Harper v. Hall

IN THE SUPREME COURT OF NORTH CAROLINA

No. 413PA21-2

Filed 28 April 2023

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; DAVID DWIGHT

BROWN

v.

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

Standing Committee on Redistricting; SENATOR WARREN DANIEL, in his

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

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

Senate Standing Committee on Redistricting and Elections; SENATOR PAUL

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

on Redistricting and Elections; SPEAKER OF THE NORTH CAROLINA HOUSE

OF REPRESENTATIVES TIMOTHY K. MOORE; PRESIDENT PRO TEMPORE

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

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

official capacity

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

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

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

SCOTT; YVETTE ROBERTS; JEREANN KING JOHNSON; REVEREND

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

JERMAN; VIOLA RYALS FIGUEROA; and COSMOS GEORGE

v.

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

Standing Committee on Redistricting; SENATOR WARREN DANIEL, in his

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

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

of the Senate Standing Committee on Redistricting and Elections; SENATOR

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

Committee on Redistricting and Elections; REPRESENTATIVE TIMOTHY K.

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

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Opinion of the Court

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

On direct appeal pursuant to Rule 3 of the North Carolina Rules of Appellate

Procedure 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 Plan and Remedial Senate Plan, rejecting their

Remedial Congressional Plan, and adopting an Interim Congressional Plan. Heard in

the Historic 1767 Chowan County Courthouse in Edenton, North Carolina on 4

October 2022, and opinion filed on 16 December 2022. Subsequently, this Court

allowed Legislative Defendants’ petition for rehearing pursuant to Rule 31(a) of the

North Carolina Rules of Appellate Procedure. Heard in the Supreme Court on 14

March 2023.

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

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

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Abha Khanna; and Arnold and 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, pro hac vice, and Jessica Ring Amunson, pro hac vice, for Plaintiff

North Carolina League of Conservation Voters.

Southern Coalition for Social Justice, by Hilary H. Klein, Mitchell Brown,

Katelin Kaiser, Jeffrey Loperfido, and Noor Taj; and Hogan Lovells US LLP,

by J. Tom Boer, pro hac vice, and Olivia T. Molodanof, pro hac vice, for Plaintiff

Common Cause.

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

Farr, John E. Branch, III, D. Martin Warf, Nathaniel J. Pencook, and Alyssa

M. Riggins; and Baker Hostetler LLP, by Mark E. Braden, pro hac vice,

Katherine McKnight, pro hac vice, and Richard Raile, pro hac vice, 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.

NEWBY, Chief Justice.

“A frequent recurrence to fundamental principles is absolutely necessary to

preserve the blessings of liberty.” N.C. Const. art. I, § 35. Since our founding in 1776

almost 250 years ago, this provision in our state constitution has reminded us of the

critical importance of remembering fundamental principles. This case now invites us

to return to those principles.

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The constitution is our foundational social contract and an agreement among

the people regarding fundamental principles. It is for everyone, not just lawyers and

judges. The state constitution is different from the Federal Constitution: the Federal

Constitution is a limited grant of power while the state constitution is a limitation on

power. The state constitution declares that all political power resides in the people.

N.C. Const. art. I, § 2. The people exercise that power through the legislative branch,

which is closest to the people and most accountable through the most frequent

elections. See id. art. I, § 9. In the constitutional text, the people have assigned specific

tasks to, and expressly limited the powers of, each branch of government. The state

constitution is detailed and specific. The people speak through the express language

of their constitution, and only the people can amend it. See id. art. XIII.

The constitution is interpreted based on its plain language. The people used

that plain language to express their intended meaning of the text when they adopted

it. The historical context of our constitution confirms this plain meaning. As the

courts apply the constitutional text, judicial interpretations of that text should

consistently reflect what the people agreed the text meant when they adopted it.

There are no hidden meanings or opaque understandings—the kind that can only be

found by the most astute justice or academic. The constitution was written to be

understood by everyone, not just a select few.

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The state constitution establishes three branches of government: legislative,

executive, and judicial. It assigns specific roles to each branch. Since its inception,

the constitution has provided for separation of powers: in other words, each branch is

directed to perform its assigned duties and avoid encroaching on the duties of another

branch. Separation of powers protects individual freedoms. The will of the people is

achieved when each branch of government performs its assigned duties. When,

however, one branch grasps a task of another, that action violates separation of

powers.

The judicial branch is designed to resolve legal disputes and to ensure that the

other branches do not violate the constitution. Our power of judicial review, however,

is not unlimited. Since the first articulation of the doctrine of judicial review in

Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787), courts have refused to exercise that

power if the constitution assigns the matter to another branch, or the constitution

does not provide a judicially discoverable or manageable standard, or resolution of

the matter involves policy choices. Such matters are deemed political questions and

are nonjusticiable. The Supreme Court of the United States recognized these

limitations in its seminal case, Marbury v. Madison, in which it first adopted the

concept of judicial review:

It is scarcely necessary for the court to disclaim all

pretensions to [intermeddle with the prerogatives of

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another branch]. An extravagance, so absurd and

excessive, could not have been entertained for a moment.

The province of the court is, solely, to decide on the rights

of individuals, not to enquire how [other branches] perform

duties in which they have a discretion. Questions, in their

nature political, or which are, by the constitution and laws,

submitted to [another branch], can never be made in this

court.

5 U.S. (1 Cranch) 137, 170 (1803).

Historically, North Carolina courts have respected their significant but

restrained role of judicial review by adhering to a standard of review that sets the

most demanding requirements for reviewing legislative action: courts presume that

an act of the General Assembly is constitutional, and any challenge alleging that an

act of the General Assembly is unconstitutional must identify an express provision of

the constitution and demonstrate that the General Assembly violated the provision

beyond a reasonable doubt.

Giving a fixed meaning to the constitution and using a deferential standard to

review legislation ensures that courts will perform their assigned role, stay within

their lane of authority, and refrain from becoming policymakers. Courts are not

designed to be thrust into the midst of various political disputes. Such engagement

in policy issues forces courts to take sides in political battles and undermines public

trust and confidence in the judiciary. Choosing political winners and losers creates a

perception that courts are another political branch. The people did not intend their

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courts to serve as the public square for policy debates and political decisions. Instead,

the people act and decide policy matters through their representatives in the General

Assembly. We are designed to be a government of the people, not of the judges. At its

heart, this case is about recognizing the proper limits of judicial power.

This matter is before this Court on rehearing. The North Carolina Rules of

Appellate Procedure authorize rehearing a case when “the court has overlooked or

misapprehended” a point “of fact or law.” N.C. R. App. P. 31(a). In their petition for

rehearing, Legislative Defendants ask the Court to revisit the crucial issue in this

case: whether claims of partisan gerrymandering are justiciable under the state

constitution. They assert that such claims are not justiciable. Legislative Defendants

maintain that “[t]he Harper experiment” has failed: “Harper II failed . . . because

Harper I set this Court up to fail.” In support of this argument, Legislative

Defendants argue that Harper I “fell short in concrete guidance” and “declined to

disclose what standard applies.” They assert that “Harper II reaffirms the non-

justiciable and unprecedented standard set forth in Harper I” and, therefore, “a

necessary consequence of correcting the errors in Harper II is to overrule Harper I.”

Legislative Defendants argue that their rehearing petition “gives this Court a much[-]

needed opportunity to address the root of the problem: Harper I was based on

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profoundly flawed legal principles.” Accordingly, they ask this Court to withdraw its

Harper II opinion and overrule Harper I.

In this case plaintiffs claim that the General Assembly violated the state

constitution by drawing legislative districts that unfairly benefited one political party

at the expense of another, in other words, partisan gerrymandering.1 Partisan

gerrymandering is the practice of dividing a geographical or jurisdictional area into

political units or election districts to give a particular political party or group “a

special advantage.” See Gerrymandering, Black’s Law Dictionary (11th ed. 2019).

In the first opinion in this matter, four justices held that partisan

gerrymandering presents a justiciable claim, Harper v. Hall (Harper I), 380 N.C. 317,

390, 868 S.E.2d 499, 551 (2022), and violates several provisions of the Declaration of

Rights of our constitution, id. at 383, 868 S.E.2d at 546. The four justices then

discussed certain political science tests that they claimed were judicially discoverable

and manageable. Id. at 384–85, 868 S.E.2d at 547–48. They maintained that these

political science tests could reliably identify unconstitutional partisan

1 In their complaints, plaintiffs allege that “partisan gerrymandering” violates the

state constitution. Sometimes they modify this phrase with words like “extreme” or “severe.”

In Rucho v. Common Cause, the Supreme Court of the United States referred to this concept

as “excessive partisan gerrymandering.” Rucho v. Common Cause, 139 S. Ct. 2484, 2507

(2019). In this opinion we will generally use the term “partisan gerrymandering” to refer to

these claims.

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gerrymandering, id., but they did not define how much partisan gerrymandering is

too much, id. at 384, 868 S.E.2d at 547. In the most recent opinion in this matter, the

same four members of this Court said that the General Assembly, three former jurists

serving as Special Masters, the three-judge panel, and three members of this Court—

in total, nine current and former jurists—all wrongly applied the approach set out in

Harper I. See Harper v. Hall (Harper II), 383 N.C. 89, 94, 881 S.E.2d 156, 162 (2022).

Thus, we must now reconsider whether a standard that only four justices know and

understand, that is riddled with policy choices, and that is not mentioned in our

constitution is truly judicially discoverable and manageable. That inquiry requires

us to revisit the fundamental premises underlying the decisions in both Harper II

and Harper I.

The issue presented in this case is whether the North Carolina Constitution

prohibits partisan gerrymandering. Specifically, plaintiffs allege that legislative and

congressional redistricting plans drawn by the General Assembly in 2021 and then

again in 2022 on remand are partisan gerrymanders in violation of specific provisions

of the constitution.

Our constitution expressly assigns the redistricting authority to the General

Assembly subject to explicit limitations in the text. Those limitations do not address

partisan gerrymandering. It is not within the authority of this Court to amend the

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constitution to create such limitations on a responsibility that is textually assigned

to another branch. Furthermore, were this Court to create such a limitation, there is

no judicially discoverable or manageable standard for adjudicating such claims. The

constitution does not require or permit a standard known only to four justices.

Finally, creating partisan redistricting standards is rife with policy decisions. Policy

decisions belong to the legislative branch, not the judiciary.

Recently, the Supreme Court of the United States reviewed similar claims

under the Federal Constitution and determined that “excessive” partisan

gerrymandering claims involve nonjusticiable, political questions. See Rucho v.

Common Cause, 139 S. Ct. 2484, 2491, 2507 (2019). We find the Supreme Court’s

analysis in Rucho insightful and persuasive.

For all these reasons, we hold that partisan gerrymandering claims present a

political question that is nonjusticiable under the North Carolina Constitution.

Accordingly, the decision of this Court in Harper I is overruled. We affirm the three-

judge panel’s 11 January 2022 Judgment concluding, inter alia, that partisan

gerrymandering claims are nonjusticiable, political questions and dismissing all of

plaintiffs’ claims with prejudice. This Court’s opinion in Harper II is withdrawn and

superseded by this opinion. The three-judge panel’s 23 February 2022 order is

vacated. Plaintiffs’ claims are dismissed with prejudice.

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I. Procedural History

A. Initial Litigation

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 United States House

of Representatives (2021 Plans).2 The General Assembly enacted the 2021 Plans on 4

November 2021. The North Carolina League of Conservation Voters and a group of

individual North Carolina voters (NCLCV plaintiffs), along with another group of

2 Before drawing any maps, the General Assembly’s Senate Committee on

Redistricting and Elections convened a Joint Meeting of the Senate Redistricting and

Elections Committee and the House Redistricting Committee on 5 August 2021 to discuss

the criteria that would govern the redistricting process. Following this initial meeting, a

General Assembly staff member distributed to the joint committee members a list of the

legislative redistricting criteria that had been previously mandated by a three-judge panel in

Common Cause v. Lewis—a case decided just a few years earlier in 2019. See Common Cause

v. Lewis, No. 18 CVS 014001, 2019 WL 4569584 (N.C. Super. Ct. Wake County Sept. 3, 2019).

One week after its first meeting, the Joint Redistricting Committee adopted final

redistricting criteria that would govern its 2021 map drawing process (Adopted Criteria). In

many respects, the Adopted Criteria were nearly identical to the criteria ordered by the court

in Common Cause v. Lewis in 2019. Notably, just like the Lewis criteria, the Adopted Criteria

mandated that no “[p]artisan considerations [or] election results data” would be used in

drawing the 2021 Plans. It appears that the Joint Redistricting Committee incorporated the

criteria from Common Cause v. Lewis into its Adopted Criteria for the 2021 redistricting

process because it believed that compliance with the Common Cause v. Lewis criteria was

necessary to create constitutionally compliant redistricting plans. See Legislative

Defendants-Appellees’ Brief at 20−21, Harper v. Hall, 380 N.C. 317 (2022) (No. 413PA21-1)

(“To avoid violations identified in the 2010 [redistricting] cycle,” including those identified in

the Lewis order, the General Assembly included a prohibition on the consideration of partisan

election data in its Adopted Criteria.).

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individual North Carolina voters (Harper plaintiffs) each filed suit against the

President Pro Tempore of the North Carolina Senate, the Speaker of the North

Carolina House, and the Chairs of the House Standing Committee on Redistricting

and the Senate Standing Committee on Redistricting and Elections (Legislative

Defendants).3 NCLCV plaintiffs and Harper plaintiffs challenged the legality of these

plans, arguing they were unconstitutional partisan gerrymanders. Additionally,

NCLCV plaintiffs alleged that the 2021 Plans “engag[ed] in racial vote dilution” in

violation of the free elections clause and the equal protection clause of the North

Carolina Constitution and that the 2021 Plans violated the Whole County Provisions

(WCP) of the North Carolina Constitution. See N.C. Const. art. I, §§ 10, 19, 14, 12; id.

art. II, §§ 3(3), 5(3). Both groups of plaintiffs also sought a preliminary injunction to

enjoin use of the 2021 Plans.

The NCLCV and Harper actions were assigned to a three-judge panel of the

Superior Court in Wake County and then consolidated. On 3 December 2021, the

three-judge panel denied both NCLCV plaintiffs’ and Harper plaintiffs’ motions for

preliminary injunction. Both sets of plaintiffs filed a notice of appeal with the North

3 NCLCV plaintiffs and Harper plaintiffs also collectively named the State of North

Carolina, the North Carolina State Board of Elections, and the Chairman, Secretary, and

Members of the State Board of Elections. These defendants took “no position on the merits”

of this case. State Defendants’ Brief at 2, Harper v. Hall, 380 N.C. 317 (2022) (No. 413PA21-

1).

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Carolina Court of Appeals.

The Court of Appeals denied NCLCV plaintiffs’ and Harper plaintiffs’ requests

for a temporary stay on 6 December 2021. NCLCV plaintiffs and Harper plaintiffs

then filed several documents 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

briefing and argument. On 8 December 2021, this Court allowed both petitions for

discretionary review, granted a preliminary injunction, and temporarily stayed the

candidate filing period for the 2022 election cycle until “a final judgment on the

merits . . . including any appeals, is entered and a remedy, if any is required, has

been ordered.” In the same order, this Court expedited the matter, directing the

three-judge panel to hold proceedings on the merits of plaintiffs’ claims “and to

provide a written ruling” on or before 11 January 2022.

Subsequently, Common Cause moved to intervene as a plaintiff in the

consolidated proceedings, and the three-judge panel granted the motion on 15

December 2021. Like the NCLCV and Harper plaintiffs, Common Cause filed a

complaint alleging that the 2021 Plans were unconstitutional partisan gerrymanders

in violation of the free elections clause, the equal protection clause, and the free

speech and freedom of assembly clauses of the North Carolina Constitution. Common

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Cause also alleged that the 2021 Plans violated North Carolina’s equal protection

clause by “purposefully discriminat[ing] against” African American voters through

“intentional destruction of functioning crossover districts.” Finally, Common Cause

brought a declaratory judgment claim asking the three-judge panel to declare that

the North Carolina Constitution requires the General Assembly to undertake a

racially polarized voting (RPV) analysis prior to drawing any legislative districts.

Hereinafter, NCLCV plaintiffs, Harper plaintiffs, and Common Cause are collectively

referred to as “plaintiffs.”

Legislative Defendants filed their answers on 17 December 2021, and the

parties then engaged in an “expedited” two-and-one-half-week discovery period

culminating in rulings on over ten discovery-related motions, designation of ten

expert witnesses, and submission of over 1000 pages of expert reports and rebuttal

materials. 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.

On 11 January 2022, the three-judge panel entered a judgment (11 January

2022 Judgment) concluding that plaintiffs’ partisan gerrymandering claims

presented nonjusticiable, political questions because redistricting “is one of the purest

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political questions which the legislature alone is allowed to answer.” The three-judge

panel reached this conclusion because “satisfactory and manageable criteria or

standards do not exist for judicial determination” of partisan gerrymandering claims.

Specifically, the three-judge panel noted that this Court already addressed the

justiciability of similar claims based on North Carolina’s Declaration of Rights in

Dickson v. Rucho and concluded there was no manageable standard to assess such

claims:

Finally, plaintiffs argue that the enacted plans violate the

“Good of the Whole” clause found in Article I, Section 2 of

the Constitution of North Carolina. We do not doubt that

plaintiffs’ proffered maps represent their good faith

understanding of a plan that they believe best for our State

as a whole. However, the maps enacted by the duly elected

General Assembly also represent an equally legitimate

understanding of legislative districts that will function for

the good of the whole. Because plaintiffs’ argument is not

based upon a justiciable standard, and because acts of the

General Assembly enjoy “a strong presumption of

constitutionality,” Pope v. Easley, 354 N.C. 544, 546, 556

S.E.2d 265, 267 (2001) (per curiam) (citation omitted),

plaintiffs’ claims fail.

(Quoting Dickson v. Rucho (Dickson I), 367 N.C. 542, 575, 766 S.E.2d 238, 260 (2014),

vacated on federal grounds, 137 S. Ct. 2186 (2017) (mem.) (emphasis added).) As a

result, the three-judge panel concluded that “[w]ere we as a [c]ourt to insert ourselves

in the manner requested, we would be usurping the political power and prerogatives

of an equal branch of government. Once we embark on that slippery slope, there

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would be no corner of legislative or executive power that we could not reach.”

Additionally, the three-judge panel concluded that the 2021 Plans did not

violate the North Carolina 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 1971

Constitution and not in the Free Elections, Equal Protection, Freedom of Speech or

Freedom of Assembly Clauses found in Article I of the 1971 Constitution.” Finally,

the three-judge panel considered NCLCV plaintiffs’ and Common Cause’s additional

claims of racial vote dilution, racial discrimination, violation of the WCP, and request

for a declaratory judgment. Specifically, the three-judge panel concluded that NCLCV

plaintiffs and Common Cause “failed to satisfy” their burdens for both the racial vote

dilution and racial discrimination claims under the equal protection clause and that

the free elections clause is “inapplicable” to vote dilution claims. The three judge-

panel then concluded that the evidence did not support NCLCV’s WCP claim and that

the North Carolina Constitution does not, as Common Cause alleged, require the

General Assembly to undertake an RPV analysis prior to drawing legislative districts.

Accordingly, the three-judge panel dismissed plaintiffs’ claims with prejudice.

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

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this Court from the three-judge panel’s 11 January 2022 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 11 January 2022 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 specifically enjoined the use

of the 2021 Plans “in any future elections.” The Remedial Order also required that,

in drawing new redistricting plans, the General Assembly must first conduct an RPV

analysis. The Remedial Order remanded the matter to the three-judge panel for

remedial proceedings and noted that a full opinion would follow. Three justices

dissented to the Remedial Order.

B. Harper I

Ten days later, the four-justice majority issued its full opinion. See Harper I,

380 N.C. at 317, 404, 868 S.E.2d at 499, 558–60. The Harper I opinion first held that

“partisan gerrymandering claims are justiciable in North Carolina courts under

the . . . [North Carolina] Declaration of Rights” because the right to aggregate votes

based on partisan affiliation is a fundamental right and there are “several

manageable standards for evaluating the extent to which districting plans dilute

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votes on the basis of partisan affiliation.” Id. at 390, 868 S.E.2d at 551. Specifically,

the majority determined that various political science metrics could serve as a

sufficient standard. See id. at 384–85, 868 S.E.2d at 547–48. It indicated that two

tests in particular—the Mean-Median Difference and the Efficiency Gap—could

demonstrate whether a redistricting map “is presumptively constitutional.”4 See id.

at 386, 868 S.E.2d at 548. According to the Harper I majority, a 1% or less Mean-

Median Difference score and a 7% or less Efficiency Gap score could serve as

thresholds of constitutionality. See id.

Nevertheless, the Harper I majority refused to delineate a precise standard.

Id. at 384, 868 S.E.2d at 547 (“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.”). Instead, the majority insisted that the three-judge panel—and future

trial courts adjudicating redistricting cases—would “work out more concrete and

4 The Mean-Median Difference and Efficiency Gap tests are statistical metrics that

purport to forecast partisan success under a particular redistricting plan in hypothetical,

future elections. See id. at 385−87, 868 S.E.2d at 548−49. The Mean-Median Difference

compares a party’s mean vote share with its median vote share in each district and assumes

that if the mean and median are equal, then the map contains no partisan skew. See id. at

386, 868 S.E.2d at 548. As explained in the filings before the three-judge panel, the Efficiency

Gap purports to compare each political parties’ “wasted votes.” According to Harper I, a 7%

Efficiency Gap score serves as a “workable . . . threshold” of constitutionality. Id.

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specific standards for evaluating state legislative apportionment schemes in the

context of actual litigation.” Id. at 384, 868 S.E.2d at 547 (quoting Reynolds v. Sims,

377 U.S. 533, 578, 84 S. Ct. 1362, 1390 (1964)).

The Harper I 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. at 383, 868 S.E.2d at 546. Specifically, the majority reasoned that

these provisions reflect “the principle of political equality,” id. at 382, 868 S.E.2d at

546, 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. at 382, 868 S.E.2d at 546. 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

representation.’ ” Id. at 383, 868 S.E.2d at 546 (quoting Stephenson v. Bartlett

(Stephenson I), 355 N.C. 354, 382, 562 S.E.2d 377, 396 (2002)). In turn, the majority

concluded that “[t]he right to equal voting power encompasses the opportunity to

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

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officials who reflect those citizens’ views.” Id. Thus, ironically, the Harper I majority

held that the constitution requires consideration of partisanship to remedy the

perceived use of partisanship.

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. at 392–93, 868 S.E.2d at 553.

The majority held that to trigger strict scrutiny 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. at 392, 868 S.E.2d at 552. A party may

make this demonstration using a variety of political science-based 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.

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Id. at 392, 868 S.E.2d at 552–53. 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. at

393, 868 S.E.2d at 553 (quoting Stephenson I, 355 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 WCP] of the North Carolina Constitution,” might

“constitute a compelling governmental interest” that would overcome strict scrutiny,

but “[p]artisan advantage” does not. Id. at 393, 868 S.E.2d at 553.

The majority then applied these ideas 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. at 391−92, 868 S.E.2d at 552. 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. at 396,

398, 401, 868 S.E.2d at 555, 556, 558.

The three dissenting justices concluded that plaintiffs’ claims were non-

justiciable. See id. at 413–34, 868 S.E.2d at 566–78 (Newby, C.J., dissenting). 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. Id. at 424, 868 S.E.2d at 572.

C. Remedial Process

1. Three-Judge Panel’s Initial Orders

On remand, this Court’s 4 February 2022 Remedial Order required the General

Assembly to submit new congressional and state legislative redistricting 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 and allowed all parties to file 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.”

In an 8 February 2022 order, the three-judge panel informed the parties of its

intent to appoint Special Masters to assist in reviewing the parties’ proposed remedial

plans and, if needed, in developing alternative remedial plans. Pursuant to the three-

judge panel’s order, each party submitted suggested individuals to serve as Special

Masters, but the three-judge panel appointed three other individuals of its own

choosing—former jurists Robert F. Orr, Robert H. Edmunds, Jr., and Thomas W.

Ross.

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The three-judge panel authorized the Special Masters to hire advisors

“reasonably necessary to facilitate their work.” The Special Masters hired four

advisors to assist in evaluating the General Assembly’s new remedial redistricting

plans: Dr. Bernard Grofman, Dr. Tyler Jarvis, Dr. Eric McGhee, and Dr. Samuel

Wang.

2. The General Assembly’s Remedial Process

The General Assembly understood Harper I as requiring it “to intentionally

create more Democratic districts in the [Remedial Plans].” To accomplish 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, but otherwise, each

map was entirely new.

Next, each redistricting committee “dr[e]w new districts and ma[d]e

adjustments tailored to legitimate criteria.” To do so, the General Assembly chose to

utilize Caliper’s Maptitude redistricting software, a “widely accepted districting

program.” Although expressly prohibited by its previous redistricting criteria and the

court-ordered criteria from Common Cause v. Lewis, the General Assembly “used

partisan election data as directed by the Supreme Court’s Remedial Order” to achieve

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its goal of “intentionally creat[ing] more Democratic districts.” Specifically, the

General Assembly chose to utilize partisan data from the set of twelve statewide

elections that plaintiffs’ expert, Dr. Mattingly, used to analyze the 2021 Plans

(Mattingly Election Set).

After Maptitude produced an initial set of 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

numerous articles by numerous scholars, and because there is some (but not uniform)

agreement among scholars regarding thresholds for measuring partisanship.”

Additionally, the General Assembly selected these metrics because the Harper I

majority identified them as two of the “multiple reliable ways of demonstrating the

existence of an unconstitutional partisan gerrymander.” Harper I, 380 N.C. at 384,

868 S.E.2d at 547 (majority opinion). 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. Specifically, the

General Assembly selected a 1% threshold score for the Mean-Median Difference

metric and a 7% threshold score for the Efficiency Gap metric.

The General Assembly selected these threshold scores based on general

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agreement among political scientists that a redistricting plan with a Mean-Median

Difference less than 1% and an Efficiency Gap less than 7% is “presumptively

constitutional.” Additionally, the General Assembly selected these threshold scores

because the Harper I majority opined that they were “possible bright-line standards”

that 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.

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.

Id. at 385, 386, 868 S.E.2d at 548.

After selecting its political science metrics and corresponding threshold scores,

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.

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Along with prioritizing the creation of more “purportedly Democratic leaning

districts” and ensuring the Remedial Plans scored well on the selected metrics, the

General Assembly also focused on the “neutral and traditional redistricting criteria”

used in creating the 2021 Plans unless those criteria conflicted with Harper I.

After drawing their respective plans, each chamber presented its plan 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. Plaintiffs then offered comments and objections to the Remedial Plans. The

Special Masters transmitted a report on the Remedial Plans that was based primarily

on four reports written by the advisors. Notably, in crafting their reports, none of the

advisors used the General Assembly’s chosen redistricting program, Maptitude, nor

did they use the General Assembly’s chosen Mattingly Election Set. Instead, each

advisor used his own preferred data and methods.

The Special Masters’ Report found that the Remedial House Plan (RHP) and

Remedial Senate Plan (RSP) met the requirements of Harper I, but that the Remedial

Congressional Plan (RCP) did not. Because the Special Masters concluded that the

RCP was unconstitutional, they developed and submitted an alternative plan

(Interim Congressional Plan) in consultation with one of the advisors, Dr. Bernard

Grofman, for the three-judge panel to consider.

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In reviewing the Remedial Plans, the three-judge panel “adopt[ed] in full the

findings of the Special Masters.” Like the Special Masters, the three-judge panel

concluded that the 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 that the RCP was unconstitutional. To support its

conclusion, 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.

Finally, because the three-judge panel rejected the General Assembly’s RCP, it

adopted the Interim Congressional Plan recommended by the Special Masters.

Following the three-judge panel’s remedial order, all parties appealed to this

Court. The parties petitioned this Court to stay the three-judge panel’s remedial

ruling, but this Court denied those petitions. Accordingly, the RSP, RHP, and Interim

Congressional Plan were used in the 2022 elections.

D. Harper II

In June 2022, Common Cause filed a motion for expedited hearing and

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consideration of the three-judge panel’s remedial order. On 13 July 2022, Legislative

Defendants moved to dismiss their appeal of the three-judge panel’s rejection of the

RCP because the Interim Congressional Plan “ordered by [the three-judge panel] is

only applicable to the 2022 election, and that map will apply to the 2022 election

regardless of” this Court’s holding on the three-judge panel’s remedial order.

Legislative Defs.’ Mot. to Dismiss Appeal 3, Harper v. Hall, 380 N.C. 317 (2022) (No.

413PA21-1). Accordingly, Legislative Defendants sought to dismiss their appeal “in

an effort to avoid further cost and confusion to the taxpayers and voters of North

Carolina.” Id.

In July 2022, the same four-justice majority from Harper I granted Common

Cause’s motion for expedited hearing and consideration and set oral argument for

October 2022. Harper v. Hall, 382 N.C. 314, 315–16, 874 S.E.2d 902, 904 (2022) (order

allowing motion to expedite hearing and consideration). Notably, in the same order,

the Court expressly declined to address Legislative Defendants’ motion to dismiss

their appeal. Id. at 316, 874 S.E.2d at 904. The three dissenting justices from Harper

I dissented from this order. Id. at 317–24, 874 S.E.2d at 904–09 (Barringer, J.,

dissenting) (noting that no jurisprudential reason existed to expedite consideration

of the appeal).

Ultimately, the same four-justice majority from Harper I affirmed the three-

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judge panel’s rejection of the RCP and its approval of the RHP and reversed the three-

judge panel’s approval of the RSP.5 Harper II, 383 N.C. at 94, 881 S.E.2d at 162. First,

the majority attempted “to clarify and reaffirm” its “constitutional standard” from

Harper I. Id. at 114, 881 S.E.2d at 174. In Harper I the majority stated that “some

combination” of political science metrics could demonstrate that “there is a significant

likelihood” that a redistricting plan “is presumptively constitutional.” 380 N.C. at

384–85, 868 S.E.2d at 547–48. Specifically, the majority opined that a 1% Mean-

Median Difference and a 7% Efficiency Gap could serve as “possible bright-line

standards” for identifying a plan that “will give the voters of all political parties

substantially equal opportunity to translate votes into seats.” Id. at 385, 868 S.E.2d

at 548.

In Harper II, however, the same majority reversed course and declared that no

combination of political science tests or analysis could adequately identify a

redistricting plan that meets their standard:

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

5 The four-justice majority issued its Harper II opinion on 16 December 2022 when it

knew that two members of its majority would complete their terms on this Court just fifteen

days later.

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vote on equal terms and to substantially equal voting

power. 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.” Put differently, it

requires that “voters of all political parties [have]

substantially equal opportunity to translate votes into

seats.”. . .

Although Harper [I] mentions several potential

datapoints that may be used in assessing the

constitutionality of a proposed districting plan, those

measures are not substitutes for the ultimate

constitutional standard noted above. 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.

Harper II, 383 N.C. at 114, 881 S.E.2d at 174 (first alteration in original) (citations

omitted). The majority insisted that it could not delineate a particular set of metrics

that would identify a constitutional redistricting map “because our constitution

speaks in broad foundational principles, not narrow statistical calculations.” Id. at

115, 881 S.E.2d at 174.

As a result, the majority implied that the three-judge panel relied too heavily

on its findings regarding the Mean-Median Difference and Efficiency Gap in reaching

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its ultimate legal conclusions and then “encourage[d] future trial courts . . . 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.”

Id. at 116, 881 S.E.2d at 175. The majority, however, provided no guidance regarding

what sorts of concrete evidence might assist future trial courts in this endeavor, nor

did the majority explain how to recognize and weigh it.

The Harper II majority then reviewed the three-judge panel’s findings of fact

and conclusions of law for each of the Remedial Plans. First, the majority affirmed

the three-judge panel’s rejection of the RCP and adoption of the Interim

Congressional Plan, holding that the three-judge panel’s conclusions of law were

supported by the relevant findings of fact, which were in turn supported by competent

evidence. Id. at 116−19, 881 S.E.2d at 175−77. Similarly, the majority then affirmed

the three-judge panel’s approval of the RHP, determining that the panel’s conclusions

of law were supported by the relevant findings of fact, which were in turn supported

by competent evidence. Id. at 119−20, 881 S.E.2d at 177−78.

Lastly, the majority reversed the three-judge panel’s approval of the RSP

because, “unlike for the RHP,” the pertinent conclusions of law were not supported

by the relevant findings of fact, and some “findings of fact regarding the RSP . . .

[we]re unsupported by competent evidence.” Id. at 120–21, 881 S.E.2d at 178. As the

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dissent noted, however, this result was puzzling because on remand, the General

Assembly “made the exact same policy choices and followed the exact same redrawing

process for the RSP as it did for the RHP”; “the Special Masters made almost identical

findings regarding the RHP and the RSP”; and the three-judge-panel made “specific

findings regarding the RSP and RHP [that] were nearly identical.” Id. at 150, 881

S.E.2d at 195−96 (Newby, C.J., dissenting). The dissent highlighted how this

conflicting result, along with other contradictions throughout the Harper II opinion,

demonstrated that the Harper I principles are not grounded in a judicially

discoverable and manageable standard. See id. at 169−70, 881 S.E.2d at 208. The

dissent concluded that in both Harper I and Harper II, the majority “intentionally

stat[ed] vague standards” so that it could remain entrenched in the General

Assembly’s redistricting process and enthrone itself as the final authority over which

plans will be used in North Carolina elections. Id. at 128, 881 S.E.2d at 183.

E. Legislative Defendants’ Petition for Rehearing

This Court filed its Harper II opinion on 16 December 2022, and the mandate

issued on 5 January 2023. On 20 January 2023, Legislative Defendants timely filed

a petition for rehearing under Rule 31 of the North Carolina Rules of Appellate

Procedure. Legislative Defs.’ Pet. for Reh’g, Harper v. Hall, 383 N.C. 89 (2022) (No.

413PA21). Specifically, Legislative Defendants asked this Court to rehear Harper II

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because it confirms, inter alia, that the standards set forth in both Harper I and

Harper II are unmanageable. As a result, Legislative Defendants requested that this

Court, in rehearing Harper II also revisit Harper I and the issue of whether partisan

gerrymandering claims are justiciable under the North Carolina Constitution. This

Court granted the petition for rehearing on 3 February 2023. Harper v. Hall, ___ N.C.

___, ___, 882 S.E.2d 548, 549−50 (2023) (order granting Legislative Defendants’

petition for rehearing).

II. Rucho v. Common Cause

We begin our analysis with the Supreme Court of the United States’ insightful

and persuasive opinion in Rucho v. Common Cause. In that case the Supreme Court

considered claims that “excessive” partisan gerrymandering violated various

provisions of the Federal Constitution. Rucho, 139 S. Ct. at 2491. There some of the

same plaintiffs in this case challenged North Carolina’s congressional redistricting

map and brought similar claims to those presented here. Specifically, the Rucho

plaintiffs alleged that the challenged plan violated the Equal Protection Clause of the

Fourteenth Amendment by “intentionally diluting the electoral strength of

Democratic voters,” violated their rights to free speech and freedom of association

guaranteed under the First Amendment, exceeded the state legislature’s delegated

authority to prescribe the “Times, Places and Manner of holding Elections,” U.S.

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Const. art. I, § 4, cl. 1, and “usurped the right of ‘the People’ to elect their preferred

candidates for Congress, in violation of the requirement in Article I, § 2, of the

Constitution that Members of the House of Representatives be chosen ‘by the People

of the several States.’ ”6 Id. at 2492. Accordingly, the Supreme Court was tasked with

deciding whether partisan gerrymandering claims are “ ‘justiciable’—that is, properly

suited for resolution by the federal courts.” Id. at 2491. Ultimately, the Supreme

Court held that partisan gerrymandering claims present nonjusticiable, political

questions. Id. at 2506–07.

The Supreme Court first considered the historical background of partisan

gerrymandering during the formation of our country. Id. at 2494–96. The Supreme

Court noted that partisan gerrymandering existed at the time of our nation’s

founding and that the framers of our Constitution affirmatively considered how to

address it. Id. at 2494. The framers “settled on a characteristic approach, assigning

6 In this case plaintiffs make very similar claims under parallel provisions of our state

constitution—Article I, Section 19 (equal protection), Article I, Section 12 (freedom of

assembly), Article I, Section 14 (freedom of speech), and Article I, Section 10 (free elections).

Harper I, 380 N.C. at 329−31, 868 S.E.2d at 513–14. Common Cause, for example, asserts

that partisan gerrymandering violates our equal protection clause by “diminish[ing] the

electoral power” of members of the Democratic Party, violates Article I, Sections 12 and 14

by burdening Democratic voters’ rights to freedom of speech and freedom to “associate

effectively” with the Democratic Party, and violates the free elections clause by preventing

elections from reflecting the “will of the people.” See Verified Compl. for Declaratory J. and

Injunctive Relief ¶¶ 189, 200, 180, 184, Harper v. Hall, No. 21 CVS 015426, 2021 WL 6884973

(N.C. Super. Ct. Wake County Dec. 16, 2021).

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the issue to the state legislatures, expressly checked and balanced by the Federal

Congress.” Id. at 2496. Specifically, the framers “addressed the election of

Representatives to Congress in the Elections Clause,” which “assigns to state

legislatures the power to prescribe the ‘Times, Places and Manner of holding

Elections’ for Members of Congress, while giving Congress the power to ‘make or alter’

any such regulations.” Id. at 2495. “At no point was there a suggestion that the

federal courts had a role to play. Nor was there any indication that the Framers had

ever heard of courts doing such a thing.” Id. at 2496. The framers could have limited

partisan gerrymandering in the Constitution or assigned federal courts a role in

policing it, but they did not. As a result, the Supreme Court reasoned that “[t]o hold

that legislators cannot take partisan interests into account when drawing district

lines would essentially countermand the Framers’ decision to entrust districting to

political entities,” that is, to state legislatures and to Congress. Id. at 2497.

The Supreme Court distinguished partisan gerrymandering claims from other

types of redistricting claims that courts have historically adjudicated: “In two areas—

one-person, one-vote and racial gerrymandering—our cases have held that there is a

role for the courts with respect to at least some issues that could arise from a State’s

drawing of congressional districts.” Id. at 2495−96. The Court noted, however, that

“[p]artisan gerrymandering claims have proved far more difficult to adjudicate” than

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other types of redistricting issues because “while it is illegal for a jurisdiction to

depart from the one-person, one-vote rule, or to engage in racial discrimination in

districting, ‘a jurisdiction may engage in constitutional political gerrymandering.’ ”

Id. at 2497 (quoting Hunt v. Cromartie,7 526 U.S. 541, 551, 119 S. Ct. 1545, 1551

(1999)). Because some level of partisan gerrymandering is constitutional, “[t]he

‘central problem’ ” with such claims is not determining whether a jurisdiction has

engaged in any partisan gerrymandering, which is a simple, yes-or-no delineation.

Id. (quoting Vieth v. Jubelirer, 541 U.S. 267, 296, 124 S. Ct. 1769, 1787 (2004)

(plurality opinion)). Rather, the problem with partisan gerrymandering claims is

“determining when political gerrymandering has gone too far.” Id. (quoting Vieth, 541

U.S. at 296, 124 S. Ct. at 1787). That sort of question requires more than a yes-or-no

answer. Instead, it requires “a standard for deciding how much partisan dominance

is too much.” Id. at 2498 (quoting League of United Latin Am. Citizens v. Perry, 548

U.S. 399, 420, 126 S. Ct. 2594, 2611 (2006) (opinion of Kennedy, J.)).

Because of this inherent difficulty, the Supreme Court stressed that if a

standard for resolving such claims exists, it “must be grounded in a ‘limited and

precise rationale’ and be ‘clear, manageable, and politically neutral.’ ” Id. (quoting

7In Hunt v. Cromartie, the Supreme Court addressed a redistricting challenge arising

from North Carolina. See Cromartie, 526 U.S. at 543, 119 S. Ct. at 1547.

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Vieth, 541 U.S. at 306–08, 124 S. Ct. at 1793 (Kennedy, J., concurring in the

judgment)). Precise constraints on judicial review of partisan gerrymandering claims

are necessary because

“[t]he opportunity to control the drawing of electoral

boundaries through the legislative process of

apportionment is a critical and traditional part of politics

in the United States.” [Davis v.] Bandemer, 478 U.S. [109,]

145, 106 S.Ct. 2797 [(1986)] (opinion of O’Connor, J.). See

Gaffney [v. Cummings], 412 U.S. [735,] 749, 93 S.Ct. 2321

[(1973)] (observing that districting implicates

“fundamental ‘choices about the nature of representation’ ”

(quoting Burns v. Richardson, 384 U.S. 73, 92, 86 S.Ct.

1286, 16 L.Ed.2d 376 (1966))). An expansive standard

requiring “the correction of all election district lines drawn

for partisan reasons would commit federal and state courts

to unprecedented intervention in the American political

process,” Vieth, 541 U.S. at 306, 124 S.Ct. 1769 (opinion of

Kennedy, J.).

Id. (first alteration in original). Accordingly, the Supreme Court concluded that

federal courts could “inject [themselves] into [such] heated partisan issues” only if a

standard existed “that c[ould] reliably differentiate unconstitutional from

‘constitutional political gerrymandering.’ ” Id. at 2499 (first quoting Bandemer, 478

U.S. at 145, 106 S. Ct. at 2817 (O’Connor, J., concurring in the judgment); and then

quoting Cromartie, 526 U.S. at 551, 119 S. Ct. at 1551).

The Supreme Court then examined whether it could locate such a standard in

the Federal Constitution. The Court explained that partisan gerrymandering claims

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are effectively requests for courts to allocate political power to achieve proportional

representation, something that the Federal Constitution does not require:

Partisan gerrymandering claims invariably sound in a

desire for proportional representation. As Justice O’Connor

put it, such claims are based on “a conviction that the greater

the departure from proportionality, the more suspect an

apportionment plan becomes.” [Bandemer, 478 U.S. at 159,

106 S. Ct. 2797.] “Our cases, however, clearly foreclose any

claim that the Constitution requires proportional

representation or that legislatures in reapportioning must

draw district lines to come as near as possible to allocating

seats to the contending parties in proportion to what their

anticipated statewide vote will be.” Id., at 130, 106 S.Ct. 2797

(plurality opinion). See Mobile v. Bolden, 446 U.S. 55, 75−76,

100 S.Ct. 1490, 1504, 64 L.Ed.2d 47 (1980) (plurality opinion)

(“The Equal Protection Clause of the Fourteenth Amendment

does not require proportional representation as an imperative

of political organization.”).

Id. at 2499. Accordingly, partisan gerrymandering claims do not seek to redress a

violation of any particular constitutional provisions; rather, such claims “ask the

courts to make their own political judgment about how much representation

particular political parties deserve—based on the votes of their supporters—and to

rearrange the challenged districts to achieve that end.” Id. (first emphasis added).

Essentially, partisan gerrymandering claims ask courts to “apportion political power

as a matter of fairness.” Id. This judgment call is a policy choice. It is not the kind of

“clear, manageable, and politically neutral” standard required for justiciable issues.

Id. at 2498 (quoting Vieth, 541 U.S. at 306–08, 124 S. Ct. at 1793 (Kennedy, J.,

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concurring in the judgment)); see also Vieth, 541 U.S. at 291, 124 S. Ct. at 1784

(plurality opinion) (“ ‘Fairness’ does not seem to us a judicially manageable

standard. . . . Some criterion more solid and more demonstrably met than that seems

to us necessary to enable the state legislatures to discern the limits of their districting

discretion, to meaningfully constrain the discretion of the courts, and to win public

acceptance for the courts’ intrusion into a process that is the very foundation of

democratic decisionmaking.”).

The Court elaborated that settling on a clear, manageable, and politically

neutral test for “fairness” is extremely difficult because “it is not even clear what

fairness looks like in this context.” Rucho, 139 S. Ct. at 2500. Fairness could mean

increasing the number of competitive districts, in which case the appropriate test

would need to accurately identify and “undo packing and cracking so that supporters

of the disadvantaged party have a better shot at electing their preferred candidates.”

Id. This definition of fairness, however, could backfire because “[i]f all or most of the

districts are competitive . . . even a narrow statewide preference for either party

would produce an overwhelming majority for the winning party in the state

legislature.” Id. (alterations in original) (quoting Bandemer, 478 U.S. at 130, 106 S.

Ct. at 2809).

Alternatively, fairness might be measured by the number of “safe seats” each

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party receives, in which case the appropriate test would actually require packing and

cracking in the redistricting process to ensure each party wins “its ‘appropriate’ share

of ‘safe’ seats.” Id. (citing Bandemer, 478 U.S. at 130–31, 106 S. Ct. at 2809). This

approach, however, reduces the number of competitive districts and produces what

would seem to be an “unfair” result for “individuals in districts allocated to the

opposing party.” Id.

Thus, the Supreme Court concluded that

[d]eciding among just these different visions of

fairness . . . poses basic questions that are political, not

legal. There are no legal standards discernible in the

Constitution for making such judgments, let alone limited

and precise standards that are clear, manageable, and

politically neutral. Any judicial decision on what is “fair” in

this context would be an “unmoored determination” of the

sort characteristic of a political question beyond the

competence of the federal courts.

Id. (quoting Zivotofsky v. Clinton, 566 U.S. 189, 196, 132 S. Ct. 1421, 1427 (2012)).

Next, the Supreme Court concluded that, unlike one-person, one-vote claims,

the Federal Constitution is also devoid of any objective, mathematical metric for

measuring political fairness:

the one-person, one-vote rule is relatively easy to

administer as a matter of math. The same cannot be said

of partisan gerrymandering claims, because the

Constitution supplies no objective measure for assessing

whether a districting map treats a political party fairly. It

hardly follows from the principle that each person must

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have an equal say in the election of representatives that a

person is entitled to have his political party achieve

representation in some way commensurate to its share of

statewide support.

Id. at 2051.

The Court noted that it is possible for a constitution to provide the explicit

guidance necessary to adjudicate partisan gerrymandering claims and pointed to

several state constitutions and state statutes that expressly do so. Id. at 2507–08. By

contrast, the Federal Constitution contains no such provision.

Finding no manageable standard in the Federal Constitution, the Supreme

Court then turned to the political science-based tests proposed by the Rucho

plaintiffs. Id. at 2503−04. The Supreme Court found these were insufficient as well

because they are not effective at predicting future election results:

The [plaintiff]s assure us that “the persistence of a

party’s advantage may be shown through sensitivity

testing: probing how a plan would perform under other

plausible electoral conditions.” Experience proves that

accurately predicting electoral outcomes is not so simple,

either because the plans are based on flawed assumptions

about voter preferences and behavior or because

demographics and priorities change over time. In our two

leading partisan gerrymandering cases themselves, the

predictions of durability proved to be dramatically wrong.

In 1981, Republicans controlled both houses of the Indiana

Legislature as well as the governorship. Democrats

challenged the state legislature districting map enacted by

the Republicans. This Court in Bandemer rejected that

challenge, and just months later the Democrats increased

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their share of House seats in the 1986 elections. Two years

later the House was split 50−50 between Democrats and

Republicans, and the Democrats took control of the

chamber in 1990. Democrats also challenged the

Pennsylvania congressional districting plan at issue in

Vieth. Two years after that challenge failed, they gained

four seats in the delegation, going from a 12−7 minority to

an 11−8 majority. At the next election, they flipped another

Republican seat.

Even the most sophisticated districting maps cannot

reliably account for some of the reasons voters prefer one

candidate over another, or why their preferences may

change. Voters elect individual candidates in individual

districts, and their selections depend on the issues that

matter to them, the quality of the candidates, the tone of

the candidates’ campaigns, the performance of an

incumbent, national events or local issues that drive voter

turnout, and other considerations. Many voters split their

tickets. Others never register with a political party, and

vote for candidates from both major parties at different

points during their lifetimes. For all of those reasons,

asking judges to predict how a particular districting map

will perform in future elections risks basing constitutional

holdings on unstable ground outside judicial expertise.

Id. (citations omitted).

In conclusion, the Supreme Court held that partisan gerrymandering claims

are nonjusticiable because there is “no plausible grant of authority in the

Constitution and no legal standards to limit and direct [courts’] decisions.” Id. at

2507. In the final words of the opinion, the Supreme Court warned that adjudication

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of partisan gerrymandering claims would constitute “an unprecedented expansion of

judicial power,” adding that:

We have never struck down a partisan gerrymander as

unconstitutional—despite various requests over the past

45 years. The expansion of judicial authority would not be

into just any area of controversy, but into one of the most

intensely partisan aspects of American political life. That

intervention would be unlimited in scope and duration—it

would recur over and over again around the country with

each new round of districting, for state as well as federal

representatives. Consideration of the impact of today’s

ruling on democratic principles cannot ignore the effect of

the unelected and politically unaccountable branch of the

Federal Government assuming such an extraordinary and

unprecedented role.

Id.

In Rucho the Supreme Court considered partisan gerrymandering claims

under the Federal Constitution, but the arguments it addressed are similar to those

raised here. While the current claims allege that partisan gerrymandering violates

our state constitution, we find the reasoning of the Supreme Court in Rucho

persuasive because the same arguments, concerns, and predictions have arisen here.

Thus, we now turn our analysis to reviewing the applicable fundamental principles

under our state constitution.

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III. Fundamental Principles

A. Separation of Powers

The separation-of-powers clause is located within the Declaration of Rights of

Article I of our constitution. The Declaration of Rights is an expressive yet non-

exhaustive list of protections afforded to citizens against government intrusion, along

with “the ideological premises that underlie the structure of government.” John V.

Orth & Paul Martin Newby, The North Carolina State Constitution 46 (2d ed. 2013)

[hereinafter State Constitution]. “The abstractness of the Declaration of Rights has

allowed most of it to survive” in our current constitution. Id. at 6. The placement of

the separation-of-powers clause in the Declaration of Rights suggests that keeping

each branch within its described spheres protects the people by limiting overall

governmental power. The clause does not establish the various powers but simply

states that the powers of the branches are “separate and distinct.” N.C. Const. art. I,

§ 6. The constitutional text develops the nature of those powers. State Constitution

46 (“Basic principles, such as popular sovereignty and separation of powers, are first

set out in general terms, to be given specific application in later articles.”). Thus, the

separation-of-powers clause “is to be considered as a general statement of a broad,

albeit fundamental, constitutional principle,” State v. Furmage, 250 N.C. 616, 627,

109 S.E.2d 563, 571 (1959), and must be considered with the related, more specific

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provisions of the constitution that outline the practical workings for governance, see

N.C. Const. art. II (providing the framework for legislative power); id. art. III

(providing the framework for executive power); id. art. IV (providing the framework

for judicial power). “Nowhere was it stated that the three powers or branches had to

be equal. In fact, although the balance occasionally shifted, the preponderant power

has always rested with the legislature.” State Constitution 50.

Given that “a constitution cannot violate itself,” Leandro v. State, 346 N.C. 336,

352, 488 S.E.2d 249, 258 (1997), a branch’s exercise of its express authority by

definition comports with separation of powers. A violation of separation of powers

only occurs when one branch of government exercises, or prevents the exercise of, a

power reserved for another branch of government. State ex rel. McCrory v. Berger,

368 N.C. 633, 660, 781 S.E.2d 248, 265 (2016) (Newby, J., concurring in part and

dissenting in part). Understanding the prescribed powers of each branch, as divided

between the branches historically and by the text itself, is the basis for stability,

accountability, and cooperation within state government. See State v. Emery, 224

N.C. 581, 584, 31 S.E.2d 858, 861 (1944) (“[Constitutions] should receive a consistent

and uniform construction . . . even though circumstances may have so changed as to

render a different construction desirable.”).

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Since 1776, our constitutions have recognized that all political power resides

in the people, N.C. Const. art. I, § 2; N.C. Const. of 1868, art. I, § 2; N.C. Const. of

1776, Declaration of Rights, § I, and is exercised through their elected officials in the

General Assembly, N.C. Const. art. II, § 1; N.C. Const. of 1868, art. II, § 1; N.C. Const.

of 1776, § I; State ex rel. Ewart v. Jones, 116 N.C. 570, 570, 21 S.E. 787, 787 (1895).

“The legislative power is vested in the General Assembly, so called because all the

people are present there in the persons of their representatives.” State Constitution

95. Accordingly, the General Assembly possesses plenary power as well as the

responsibilities explicitly recognized in the text of the state constitution. McIntyre v.

Clarkson, 254 N.C. 510, 515, 119 S.E.2d 888, 891−92 (1961). The structure of the

bicameral legislative branch itself diffuses its power, see Berger, 368 N.C. at 653, 781

S.E.2d at 260–61 (Newby, J., concurring in part and dissenting in part), and the

people themselves limit legislative power by express constitutional

restrictions, see Baker v. Martin, 330 N.C. 331, 338–39, 410 S.E.2d 887, 891–92

(1991).

Most accountable to the people, see N.C. Const. art. II, §§ 3, 5, through the most

frequent elections, id. art. II, §§ 2, 4, “[t]he legislative branch of government is

without question ‘the policy-making agency of our government. . . .’ The General

Assembly is the ‘policy-making agency’ because it is a far more appropriate forum

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than the courts for implementing policy-based changes to our laws,” Rhyne v. K-Mart

Corp., 358 N.C. 160, 169, 594 S.E.2d 1, 8 (2004) (quoting McMichael v. Proctor, 243

N.C. 479, 483, 91 S.E.2d 231, 234 (1956)); see also Berger, 368 N.C. at 653, 781 S.E.2d

at 261 (Newby, J., concurring in part and dissenting in part) (“The diversity within

the [legislative] branch . . . ensures healthy review and significant debate of each

proposed statute, the enactment of which frequently reaches final form through

compromise.”). The constitutional text provides various express checks on legislative

power. See, e.g., N.C. Const. art. II, § 11 (“Neither house shall proceed upon public

business unless a majority of all of its members are actually present.”); id. art. II, § 22

(providing that, with certain exceptions, all bills shall be subject to the Governor’s

veto); id. art. II, § 24 (prohibiting the General Assembly from enacting various types

of “local, private, or special act[s] or resolution[s]”).

B. Standard of Review

Unlike the United States Constitution, the North Carolina Constitution “is in

no matter a grant of power.” McIntyre, 254 N.C. at 515, 119 S.E.2d at 891 (quoting

Lassiter v. Northampton Cnty. Bd. of Elections, 248 N.C. 102, 112, 102 S.E.2d 853,

861 (1958), aff’d, 360 U.S. 45, 79 S. Ct. 985 (1959)). Rather, “[a]ll power which is not

limited by the Constitution inheres in the people.” Id. at 515, 119 S.E.2d at 891

(quoting Lassiter, 248 N.C. at 112, 102 S.E.2d at 861). Because the General Assembly

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serves as “the agent of the people for enacting laws,” it has the presumptive power to

act, State ex rel. Martin v. Preston, 325 N.C. 438, 448, 385 S.E.2d 473, 478 (1989), and

possesses plenary power along with the responsibilities explicitly recognized in the

constitution, McIntyre, 254 N.C. at 515, 119 S.E.2d at 891−92. The General

Assembly’s textual and plenary power is limited only by the express text of the

constitution. Baker, 330 N.C. at 338–39, 410 S.E.2d at 891–92.

Therefore, the idea of the judiciary “preventing . . . the legislature, through

which the people act, from exercising its power is the most serious of judicial

considerations.” Berger, 368 N.C. at 650, 781 S.E.2d at 259 (Newby, J., concurring in

part and dissenting in part). Accordingly, this Court presumes that legislation is

constitutional. Id. at 639, 781 S.E.2d at 252 (majority opinion). A constitutional

limitation upon the General Assembly must be explicit and a violation of that

limitation must be proved beyond a reasonable doubt. Id. at 639, 781 S.E.2d at 252.

A statute cannot abrogate an express provision of the constitution because the

constitution represents the fundamental law and the express will of the people.

Bayard, 1 N.C. (Mart.) at 7. The judiciary performs this role of judicial review by

determining whether a law conflicts with an express provision of the constitution. See

id. at 6.

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When this Court looks for constitutional limitations on the General Assembly’s

authority, it looks to the plain text of the constitution just as it would look to the plain

text of a statute. State v. Webb, 358 N.C. 92, 97, 591 S.E.2d 505, 510 (2004). Thus, a

claim that a law is unconstitutional must surmount the high bar imposed by the

presumption of constitutionality and meet the highest quantum of proof, a showing

that the statute is unconstitutional beyond a reasonable doubt.8 Baker, 330 N.C. at

334–37, 410 S.E.2d at 889–90.

A proper application of this standard of review is illustrated by the landmark

case of Bayard v. Singleton, the first reported case of judicial review in the nation.

Bayard involved judicial review of a statute that conflicted with an express provision

of the 1776 Declaration of Rights. 1 N.C. (Mart.) at 5. In 1785 the General Assembly

enacted a law that abolished the right to a trial by jury for certain property disputes.

Id. At that time, however, the Declaration of Rights expressly provided for a right to

a trial by jury “in all Controversies at Law respecting property.” N.C. Const. of 1776,

Declaration of Rights, § XIV.

8 The majority in Harper I and Harper II and the dissent here largely ignore the well-

established standard of review that our courts apply when reviewing the constitutionality of

a statute. Notably, courts apply different standards of review when adjudicating other

matters that do not involve the constitutionality of a statute.

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The Court in Bayard held that the act was unequivocally unconstitutional and

void because it directly conflicted with a clear and express provision of the

constitution. Bayard, 1 N.C. (Mart.) at 7. The Court reasoned that the General

Assembly could not “repeal or alter” an express provision of the constitution by

statute because the constitution represents the fundamental law and the express will

of the people. Id. If the General Assembly could violate the constitution in this

manner, it could defy the express will of the people who are the source of all political

power. Id.; see N.C. Const. art. I, § 2. Thus, this Court declared the statute at issue

unconstitutional. Bayard, 1 N.C. (Mart.) at 7.

This Court, however, did not lightly take on the role of declaring an act of the

General Assembly unconstitutional. The Court noted that it felt “great reluctance” in

involving itself “in a dispute with the Legislature” and took “every reasonable

endeavor” to avoid “a disagreeable difference between” the two branches. Id. at 6. But

in this instance, the Court determined that it had to declare the act void because the

constitution was explicit: “That by the Constitution every citizen had undoubtedly a

right to a decision of his property by a trial by jury.” Id. at 7. Accordingly, the holding

of Bayard is clear: the judiciary performs the role of judicial review, but it only

declares an act of the General Assembly void when it directly conflicts with an express

provision of the constitution.

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Thus, plainly stated and as applied to this case, the standard of review asks

whether the redistricting plans drawn by the General Assembly, which are presumed

constitutional, violate an express provision of the constitution beyond a reasonable

doubt. When we cannot locate an express, textual limitation on the legislature, the

issue at hand may involve a political question that is better suited for resolution by

the policymaking branch. As “essentially a function of the separation of powers,” the

political question doctrine operates to check the judiciary and prevent its encroaching

on the other branches’ authority. Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710

(1962). Under this doctrine, courts must refuse to review political questions, that is,

issues that are better suited for the political branches. Such issues are considered

nonjusticiable.

Prominent on the surface of any case held to involve a

political question is found a textually demonstrable

constitutional commitment of the issue to a coordinate

political department; or a lack of judicially discoverable

and manageable standards for resolving it; or the

impossibility of deciding without an initial policy

determination of a kind clearly for nonjudicial discretion;

or the impossibility of a court’s undertaking independent

resolution without expressing lack of the respect due

coordinate branches of government; or an unusual need for

unquestioning adherence to a political decision already

made; or the potentiality of embarrassment from

multifarious pronouncements by various departments on

one question.

Id. at 217, 82 S. Ct. at 710; see also Bacon v. Lee, 353 N.C. 696, 716–17, 549 S.E.2d

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840, 854 (2001). Accordingly, out of respect for separation of powers, a court must

refrain from adjudicating a claim when any one of the following is present: (1) a

textually demonstrable commitment of the matter to another branch; (2) a lack of

judicially discoverable and manageable standards; or (3) the impossibility of deciding

a case without making a policy determination of a kind clearly suited for nonjudicial

discretion. All three of these factors are present here.

IV. Political Question

The claims and arguments at issue in this case are the same as those in Rucho,

only this time they arise under the state constitution instead of the Federal

Constitution. The Declaration of Rights provisions invoked by plaintiffs in this case—

the free elections clause, the equal protection clause, and the freedom of speech and

assembly clauses, N.C. Const. art. I, §§ 10, 12, 14, 19,—are our state constitution’s

counterparts to the Federal Constitutional provisions invoked in Rucho—Article I,

Section 4 (Elections Clause); Article I, Section 2 (composition of the U.S. House of

Representatives); the Equal Protection Clause of the Fourteenth Amendment; and

the First Amendment, which protects the rights to free speech and freedom of

association, see Rucho, 139 S. Ct. at 2491. The dissent in Harper I explained in great

detail that, due to the striking similarities between this case and Rucho, we should

have followed the Supreme Court’s guidance and declared plaintiffs’ claims

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nonjusticiable. See Harper I, 380 N.C. at 414−24, 868 S.E.2d at 566−72 (Newby, C.J.,

dissenting). The dissent in Harper II reiterated that Rucho was persuasive precedent

from our nation’s highest court and illustrated how all of the justiciability pitfalls

warned of in Rucho permeated the remedial proceedings in this case. See Harper II,

383 N.C. at 166−70, 881 S.E.2d at 206−08 (Newby, C.J., dissenting).

Four justices on this Court “misapprehended” the Rucho analysis in Harper I.

See N.C. R. App. P. 31(a). The remedial proceedings at issue in Harper II confirm

that those four justices were wrong to condemn Rucho as inapplicable to the case at

hand. See Harper II, 383 N.C. at 144−66, 881 S.E.2d at 193−206; Harper I, 380 N.C.

at 356−62, 868 S.E.2d at 529−33 (majority opinion). Today we correct that error.

Under the North Carolina Constitution, redistricting is explicitly and exclusively

committed to the General Assembly by the text of the constitution. The executive

branch has no role in the redistricting process, and the role of the judicial branch is

limited by the principles of judicial review. Moreover, like the Federal Constitution,

our constitution does not provide any judicially discernible or manageable standards

for determining how much partisan gerrymandering is too much. See Rucho, 139 S.

Ct. at 2500. Any attempt to adjudicate such claims forces this Court to make

numerous policy determinations for which there is no constitutional guidance. We

are not authorized or equipped to make these determinations. For all of these

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reasons, we hold that claims of partisan gerrymandering are nonjusticiable, political

questions under the North Carolina Constitution.

A. Textual Commitment

One prominent characteristic of a political question is “a textually

demonstrable constitutional commitment of the issue to a coordinate political

department.” Bacon, 353 N.C. at 717, 549 S.E.2d at 854 (quoting Baker, 369 U.S. at

217, 82 S. Ct. at 710). The text of our state constitution, as well as that of the Federal

Constitution, expressly assigns the task of redistricting9 to the General Assembly.

Reviewing the historical context of our redistricting and elections process is necessary

to properly understand that our state constitution has committed the issue of

redistricting to the General Assembly for hundreds of years.

North Carolina has had some form of elected, representative body since

1665. As early as 1663, the Lords Proprietors could enact laws in consultation with

the freemen settled in their province. Charter Granted by Charles II, King of England

to the Lords Proprietors of Carolina (Mar. 24, 1663), in 1 Colonial and State Records

of North Carolina 20–23 (William L. Sanders ed., 1886) [hereinafter 1 Colonial and

State Records]. In 1665 certain “concessions” by the Lords Proprietors allowed for the

9 “Districting” and “redistricting” are sometimes referred to as “apportionment” and

“reapportionment.”

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formation of the predecessor to the General Assembly and the election of freemen

representatives. Concessions and Agreement Between the Lords Proprietors of

Carolina and William Yeamans, et al. (Jan. 7, 1665), in 1 Colonial and State Records

79–81. The 1669 Fundamental Constitutions of Carolina apportioned those

representatives into counties and the counties into precincts. The Fundamental

Constitutions of Carolina (Mar. 1, 1669), in 1 Colonial and State Records 188. The

assembly met and stood for election every two years. Id. at 199–200. Thus, long before

the 1776 constitution, the qualified voters in Carolina were electing their

representatives in districts.

Leading up to the enactment of the 1776 constitution, in 1774 the delegates of

the First Provincial Congress were elected by geographic location, either by town,

which were also known as boroughs, or by county. See Henry G. Connor & Joseph B.

Cheshire, Jr., The Constitution of North Carolina Annotated xii–xiv (1911). The text

of the 1776 constitution established the General Assembly, a gathering of the people

through their elected representatives, as the Senate and the House of Commons. N.C.

Const. of 1776, § I. Senators were elected annually by county without regard to the

population size of that county. Id. § II. Representatives in the House of Commons

were also elected annually, but each county received two representatives and certain

enumerated towns received one as well. Id. § III. Only six towns were initially given

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separate representation in the House of Commons, id., but other towns were later

added. The 1776 constitution did not contain a specific provision regarding

redistricting. Nonetheless, redistricting occurred through the creation of new

counties—as part of its plenary power, the General Assembly established the

boundaries of the counties from which Senators and Representatives were elected.

See, e.g., Act of Apr. 8, 1777, An Act for dividing Rowan County, and other Purposes

therein mentioned, ch. XIX, 1777 N.C. Sess. Laws 33 (dividing Rowan County to carve

out a new Burke County). Notably, the 1776 Declaration of Rights contained the free

elections and freedom of assembly clauses. N.C. Const. of 1776, Declaration of Rights,

§§ VI, XVIII.

Through the years, the population of the state shifted radically from the east

to the piedmont and west. John V. Orth, North Carolina Constitutional History, 70

N.C. L. Rev. 1759, 1770–71 (1992) [hereinafter Constitutional History]. Nonetheless,

the eastern region received additional representation through the strategic creation

and division of counties. Id. at 1770. The General Assembly created smaller counties

in the east and larger ones in the piedmont and west, keeping the distribution of

representatives in favor of the east despite population growth trends in other

areas. Id. This county-town approach, combined with the power of the General

Assembly to divide existing counties to create new ones, resulted in superior political

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power in the east. See id. This malapportionment led to civil unrest and a crisis that

culminated with the 1835 constitutional convention. State Constitution 3, 13. During

that time, no one argued that the provisions of the Declaration of Rights or the 1776

constitution made the legislative apportionment acts unconstitutional. Rather, North

Carolinians ultimately recognized the need to amend the text itself to address the

apportionment problem.

In 1835 a constitutional convention met to, among other things, change the

representative system to better address differences in population. See id. That

convention resulted in amendments that provided for a total of fifty senators and

required senatorial districts to be drawn by the General Assembly based on the taxes

paid by each county. N.C. Const. of 1776, amends. of 1835, art. I, § 1. These

amendments also included the predecessor of the WCP, see N.C. Const. art. II, § 3(3),

that prohibited a county from being divided to create the senatorial districts, N.C.

Const. of 1776, amends. of 1835, art. I, § 1.

The 1835 amendments provided for 120 House seats. Id. art. I, § 2. These

amendments eliminated representation for the borough towns, see generally id.,

instead allotting all 120 House seats to counties based roughly on population, id. This

framework allowed the more populated counties to have additional representatives,

but each county was entitled to at least one representative. Id. These amendments

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alleviated the problem of disproportionate representation in the eastern counties. The

General Assembly was instructed to reconsider the apportionment of the counties

every twenty years and to base reapportionment on population according to the

census taken by order of Congress. Id. art. I, § 3. Likewise, the convention

implemented other changes to representation such as lengthening legislative terms

from one year to two years, id. art. I, §§ 1–2, and allowing the voters to elect the

governor, id. art. II, § 1.

Following the constitutional convention of 1868, the Senate became

apportioned by population. N.C. Const. of 1868, art. II, § 5. Along with the express

limitation imposed by the WCP, the 1868 amendments required senatorial districts

to be contiguous and to be redrawn in connection with the decennial

census. Id. Apportionment of House seats remained the same—allotted to counties

based on population with each county given at least one representative. Id. art. II,

§ 6. The convention lengthened the term of the governor to four years, id. art. III, § 1,

and constitutionally created a separate judicial branch, see id. art. IV, with judges

being elected by the voters for eight-year terms, id. art. IV, § 26. Previously, the

General Assembly elected judges, N.C. Const. of 1776, § XIII, but now judges in North

Carolina became directly accountable to the people through elections, N.C. Const. of

1868, art. IV, § 26.

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For almost one hundred years, apportionment remained unchanged until the

1960s. At that time, the Speaker of the House received the authority to apportion

House districts. N.C. Const. of 1868, amends. of 1961, art. II, § 5. Then, to comply

with the federal decision in Baker v. Carr, the constitution was amended in 1968 to

reflect the one-person, one-vote requirement. State Constitution 31. This change

affected the structure of the House of Representatives in particular. Id. Significantly,

the number of House members remained at 120, but the representatives were no

longer apportioned by county; instead, the 120 representatives were allotted among

districts now drawn based on equal population. N.C. Const. of 1868, amends. of

1967, art. II, § 5. By the end of the 1960s, the same criteria for proper districts—equal

population, contiguous territory, the WCP, and reapportionment in conjunction with

the decennial census—applied to both Senate and House districts. See id. art. II, §§ 4,

6.

The current version of our constitution, ratified by the people at the ballot box

in 1970, took effect in 1971 and came about as a “good government measure.” State

Constitution 32. This 1971 constitution represented an attempt to modernize the

1868 constitution and its subsequent amendments with editorial and organizational

revisions and amendment proposals. See, e.g., N.C. State Const. Study Comm’n,

Report of the North Carolina State Constitution Study Commission 8–12 (1968).

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Today our constitution expressly assigns the legislative redistricting authority to the

General Assembly subject to specific enumerated restraints:

The Senators shall be elected from districts. The

General Assembly, at the first regular session convening

after the return of every decennial census of population

taken by order of Congress, shall revise the senate districts

and the apportionment of Senators among those districts,

subject to the following requirements:

(1) Each Senator shall represent, as nearly as may

be, an equal number of inhabitants, the number of

inhabitants that each Senator represents being

determined for this purpose by dividing the population of

the district that he represents by the number of Senators

apportioned to that district;

(2) Each senate district shall at all times consist of

contiguous territory;

(3) No county shall be divided in the formation of a

senate district;

(4) When established, the senate districts and the

apportionment of Senators shall remain unaltered until

the return of another decennial census of population taken

by order of Congress.

N.C. Const. art. II, § 3. Article II, Section 5 establishes the same grant of authority

and limitations for the state House of Representatives. Thus, while the constitution

commits the redistricting responsibility to the General Assembly, it does not leave

the General Assembly completely unrestrained. The constitution expressly requires

that any redistricting plan conform to its explicit criteria.

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Notably, there is no provision in the state constitution regarding redistricting

of congressional districts. The Federal Constitution, however, commits drawing of

congressional districts to the state legislatures subject to oversight by the Congress

of the United States. “The Times, Places and Manner of holding Elections for

Senators and Representatives, shall be prescribed in each State by the Legislature

thereof; but the Congress may at any time by Law make or alter such Regulations,

except as to the Places of chusing Senators.” U.S. Const. art. I, § 4, cl. 1. This provision

makes clear that the redistricting power is expressly committed to the state

legislative branch.

Additionally, both our constitution and the General Statutes expressly insulate

the redistricting power from intrusion by the executive and judicial branches. The

governor has no role in the redistricting process because the constitution explicitly

exempts redistricting legislation from the governor’s veto power.10 N.C. Const. art. II,

§ 22(5)(b)−(d). Moreover, the General Statutes provide a limited role of judicial review

for courts in reviewing redistricting plans. See N.C.G.S. §§ 120-2.3 to -2.4 (2021). The

10 The North Carolina governor did not gain the veto power until the people approved

an amendment to the North Carolina Constitution in 1996—over two hundred years after

the adoption of our first constitution in 1776. See Act of Mar. 8, 1995, An Act to Provide For

A Referendum to Amend the Constitution to Provide for a Gubernatorial Veto, ch. 5, 1995

N.C. Sess. Laws 6. At that time, the people of North Carolina extended to the governor the

authority to veto many types of legislative enactments but specifically withheld the authority

to veto redistricting legislation. Id. That provision remains unchanged today.

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General Assembly enacted these statutory provisions in 2003 to clarify and codify the

existing process by which courts already had been reviewing redistricting plans. Act

of Nov. 25, 2003, An Act to Establish House Districts, Establish Senatorial Districts,

and Make Changes to the Election Laws and to Other Laws Related to Redistricting,

S.L. 2003-434, §§ 7−9, 2003 N.C. Sess. Laws (1st Extra Sess. 2003) 1313, 1415−16.

The General Assembly drafted these statutes in response to this Court’s decisions in

Stephenson I, 355 N.C. 354, 562 S.E.2d 377, and Stephenson v. Bartlett (Stephenson

II), 357 N.C. 301, 582 S.E.2d 247 (2003). This Court unanimously upheld these

statutory provisions as proper limitations on the judiciary’s role in the redistricting

process in Stephenson v. Bartlett (Stephenson III), 358 N.C. 219, 230, 595 S.E.2d 112,

119−20 (2004) (“[R]edistricting is a legislative responsibility . . . . Not only do these

statutes allow the General Assembly to exercise its proper responsibilities, they

decrease the risk that the courts will encroach upon the responsibilities of the

legislative branch.”).

Section 1-267.1 requires that a three-judge panel hear challenges to

redistricting plans. N.C.G.S. § 1-267.1 (2021). Specifically, under Section 120-2.3,

courts may review challenges regarding whether a redistricting plan is

“unconstitutional or otherwise invalid.” Id. § 120-2.3. If a court finds a redistricting

plan is unconstitutional, it must specify the precise defects and give the General

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Assembly an opportunity to remedy any identified defect by enacting a new

redistricting plan. Id. § 120-2.4(a). By statute, a court may not impose a remedial

redistricting plan of its own unless “the General Assembly does not act to remedy”

those defects. Id. § 120-2.4(a1). Even then, a court-imposed redistricting plan may

differ from the General Assembly’s enacted plan “only to the extent necessary to

remedy” the defects identified by the court and will only be used for the next general

election. Id. After the next general election, the General Assembly will replace the

court-imposed map with a new, legislatively enacted map. A court-imposed map is

only used for one election cycle because it is not “established” as that term is used in

Article II, Sections 3(4) and 5(4). See N.C. Const. art. II, §§ 3(4), 5(4) (“When

established, the senate [and representative] districts and the apportionment of

Senators [and Representatives] shall remain unaltered until the return of another

decennial census of population taken by order of Congress.”). This limited role of

judicial review comports with the fact that our constitution expressly assigns the

redistricting authority to the General Assembly. See Stephenson III, 358 N.C. at 230,

595 S.E.2d at 119.

Article II, Sections 3 and 5 commit the redistricting authority to the General

Assembly and set express limitations on that authority. In the landmark case

Stephenson I, this Court considered the express limitations on redistricting in Article

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II, Sections 3 and 5, and applied them in conformity with federal law. See Stephenson

I, 355 N.C. at 358, 562 S.E.2d at 381. That case dealt with the interplay between the

objective restraints contained in the state constitution and federal redistricting

authorities—namely, Section 2 of the Voting Rights Act (VRA) and the one-person,

one-vote principle.11 See id. at 359, 562 S.E.2d at 382.

The plaintiffs challenged the 2001 state legislative redistricting plans (2001

Plans) as unconstitutional in violation of the WCP of Article II, Sections 3 and 5. Id.

at 358, 562 S.E.2d at 381; N.C. Const. art. II, §§ 3, 5 (“No county shall be divided in

the formation of a senate [or representative] district.”). The defendants argued that

these constitutional provisions were “wholly unenforceable because of the

requirements of the [VRA].” Stephenson I, 355 N.C. at 361, 562 S.E.2d at 383−84.

Thus, before addressing whether the 2001 redistricting plans violated the WCP, this

Court first had to address “whether the WCP is now entirely unenforceable, as [the]

defendants contend, or, alternatively, whether the WCP remains enforceable

11 “Section 2 of the VRA generally provides that states or their political subdivisions

may not impose any voting qualification or prerequisite that impairs or dilutes, on account

of race or color, a citizen’s opportunity to participate in the political process and to elect

representatives of his or her choice.” Id. at 363, 562 S.E.2d at 385. The one-person, one-vote

principle simply requires that districts, to the extent practicable, contain an equal number of

voters. Brown v. Thomson, 462 U.S. 835, 841, 103 S. Ct. 2690, 2695 (1983).

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throughout the State to the extent not preempted or otherwise superseded by federal

law.” Id. at 369, 562 S.E.2d at 388. In doing so, we explained that

an inflexible application of the WCP is no longer attainable

because of the operation of the provisions of the VRA and

the federal “one-person, one-vote” standard, as

incorporated within the State Constitution. This does not

mean, however, that the WCP is rendered a legal nullity if

its beneficial purposes can be preserved consistent with

federal law and reconciled with other state constitutional

guarantees.

. . . The General Assembly may consider partisan

advantage and incumbency protection in the application of

its discretionary redistricting decisions, see Gaffney v.

Cummings, 412 U.S. 735, [93 S. Ct. 2321,] 37 L. Ed. 2d 298

(1973), but it must do so in conformity with the State

Constitution. To hold otherwise would abrogate the

constitutional limitations or “objective constraints” that

the people of North Carolina have imposed on legislative

redistricting and reapportionment in the State

Constitution.

Id. at 371–72, 562 S.E.2d at 389–90. In other words, we recognized that the WCP is

one of the clear and express limitations or “objective constraints” on legislative

redistricting in our constitution. Id. at 371, 562 S.E.2d at 390. We concluded that the

WCP was enforceable to the extent it did not conflict with the one-person, one-vote

principle or the VRA because “the people of North Carolina” expressly chose to limit

the General Assembly in this way. Id. at 371, 374−75, 562 S.E.2d at 390, 391−92; id.

at 372−74, 562 S.E.2d at 390−91 (“[T]he WCP remains valid and binding upon the

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General Assembly during the redistricting and reapportionment process . . . except to

the extent superseded by federal law. . . . Where . . . the primary purpose of the WCP

can be effected to a large degree without conflict with federal law, it should be adhered

to by the General Assembly to the maximum extent possible.”).

Notably, we stated that “[t]he General Assembly may consider partisan

advantage and incumbency protection in the application of its discretionary

redistricting decisions.” Id. at 371, 562 S.E.2d at 390. We supported this statement

with a citation to the Supreme Court’s decision in Gaffney v. Cummings, 412 U.S.

735, 93 S. Ct. 2321 (1973). In that case the Supreme Court observed that

[i]t would be idle, we think, to contend that any political

consideration taken into account in fashioning a

reapportionment plan is sufficient to invalidate it. Our

cases indicate quite the contrary. The very essence of

districting is to produce a different—a more “politically

fair”—result than would be reached with elections at large,

in which the winning party would take 100% of the

legislative seats. Politics and political considerations are

inseparable from districting and apportionment.

Id. at 752−53, 93 S. Ct. at 2331 (emphasis added) (citations omitted). Thus, in

Stephenson I we recognized that partisan considerations are inherently a part of the

redistricting process in our state. We then expressed that the discretionary

consideration of partisan advantage and incumbency protection must be done “in

conformity with the State Constitution.” Stephenson I, 355 N.C. at 371, 562 S.E.2d at

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390. In other words, the General Assembly’s discretionary considerations are

constrained by the express limitations found in Article II, Sections 3 and 5. “To hold

otherwise,” we explained, “would abrogate the constitutional limitations or ‘objective

constraints’ that the people of North Carolina have imposed on legislative

redistricting and reapportionment in the State Constitution.” Id. at 371−72, 562

S.E.2d at 390. By “constitutional limitations,” we meant the specific constraints in

Article II, Sections 3 and 5.

Having held that the WCP remained enforceable to the extent not preempted

by or otherwise superseded by federal law, we then held that the 2001 Plans violated

the WCP by unduly dividing numerous counties. Id. at 371, 562 S.E.2d at 389–90.

Specifically, the 2001 Plans divided fifty-one of the State’s one hundred counties in

the Senate plan and seventy of the one hundred counties in the House plan. Id. at

360, 562 S.E.2d at 383. We were able to make this determination because the

standard provided by the WCP is express, clear, and easily applied.

Once we found that the 2001 Plans violated the still-valid WCP, we then

crafted detailed criteria harmonizing the WCP and the other express constraints in

Article II, Sections 3 and 5, with the VRA and the federal one-person, one-vote

principle. These standards were clear and manageable because they were based on

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the express provisions found in our constitution or in federal law. For example, one

of the Stephenson I criteria required that

[i]n counties having a non-VRA population pool

which cannot support at least one legislative district at or

within plus or minus five percent of the ideal population for

a legislative district or, alternatively, counties having a

non-VRA population pool which, if divided into districts,

would not comply with the at or within plus or minus five

percent “one-person, one-vote” standard, the requirements

of the WCP are met by combining or grouping the

minimum number of whole, contiguous counties necessary

to comply with the at or within plus or minus five-percent

“one-person, one vote” standard.

Id. at 383−84, 562 S.E.2d at 397 (emphasis added). The requirement that the General

Assembly group “whole, contiguous” counties together when necessary to create a

district that meets the ideal population requirement is a function of the WCP and the

requirement that “[e]ach [legislative] district shall at all times consist of contiguous

territory.” N.C. Const. art. II, §§ 3(3), 5(3), 3(2), 5(2). Similarly, this Court recognized

that when the General Assembly must group counties together in this way, the

resulting districts in that county grouping might cross over the “interior county

lines”—that is, the county lines that do not create the exterior boundaries of the

county grouping. See Stephenson I, 355 N.C. at 384, 562 S.E.2d at 397. Such

crossovers would violate the WCP but may be necessary to comply with the one-

person, one-vote principle. Thus, in order to enforce “[t]he intent underlying the

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WCP . . . to the maximum extent possible,” Stephenson I required that districts in

multi-county groupings be “compact” and account for “communities of interest.”12 Id.

at 384, 562 S.E.2d at 397. Compactness and communities of interest are also

important factors under the VRA. See Thornburg v. Gingles, 478 U.S. 30, 50−51, 106

S. Ct. 2752, 2766 (1986).

Stephenson I also required that “[i]n forming new legislative districts, any

deviation from the ideal population for a legislative district shall be at or within plus

or minus five percent for purposes of compliance with federal ‘one-person, one-vote’

requirements.” 355 N.C. at 383, 562 S.E.2d at 397. This requirement is “relatively

easy to administer as a matter of math.”13 Rucho, 139 S. Ct. at 2501. This requirement

12 The Court in Stephenson I recognized that the “impetus” underlying the WCP was

a long-standing respect for counties as “political subdivisions” that “provide essential

services” and “ ‘effectuate the political organization and civil administration of the state’ ” at

the local level. Id. at 365−66, 562 S.E.2d at 385−86 (quoting White v. Comm’rs of Chowan

Cnty., 90 N.C. 437, 438 (1884)). Accordingly, counties were kept whole because they naturally

promote a “clear identity and common interests” among county residents. Id. at 366, 562

S.E.2d at 386. Recognizing that some counties would need to be divided or grouped together

to comply with federal redistricting requirements, and in order to comply with the underlying

intent of the WCP “to the maximum extent possible,” id. at 384, 562 S.E.2d at 397,

Stephenson I required the General Assembly to consider compactness and communities of

interest whenever it had to group multiple counties together.

13 Stephenson I’s plus or minus five percent standard is derived directly from Supreme

Court precedent holding that a population deviation range of ten percent (plus or minus five

percent) generally satisfies the federal one-person, one-vote requirement. See Brown, 462

U.S. at 842, 103 S. Ct. at 2696 (“ ‘[M]inor deviations from mathematical equality among state

legislative districts are insufficient to make out a prima facie case of invidious discrimination

under the Fourteenth Amendment . . . .’ Our decisions have established, as a general matter,

that an apportionment plan with a maximum population deviation under 10% falls within

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also ensures compliance with Article II, Sections 3(1) and 5(1), which provide that

each senator and representative “shall represent, as nearly as may be, an equal

number of inhabitants.” N.C. Const. art. II, §§ 3(1), 5(1).

Although this Court was very detailed in stating its Stephenson I criteria, each

criterion clearly reflects the fact that the constitution textually commits the

redistricting authority to the General Assembly and only limits that authority in the

ways enumerated in federal law and in Article II, Sections 3 and 5. This Court

harmonized federal redistricting requirements and the directives of our state

constitution, but it did not place any limitations on redistricting that were not derived

from those two sources of law.

In sum, throughout our history our constitutions have invariably committed

redistricting authority to our General Assembly. The General Assembly exercises

that authority subject to the express limitations in our constitution and in federal

this category of minor deviations.” (internal citations omitted) (quoting Gaffney, 412 U.S. at

745, 93 S. Ct. at 2327)); see also Harris v. Ariz. Indep. Redistricting Comm’n, 578 U.S. 253,

259, 136 S. Ct. 1301, 1307 (2016) (“We have further made clear that ‘minor deviations from

mathematical equality’ do not, by themselves, ‘make out a prima facie case of invidious

discrimination under the Fourteenth Amendment . . . .’ We have defined as ‘minor deviations’

those in ‘an apportionment plan with a maximum population deviation under 10%.’ ”

(internal citations omitted) (first quoting Gaffney, 412 U.S. at 745, 93 S. Ct. at 2327; and then

quoting Brown, 462 U.S. at 842, 103 S. Ct. at 2696)); Evenwel v. Abbott, 578 U.S. 54, 59−60,

136 S. Ct. 1120, 1124 (2016) (same); Voinovich v. Quilter, 507 U.S. 146, 160−61, 113 S. Ct.

1149, 1159 (1993) (same); Connor v. Finch, 431 U.S. 407, 418, 97 S. Ct. 1828, 1835 (1977)

(same).

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law. When the General Assembly acts within the scope of these express limitations,

it is performing its constitutionally assigned role. When the General Assembly

properly performs its constitutionally assigned role, its discretionary decisions

present a political question that is nonjusticiable. Ultimately, the role of our courts

is limited to identifying a redistricting plan that violates those express limitations

and requiring the General Assembly to remedy the specified defects.

B. Judicially Discoverable and Manageable Standards

Another factor that indicates the presence of a political question is the lack of

a judicially discoverable and manageable standard for assessing the matter at hand.

Like the Federal Constitution, our constitution does not provide judicially discernible

or manageable standards for adjudicating partisan gerrymandering claims. The

North Carolina Constitution could contain a provision that expressly prohibits or

limits partisan gerrymandering, and perhaps then our courts could be “armed with a

standard that can reliably differentiate” between constitutional and unconstitutional

partisan gerrymandering. See Rucho, 139 S. Ct. at 2499. Our constitution, however,

contains no such provision.

Almost one hundred years ago, this Court’s opinion in Leonard v. Maxwell

indicated that courts should cautiously consider redistricting claims. 216 N.C. 89, 99,

3 S.E.2d 316, 324 (1939). In that case the plaintiff argued that the General Assembly

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was malapportioned because it had not reapportioned itself at the first session after

the 1930 census, as required by the constitution. Id. at 98, 3 S.E.2d at 324. As a result,

the plaintiff argued that the 1937 General Assembly was powerless to act including,

“it [wa]s suggested,” to reapportion itself. Id. This Court rejected that argument,

observing that “[t]he question is a political one, and there is nothing the courts can

do about it. [Courts] do not cruise in nonjusticiable waters.” Id. at 99, 3 S.E.2d at 324

(internal citation omitted).

Moreover, this Court has previously recognized that the Declaration of Rights

generally does not provide judicially manageable standards for claims related to

gerrymandering. In Dickson I a group of North Carolina voters challenged

redistricting plans passed by the General Assembly in 2011 (2011 Plans) under both

federal and state law. Dickson I, 367 N.C. at 546, 766 S.E.2d at 242, vacated and

remanded on federal grounds, 575 U.S. 959 (2015) (mem.). Among other claims, the

plaintiffs argued that the 2011 Plans violated the “ ‘Good of the Whole’ clause found

in Article I, Section 2” of the North Carolina Constitution’s Declaration of Rights. Id.

at 575, 766 S.E.2d at 260. Article I, Section 2 states:

All political power is vested in and derived from the

people; all government of right originates from the people,

is founded upon their will only, and is instituted solely for

the good of the whole.

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N.C. Const. art. I, § 2. The plaintiffs argued that the last clause of this provision

constitutes “a specific limitation on the powers of the General Assembly with regard

to redistricting” because the General Assembly “ ‘institutes’ a new form of

government” when it reapportions the legislative districts after every decennial

census. Pl.-Appellants’ Br. at 178−79, Dickson I, No. 201PA12-2, 2013 5669654 (N.C.

Sup. Ct. Oct. 11, 2013).

This Court rejected that claim as nonjusticiable, however, determining that

Article I, Section 2 of the Declaration of Rights did not provide a judicially

manageable standard:

We do not doubt that plaintiffs’ proffered maps represent

their good faith understanding of a plan that they believe

best for our State as a whole. However, the maps enacted

by the duly elected General Assembly also represent an

equally legitimate understanding of legislative districts

that will function for the good of the whole. Because

plaintiffs’ argument is not based upon a justiciable

standard, and because acts of the General Assembly enjoy

“a strong presumption of constitutionality,” Pope v. Easley,

354 N.C. 544, 546, 556 S.E.2d 265, 267 (2001) (per curiam)

(citation omitted), plaintiffs’ claims fail.

Dickson I, 367 N.C. at 575, 766 S.E.2d at 260. We affirmed the trial court’s conclusion

that “the General Assembly applied traditional and permissible redistricting

principles to achieve partisan advantage and that no constitutional violations

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resulted.” Id. at 546, 766 S.E.2d at 242. Notably, the trial court in that case

specifically stated that partisan gerrymandering is nonjusticiable:

Redistricting in North Carolina is an inherently political

and intensely partisan process that results in political

winners and, of course, political losers. . . .

Political losses and partisan disadvantage are not the

proper subject for judicial review, and those whose power

or influence is stripped away by shifting political winds

cannot seek a remedy from courts of law, but they must

find relief from courts of public opinion in future elections.

Our North Carolina Supreme Court has observed that

“[w]e do not believe the political process is enhanced if the

power of the courts is consistently invoked to second-guess

the General Assembly’s redistricting decisions.”

Dickson v. Rucho, Nos. 11 CVS 16896, 11 CVS 16940, 2013 WL 3376658, at *1−2

(N.C. Super. Ct. Wake County July 8, 2013) (quoting Pender County v. Bartlett, 361

N.C. 491, 506, 649 S.E.2d 364, 373 (2007), aff’d sub nom. Bartlett v. Strickland, 556

U.S. 1, 129 S. Ct. 1231 (2009)). We affirmed the trial court’s analysis. See Dickson I,

367 N.C. at 575, 766 S.E.2d at 260; see also Dickson v. Rucho (Dickson II), 368 N.C.

481, 534, 781 S.E.2d 404, 440–41 (2015) (reiterating our prior holding that Article I,

Section 2 of the North Carolina Declaration of Rights does not provide a justiciable

standard).

The four-justice majority in Harper I should have followed the analysis in

Dickson I. Nevertheless, the Harper I majority departed from this precedent and

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insisted that our Declaration of Rights plainly provides a standard for identifying

partisan gerrymandering. Even within that opinion, however, the majority could not

consistently enunciate what that standard supposedly is. The Court described a

“constitutional right[ ] of the people to vote on equal terms and to substantially equal

voting power,” as well as an “individual right[ ] of voters to cast votes that matter

equally.” Harper I, 380 N.C. at 323–24, 868 S.E.2d at 510. The Harper I majority also

stated that the constitution protects “the opportunity to aggregate one’s vote with

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

citizens’ views.” Id. at 378, 868 S.E.2d at 544. In another part of the Harper I opinion,

the majority noted a districting plan violates the constitution when it “systematically

makes it harder for one group of voters to elect a governing majority than another

group of voters of equal size.” Id. at 379, 868 S.E.2d at 544. In other parts of Harper

I, however, the majority characterized the standard as a right to aggregate votes “on

the basis of partisan affiliation.” Id. at 390, 392, 868 S.E.2d at 551, 552.

These vague and inconsistent standards are not derived from any express

provision in the constitution. Instead, these standards seem to be grounded in a

desire for some form of proportionality and reflect a judicially created notion of how

much representation is “fair” without explaining what fairness is or how to manage

it. The Supreme Court reached the same conclusion regarding the claims in Rucho:

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Partisan gerrymandering claims rest on an instinct

that groups with a certain level of political support should

enjoy a commensurate level of political power and

influence. Explicitly or implicitly, a districting map is

alleged to be unconstitutional because it makes it too

difficult for one party to translate statewide support into

seats in the legislature. . . .

Partisan gerrymandering claims invariably sound in

a desire for proportional representation. As Justice

O’Connor put it, such claims are based on “a conviction that

the greater the departure from proportionality, the more

suspect an apportionment plan becomes.”

Rucho, 139 S. Ct. at 2499 (quoting Bandemer, 478 U.S. at 159, 106 S. Ct. at 2824

(O’Connor, J., concurring in the judgment)). These vague notions of fairness do not

answer how to measure whether groups of voters are treated “fairly” or how to predict

the results an election would produce. Moreover, as forewarned by the Supreme Court

in Rucho, these vague notions of fairness did not produce a discernable or workable

standard during the remedial proceedings in this case. See id. at 2499–500

(“ ‘Fairness’ does not seem to us a judicially manageable standard . . . . Some criterion

more solid and more demonstrably met than that seems to us necessary to enable the

state legislatures to discern the limits of their districting discretion [and] to

meaningfully constrain the discretion of the courts . . . .”(first alteration in original)

(quoting Vieth, 541 U.S. at 291, 124 S. Ct. at 1784 (plurality opinion))).

In the remedial phase, the General Assembly attempted to apply the Harper I

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standard in drawing the Remedial House Plan (RHP), Remedial Senate Plan (RSP),

and Remedial Congressional Plan (RCP). The General Assembly followed the same

process in enacting each plan, yet the Special Masters recommended, and the three-

judge panel concluded, that only the RHP and RSP met the Harper I standard.

Accordingly, the three-judge panel struck the RCP. On appeal, however, the same

four justices from Harper I also struck the RSP as unconstitutional, see Harper II,

383 N.C. at 94, 881 S.E.2d at 162, indicating that neither the General Assembly, the

three-judge panel, the three Special Masters, nor three justices of this Court could

properly understand and apply their standard set forth in Harper I. Constitutional

compliance should not be so difficult. See Rucho, 139 S. Ct. at 2499 (noting that courts

can only adjudicate partisan gerrymandering claims if they are “armed with a

standard that can reliably differentiate unconstitutional from ‘constitutional political

gerrymandering.’ ” (quoting Cromartie, 526 U.S. at 551, 119 S. Ct. 1545)).

The four-justice majority in Harper I did not explain what its standard means

or how it could be reliably met because it could not answer basic questions like how

much partisan gerrymandering is too much and how can courts consistently and

reliably measure partisanship in a redistricting plan. See Harper I, 380 N.C. at 384,

868 S.E.2d at 547 (“We do not believe it prudent or necessary to, at this time, identify

an exhaustive set of metrics or precise mathematical thresholds which conclusively

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demonstrate or disprove the existence of an unconstitutional partisan

gerrymander.”). Nevertheless, just as the plaintiffs in Rucho argued, see Rucho, 139

S. Ct. at 2503, the Harper I majority indicated that political science metrics could

serve as “possible bright-line standards” for measuring partisan fairness. 380 N.C. at

385–86, 868 S.E.2d at 548 (stating that “a [M]ean-[M]edian [D]ifference of 1% or less

when analyzed using a representative sample of past elections is presumptively

constitutional” and “[i]t is entirely workable to consider the seven percent [E]fficiency

[G]ap threshold as a presumption of constitutionality”).

Although the Harper I majority insisted that “[l]ower courts can and assuredly

will work out more concrete and specific standards,” id. at 384, 868 S.E.2d at 547

(alteration in original) (quoting Reynolds, 377 U.S. at 578, 84 S. Ct. at 1390), on

remand, the selected tests and corresponding scores—as predicted—proved

insufficient as a clear and manageable standard. The General Assembly and the

three-judge panel attempted to use the Mean-Median Difference and Efficiency Gap

metrics to review the General Assembly’s Remedial Plans. But the majority’s

application of these two seemingly straightforward tests led to inconsistent results.

For example, because the Harper I majority indicated that a 1% Mean-Median

Difference and a 7% Efficiency Gap could serve as “possible bright-line standards” for

measuring partisan fairness, id. at 385, 868 S.E.2d at 548, the three-judge panel

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relied heavily on the advisors’ findings regarding each plan’s Mean-Median

Difference and Efficiency Gap scores in making its findings of fact on remand. Four

out of seven advisors and experts calculated a Mean-Median Difference of less than

1% for both the RHP and the RSP, and all seven advisors and experts calculated an

Efficiency Gap of less than 7% for both plans. Harper II, 383 N.C. at 153, 881 S.E.2d

at 198 (Newby, C.J., dissenting). Accordingly, the three-judge panel held that both

plans were “satisfactorily within the statistical ranges set forth in [Harper I].”

Similarly to the RSP and RHP, five out of eight advisors and experts found

that the RCP had a Mean-Median Difference of less than 1% and an Efficiency Gap

of less than 7%. Id. at 158, 881 S.E.2d at 201. The three-judge panel, however,

concluded without explanation that the RCP was “not satisfactorily within the

statistical ranges set forth in [Harper I].” A majority of advisors and experts found

that all three plans fell within the thresholds set by the Harper I majority, yet for

some reason—a reason that the three-judge panel did not articulate—only the RCP

was unconstitutional. Why was this range of data acceptable for the RSP and RHP,

but not for the RCP? The three-judge panel could not explain its inconsistent results

because these tests do not provide a clear, judicially manageable standard. Instead,

as cautioned by Rucho, these tests “ask[ ] judges to predict how a particular

districting map will perform in future elections [which] risks basing constitutional

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holdings on unstable grounds outside judicial expertise.” Rucho, 139 S. Ct. at 2503–

04.

Just like the three-judge panel, the same four-justice majority from Harper I

found their own standard unmanageable when they tried to apply it in Harper II. For

example, in declaring the RSP unconstitutional, the Harper II majority believed that

“all but one [a]dvisor” calculated the RSP’s Mean-Median Difference score as greater

than 1%. Harper II, 383 N.C. at 121, 881 S.E.2d at 178.14 According to those four

justices, this evidence supported a conclusion that the RSP did not meet the

statistical thresholds identified in Harper I. Id. The same number of advisors,

however, found that the RHP scored above the 1% Mean-Median Difference threshold

as well. Inexplicably, the four-justice majority in Harper II concluded that this fact

weighed against a finding that the RSP was constitutional but supported a finding

that the RHP was constitutional. Those justices did not say why the same evidence

supported contrary conclusions for two different maps.

Similarly, the Harper II majority believed that the RHP was constitutional

because, collectively, “[t]he [ ] [a]dvisors determined that the RHP yields an average

14 This statement that “all but one [a]dvisor” calculated a Mean-Median Difference

greater than 1% is inaccurate. Half of the advisors, not one, calculated the RSP’s Mean-

Median Difference score as less than 1%.

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[E]fficiency [G]ap of about 2.88%, [and] an average [M]ean-[M]edian [D]ifference of

about 1.27%.” Id. at 119−20, 881 S.E.2d at 177. The advisors’ average scores for the

RSP were very close to their averages for the RHP. For the RSP, the average of the

advisors’ Efficiency Gap scores was 3.81% and the average of their Mean-Median

Difference scores was 1.29%. Thus, both plans had an average Efficiency Gap score

that was well below the 7% threshold identified in Harper I as presumptively

constitutional. Harper I, 380 N.C. at 386, 868 S.E.2d at 548. Moreover, the average

Mean-Median Difference scores for the RSP and RHP were within two-one-

hundredths of a percentage point of each other. The Harper II majority did not say

why an average Mean-Median Difference of 1.27% weighed in favor of the RHP’s

constitutionality but an average Mean-Median Difference of 1.29% weighed against

the RSP’s constitutionality. If there was something significant about that minute

difference, the Harper II majority did not or could not explain it.15

This standard is not “clear” or “judicially manageable” because, during the

15 Both the RHP and RSP were used during the 2022 election cycle. Significantly,

under the RHP approved by the four-justice majority in Harper II, Republican candidates

won 59% of the house races while receiving about 58% of the aggregate statewide vote. See

North Carolina State Board of Elections,

https://er.ncsbe.gov/?election_dt=11/08/2022&county_id=0&office=NCS&contest=0 (last

visited Apr. 13, 2023) . Under the RSP, which the Harper II majority found unconstitutional,

Republican candidates won 60% of the Senate races while receiving about 59% of the

aggregate statewide vote. Id. It is unclear why this small difference of approximately one

percentage point rendered the RHP constitutional and the RSP unconstitutional.

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remedial phase of this case, no one—not even the four justices who created it—could

apply it to achieve consistent results. Rucho, 139 S. Ct. at 2500, 2499 (internal

citations and quotations omitted). A constitutional standard must be clear and easily

applied by the branch assigned the duty in question. The approach created by the

four justices in Harper I is neither. See id. at 2498, 2499 (noting that a justiciable

issue has a “clear, manageable, and politically neutral” standard that can “reliably

differentiate” an unconstitutional from a constitutional action (quoting Vieth, 541

U.S. at 306−08, 124 S. Ct. at 1793 (Kennedy, J., concurring in the judgment))). The

remedial proceedings in this case demonstrate that neither the criteria created in

Harper I nor our constitution provide a judicially discoverable or manageable

standard to address claims of partisan gerrymandering.

The dissent argues that a court’s reviewing a legislatively enacted redistricting

statute for claims of partisan gerrymandering is similar to a court’s examining a

speedy trial claim under the constitution or determining a motion to dismiss criminal

charges. This approach, however, contains a fundamental error: it fails to recognize

that the constitution assigns the responsibility of redistricting to the General

Assembly, not to the courts. It forgets this Court’s time-honored standard of review

for legislation. The dissent seems to ignore that the General Assembly fulfills its

redistricting responsibility by enacting laws. Such legislation is entitled to a

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presumption of constitutionality and requires a showing that the legislation violates

an express provision of the constitution beyond a reasonable doubt. A court’s applying

a constitutional provision to particular facts or evaluating the quality of certain

evidence is fundamentally different than assessing the constitutionality of a statute

through judicial review.

Perhaps the dissent’s analogies reveal a more fundamental misunderstanding

of a court’s role in the redistricting process. The majority in Harper I and the dissent

here seem to imagine a future where redistricting is a court-managed process: a

future where courts endlessly supervise the redistricting process and impose their

own standards in the same way that courts assess which criminal trials are speedy

enough. As previously explained, however, our framers chose a different approach.

They committed redistricting decisions to the wisdom and judgment of the legislative

branch. In short, the dissent’s analogies further reinforce that there is no judicially

discoverable and manageable standard.

A judicially discoverable and manageable standard is necessary for resolving

a redistricting issue because such a standard “meaningfully constrain[s] the

discretion of the courts[ ] and [ ] win[s] public acceptance for the courts’ intrusion into

a process that is the very foundation of democratic decisionmaking.” Rucho, 139 S.

Ct. at 2500 (first quoting Vieth, 541 U.S. at 306−08, 124 S. Ct. at 1793 (Kennedy, J.,

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concurring in the judgment); and then quoting id. at 291, 124 S. Ct. at 1784 (plurality

opinion)). Here the standard set forth in Harper I does not constrain the discretion of

our courts at all. Instead, it invites limitless judicial involvement because it is so

difficult to apply and leads to inconsistent results. Only the four justices who

enunciated the Harper I standard can say for certain whether their standard has

been met. Accordingly, under the Harper I framework, every redistricting decision

the General Assembly makes would be subject to judicial oversight. This framework

does not constrain judicial discretion; rather, it requires that judicial decisionmaking

dominate the entire redistricting process.

The approach mandated by Harper I would not simply apply to statewide

redistricting decisions. At oral argument, counsel for plaintiffs stated that the Harper

I principles would apply to “all elections” throughout the State because “it stems from

a constitutional principle that speaks to all elections.” See Oral Argument at 49:35,

Harper v. Hall, (413PA21-2) (Mar. 14, 2023), https://www.youtube.com/watch?v=cp-

zlPxuu2I (last visited Apr. 20, 2023). This result would embroil the judiciary in every

local election in every county, city, and district across the state. 16 Municipalities,

16 North Carolina has 100 counties, 552 municipalities, numerous “special districts,”

such as sewer and water districts, and many local boards of education. See How NC Cities

Work, N.C. League of Municipalities, https://www.nclm.org/advocacy/how-nc-cities-work (last

visited Apr. 20, 2023).

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counties, local boards of education, and special districts frequently hold hundreds, if

not thousands, of local elections. Under the Harper I standard, our courts would need

to ensure that each of these elections provides each member of the relevant local

electorate a sufficient “opportunity to aggregate [his or her] vote with likeminded

citizens to elect a governing majority of elected officials who reflect those citizens’

views.” 380 N.C. at 383, 868 S.E.2d at 546. This process would involve endless

litigation that would task our judges with ensuring that the political makeup of every

city council, county commission, or local board of education adequately reflected the

distribution of Republicans and Democrats in the corresponding locality.

In addition to involving our courts in countless redistricting lawsuits, the

Harper I standard does not provide any guidance for several potential issues that

could arise in these cases. Where the standard does not provide guidance, our courts

would have to utilize their own policy preferences. For example, the Harper I

standard does not tell courts how to account for voters who are affiliated with a

political party other than Republican or Democrat or who are not affiliated with a

party at all. Our judges would have to address these concerns without any “clear,

manageable, [or] politically neutral” guidance. Rucho, 139 S. Ct. at 2498 (quoting

Vieth, 541 U.S. at 306–08, 124 S. Ct. at 1793 (Kennedy, J., concurring in the

judgment)). Harper I provides no guidance to courts on these issues. Instead, it

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requires courts to use their discretion to “work out” these questions in future

litigation. Harper I, 380 N.C. at 384, 868 S.E.2d at 547. This type of unmoored

discretion is a quintessential characteristic of an unmanageable standard and a

nonjusticiable, political question. As the Supreme Court has noted:

Nor is the goal of fair and effective representation

furthered by making the standards of reapportionment so

difficult to satisfy that the reapportionment task is

recurringly removed from legislative hands and performed

by [ ] courts which themselves must make the political

decisions necessary to formulate a plan or accept those

made by reapportionment plaintiffs who may have wholly

different goals from those embodied in the official plan.

From the very outset, we recognized that the

apportionment task, dealing as it must with fundamental

“choices about the nature of representation,” Burns v.

Richardson, 384 U.S. [87,] 92, [1965], is primarily a

political and legislative process.

Gaffney, 412 U.S. at 749, 93 S. Ct. at 2329.

C. Policy Decisions

Along with failing to provide a discernible and manageable standard, the

approaches created in Harper I and Harper II involve a host of “policy

determination[s] of a kind clearly for nonjudicial discretion.” Baker, 369 U.S. at 217,

82 S. Ct. at 710. Initially, since the state constitution does not mention partisan

gerrymandering, the four justices in Harper I first had to make a policy decision that

the state constitution prohibits a certain level of partisan gerrymandering. Tellingly,

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the majority was unable to articulate how much partisan gerrymandering is too

much. Essentially, the majority chose to insert into our constitution a requirement

for some type of statewide proportionality based on their view of political “fairness.”

Like the Federal Constitution, however, our constitution does not contain a

proportionality requirement. See Rucho, 139 S. Ct. at 2499. Instead, the creation of

this proportionality requirement was a monumental policy determination made by

the Harper I majority on its own initiative and equated to a judicial amendment to

our constitution.

Then, those four justices determined that our constitution mandates the use of

certain political science tests as a measure of this newly created constitutional

requirement. As the Supreme Court noted in Rucho, however, the definition of

“fairness” and how to measure it “poses basic questions that are political, not legal.”

Id. at 2500. For example, the Harper I majority stated that political science tests

could identify an unconstitutional redistricting plan when “using a representative

sample of past elections.” 380 N.C. at 386, 868 S.E.2d at 548. In doing so, the four-

justice majority in Harper I unilaterally determined that past election results can

accurately predict how individual voters will vote in the future. But there is no reason

to presume this is true because individual voters may vote inconsistently at different

times in their life for a variety of reasons. As the Supreme Court noted in Rucho,

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voters select candidates based on “the issues that matter to them, the quality of the

candidates, the tone of the candidates’ campaigns, the performance of an incumbent,

national events or local issues that drive voter turnout, and other considerations.”

139 S. Ct. at 2503. Each of these factors is different for each election, and it is not

clear how past election results can possibly predict how each of these factors may

affect individual voters in future elections. The decision to use certain political science

tests, which tests to use, which scores are required, and which past election results

are most predictive of future electoral behavior involve policy choices that are

untethered to the law.

Additionally, in determining that past election results should be used to

calculate political science metrics, the Harper I majority made the policy

determination that past elections are a “better” source of partisan election data than

other potential sources. The Harper I majority even preferred certain past elections

over others. Some might argue, however, that data from past elections does not

measure the distribution of voters among various political groups, but that instead,

it measures the rate of voter turnout. Instead of using past election results, the

Harper I majority might have required partisan data from current voter registration

information. In theory this data set might be a more accurate representation of how

voters might vote in an upcoming election because it reflects current party affiliation

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statistics instead of past voter turnout. Selecting between past elections, current

voter registration information, or some other data as the “best” source for garnering

partisan election data, however, is exactly the sort of non-judicial policy

determination warned of in Rucho. See Rucho, 139 S. Ct. at 2500 (“Deciding among

ju

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