. ¶¶ 166–67. The majority, however, refused to state a precise

standard, ultimately leaving that review to themselves. Id. ¶ 163 (“We do not believe

it prudent or necessary to, at this time, identify an exhaustive set of metrics or precise

mathematical thresholds which conclusively demonstrate or disprove the existence of

an unconstitutional partisan gerrymander.”).

¶ 135 Next, the majority held that “[p]artisan gerrymandering of legislative and

congressional districts violates the free elections clause, the equal protection clause,

the free speech clause, and the freedom of assembly clause” of the North Carolina

Constitution. Id. ¶ 160. Specifically, the majority reasoned that these provisions

reflect “the principle of political equality,” id. ¶ 158, which in turn requires that “the

channeling of ‘political power’ from the people to their representatives in government

through the democratic processes . . . must be done on equal terms,” id. Accordingly,

the majority concluded that to comport with these provisions in the Declaration of

Rights, the General Assembly “must not diminish or dilute on the basis of partisan

affiliation any individual’s vote” because “[t]he fundamental right to vote includes the

right to enjoy ‘substantially equal voting power and substantially equal legislative

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representation.’ ” Id. ¶ 160 (quoting Stephenson v. Bartlett (Stephenson I), 355 N.C.

354, 382, 562 S.E.2d 377, 396 (2002)).

¶ 136 The majority determined that because “[t]he right to vote on equal terms is a

fundamental right in this state,” strict scrutiny must apply once a party demonstrates

that a redistricting plan “infringes upon his or her fundamental right to substantially

equal voting power” based on partisan affiliation. Id. ¶ 181. To trigger strict scrutiny,

the majority held that a party must demonstrate that a redistricting plan “makes it

systematically more difficult for a voter to aggregate his or her vote with other

likeminded voters.” Id. ¶ 180. A party may make this demonstration using a variety

of political science-based metrics and tests such as:

median-mean difference analysis; efficiency gap analysis;

close-votes-close[-]seats analysis[;] partisan symmetry

analysis; comparing the number of representatives that a

group of voters of one partisan affiliation can plausibly

elect with the number of representatives that a group of

voters of the same size of another partisan affiliation can

plausibly elect; and comparing the relative chances of

groups of voters of equal size who support each party of

electing a supermajority or majority of representatives

under various possible electoral conditions. Evidence that

traditional neutral redistricting criteria were subordinated

to considerations of partisan advantage may be

particularly salient in demonstrating an infringement of

this right.

Id. Once a party makes this initial demonstration, the challenged redistricting plan

“is unconstitutional [unless] the State can[ ] establish that it is narrowly tailored to

advance a compelling governmental interest.” Id. ¶ 181 (quoting Stephenson I, 355

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N.C. at 377, 562 S.E.2d at 393). The majority opined that “compliance with traditional

neutral districting principles, including those enumerated in [the Whole County

Provisions] of the North Carolina Constitution,” might constitute a compelling

governmental interest that would overcome strict scrutiny, but “[p]artisan

advantage” is not. Id.

¶ 137 The majority then applied these principles to the three-judge panel’s factual

findings and determined that the evidence at trial demonstrated that all of the 2021

Plans were partisan gerrymanders. Id. ¶ 178. The majority then applied strict

scrutiny to each map and concluded that the 2021 Plans were not “carefully calibrated

toward advancing some compelling neutral priority.” Id. ¶¶ 195, 213; see id. ¶ 205.

To the contrary, the majority concluded that each map “prioritized considerations of

partisan advantage above traditional neutral districting principles,” and therefore,

“must be rejected.” Id. ¶ 213; see id. ¶¶ 195, 205.

¶ 138 The majority concluded its Harper I opinion by reversing and remanding the

case to the three-judge panel and instructing the three-judge panel to “oversee the

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

223. The three dissenting justices determined plaintiffs’ claims were non-justiciable.

The dissent noted that our state constitution expressly assigns the redistricting

responsibility to the General Assembly and that the majority failed to identify a

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judicially discernable, manageable standard by which to adjudicate the partisan

gerrymandering claims at issue. See id. ¶¶ 237−67 (Newby, C.J., dissenting).

C. Remand

1. Three-Judge Panel’s Initial Orders

¶ 139 This Court’s 4 February 2022 Remedial Order required an expedited process

with abbreviated deadlines. The majority ordered the General Assembly to submit

new congressional and state legislative districting plans “that satisfy all provisions

of the North Carolina Constitution” by 18 February 2022. The Remedial Order also

permitted plaintiffs to submit proposed remedial districting plans by the same

deadline. The majority permitted all parties to file and submit comments on any of

the submitted plans by 21 February 2022. The Remedial Order mandated that the

three-judge panel “approve or adopt compliant congressional and state legislative

districting plans no later than noon on 23 February 2022.” Any party could file an

emergency application for stay pending appeal by 5:00 P.M. on that same day.

¶ 140 On 8 February 2022, the three-judge panel entered an order requiring that

each party who submitted a proposed remedial plan must also submit a

corresponding explanation of the “data and other considerations” used in creating the

plan. Specifically, each party had to explain whether “traditional neutral districting

criteria” were used, whether incumbency was considered, whether any partisan skew

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“necessarily result[ed] from North Carolina’s unique political geography,” and any

political science metrics utilized.

¶ 141 In the same 8 February 2022 order, the three-judge panel also informed the

parties of its intent to appoint Special Masters to assist the panel in reviewing the

parties’ proposed remedial plans and, if needed, in developing alternative remedial

plans. The order permitted each party to submit to the three-judge panel suggested

individuals to serve as a Special Master. Each of the parties submitted their

suggestions, but the three-judge panel instead appointed three individuals of its own

choosing—former jurists Robert F. Orr, Robert H. Edmunds, Jr., and Thomas W.

Ross—in a 16 February 2022 order (Appointment Order).

¶ 142 The Appointment Order authorized the Special Masters to hire assistants

“reasonably necessary to facilitate their work.” The Special Masters hired four

advisors to assist in evaluating the Remedial Plans: Dr. Bernard Grofman, Dr. Tyler

Jarvis, Dr. Eric McGhee, and Dr. Samuel Wang. Notably, two of the advisors—Dr.

Grofman and Dr. Jarvis—were recommended by NCLCV plaintiffs as potential

Special Masters, and at least one of the advisors—Dr. Wang—filed a brief in support

of plaintiff Common Cause in previous litigation surrounding redistricting in North

Carolina. See Brief of Amici Curiae Professors Wesley Pegden, Jonathan Rodden, and

Samuel S.-H. Wang in Support of Appellees 2, Rucho v. Common Cause, 139 S. Ct.

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2484 (No. 05-1631). None of the advisors were recommended by Legislative

defendants.

2. General Assembly’s Remedial Process

¶ 143 The General Assembly enacted new congressional and legislative plans

(Remedial Plans) on 17 February 2022 and timely submitted them to the three-judge

panel on 18 February 2022. Per the three-judge panel’s 8 February 2022 and 16

February 2022 orders, the General Assembly also submitted a detailed memorandum

describing the data and process used to create the Remedial Plans.

¶ 144 The General Assembly understood Harper I as requiring it “to intentionally

create more Democratic districts in the [Remedial Plans].” To achieve this task, the

General Assembly started with a blank slate and followed the same process to create

each map. Each redistricting committee kept the county groupings used for the 2021

Plans as base maps. Accordingly, any single district county groupings from each of

the 2021 Plans were carried over to the Remedial Plans; otherwise, each map was

entirely new.

¶ 145 Next, each redistricting committee “dr[e]w new districts and ma[d]e

adjustments tailored to legitimate criteria.” The General Assembly made the policy

decision to utilize Caliper’s Maptitude redistricting software, a “widely accepted

districting program,” to draw and analyze the Remedial Plans. The General Assembly

chose Maptitude, as opposed to another redistricting software, because it is “widely

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accepted” in the field of redistricting and is “used by a supermajority of the state

legislatures, political parties, and public interest groups.” Overview: Maptitude for

Redistricting Software, https://www.caliper.com/mtredist.htm (last visited Dec. 7,

2022).

¶ 146 Although expressly prohibited by its previous redistricting criteria, the

General Assembly “used partisan election data as directed by the Supreme Court’s

Remedial Order” to achieve its goal of “intentionally creat[ing] more Democratic

districts.” The General Assembly made the policy decision to utilize partisan data

from the set of elections that plaintiffs’ expert, Dr. Mattingly, used to analyze the

[2021 Plans]. This set of elections included: Lieutenant Governor 2016, President

2016, Commissioner of Agriculture 2020, Treasurer 2020, Lieutenant Governor 2020,

U.S. Senate 2020, Commissioner of Labor 2020, President 2020, Attorney General

2020, Auditor 2020, Secretary of State 2020, and Governor 2020 (Mattingly Election

Set). Non-partisan, central staff “loaded [the] partisan election data into Maptitude

to view the projected effect on partisanship that resulted from changes to district

lines.”

¶ 147 After Maptitude produced initial House, Senate, and congressional maps, the

General Assembly analyzed the partisan fairness of each map using two political

science metrics—the Mean-Median Difference and the Efficiency Gap. The General

Assembly chose these two metrics because “they have been peer-reviewed in

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numerous articles by numerous scholars[ ] and because there is some (but not

uniform) agreement among scholars regarding thresholds for measuring

partisanship.” For each of these metrics, the General Assembly selected threshold

scores that, if achieved, would indicate that the relevant map contained an acceptable

level of partisan fairness under Harper I.

¶ 148 The General Assembly selected threshold scores based on general agreement

among political scientists:

[I]t is widely considered by academics that a mean-median

as close to zero as possible, but under [1%] is

“presumptively constitutional.” See Harper v. Hall, 2022

NCSC-17 ¶166. On the efficiency gap, scholars including

NCLCV’s Dr. Duchin have opined that anything below [8%]

is presumptively legal while Dr. Jackman, used as an

expert in Gill v. Whitford, and Common Cause v. Rucho,

opined that anything below [7%] was constitutional.

The General Assembly also selected these threshold scores because the Harper I

majority opined that they could indicate a presumptively constitutional level of

partisanship:

[U]sing the actual mean-median difference measure, from

1972 to 2016 the average mean-median difference in North

Carolina’s congressional redistricting plans was 1%.

Common Cause [v. Rucho], 318 F. Supp. 3d [777,] 893

[(M.D.N.C. 2018)]. That measure instead could be a

threshold standard such that any plan with a

mean-median difference of 1% or less when analyzed using

a representative sample of past elections is presumptively

constitutional.

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With regard to the efficiency gap measure, courts

have found “that an efficiency gap above 7% in any

districting plan’s first election year will continue to favor

that party for the life of the plan.” Whitford v. Gill, 218 F.

Supp. 3d 837, 905 (W.D. Wis. 2016) rev’d on other grounds,

138 S. Ct. 1916 (2018). It is entirely workable to consider

the seven percent efficiency gap threshold as a

presumption of constitutionality, such that absent other

evidence, any plan falling within that limit is

presumptively constitutional.

Harper I, 2022-NCSC-17, ¶¶ 166–67 (majority opinion).

¶ 149 After making the policy choices of the political science metrics and threshold

scores to be used, the General Assembly then adjusted each of the Remedial Plans

until their Mean-Median Difference and Efficiency Gap scores were at or below the

selected thresholds. After the adjustments were complete, Maptitude scored each of

the Remedial Plans as follows:

RHP RSP RCP

Mean-Median 0.7% 0.65% 0.61%

Efficiency 0.84%2 3.97% 5.29%

Gap

¶ 150 Along with prioritizing the creation of more “purportedly Democratic leaning

districts” and ensuring the Remedial Plans scored well on the selected metrics, the

2 Legislative defendants were “unable to find a legislative plan passed anywhere else

in the country with a lower efficiency gap” than the RHP. Thus, it would be unfair to use this

Efficiency Gap score as a required standard.

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General Assembly also focused on the “neutral and traditional redistricting criteria”

used in creating the 2021 Plans unless those criteria conflicted with Harper I.

¶ 151 After drawing their respective plans, each chambers presented their plans to

the relevant redistricting committee. The General Assembly enacted the Remedial

Plans on 17 February 2022 and submitted them to the three-judge panel on 18

February 2022.

¶ 152 After the General Assembly submitted the enacted Remedial Plans to the

three-judge panel, plaintiffs submitted comments and objections. Significantly, none

of the parties questioned the General Assembly’s policy decision to utilize Maptitude

or to use the Mattingly Election Set. The Special Masters also submitted a report on

the Remedial Plans primarily based on four reports submitted by the advisors.

Notably, in crafting their reports, none of the advisors used the General Assembly’s

chosen program, Maptitude, nor did they use the General Assembly’s chosen

Mattingly Election Set. Further, none of the advisors worked together in analyzing

the Remedial Plans, nor did they submit a singular report. Instead, each advisor used

his own preferred approach and summarized that approach in his own report.3 The

Special Masters’ Report found that the RHP and RSP met the requirements of Harper

I but that the RCP did not. Because the Special Masters concluded that the RCP was

3 Despite the majority’s numerous implications that the advisors filed a singular

report, this is untrue. Each advisor used an individual approach and supplied his own

individual analysis.

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unconstitutional, they developed and submitted an alternative plan (Modified

Congressional Plan), in consultation with one of the advisors, Dr. Bernard Grofman,

for the three-judge panel to consider.4

¶ 153 In reviewing the Remedial Plans, the three-judge panel “adopt[ed] in full the

findings of the Special Masters,” and, like the Special Masters, concluded that the

4 One could legitimately question the objectivity of this court-appointed, de facto

“redistricting commission” when one of the Special Masters publicly participated in

advertisements for a Democratic candidate in a statewide senatorial campaign and for a

Democratic congressional candidate in a district he created during this remedial process. See

Jim Stirling, Former Justice Bob Orr Puts His Thumb on the Scale for Congressional

Democrats, John Locke Foundation (Nov. 7, 2022), https://www.johnlocke.org/former-justice-

bob-orr-puts-his-thumb-on-the-scale-for-congressional-democrats/. Given this Special

Master’s direct participation in current elections involving a district he helped fashion, one

wonders if the three-judge panel can allow his continued involvement.

Furthermore, one of the advisors to the Special Masters—Dr. Wang—came under

investigation earlier this year for allegedly manipulating data in favor of Democrats in his

role as a redistricting expert in another state. See Princeton redistricting expert who analyzed

N.C. voting maps faces university investigation, WRAL News (April 28, 2022, 6:02 PM),

https://www.wral.com/princeton-redistricting-expert-who-analyzed-nc-voting-maps-faces-

university-investigation/20256616/.

Is the judicial creation of this “redistricting commission,” which favors the political

alignment of the majority of this Court, consistent with the fact that our constitution assigns

the duty of redistricting to the General Assembly, which the people elected in 2020 using

court-approved maps?

The majority upholds the three-judge panel’s denial of Legislative defendants’ motion

to disqualify two of the Special Masters’ advisors for improper ex parte communications with

some of plaintiffs’ experts. The motion, however, should have been allowed. The role of

advisor—a purportedly neutral subject matter expert—to the three Special Masters is vital

to a proper, unbiased evaluation of the legislative redistricting plans. The Special Masters,

three-judge panel, and the majority, in reweighing the evidence, place great weight on the

opinions of each of the advisors. If the challenged advisors had been judges who engaged in

similar ex parte communications, they would have been removed from the case and possibly

faced sanctions. If this de facto “redistricting commission” is to supervise the remedial

redistricting process, it must be above reproach. The motion to disqualify Drs. Wang and

Jarvis should have been granted.

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RHP and RSP complied with the requirements of Harper I, but that the RCP was “not

presumptively constitutional,” was “subject to strict scrutiny,” and was not “narrowly

tailored to a compelling governmental interest.” Accordingly, the three-judge panel

concluded the RCP was unconstitutional. To support its holding, the three-judge

panel relied primarily on the “analysis performed by the Special Masters and their

advisors,” and its conclusion that the RHP and RSP scored below the relevant

thresholds for the Mean-Median Difference and Efficiency Gap metrics, but the RCP

did not. The three-judge panel did not point to any other evidence regarding the

purported level of partisan bias in the Remedial Plans.

¶ 154

This text is long and has been trimmed here. Open the source document for the complete record.