Statement as to jurisdiction — North Carolina, et al., Appellants v. Sandra Little Covington, et al.
Supreme Court briefMar 26, 2018
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No. ___
In the
Supreme Court of the United States
________________
STATE OF NORTH CAROLINA, et al.,
Appellants,
v.
SANDRA LITTLE COVINGTON, et al.,
Appellees.
________________
On Appeal from the United States District Court
for the Middle District of North Carolina
________________
JURISDICTIONAL STATEMENT
________________
PHILLIP J. STRACH
MICHAEL D. MCKNIGHT
OGLETREE, DEAKINS,
NASH SMOAK &
STEWART, P.C.
4208 Six Forks Road
Suite 1100
Raleigh, NC 27609
PAUL D. CLEMENT
Counsel of Record
ERIN E. MURPHY
MICHAEL D. LIEBERMAN
KIRKLAND & ELLIS LLP
655 Fifteenth Street, NW
Washington, DC 20005
(202) 879-5000
paul.clement@kirkland.com
Counsel for Appellants Senator Robert Rucho, in his
official capacity as the Chairman of the North Carolina
Senate Redistricting Committee; Representative David
Lewis, in his official capacity as the Chairman of the
North Carolina Senate Redistricting Committee; Senate
Philip E. Berger, in his official capacity as President Pro
Tempore of the North Carolina Senate; and Timothy K.
Moore, in his official capacity as Speaker of the North
Carolina House of Representatives
March 26, 2018
QUESTIONS PRESENTED
After North Carolina’s state districting plan was
invalidated as a racial gerrymander, the North
Carolina General Assembly repealed the plan and
enacted into law a new districting plan (the “2017
Plan”). It is undisputed that the General Assembly
did not consider race in designing the 2017 Plan. The
district court allowed plaintiffs in the original lawsuit
to assert new challenges to the 2017 Plan without
amending their complaint, and then found that four
districts failed to “cure” the racial gerrymandering
violation. The district court also adjudicated state-law
challenges—even though no plaintiff resides in any of
the districts challenged on state-law grounds—and
found that five districts violated state constitutional
limits on mid-decade redistricting. Instead of allowing
the General Assembly to enact a remedial plan, the
court imposed a plan designed by a special master who
was explicitly encouraged to consider race.
The questions presented are:
1. Whether the district court had jurisdiction to
consider challenges to the 2017 Plan.
2. Whether the district court erred by finding that
four districts were racially gerrymandered even
though the legislature did not consider race.
3. Whether the district court erred by considering
and substantiating a state-law challenge to five
districts in which no plaintiff resides.
4. Whether the district court erred by refusing to
allow the legislature to enact its own remedial plan.
5. Whether the district court erred by imposing a
map that improperly considered race.
ii
PARTIES TO THE PROCEEDING
The following were parties in the court below:
Plaintiffs:
James Edward Alston; Marshall Ansin; Valencia Applewhite; Marvin Cornelous Arrington;
Susan Sandler Campbell; Sandra Little Covington; Mark R. Englander; Viola Ryals Figueroa;
Jamal Trevon Fox; Dedreana Irene Freeman;
Claude Dorsey Harris, III; Channelle Darlene
James; Crystal Graham Johnson; Catherine
Wilson Kimel; Herman Benthle Lewis, Jr.; David Lee Mann; Cynthia C. Martin; Vanessa Vivian Martin; Marcus Walter Mayo; Latanta Denishia McCrimmon; Catherine Orel MedlockWalton; Antoinette Dennis Mingo; Rosa H.
Mustafa; Bryan Olshan Perlmutter; Julian
Charles Pridgen, Sr.; Milo Pyne; Juanita Rogers; Ruth E. Sloane; Mary Evelyn Thomas;
Gregory Keith Tucker; John Raymond Verdejo
Defendants:
The State of North Carolina; North Carolina
State Board of Elections; Rhonda K. Amoroso,
in her official capacity; Philip E. Berger, in his
official capacity; Paul J. Foley, in his official capacity; Joshua B. Howard, in his official capacity; Maja Kricker, in her official capacity; David
R. Lewis, in his official capacity; Joshua D. Malcolm, in his official capacity; Timothy K. Moore,
in his official capacity; Robert A. Rucho, in his
official capacity
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i
PARTIES TO THE PROCEEDING ........................... ii
TABLE OF AUTHORITIES ....................................... v
INTRODUCTION ....................................................... 1
OPINION BELOW ..................................................... 4
JURISDICTION ......................................................... 4
CONSTITUTIONAL PROVISIONS INVOLVED ..... 4
STATEMENT OF THE CASE ................................... 4
REASONS FOR SUMMARILY REVERSING OR
NOTING PROBABLE JURISDICTION ............... 13
I.
The District Court Lacked Jurisdiction Over
Plaintiffs’ Challenges To The 2017 Plan .......... 16
II. The District Court Erred In Concluding That
The General Assembly Engaged In Racial
Gerrymandering By Declining To Consider
Race .................................................................... 20
III. The District Court Lacked Jurisdiction Over
Plaintiffs’ State-Law Challenges And Erred
On The Merits.................................................... 25
IV. The District Court Improperly Prevented The
State From Enacting A Remedial Map ............ 31
V. The District Court Inflicted On The State A
Map That Improperly Considered Race In
Lieu Of A Race-Neutral Legislative Map ......... 34
CONCLUSION ......................................................... 36
iv
APPENDIX
Appendix A
Memorandum Opinion and Order of the
United States District Court for the
Middle District of North Carolina,
Covington, et al. v. North Carolina, et al.,
No. 1:15-CV-399 (Jan. 21, 2018) ................. App-1
Appendix B
Order of the United States District Court
for the Middle District of North Carolina,
Covington, et al. v. North Carolina, et al.,
No. 1:15-CV-399 (Nov. 1, 2017) ............... App-102
Appendix C
Defendants’ Notice of Appeal, United
States District Court for the Middle
District of North Carolina, Covington,
et al. v. North Carolina, et al.,
No. 1:15-CV-399 (Jan. 23, 2018) ............. App-119
Appendix D
Constitutional
Provisions
Involved
(U.S. Const. amend. XIV, §1; N.C. Const.
art. II, §5) ................................................. App-121
v
TABLE OF AUTHORITIES
Cases
Abbott v. Perez,
No. 17-586 (U.S.) .................................................... 25
Abbott v. Perez,
No. 17-626 (U.S.) .................................................... 25
Ala. Legislative Black Caucus v. Alabama,
135 S. Ct. 1257 (2015)............................................ 26
Already, LLC v. Nike, Inc.,
568 U.S. 85 (2013) .................................................. 17
Bartlett v. Strickland,
556 U.S. 1 (2009) ........................................ 24, 34, 35
Bethune-Hill
v. Va. State Bd. of Elections,
137 S. Ct. 788 (2017)........................................ 21, 23
Burke v. Barnes,
479 U.S. 361 (1987) ................................................ 17
Chapman v. Meier,
420 U.S. 1 (1975) .................................. 19, 21, 30, 34
Connor v. Finch,
431 U.S. 407 (1977) ................................................ 14
Covington v. North Carolina,
316 F.R.D. 117 (M.D.N.C. 2016) ................... 4, 5, 34
Covington v. North Carolina,
No. 15-CV-399, 2016 WL 7667298
(M.D.N.C. Nov. 29, 2016)......................................... 5
Growe v. Emison,
507 U.S. 25 (1993) ............................................ 17, 33
vi
Harris v. McCrory,
No. 13-cv-949, 2016 WL 3129213
(M.D.N.C. June 2, 2016) ........................................ 19
Hunt v. Cromartie,
526 U.S. 541 (1999) .......................................... 13, 18
Ketchum v. Byrne,
740 F.2d 1398 (7th Cir. 1984)................................ 19
Large v. Fremont Cty.,
670 F.3d 1133 (10th Cir. 2012).............................. 19
Lawyer v. Dep’t of Justice,
521 U.S. 567 (1997) ................................................ 31
Lewis v. Cont’l Bank Corp.,
494 U.S. 472 (1990) ................................................ 17
LULAC v. Perry,
548 U.S. 399 (2006) ................................................ 35
McGhee v. Granville Cty.,
860 F.2d 110 (4th Cir. 1988).................................. 19
Miller v. Johnson,
515 U.S. 900 (1995) .......................................... 21, 22
Milliken v. Bradley,
433 U.S. 267 (1977) ................................................ 25
North Carolina v. Covington,
137 S. Ct. 1624 (2017).............................................. 5
North Carolina v. Covington,
137 S. Ct. 2211 (2017).............................................. 5
North Carolina v. Covington,
No. 16-649 (U.S.) ...................................................... 5
Parents Involved in Cmty. Sch.
v. Seattle Sch. Dist. No. 1,
551 U.S. 701 (2007) ................................................ 16
vii
Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89 (1984) ............................................ 28, 29
Perry v. Perez,
565 U.S. 388 (2012) ........................................ passim
Reynolds v. Sims,
377 U.S. 533 (1964) .......................................... 19, 33
Scott v. Germano,
381 U.S. 407 (1965) ................................................ 31
U.S. Dep’t of Labor v. Triplett,
494 U.S. 715 (1990) ................................................ 21
United Pub. Workers of Am. (C.I.O.)
v. Mitchell,
330 U.S. 75 (1947) .................................................. 27
United States v. Hays,
515 U.S. 737 (1995) .......................................... 26, 27
United States v. Osceola Cty.,
474 F. Supp. 2d 1254 (M.D. Fla. 2006) ................. 19
Upham v. Seamon,
456 U.S. 37 (1982) .................................................. 30
Williams v. City of Texarkana,
32 F.3d 1265 (8th Cir. 1994).................................. 19
Constitutional Provision
N.C. Const. art. II, §5(4) ........................... 7, 25, 29, 30
Statutes
28 U.S.C. §1253 .......................................................... 4
28 U.S.C. §2284 .......................................................... 4
Other Authorities
13C Wright & Miller, Fed. Prac. & Proc.
§3533.6 (3d ed. 2017) ............................................. 17
viii
North Carolina v. Covington,
No. 17A790 (U.S.) .................................................. 12
Verified Complaint, North Carolina State
Conf. of NAACP Branches v. Lewis,
Case No. 18CVS002322
(N.C. Super. Ct. Feb. 21, 2018) ............................. 30
Voter Search, North Carolina State Board of
Elections, https://vt.ncsbe.gov/RegLkup ............... 27
INTRODUCTION
After North Carolina’s legislative districting plan
was invalidated as a racial gerrymander, the General
Assembly responded in what should have been the
surest way to avoid the same result: It enacted a new
districting plan without any consideration of race.
While the General Assembly’s decision to be raceneutral still could have permitted a vote-dilution
claim, it should have taken any racial gerrymandering
challenge off the table. A racial gerrymander occurs
only when the legislature’s predominant motive is
race—and needless to say, a legislature that expressly
refuses to take race into account cannot be
predominantly motivated by race. The three-judge
court quite remarkably held otherwise. Even though
the General Assembly did not consider race at all in
enacting the 2017 Plan, the court invalidated that
plan as a racial gerrymander all the same—not
because the legislature’s predominant motive was
race, but on the novel theory that the legislature failed
to adequately remedy the “effects” of the prior racial
gerrymandering violation.
That ruling is unprecedented. This Court has
never endorsed a test for racial gerrymandering that
looks only to the effects of a districting plan; to the
contrary, this Court has repeatedly emphasized that
racial gerrymandering (unlike vote dilution) is an
intent-based claim. The fact that the three-judge court
invalidated an earlier plan enacted by a different
legislature does not change that bedrock principle.
The question for the court should have been whether
the 2017 General Assembly was predominantly
motivated by race when enacting the 2017 Plan—and
2
everyone agrees that it was not. But the district court
never even inquired into the legislature’s intent.
Instead, the court invented a brand-new racial
gerrymandering cause of action for second-round
plans, under which a legislature that does not consider
race at all can still have its plan invalidated if its nonracial criteria produce a map that in some ways
resembles a prior map drawn with an illicit motive. In
other words, the court concluded that to “cure” a past
racial gerrymander, a legislature must take race into
account to ensure that its non-racial districting
criteria do not produce a map that looks insufficiently
different from a prior map.
Indeed, the court
ultimately purported to “remedy” the racial
gerrymandering violation by imposing its own map
that expressly considered race.
The finding of racial gerrymandering in a map
drawn without consideration of race is just the tip of
the iceberg when it comes to the flaws in the decision
below. The court lacked jurisdiction to consider any
challenges to the 2017 Plan, as plaintiffs refused to
amend their complaint to challenge that new
legislation after the 2011 Plan was repealed. To make
matters worse, the three-judge court allowed plaintiffs
to expand their case to bring state-law challenges that
are jurisdictionally invalid three times over: Not only
is there no properly pleaded claim challenging the
districts attacked on state-law grounds, but no
plaintiff even lives in those districts, and federal
courts have no power to enjoin state districts on statelaw grounds.
The district court’s remedial order was just as
flawed. The court imposed a map drawn by a special
3
master who was appointed to draw it before the court
even found any violations, with the General Assembly
expressly taken out of the process based on a
misguided and unprecedented rule that legislatures
have only one chance to remedy a racial gerrymander.
Even setting aside that the General Assembly’s first
effort remedied the prior racial gerrymander in the
most direct way possible—by redrawing the maps
without considering race—the district court’s one-biteat-the-apple theory is profoundly misguided and
ignores the bedrock rule that redistricting is the duty
and responsibility of the State, not of a federal court.
And the district court erred even more fundamentally
by directing the special master to consider race in
developing a substitute for a race-neutral map.
From the moment this Court remanded this case,
the three-judge court misunderstood its role, acting as
if it had a permanent receivership over North
Carolina’s redistricting process. But this is not a case
in which the legislature was deadlocked and a federal
court had no choice but to impose its own districting
plan. The General Assembly repealed the defective
law and enacted new districting legislation, and that
new legislation is a duly enacted state law entitled to
take immediate effect, not just one proposed map
among many for a federal court to accept or reject, or
to replace with an explicitly race-conscious map. The
three-judge court’s decision to invalidate duly enacted
state legislation without enforcing core Article III
prerequisites or identifying a federal constitutional
violation is indefensible. This Court should note
probable jurisdiction and reverse.
4
OPINION BELOW
The district court’s opinion is available at 2018
WL 505109 and reproduced at App.1-101. The court’s
order appointing a special master is reproduced at
App.102-118.
JURISDICTION
While the decision of the three-judge district court
should be vacated for lack of jurisdiction, this Court
has jurisdiction over this appeal under 28 U.S.C.
§1253. The district court issued its judgment on
January 21, 2018. Appellants filed their notice of
appeal on January 23, 2018. App.119-20.
CONSTITUTIONAL PROVISIONS INVOLVED
The Equal Protection Clause and relevant
provisions of the state constitution are reproduced at
App.121-122.
STATEMENT OF THE CASE
In 2011, the North Carolina General Assembly
enacted a legislative districting plan. Four years
later, after the plan had already been used in the 2012
and 2014 elections, plaintiffs filed suit in the U.S.
District Court for the Middle District of North
Carolina, alleging that 28 districts in the 2011 Plan
were unconstitutional racial gerrymanders.
See
Covington v. North Carolina, 316 F.R.D. 117, 124
(M.D.N.C. 2016). Plaintiffs did not assert a votedilution claim under Section 2 of the Voting Rights Act
(“VRA”) or make any allegations based on the effects
of the districts on minority voting strength.
The court granted plaintiffs’ request for a threejudge district court, see 28 U.S.C. §2284, and in August
2016, the three-judge court invalidated the 2011 Plan.
5
Covington, 316 F.R.D. at 124. The court agreed with
plaintiffs that race was the predominant factor in the
design of each challenged district, and that the
General Assembly’s use of race was not “supported by
a strong basis in evidence and narrowly tailored to
comply with [the VRA].” Id. at 176. The court declined
to require changes before the 2016 election, but
ordered the General Assembly to enact a new
districting plan before the next regularly scheduled
election in 2018. Id. at 176-78. The State appealed to
this Court. See North Carolina v. Covington, No. 16649.
Three weeks after the 2016 election, and while the
appeal was still pending in this court, the district
court entered another remedial order, this time
requiring the State to enact a new districting plan by
March 15, 2017, and to hold special elections in the fall
of 2017 in every modified district. Covington v. North
Carolina, No. 15-CV-399, 2016 WL 7667298
(M.D.N.C. Nov. 29, 2016). This Court summarily
affirmed the district court’s original merits ruling,
North Carolina v. Covington, 137 S. Ct. 2211 (2017),
but summarily vacated its later-issued remedial
order, North Carolina v. Covington, 137 S. Ct. 1624
(2017), explaining that the court failed to undertake
the required equitable weighing process, instead
“address[ing] the balance of equities in only the most
cursory fashion.” Id. at 1626.
On remand, the district court declined plaintiffs’
request to again impose a special election, instead
ordering the General Assembly to enact new
“districting plans remedying the constitutional
deficiencies with the Subject Districts” by September
6
1, 2017, and to file the newly enacted plan with the
court within seven days. Order, ECF 180 at 8. The
court ordered the State to file the entire legislative
record for the new plan and to provide, “as to any
district with a BVAP greater than 50%, the factual
basis upon which the General Assembly concluded
that the Voting Rights Act obligated it to draw the
district at greater than 50% BVAP.” Id. at 8-9.
The General Assembly complied. On August 28,
2017, the House of Representatives passed HB927, the
House redistricting plan, and the Senate passed
SB691, the Senate redistricting plan. Each bill was
sent to the other chamber, and each chamber passed
the other’s bill on August 30, 2017. Both bills were
ratified the next day, and the 2017 Plan thus officially
became the duly enacted law of North Carolina. See
Notice of Filing, ECF 184 at 1-2.
Appellants notified the court that the 2017 Plan
had been enacted and provided all required legislative
materials. See id. at 1-11. In response to the court’s
question about districts “with a BVAP greater than
50%,” Order, ECF 180 at 9, appellants explained:
Data regarding race was not used in the
drawing of districts for the 2017 House and
Senate redistricting plans. No information
regarding legally sufficient racially polarized
voting was provided to the redistricting
committees to justify the use of race in
drawing districts.
Notice of Filing, ECF 184 at 10-11.
One week later, without filing an amended
complaint or a new lawsuit, plaintiffs filed four sets of
“objections” to the 2017 Plan. The first set was the
7
only one that took issue with any districts that had
been challenged and invalidated at previous stages of
this litigation—specifically, SD21, SD28, HD21, and
HD57. Although plaintiffs acknowledged that the
General Assembly did not use any racial data while
drawing and enacting the 2017 Plan, Pls.’ Objs., ECF
187 at 31, they nonetheless contended that the new
versions of those four districts “fail to cure the racial
gerrymandering violations.” Id. at 1.
The rest of plaintiffs’ “objections” were brandnew, state-law complaints about districts that had
never before been challenged in this litigation. As
relevant here, plaintiffs argued that the General
Assembly violated the state constitution’s prohibition
on mid-decade redistricting “by unnecessarily
altering … mid-decade” House Districts 36, 37, 40, 41,
and 105. Id. at 37 (citing N.C. Const. art. II, §5(4)).
Appellants responded, explaining that “[b]ecause
the claims asserted by all plaintiffs are directed at
legislation that has now been repealed and
replaced”—namely, the 2011 Plan—plaintiffs could no
longer demonstrate any harm from that now-defunct
plan, “rendering the case moot and divesting this
Court of subject matter jurisdiction.” Resp. to Pls.’
Objs., ECF 192 at 21. Appellants further argued that
the district court lacked jurisdiction to consider
plaintiffs’ state-law challenges. Id. at 21-27. And
appellants explained that plaintiffs’ challenges failed
on the merits as well. Id. at 28-56.
The court held a hearing on plaintiffs’ fully briefed
objections on October 12, 2017. Later that day, the
court directed the parties “to confer and to submit the
names of at least three persons the parties agree are
8
qualified to serve as a special master,” in order to
“avoid delay should the Court decide that some or all
of plaintiffs’ objections should be sustained.” Order,
ECF 200. One week later, the court informed the
parties that it was “concerned” that nine of the
challenged districts “either fail to remedy the
identified constitutional violation or are otherwise
legally unacceptable.” Order, ECF 202 at 1-2. But
rather than definitively resolve that question, the
court confirmed its intention “to appoint a Special
Master,” “[i]n anticipation of the likely possibility”
that it would invalidate the 2017 Plan. Id. at 2. The
court identified Professor Nathaniel Persily as the
Special Master it intended to appoint. Id. at 3.
Appellants objected, explaining that before
appointing a special master to craft a remedy, the
court must first find a violation in need of a remedy.
Opp. to Appointment, ECF 204 at 2-6. That rule
carries particular force, they explained, in the
redistricting context, where the legislature must be
given an opportunity to enact a new districting plan
when its existing one has been found deficient. Id. at
7-8. Because there was still time for the General
Assembly to enact a new plan if the 2017 Plan were
found deficient, appellants implored the court to
definitively resolve that question before forcing the
State to fund a special master’s effort to draw
provisional remedial maps. Id.
The court overruled appellants’ objections,
appointed Professor Persily as Special Master, and
ordered him to “submit a report and proposed plans”
by December 1, 2017. Order, ECF 206 at 5. The court
reiterated that it “has serious concerns” that four
9
districts “fail to remedy the identified constitutional
violation” in the 2011 Plan, and that the changes to
five other districts “exceeded the authorization to
redistrict provided in the Court’s previous orders.” Id.
at 1-2. But the court still declined appellants’ request
to definitively rule on the validity of the 2017 Plan,
maintaining that “[t]he State is not entitled to
multiple opportunities to remedy its unconstitutional
districts.” Id. at 4.
In the meantime, the court authorized the Special
Master to “hire research and technical assistants and
advisors” and to “buy any specialized software
reasonably necessary,” and ordered that all salaries
and expenses be paid by the State. Id. at 9. The court
provided guidelines for the Special Master to follow in
drawing his remedial maps. In striking contrast to the
race-blind policy choice the General Assembly made,
the court informed the Special Master that he “may
consider data identifying the race of individuals or
voters to the extent necessary to ensure that his plan
cures the unconstitutional racial gerrymanders and
otherwise complies with federal law.” Id. at 8-9.
The Special Master filed a “Draft Plan” on
November 13, 2017, and after making minor changes
in response to plaintiffs’ suggestions, issued his final
recommended plan and report (“Special Master’s
Plan”) on December 1, 2017. As to the four districts
(SD21, SD28, HD21, HD57) that the district court
suggested “fail[ed] to remedy” the “impermissible use
of race that rendered unconstitutional the 2011
districts,” id. at 1-2, the Special Master’s redrawn
versions did not differ significantly from the 2017 Plan
in terms of traditional districting criteria. See Special
10
Master’s Recommended Plan & Report, ECF 220 at
22-29. But the Special Master’s Plan did noticeably
differ in one respect: It produced four districts with
BVAPs falling into a narrow range of 38.4% to 43.6%,
as compared to the 42.3% to 60.8% range in the raceblind 2017 Plan. Id. at 22. The Special Master’s Plan
also restored five House districts (HD36, HD37, HD40,
HD41, and HD105) to their 2011 Plan form, on the
theory that redrawing those districts violated “the
provision of the state constitution that prohibits
redistricting more than once per decade.” Id. at 3. The
Special Master also changed 15 adjoining districts to
account for his modifications, resulting in a total of 24
districts that differed from the 2017 Plan.
Appellants again objected, Resp. to Special
Master’s Recommended Plan & Report, ECF 224, and
then made a final plea for prompt resolution,
imploring the court to move up its hearing and rule on
plaintiffs’ objections before the General Assembly’s
next session, Br. in Supp. of Mot. to Expedite, ECF 227
at 1. The district court refused. Order, ECF 228.
Almost one month later, on January 5, 2018, the court
held a hearing on the Special Master’s Plan. Two
weeks later, on the very last business day before the
Board of Elections had to begin assigning voters to
districts for the 2018 elections, the court entered an
order invalidating the 2017 Plan and requiring the
State to implement the Special Master’s Plan for the
2018 elections.
Beginning with the jurisdictional issues, the court
ruled that plaintiffs’ challenges were not moot because
“federal courts must review a state’s proposed
remedial districting plan to ensure it completely
11
remedies the identified constitutional violation and is
not otherwise legally unacceptable.” App.26. The
court then determined that it was empowered to
address not just challenges to districts that were
invalidated in the 2011 Plan, but also new, state-law
challenges to previously unchallenged districts.
App.33-37 The court also rejected the argument that
it lacks jurisdiction to consider state-law claims,
holding that it could exercise pendent jurisdiction in
the interest of “judicial economy, convenience, fairness
to the litigants, and comity.” App.35.
Turning to the merits, the court invalidated nine
districts—some as racial gerrymanders and some as
state-law violations. In the first category were SD21,
SD28, HD28, and HD57. The court made no finding
that the General Assembly acted with an illicit motive
in designing those districts—nor could it, given the
undisputed fact that the General Assembly did not
consider race. Instead, the court held that these four
districts “fail to remedy the racial gerrymander that
served as the basis for invalidating the 2011 version of
those districts.” App.37. While the court did not find
or conclude that the General Assembly actually
considered race, it nonetheless concluded that those
districts “fail to completely remedy the constitutional
violation” because “the General Assembly’s efforts to
protect incumbents by preserving district cores and
through use of political data perpetuated the
unconstitutional effects of the four districts that are
the subject of Plaintiffs’ racial gerrymandering
objections.” App.46; see App.50-66.
The court next ruled that HD36, HD37, HD40,
HD41, and HD105 “violate the [state] constitutional
12
prohibition on mid-decade redistricting.” App.67.
While the court acknowledged that the North Carolina
Supreme Court “has not addressed the scope of the
General Assembly’s authority to engage in mid-decade
redistricting when a decennial districting plan is
found to violate the Constitution or federal law,” the
court determined that the North Carolina
Constitution “prohibits the General Assembly from
engaging in mid-decade redistricting.” App.67-68.
Although the General Assembly had engaged in middecade districting only because the district court
invalidated the duly enacted decennial plan, the court
reached the topsy-turvy conclusion that because “a
court may redraw only those districts necessary to
remedy the constitutional violation” when “a court
must draw remedial districts itself,” state legislatures
must labor under the same constraints when they are
ordered to draw remedial maps. App.69 (emphasis
added).
The court then adopted the Special Master’s
proposed maps in full, including all the
reconfigurations of other districts that the Special
Master deemed “necessitated” by undoing the General
Assembly’s purportedly “unnecessary” alterations,
and ordered that the 2018 elections take place under
the court-imposed plan.
Appellants filed an emergency motion to stay the
court’s order, see Emergency Motion, ECF 243, and
filed an emergency stay application in this Court,
North Carolina v. Covington, No. 17A790. The district
court denied a stay, but this Court granted the
application in part, staying the order “insofar as it
directs the revision of House districts in Wake County
13
and Mecklenburg County”—i.e.,
invalidated on state-law grounds.
the
districts
REASONS FOR SUMMARILY REVERSING OR
NOTING PROBABLE JURISDICTION
When a federal court invalidates a districting
plan, there are two well-trod paths to devising a
replacement map. The preferred path is for the State
to enact a new districting plan into law through its
ordinary legislative process. If it does so, the new law
supersedes the old one and moots the prior dispute;
any voter with a constitutional objection to the new
plan may challenge it in the same manner as any other
state law, such as by filing an amended complaint or a
new lawsuit. See, e.g., Hunt v. Cromartie, 526 U.S.
541, 544-45 (1999). A different set of rules applies if
the State is unable to enact its own remedial plan,
because of political “gridlock” or some other factor. In
that case, the district court must impose a districting
map as a remedial order, and typically does so by
choosing among various maps submitted by the
parties or proposed by a court-appointed special
master, while still using the last legislatively enacted
map as a starting point. See, e.g., Perry v. Perez, 565
U.S. 388 (2012).
Here, the district court charted an unprecedented
and indefensible third course. In compliance with the
district court’s order, the General Assembly repealed
the invalidated plan and enacted the 2017 Plan into
law. That new plan was not a mere “proposal”
submitted by lawyers, but rather a duly enacted law
of North Carolina, entitled to the same deference and
presumption of constitutionality accorded to all state
legislation. But instead of treating it as such, the
14
district court treated the 2017 Plan as if it were just a
proposed remedial plan for violations identified in the
earlier litigation that the court was free to accept,
modify, reject, or ignore, without regard to the
constitutional
requirements
and
substantive
standards that would govern a typical challenge to
state legislation. In doing so, the court improperly
relied on precedents that apply only when the
legislature fails to act and the court is forced to take
on the “unwelcome obligation” of imposing courtdrawn maps. Connor v. Finch, 431 U.S. 407, 415
(1977).
The district court’s basic misconception of its role
lay at the root of its reversible errors. First, because
the court failed to recognize the 2017 Plan as the duly
enacted law of North Carolina, it improperly retained
jurisdiction over a moot controversy.
Once the
General Assembly repealed and replaced the law that
plaintiffs challenged in their complaint, the district
court lacked power to act unless and until plaintiffs
amended their complaint or filed a new one
challenging the 2017 Plan (and satisfying the various
prerequisites for Article III jurisdiction), which they
refused to do.
Second, because the court believed it was
“fashioning a remedy” rather than freshly evaluating
the constitutionality of a new state law, it invalidated
four districts as racial gerrymanders without finding
that race was the predominant factor in the 2017 Plan
in general or in the invalidated districts in particular.
Instead, quite remarkably, the court faulted the
General Assembly for not considering race,
counterintuitively concluding that the legislature’s
15
race-neutral criteria failed to adequately “eliminate
the discriminatory effects of the racial gerrymander”
that the court found infected the 2011 Plan. Needless
to say, a legislature’s decision not to consider race does
not violate the Equal Protection Clause—and thus is
no ground for invalidating a duly enacted state law.
Third, the court improperly allowed plaintiffs to
expand their claims to include new and novel statelaw challenges to five districts that were not
challenged in the original complaint. Not only were
those claims never properly pleaded, but no plaintiff
even lives in those districts, and federal courts have
no power to enjoin state districts on state-law claims,
especially novel ones. The district court thus lacked
jurisdiction over those claims three times over. And
in all events, the court’s state-law holding rests on a
misguided interpretation of the state constitution that
has no precedent in state law and puts the state
constitution on a collision course with the federal law
principle that politically accountable state actors have
the predominant role in enacting legislative maps
designed to eliminate constitutional problems.
Finally, even if some or all of the district court’s
merits ruling were to survive, its imposition of the
Special Master’s Plan still should be reversed. Not
only did the district court improperly deprive North
Carolina of its sovereign right to draw its own
districts; it also inflicted on the State the very racebased districting that the General Assembly chose to
eschew. By repeatedly rejecting appellants’ pleas to
give the General Assembly a chance to draw a new
map that remedied whatever problems the court may
perceive in the 2017 law, the court committed an
16
extreme remedial overreach that intruded upon North
Carolina’s sovereign right to redistrict. And by
imposing on the State a remedial plan carefully
crafted to achieve a particular racial breakdown, the
court effectively forced on the State the very racial
gerrymandering that the General Assembly strove to
avoid. Thus, at a minimum, the district court’s
imposition of the Special Master’s Plan should be
vacated, and the legislature provided an opportunity
to correct any constitutional flaws in the 2017 Plan.
In sum, the district court misunderstood its role
and the posture of this case. The 2017 Plan is a duly
enacted law of North Carolina entitled to the same
deference and presumption of constitutionality
accorded to all state legislation. The district court did
not have the power to subject that legislation to an ad
hoc “preclearance” process unconstrained by standing,
mootness, sovereign immunity, the presumption of
good faith, or other bedrock principles of
constitutional law. And the district court certainly did
not have the power to hold that the General Assembly
violated the Equal Protection Clause by following this
Court’s admonition that “[t]he way to stop
discrimination on the basis of race is to stop
discriminating on the basis of race.” Parents Involved
in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,
748 (2007).
I.
The District Court Lacked Jurisdiction Over
Plaintiffs’ Challenges To The 2017 Plan.
The first fatal problem with the decision and order
below is that the district court lacked jurisdiction to
enter them. “A case becomes moot—and therefore no
longer a ‘Case’ or ‘Controversy’ for purposes of Article
17
III—when the issues presented are no longer ‘live’ or
the parties lack a legally cognizable interest in the
outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91
(2013). Where, as here, a lawsuit challenges the
validity of a statute, the controversy ceases to be “live”
when the statute is repealed. Lewis v. Cont’l Bank
Corp., 494 U.S. 472, 477 (1990). If a challenged
statute no longer exists, then absent unusual
circumstances not present here (like actions capable of
repetition yet evading review) there is no live
controversy over the repealed law and a case
challenging only the validity of the repealed statute
must be dismissed as moot. See, e.g., Burke v. Barnes,
479 U.S. 361, 363-64 (1987); 13C Wright & Miller, Fed.
Prac. & Proc. §3533.6 (3d ed. 2017) (“Repeal … moots
attacks on a statute.”).
That straightforward rule applies equally to
redistricting legislation. In Growe v. Emison, 507 U.S.
25 (1993), for example, while a federal challenge to a
state legislative plan was pending, a state court
invalidated that same plan and adopted a new one of
its own design. Id. at 35. This Court explained that
when the “state court’s plan became the law of
Minnesota,” the federal plaintiffs’ “claims that the
[old] plan violated the Voting Rights Act became
moot.” Id. at 35, 39. At that point, “the federal court
was empowered to entertain the [federal] plaintiffs’
claims relating to legislative redistricting only to the
extent those claims challenged” the new plan. Id. at
36. And because plaintiffs had not amended their
complaint to challenge that plan, their claims were
moot. Id.
18
This Court reiterated the point in Hunt v.
Cromartie, 526 U.S. 541 (1999). There, the legislature
enacted a new districting plan (the 1998 plan) while
the district court’s order invalidating the prior plan
(the 1997 plan) was on appeal to this Court. Id. at 546.
This Court explained that the legislature’s action
normally would have mooted the challenge to the 1997
plan, but that the controversy remained live because
“the State’s 1998 law provides that the State will
revert to the 1997 districting plan upon a favorable
decision of this Court.” Id. at 545 n.1. Had the
legislature effectuated a non-contingent repeal (as the
General Assembly did here), the case would have been
moot. Id.
Here, plaintiffs’ lawsuit challenged only the 2011
Plan, and those claims became moot when the
legislature repealed the law creating the 2011 Plan
and replaced it with the 2017 Plan. At that point,
plaintiffs had two options: They could either amend
their complaint to add challenges to the 2017 law or
file a new lawsuit challenging it. Plaintiffs did
neither. Instead, they pursued their challenges to the
2017 Plan only through “objections” pressed in a socalled remedial proceeding. But that is not an option
Article III allows. The 2017 Plan is a duly enacted
legislative act that replaces the 2011 Plan, and Article
III requires that it be separately challenged via a
complaint brought by plaintiffs with standing
asserting specific claimed defects with the 2017 law.
The district court did not identify any exception to
mootness or otherwise explain why the normal Article
III rules would not apply. Instead, it relied on
inapposite cases, including two from this Court.
19
App.25-26. In Chapman v. Meier, 420 U.S. 1 (1975),
the legislature “failed to reapportion” after the 1970
census, id. at 10, and its efforts to enact a plan in 1973
were thwarted by a popular referendum, id. at 12.
Because the legislature never enacted its own
remedial plan into law, the mootness issue never
arose. Similarly, in Reynolds v. Sims, 377 U.S. 533
(1964), the legislature did not enact any remedial plan
for the upcoming 1962 election; it enacted only two
provisional reapportionment plans “for the 1966
elections,” neither of which took immediate effect. Id.
at 543. The controversy over what districting plan
would govern in 1962 therefore remained very much
alive. See id. at 586-87.
The district court cited several lower court cases,
App.26-27, but none involved the enactment of new
districting plans; instead, they involved municipal
maps, and remedial plans that the municipality did
not enact into any kind of law, but just proposed
directly to the court. See Large v. Fremont Cty., 670
F.3d 1133 (10th Cir. 2012); Williams v. City of
Texarkana, 32 F.3d 1265 (8th Cir. 1994); McGhee v.
Granville Cty., 860 F.2d 110 (4th Cir. 1988); Ketchum
v. Byrne, 740 F.2d 1398 (7th Cir. 1984).1 There is a
fundamental difference between a proposal to be
considered by a court forced to impose its own
remedial map and a redistricting map duly enacted
1 The district court also cited Harris v. McCrory, No. 13-cv-949,
2016 WL 3129213 (M.D.N.C. June 2, 2016), but in that case—as
in Hunt—the new plan was passed only on a contingent
basis. The only potentially relevant case the court cited
was United States v. Osceola County, 474 F. Supp. 2d 1254 (M.D.
Fla. 2006), and no party raised the mootness issue there.
20
through legislation. A duly enacted redistricting map
that repeals the earlier statute is a new law. Like any
other law, it must be challenged in a new lawsuit (or
an amended complaint) filed by a plaintiff with
standing to challenge the specified aspects of that new
legislation as unlawful.
The only conceivable explanation for excusing
plaintiffs from having to plead their challenges to the
2017 Plan as new claims is to short-circuit the
protections that apply to litigation by traditional
methods. And that is precisely what happened here—
the district court failed to consider threshold issues
like standing, see infra Part III, abandoned ordinary
rules of discovery and presentation of evidence, see Per
Curiam Order, ECF 233, and subjected the 2017 Plan
to a form of junior-varsity “preclearance” under which
the court declared itself empowered to reject the plan
without regard to the substantive standards that
apply in typical challenges to state legislation, see
infra Part II. The court’s failure to dismiss this case
as moot was therefore just part and parcel of the
fundamentally flawed manner in which it conducted
its entire “remedial” proceeding.
II. The District Court Erred In Concluding
That The General Assembly Engaged In
Racial Gerrymandering By Declining To
Consider Race.
The district court’s ruling should also be reversed
on the merits, as its conclusion that the General
Assembly engaged in racial gerrymandering by
declining to consider race is incoherent and
unprecedented. Any effort to invalidate duly enacted
legislation must begin with the “heavy presumption”
21
that the law is constitutional and valid. U.S. Dep’t of
Labor v. Triplett, 494 U.S. 715, 721 (1990). That
presumption applies with particular force in the
redistricting context, as “reapportionment is primarily
the duty and responsibility of the State,” Chapman,
420 U.S. at 27, and “[f]ederal-court review of
districting legislation represents a serious intrusion
on the most vital of local functions,” Miller v. Johnson,
515 U.S. 900, 915 (1995).
Racial gerrymandering is an intent-based
violation of the Equal Protection Clause. To prevail
on a racial gerrymandering claim, a plaintiff must
prove that the legislature had a discriminatory
intent—viz., that “race was the predominant factor
motivating the legislature’s decision to place a
significant number of voters within or without a
particular district.” Id. at 916. Unlike a vote-dilution
claim, which focuses on the effects of a districting plan
on voting rights, a racial gerrymandering claim
focuses on the legislature’s intent. As this Court
recently put it, “the constitutional violation in racial
gerrymandering cases stems from the racial purpose of
state action,” and the inevitable “harms that flow from
racial sorting.” Bethune-Hill v. Virginia State Bd. of
Elections, 137 S. Ct. 788, 797-98 (2017) (emphasis
added). Accordingly, the irreducible minimum of a
racial gerrymandering claim is intentional racial
sorting. Indeed, that is not just the irreducible
minimum; it is the essence of the claim.
Here, there is no dispute that the General
Assembly did not consider race at all when designing
the 2017 Plan—not as a predominant motive, a
secondary motive, or otherwise. That undisputed fact
22
should have been the end of the plaintiffs’ racial
gerrymandering challenges. To state the obvious, a
legislature that declines to consider race is not
predominantly motivated by race. The district court
accepted plaintiffs’ challenges nonetheless by asking
the wrong question. Rather than ask whether “race
was the predominant factor” in the drawing of the
challenged districts (as this Court’s cases require), it
asked instead whether the new districts “eliminate[d]
the discriminatory effects of the racial gerrymander”
that led to the 2011 Plan being invalidated. App.3839 (emphasis added).
That novel proposition is fundamentally
incoherent. Initially, it bears repeating that the court
was not reviewing a “proposed remedial districting
plan,” App.26; it was reviewing a duly enacted state
law. The General Assembly responded to the district
court’s finding that racial motivation infected the 2011
Plan by repealing that plan and replacing it with new,
race-neutral districting legislation. Accordingly, the
question for the court should have been not whether
the 2017 Plan “eliminate[d] the discriminatory effects
of the racial gerrymander” in the 2011 Plan, but
whether the challenged districts in the new legislation
were themselves racially gerrymandered. Yet the
district court never even asked—let alone made any
findings on—whether “race was the predominant
factor” in drawing any of those districts. Miller, 515
U.S. at 916.
Instead, the court asked whether the new
legislature “eliminated the discriminatory effects” of
the prior racial gerrymander. But it is the height of
incoherence to ask whether the legislature eliminated
23
the discriminatory effects of an intent-based violation
like racial gerrymandering. It is one thing to ask
whether new legislation removes the discriminatory
effects of previous legislation that was invalidated for
having an improper effect (like in a vote-dilution case),
for effects may be unwittingly carried over from one
version of a law to another. But the only problem with
the 2011 Plan that was adjudicated here flowed from
the previous legislature’s discriminatory intent: the
stigmatizing “harms that flow from racial sorting.”
Bethune-Hill, 137 S. Ct. at 797. Accordingly, once the
legislature enacted a new law with a race-neutral
intent, “the discriminatory effects of the racial
gerrymander” were, by definition, eliminated, as an
individual cannot complain about the stigmatizing
injury of being sorted on the basis of race if she was
not placed in her district on the basis of race.
Discriminatory intent is not indelibly ingrained in
statutory text or lines on a map. It is a question of
motive that turns on why the legislature enacted the
law. If the districts were not drawn on the basis of
race (and the court here did not find that they were),
then the court had no basis to invalidate them.
In concluding otherwise, the court found fault
with the General Assembly’s use of certain traditional
non-racial districting criteria—namely, “preserving
district cores and relying on political data” to protect
incumbents. App.50. But the court did not find that
either of these criteria was used as a pretext or proxy
for race. Instead, the court held that these otherwisepermissible criteria are suspect when used to draw a
remedial map, and that the General Assembly was
under an obligation to “ensure that its reliance on
those considerations did not serve to perpetuate the
24
effects of the racial gerrymander.” App.50. In other
words, the court reached the head-scratching
conclusion that to “cure” the past racial gerrymander,
the General Assembly cannot ignore race altogether,
but instead must examine its non-racial districting
criteria to determine what racial impact they would
have—i.e., the legislature must once again district on
the basis of race.
That is clear from the court’s district-by-district
analysis of the districts it invalidated, which focused
not on whether the General Assembly was motivated
by race in drawing those districts, but on whether the
General Assembly made affirmative efforts to ensure
that each district’s BVAP was not “too high,” or to
move municipalities, precincts, and communities of
interest around to ensure that the district’s lines did
not unintentionally correlate with race. See, e.g.,
App.50-66. Likewise, when the court instructed the
Special Master on how to draw his alternative maps,
it specifically instructed that he “may consider data
identifying the race of individuals or voters to the
extent necessary to ensure that his plan cures the
unconstitutional racial gerrymanders.” App.111; see
App.106-18. And the Special Master proceeded to
produce new versions of the four challenged districts
that all just happened to have BVAPs in a very tight
range of 38.4% to 43.6%. See Special Master’s
Recommended Plan & Report, ECF 220 at 22; cf.
Bartlett v. Strickland, 556 U.S. 1, 13 (2009) (holding
that VRA does not require creation of a “crossover”
district with 39% BVAP). The district court’s protests
notwithstanding, see App.49-50, there is no other way
to understand its opinion than as holding that the
25
General Assembly engaged in racial gerrymandering
by failing to consider race.
To state the obvious, declining to consider race is
not a cognizable constitutional violation. And unless
the court finds that a particular district actually
violates the Constitution, the court has “no basis” to
invalidate a district—let alone to replace a raceneutral district with a race-conscious one. Perry v.
Perez, 565 U.S. 388, 398 (2012); see also Milliken v.
Bradley, 433 U.S. 267, 282 (1977). By replacing duly
enacted districts without finding any constitutional
violation, the district court exceeded the scope of any
remedial authority it had.2
III. The District Court Lacked Jurisdiction Over
Plaintiffs’ State-Law Challenges And Erred
On The Merits.
The district court erred just as egregiously by
invalidating five House districts on the theory that the
General Assembly violated a state-law prohibition on
mid-decade districting. See App.66-72 (citing N.C.
Const. art. II, §5(4)). That ruling is erroneous for four
reasons:
There is no properly pleaded claim
challenging those districts, no plaintiff even lives in
those districts, federal courts have no power to enjoin
state districts on state-law grounds, and the district
court’s novel interpretation of state law is wrong and
would put state law on a collision course with federal-
2 This Court may wish to hold this case pending its disposition
of Abbott v. Perez, Nos. 17-586 & 17-626, which presents the same
basic question of what a legislature must do to “remedy” a prior
finding of intentional discrimination on the basis of race.
26
law principles minimizing federal-court interference
with state elections.
First, the district court never should have
adjudicated plaintiffs’ state-law challenges because
they were wholly outside the scope of plaintiffs’
original challenge to the 2011 Plan. They involved
entirely different districts and an entirely new (and
novel) theory. Indeed, plaintiffs’ state-law legal
theory is, by its very nature, inapplicable to the 2011
Plan. While the district court had no basis to consider
any challenge to the 2017 Plan absent an amended
complaint, see supra Part I, whatever conceivable
basis the court might have had to retain jurisdiction
over challenges to districts that were previously
invalidated as racial gerrymanders could not extend
to never-before-raised state-law challenges to
different districts that could not have been included in
the original challenge to the 2011 Plan.
Second, because the original complaint did not
include such challenges, it is no surprise (but still a
fatal defect) that none of these plaintiffs has standing
to bring them. This Court has repeatedly held that
individuals do not have standing to challenge districts
in which they do not reside. United States v. Hays, 515
U.S. 737, 744-45 (1995); Ala. Legislative Black Caucus
v. Alabama, 135 S. Ct. 1257, 1265 (2015). The original
complaint included plaintiffs from each of the 28
districts
challenged
therein,
but
it
quite
understandably did not include any plaintiffs from the
five districts that plaintiffs challenge only in the
context of the 2017 Plan. Yet instead of filing an
amended complaint adding new claims and new
plaintiffs, the same plaintiffs who live in the 28
27
originally challenged districts brought these entirely
different challenges to entirely different districts.
Because plaintiffs do not reside in either the 2011 or
the 2017 versions of HD36, HD37, HD40, HD41, or
HD105, they are not proper parties “to invoke judicial
resolution of the dispute.” Hays, 515 U.S. at 743.3
In opposing appellants’ stay application, plaintiffs
did not deny that they lack standing. Instead, they
made only the implausible argument that there is “no
standing issue” because the district court was merely
exercising its “independent duty” to assess the legality
of the 2017 Plan. Stay.Opp.28 n.6. That argument
again confuses judicially imposed districting plans
with legislatively enacted ones. While courts forced to
impose their own plans in the absence of a duly
enacted legislative plan obviously have an
“independent duty” to ensure those plans do not
violate the law, see Perry, 565 U.S. at 396, federal
courts decidedly do not have any “independent duty”
or free-standing power to assess the legality of
districting laws (or any other laws) duly enacted by a
state legislature.
Instead, federal courts are
empowered to adjudicate challenges to state laws only
if a plaintiff with standing files a lawsuit alleging that
the challenged statute is constitutionally infirm. See,
e.g., United Pub. Workers of Am. (C.I.O.) v. Mitchell,
330 U.S. 75, 89 (1947).
This fundamental difference between judicially
imposed maps and legislatively enacted maps should
3 The districts in which plaintiffs reside are available in North
Carolina’s online voter registration database. See Voter Search,
North
Carolina
State
Board
of
Elections,
https://vt.ncsbe.gov/RegLkup.
28
have been particularly clear given the nature of
plaintiffs’ state-law claims. Plaintiffs, in essence,
claim that the legislature may redistrict only once a
decade. Thus, plaintiffs’ state-law merits theory
critically depends on the 2017 Plan’s status as a
distinct legislative enactment. But the 2017 Plan’s
status as a distinct legislative enactment is precisely
what makes an amended complaint brought by a
plaintiff with standing essential. Plaintiffs’ argument
ultimately collapses on itself—if they were not
challenging the districts that the district court
invalidated, then nobody was, and the district court’s
ad hoc review of duly enacted state legislation suffers
from Article III problems even more glaring than the
standing problem plaintiffs strain to avoid.
Third, this insurmountable standing problem is
not even the only insurmountable obstacle to
plaintiffs’ state-law challenges:
The Eleventh
Amendment forbids federal courts from enjoining
state laws on state-law grounds. As to these five
districts, the decision below is based exclusively on
state law. The court did not hold that these districts
(or their predecessor versions) were racially
gerrymandered; it held only that the state legislature
violated the state constitution by altering these
districts mid-decade. But as this Court has squarely
held, “a federal suit against state officials on the basis
of state law contravenes the Eleventh Amendment
when—as here—the relief sought and ordered has an
impact directly on the State itself.” Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 117 (1984).
The facts that plaintiffs’ federal claims were properly
in federal court, and that the Fourteenth Amendment
abrogates state sovereign immunity as to those federal
29
claims, does not make any difference, as “neither
pendent jurisdiction nor any other basis of jurisdiction
may override the Eleventh Amendment.” Id. at 121.
The district court therefore lacked jurisdiction to
enjoin the State from using the 2017 Plan on state-law
grounds.
Finally, the district court’s interpretation of state
law is simply wrong. The North Carolina Constitution
says that districts drawn after a decennial census
“shall remain unaltered until the return of another
decennial census.” N.C. Const. art. II, §5(4); App.122.
While that rule is clear enough under ordinary
circumstances, the provision does not say anything
about the General Assembly’s power to redistrict middecade when a federal court invalidates the State’s
duly enacted map. Everyone agrees that when that
happens, the state constitution allows the General
Assembly to alter districts to some extent. Everyone
likewise agrees that “[t]he Supreme Court of North
Carolina has not addressed the scope of the General
Assembly’s authority to engage in mid-decade
redistricting when a decennial districting plan is
found to violate the Constitution or federal law.”
App.68. At a bare minimum, that uncertainty should
have sufficed to persuade the district court to decline
to exercise jurisdiction over plaintiffs’ novel state-law
challenges, as it did with respect to plaintiffs’
challenges under another provision of state law.
App.72-77.
Instead, the district court crafted a rule that the
legislature may not make changes to an invalidated
map unless they are “necessary to remedy” whatever
infirmity the federal court found. App.69. The court
30
purported to derive that constraint from this Court’s
admonitions that federal courts should avoid
“unnecessarily interfer[ing] with state redistricting
choices.” App.68 (citing Upham v. Seamon, 456 U.S.
37 (1982)). But the fact that a federal court may not
“substitute[] its own reapportionment preferences for
those of the state legislature,” Upham, 456 U.S. at 40,
hardly compels the conclusion that a federal court may
prohibit a state legislature from determining how best
to effectuate its legitimate districting choices after a
federal court has invalidated its existing map. After
all, the whole point of cases like Upham is that
“reapportionment is primarily the duty and
responsibility of the State through its legislature or
other body, rather than of a federal court.” Chapman,
420 U.S. at 27. Accordingly, a federal court should not
read state law to impose constraints on a legislature’s
ability to respond to a federal-court order unless state
law does so in the absolute clearest of terms, which no
one could plausibly claim is the case here.
In short, any state-law challenge must be filed in
state court, where state judges familiar with the state
constitution can address the unsettled question of how
N.C. Const. art. II, §5(4) applies when a federal court
invalidates a duly enacted map. Sure enough, after
this Court granted a partial stay of the judgment
below, a group of plaintiffs represented by the same
counsel as plaintiffs here filed exactly that lawsuit in
state court. See Verified Complaint, North Carolina
State Conf. of NAACP Branches v. Lewis, Case No.
18CVS002322 (N.C. Super. Ct. Feb. 21, 2018). As that
state-court lawsuit underscores, the federal court
should not have adjudicated state-law claims asserted
by plaintiffs without Article III standing.
31
IV. The District Court Improperly Prevented
The State From Enacting A Remedial Map.
Even if this Court concludes that the district court
did not err by invalidating the 2017 Plan, it should
still vacate the court’s imposition of the Special
Master’s Plan and allow the General Assembly to
enact its own map. The district court repeatedly
rejected appellants’ pleas for a prompt ruling that
would allow the General Assembly to act, instead
using a novel one-bite-at-the-remedial-apple rule as
an excuse to impose its own districting plan on the
State. By doing so, the court intruded upon North
Carolina’s sovereign right to redistrict, in direct
contravention of this Court’s precedent.
Decades ago, this Court established a principle of
federalism from which it has never wavered: Federal
courts must allow States to remedy constitutional
infirmities in their districting plans.
Scott v.
Germano, 381 U.S. 407 (1965). If a federal court
invalidates a State’s districting plan, the State itself
must be provided “the opportunity to make its own
redistricting decisions so long as that is practically
possible and the State chooses to take the
opportunity.” Lawyer v. Dep’t of Justice, 521 U.S. 567,
576 (1997). Only when the legislature is unwilling or
unable to enact a new map may “a court … take up the
state legislature’s task.” Perry, 565 U.S. at 392.
The district court violated that bedrock rule. The
court made crystal clear as early as October that it
intended to invalidate the 2017 Plan. In fact, the court
was so confident that it “likely” would reach that
outcome that it took the “exceptional” step of
appointing a special master to draw his own substitute
32
maps, and even ordered the State to foot the bill for
his work. Order, ECF 202. At that point, the only
option consistent with this Court’s precedents and due
respect for state sovereignty was to enter an
injunction detailing the specific infirmities in the 2017
Plan. The General Assembly would have had time to
enact a new districting plan that remedied those
defects and to appeal to this Court on a relatively
standard timeline. Indeed, appellants repeatedly
implored the court to rule as quickly as possible to
ensure that the General Assembly would have time to
exercise its sovereign right to remedy any potential
violation(s) in time for the 2018 elections. Instead, the
district court refused to give the General Assembly a
chance to enact a new map.
The court did so on the novel theory that States
surrender their sovereign right to redistrict if their
first attempt at a remedial map is unsuccessful—no
matter how willing the State is to try again. In the
district court’s view, a State simply “is not entitled to
multiple opportunities to remedy its unconstitutional
districts.” App.106; see App.77-78 n.10. The district
court purported to divine that rule from this Court’s
decision in Reynolds, but Reynolds actually forecloses
the district court’s one-chance-only rule: The Reynolds
Court invalidated the State’s first attempt to draw
remedial maps, yet made clear that the district court
could intervene in future elections only if the
“Legislature fail[s] to enact a constitutionally valid,
permanent apportionment scheme.” Reynolds, 377
U.S. at 587.
The district court’s interference with the
legislature’s right to remedy any perceived problems
33
with the 2017 Plan also contravened this Court’s
guidance in Growe.
There, parallel actions
challenging Minnesota’s congressional districts were
filed in state and federal court, and Minnesota quickly
conceded that the districts were unconstitutional.
Although the State was ready and willing to enact a
new plan, the federal court disabled it from doing so
by enjoining the parties from “attempting to enforce or
implement any order of the ... Minnesota Special
Redistricting Panel.” Growe, 507 U.S. at 30. The
federal court then imposed a congressional plan
designed by special masters. Id. at 31. This Court
reversed, holding that the district court erred by
wresting control of the redistricting process from the
State. Reiterating that “the Constitution leaves with
the States primary responsibility” for redistricting,
this Court held that “a federal court must neither
affirmatively obstruct state reapportionment nor
permit federal litigation to be used to impede it.” Id.
at 34.
The district court’s actions here are virtually
indistinguishable. The court was well aware—and did
not even dispute—that the General Assembly stood
ready and willing to promptly carry out its sovereign
duty as soon as the 2017 Plan was invalidated. See
Opp. to Appointment, ECF 204 at 8. It simply refused
to give the General Assembly the opportunity to do so.
That refusal is impossible to reconcile with this
Court’s
repeated
admonishments
that
“reapportionment is primarily the duty and
responsibility of the State.” Chapman, 420 U.S. at 27.
Indeed, the court’s one-bite-at-the-remedial-apple rule
smacks of a resurrected version of preclearance,
essentially tagging any legislature that fails to
34
successfully navigate the landmines of redistricting
law a permanent “bad actor” that forfeits its sovereign
prerogative to redistrict.
V. The District Court Inflicted On The State A
Map That Improperly Considered Race In
Lieu Of A Race-Neutral Legislative Map.
The district court strayed even further afield in
empowering the Special Master to craft, and then
imposing on the State, a remedial map that was
expressly race-conscious. The General Assembly
made a deliberate decision not to sort voters on the
basis of race, and neither the district court nor the
Special Master had the power to override that
decision. See Perry, 565 U.S. at 394. Indeed, the whole
reason the district court invalidated the 2011 Plan is
because it concluded that the General Assembly
lacked “a strong basis in evidence” to believe that it
needed to consider race to draw majority-minority
districts to remedy a potential Voting Rights Act
violation. Covington, 316 F.R.D. at 124. Yet the
district court then concluded that the remedy for that
unnecessary consideration of race was to replace the
General Assembly’s new race-blind districts with
districts that just so happened to all have BVAPs
ranging from 38.4% to 43.6%, Special Master’s
Recommended Plan & Report, ECF 220 at 22—in
other words, to replace race-blind districts with
crossover districts. See Strickland, 556 U.S. at 13.
That is not even an appropriate remedy for a VRA
violation, id. at 21; see also LULAC v. Perry, 548 U.S.
399, 446 (2006) (opinion of Kennedy, J.), and it is a
positively bizarre remedy for a racial gerrymandering
violation. Indeed, it is hard to understand the district
35
court’s decision as anything other than an effort to
allow plaintiffs to achieve through the back door of a
“remedial” proceeding precisely what they could never
achieve directly—namely, to compel the State to
employ racial quotas of plaintiffs’ choosing.
Accordingly, even assuming the decision below were
right on the merits (and it is not), the court (once
again) got the remedy wrong. At a minimum, this
Court should correct that remedial overreach and give
the General Assembly the right to draw a new
constitutionally compliant map.
36
CONCLUSION
This Court should summarily reverse or note
probable jurisdiction.
Respectfully submitted,
PHILLIP J. STRACH
MICHAEL D. MCKNIGHT
OGLETREE, DEAKINS,
NASH SMOAK &
STEWART, P.C.
4208 Six Forks Road
Suite 1100
Raleigh, NC 27609
PAUL D. CLEMENT
Counsel of Record
ERIN E. MURPHY
MICHAEL D. LIEBERMAN
KIRKLAND & ELLIS LLP
655 Fifteenth Street, NW
Washington, DC 20005
(202) 879-5000
paul.clement@kirkland.com
Counsel for Appellants Senator Robert Rucho, in his official capacity as the Chairman of the North Carolina Senate Redistricting Committee; Representative David Lewis,
in his official capacity as the Chairman of the North Carolina Senate Redistricting Committee; Senate Philip E.
Berger, in his official capacity as President Pro Tempore
of the North Carolina Senate; and Timothy K. Moore, in
his official capacity as Speaker of the North Carolina
House of Representatives
March 26, 2018
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.