Reply Brief — North Carolina, et al., Appellants v. Sandra Little Covington, et al.

No. 17-1364

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

________________

BRIEF OPPOSING MOTION TO AFFIRM

________________

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

May 15, 2018

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

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

I.

Challenges

To

Legislatively

Enacted

“Remedial” Plans Are Not Exempt From The

Ordinary Rules Of Adversarial Litigation ......... 2

II. The District Court Erred By Invalidating

Four Districts As Racial Gerrymanders ............. 6

A. The District Court Applied the Wrong

Legal Standard ............................................. 6

B. There Is No Evidence That the General

Assembly Was Motivated by Race ............... 8

III. The District Court Lacked Jurisdiction Over

Plaintiffs’ State-Law Challenges ...................... 10

IV. The District Court Improperly Prevented The

State From Enacting A Remedial Map ............ 11

CONCLUSION ......................................................... 13

ii

TABLE OF AUTHORITIES

Cases

Abrams v. Johnson,

521 U.S. 74 (1997) .................................................... 4

Bartlett v. Strickland,

556 U.S. 1 (2009) .................................................... 10

Chapman v. Meier,

420 U.S. 1 (1975) ...................................................... 4

City of Mobile v. Bolden,

446 U.S. 55 (1980) .................................................... 7

Growe v. Emison,

507 U.S. 25 (1993) ................................................ 4, 5

Hainsworth v. Martin,

382 U.S. 109 (1965) .................................................. 5

Hunt v. Cromartie,

526 U.S. 541 (1999) .............................................. 3, 5

Lawyer v. Dep’t of Justice,

521 U.S. 567 (1997) ................................................ 12

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ............................................ 3, 12

Louisiana v. Hays,

518 U.S. 1014 (1996) ................................................ 5

Miller v. Johnson,

515 U.S. 900 (1995) ............................................ 3, 10

Palmer v. Thompson,

403 U.S. 217 (1971) .................................................. 7

Parents Involved in Cmty. Sch.

v. Seattle Sch. Dist. No. 1,

551 U.S. 701 (2007) .................................................. 8

iii

Perry v. Perez,

565 U.S. 388 (2012) .................................................. 3

Reynolds v. Sims,

377 U.S. 533 (1964) .................................................. 4

Scott v. Germano,

381 U.S. 407 (1965) .................................................. 4

Washington v. Davis,

426 U.S. 229 (1976) .................................................. 7

White v. Regester,

422 U.S. 935 (1975) .................................................. 5

Wise v. Lipscomb,

437 U.S. 535 (1978) .......................................... 2, 3, 4

Other Authorities

Br. for United States, Abbott v. Perez,

Nos. 17-586 & 17-626 (U.S.) .................................... 7

Richard H. Pildes, Expressive Harms,

“Bizarre Districts,” and Voting Rights,

92 Mich. L. Rev. 483 (1993) ..................................... 9

INTRODUCTION

Plaintiffs cannot explain how the North Carolina

General Assembly could have engaged in racial

gerrymandering by declining to consider race when

enacting the 2017 Plan. Instead, their entire defense

of the decision below hinges on the notion that the

ordinary procedural and substantive rules of litigation

do not apply to their challenges to that duly enacted

law because it was evaluated as a part of a “remedial

proceeding.” According to plaintiffs, courts need not

worry about mootness, standing, or sovereign

immunity, and courts can invalidate districts as racial

gerrymanders even if—or, indeed, precisely because—

the legislature did not consider race, so long as they do

all of that pursuant to their power to “remedy” an

earlier racial gerrymander.

That theory defies law, logic, and the

fundamentals of the legislative and judicial processes.

While district courts have different obligations when

imposing their own remedial maps, they do not have

some special reservoir of remedial power that allows

them to ignore basic Article III requirements or

subject duly enacted laws to some ad hoc

“preclearance” process in which the normal

presumption of constitutionality is reversed. Instead,

when a State repeals a judicially invalidated map and

replaces it with another duly enacted law, the second

law is entitled to the same presumption of

constitutionality as any other legislation, and can be

invalidated only if a plaintiff with standing proves

that it violates the Constitution or the VRA. Whatever

else may be said of the complex web of restrictions that

those two sources of federal law weave, one thing is for

2

certain:

A legislature cannot engage in racial

gerrymandering by declining to district on the basis of

race. The district court’s contrary conclusion cannot

stand.

I.

Challenges

To

Legislatively

Enacted

“Remedial” Plans Are Not Exempt From The

Ordinary Rules Of Adversarial Litigation.

Plaintiffs do not even try to reconcile the district

court’s decision with the normal procedural and

substantive rules that govern challenges to districting

legislation. Instead, they argue that those settled

rules do not apply here because the court was

conducting a “remedial proceeding.” See, e.g., Mot.2,

13, 17, 23. In their view, because the district court was

reviewing a plan enacted to replace a plan found

deficient, the court did not have to abide by racialgerrymandering

jurisprudence,

the

Eleventh

Amendment, or even the constraints of Article III.

Plaintiffs are deeply mistaken. They have conflated

the judicial role when a federal court must draw

districts because the state legislature has failed to act,

with the very different judicial role when a state

legislature enacts a new plan into law. In the latter

circumstance, there is no excuse for deviating from the

normal requirements of Article III or the ordinary

presumption of constitutionality.

In the rare circumstance when “those with

legislative responsibilities do not respond, or the

imminence of a state election makes it impractical for

them to do so,” the court may be forced to take on the

“unwelcome obligation” of designing a districting plan.

Wise v. Lipscomb, 437 U.S. 535, 540 (1978) (principal

opinion). And in that circumstance, the court may

3

treat an unenacted proposal from the legislature as a

mere proposal, because that is all it is. In the absence

of a timely enacted new law, the court has no choice

but to draw its own map and has an independent

obligation to ensure that its map complies with

applicable law. See Perry v. Perez, 565 U.S. 388, 39394 (2012).

But where, as here, the State enacts a new plan,

the district court cannot treat that duly enacted law

as a mere proposal. Nor does the court have the power

to subject that duly enacted legislation to a kind of

“preclearance,” freed from the presumption of

constitutionality and unconstrained by the rules of

adversarial litigation. Instead, the “new legislative

plan” takes immediate effect and becomes “the

governing law unless it, too, is challenged and found

to violate the Constitution.” Wise, 437 U.S. at 540.

Such a challenge is subject to the ordinary constraints

on the Article III process and “the presumption of good

faith that must be accorded legislative enactments.”

Miller v. Johnson, 515 U.S. 900, 916 (1995).

That is clear from this Court’s cases. This Court

has explained, for example, that “state legislatures are

free to replace court-mandated remedial plans by

enacting redistricting plans of their own.” League of

United Latin Am. Citizens v. Perry (“LULAC”), 548

U.S. 399, 416 (2006) (Kennedy, J.). If the new plan is

challenged, “no presumption of impropriety” attaches

to the new plan, and the court’s task is the same as in

any racial-gerrymandering case:

to determine

whether the legislature was predominantly motivated

by race. Id.; see, e.g., Hunt v. Cromartie, 526 U.S. 541

(1999). Indeed, the rule that courts must “afford a

4

reasonable opportunity for the legislature to … adopt[]

a substitute measure,” Wise, 437 U.S. at 539, would be

meaningless if second-round plans were not entitled to

the same presumptions of good faith and

constitutionality as first-round plans.

Proving the point, this Court has never approved

the application of different rules to challenges to

legislatively enacted “remedial” plans. Instead, this

Court has applied distinct “remedial” principles only

when a court was (or was likely to be) forced to draw

its own plan. Indeed, the principal case on which

plaintiffs rely (at 22) for their remedial-proceedingsare-different theory is one in which the legislature

“could not reach agreement” on a second-round plan.

Abrams v. Johnson, 521 U.S. 74, 78 (1997). Likewise,

while plaintiffs contend that this Court “has regularly

approved of the district court’s retention of

jurisdiction” to review remedial plans, Mot.14, the

cases they cite all involve legislative default. See

Chapman v. Meier, 420 U.S. 1, 27 (1975) (instructing

court to retain jurisdiction in case legislature “fails” to

act); Scott v. Germano, 381 U.S. 407, 409 (1965)

(instructing court to retain jurisdiction in case

legislative plan “is not timely adopted”); Reynolds v.

Sims, 377 U.S. 533, 586 (1964) (commending court for

imposing plan after legislature “failed to act”).

Plaintiffs also fail to distinguish cases recognizing

that the enactment of a new plan moots challenges to

the repealed plan. Plaintiffs note (at 16) that Growe

v. Emison, 507 U.S. 25 (1993), involved “simultaneous

state and federal actions,” but that quirk has nothing

to do with the relevant point: When the new plan

“became the law,” challenges to the old plan “became

5

moot.” Id. at 35, 39. Plaintiffs do not even try to

square their theory with Hunt v. Cromartie, instead

discussing what a district court in a different case did

three years earlier, Mot.17. Whatever that court did,

this Court made clear in Cromartie that a new (and

non-contingent) plan moots challenges to the old one.

526 U.S. at 545 n.1; see Louisiana v. Hays, 518 U.S.

1014 (1996); White v. Regester, 422 U.S. 935 (1975);

Hainsworth v. Martin, 382 U.S. 109 (1965).

Plaintiffs insist that requiring them to litigate

their challenges to the 2017 Plan the same way they

must litigate any other constitutional challenge would

“dangle relief beyond the[ir] reach.” Mot.14. But that

just underscores the basic flaw in their position.

Plaintiffs have already gotten complete relief for the

only claims they ever proved: The legislature repealed

the plan they challenged and enacted a new one.

Plaintiffs’ belief that repeal of the only law they

properly challenged is not a “true remedy” is

fundamentally incompatible not only with bedrock

mootness principles, but with the equally bedrock rule

that all legislative enactments—even “remedial”

ones—are entitled to a strong presumption of

constitutionality. Requiring plaintiffs to overcome

that presumption and prove their case in the ordinary

course does not make the 2017 Plan “immune from

review.” Mot.2. It just ensures that duly enacted

legislation will be invalidated only if it is actually

unconstitutional.

6

II. The District Court Erred By Invalidating

Four Districts As Racial Gerrymanders.

A. The District Court Applied the Wrong

Legal Standard.

It is little surprise that plaintiffs adamantly

refused to litigate their challenges to the 2017 Plan

under the ordinary rules: They did not and cannot

prove that the 2017 General Assembly engaged in

racial gerrymandering. Indeed, while plaintiffs

emphasize the district court’s factual findings, that

court did not make the one finding essential to a racial

gerrymandering claim—namely, that race was the

legislature’s predominant motive.

Instead of looking for (let alone finding) that

presumptively improper motive, the district court

disapproved the challenged districts because the

legislature purportedly did not “eliminate[] the

discriminatory effects of the racial gerrymander” in

the 2011 Plan. JS.App.38-39 (emphasis added). To

state that oxymoronic theory is to refute it. Racial

gerrymandering is an intent-based claim, grounded in

impermissible consideration of race. Accordingly, the

best way to “eliminate” the 2011 law’s “discriminatory

effects” is to repeal it, which is just what the

legislature did. Of course, the 2017 law could turn out

to be a racial gerrymander too—but that intent-based

challenge would turn not on effects, but on whether

the 2017 legislature acted with an impermissible

racial purpose.

Plaintiffs resist this proposition, warning that if

invalidation of a second-round plan requires a new

finding of racial purpose, “the General Assembly could

have cured its constitutional violations by re-enacting

7

the exact same plans” for a non-discriminatory reason.

Mot.23. But that is not an anomaly; it is just how

discriminatory-intent claims work: “[A] law claimed to

be racially discriminatory must ultimately be traced

to a racially discriminatory purpose.” Washington v.

Davis, 426 U.S. 229, 240 (1976).

Because the

plaintiff’s injury flows from the prior legislature’s

discriminatory intent, the injury is remedied once that

law is repealed and a new legislature enacts a new

plan without discriminatory intent, as the legislature

did here. See JS21-23; Palmer v. Thompson, 403 U.S.

217, 225 (1971); Br. for United States 32-35, Abbott v.

Perez, Nos. 17-586 & 17-626 (U.S.).

To be sure, a State cannot “undo the injury of

racial gerrymandering simply by claiming to ignore

racial data while enacting substantially the same

plans.” Mot.23-24 (emphasis added). A legislature

that only claims to ignore race, but is predominantly

motivated by race, would violate the Constitution if it

lacked sufficient justification for using race. But the

“ultimate question” in any racial-gerrymandering

case—even one challenging a second-round plan—is

“whether a discriminatory intent has been proved in

[that] given case.” City of Mobile v. Bolden, 446 U.S.

55, 74 (1980) (plurality opinion). The district court did

not even ask that question, let alone find that the

General Assembly was predominantly motivated by

race. To the contrary, the court acknowledged that the

2017 General Assembly did not consider race at all.

That should have ended the matter, as the

legislature obviously could not engage in racial

gerrymandering by declining to consider race. Yet the

court nonetheless faulted the legislature for failing to

8

examine the racial impact of its non-racial districting

criteria, JS.App.49-50—in other words, for failing to

(re)district on the basis of race. That just highlights

the profound dangers of the court’s eliminate-theeffects conception of how to cure racial gerrymanders.

The district court’s “cure” is indistinguishable from

the disease. See Parents Involved in Cmty. Sch. v.

Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007).1

B. There Is No Evidence That the General

Assembly Was Motivated by Race.

Instead of meaningfully addressing the fatal legal

flaws in the district court’s analysis, plaintiffs urge

this Court to defer to the district court’s factual

findings. But there are no relevant findings, as the

district court acknowledged that the legislature did

not consider race in drawing the 2017 Plan. In all

events, plaintiffs’ argument rests on brazen

mischaracterizations of the 2017 Plan.

By plaintiffs’ telling, the 2017 Plan is a carbon

copy of the 2011 Plan, cutting through communities on

racial lines and ignoring traditional principles. In

reality, the 2017 Plan outscores the 2011 Plan on

every districting metric. The four challenged districts

in the 2011 Plan divided 88 VTDs and 21 municipal

boundaries. Those numbers decreased dramatically

in the 2017 Plan to just seven VTDs and 14 municipal

boundaries. ECF 220 at 24, 29. The Special Master’s

Plan divides two VTDs and 12 municipal boundaries

in those four districts, but “the total number of split

1 As noted, JS25 n.2, the Court may wish to hold this case

pending Abbott v. Perez, Nos. 17-586 & 17-626, which also

concerns how to remedy intentional discrimination.

9

precincts in the Special Master’s Plan is higher than

the Enacted 2017 Plans.” Id. at 23.

The compactness scores tell a similar story. The

challenged districts in the 2011 Plan averaged a 0.29

Reock score and a 0.11 Polsby-Popper score. Id. at 26.

The 2017 Plan improved those scores materially to

0.37 and 0.21. See Richard H. Pildes, Expressive

Harms, “Bizarre Districts,” and Voting Rights, 92

Mich. L. Rev. 483, 564 (1993) (defining “low” scores as

0.15 and 0.05). The Special Master’s Plan scored

marginally higher, at 0.51 and 0.32, but only at the

cost of pairing two incumbents in SD28. ECF 220 at

26, 35.2

Indeed, the only significant difference between

the 2017 Plan and the Special Master’s Plan is the

BVAP in each challenged district. In the 2017 Plan—

drawn without consideration of race—the BVAPs

range from 42.3% to 60.8%. In the Special Master’s

Plan—drawn under a court order expressly allowing

the use of “data identifying the race of individuals”—

the BVAPs fall within the much tighter range of 38.4%

to 43.6%. JS24-25, 34-35.3 That range just so happens

Plaintiffs assert that the four districts “closely track” the

“exemplar” districts, Mot.21, but a comparison of the maps easily

disproves that assertion for SD21, HD21, and HD57. Compare

ECF 33-26 with ECF 220. While the 2017 SD28 overlaps with

exemplar SD28, so does the Special Master’s version, as all three

contain “the center of Guilford County.” JS.App.55, 92.

2

3 Ironically, by rejecting a race-neutral legislative plan in favor

of instructing the Special Master to consider race as necessary to

“remedy” the “effects” of past gerrymandering, the court virtually

ensured that race would be the predominant factor in the 2017

districts without justification, a result this Court’s precedents

10

to be precisely the range favored by the plaintiffs and

by prior Democratic-controlled General Assemblies, as

it is the range that creates crossover districts in North

Carolina. See Strickland, 556 U.S. at 13. Thus, it is

not “rank speculation,” Mot.26, but a simple matter of

math that the court replaced the General Assembly’s

race-neutral plan with one that was meaningfully

different only in that it achieved plaintiffs’ race-based

districting preferences.

III. The District Court Lacked Jurisdiction Over

Plaintiffs’ State-Law Challenges.

Plaintiffs’ defenses of the district court’s state-law

rulings are meritless. Plaintiffs concede that they do

not live in the challenged districts, but assert that

standing is irrelevant because “these … are objections

made in the course of a remedial proceeding.” Mot.33.

But as already explained, Article III standing is not a

technicality that becomes optional in proceedings

deemed “remedial,” and the 2017 Plan is a duly

enacted law that must be challenged by a plaintiff

with standing, just like any other law. If plaintiffs

never brought a legal challenge to the 2017 Plan, then

the district court exceeded its Article III authority, as

federal courts do not have freestanding power to

assess the legality of state legislation. See JS27. If

plaintiffs did bring a legal challenge, they concededly

lacked standing to bring their state-law claims. Either

way, the court’s order cannot stand.

As to the Eleventh Amendment, plaintiffs concede

that federal courts may not enjoin state laws on stateforeclose. Miller, 515 U.S. at 912; Bartlett v. Strickland, 556

U.S. 1 (2009) (racial quotas suspect even below 50%).

11

law grounds, Mot.31-32, but argue that the district

court “was not adjudicating any state-law claims,” and

ruled only that “the General Assembly exceeded the

scope of the redrawing authorized by the court.”

Mot.30. That is wrong at every level. The district

court had no authority to limit the General Assembly’s

power; the legislature was entirely free to repeal and

replace the invalidated law, and it would be a

revolution in federalism to conclude otherwise. And,

in all events, the district court itself observed: “[W]e

sustain Plaintiffs’ state-law objections.” JS.App.77

(emphasis added). Even more implausibly, plaintiffs

argue that the district court “did not issue any

injunction.” Mot.32. In reality, the court prohibited

North Carolina from conducting elections under the

2017 Plan and ordered it to conduct elections under

the Special Master’s Plan instead.

That is a

straightforward injunction, and the district court

plainly lacked power to enter it.

IV. The District Court Improperly Prevented

The State From Enacting A Remedial Map.

Even assuming there were some defect with the

2017 Plan, the district court independently erred by

depriving the General Assembly of the chance to

remedy it by enacting a new law. Plaintiffs assert that

giving the State that chance would “run[] headlong

into established precedent,” Mot.18, but they identify

no such precedent. They cite Wise and Reynolds, but

Wise did not address the question (the second-round

plan was not invalidated), and Reynolds actually

forecloses plaintiffs’ one-bite-at-the-remedial-apple

rule, see JS32.

Given this Court’s repeated

admonishments that a State “should be given the

12

opportunity to make its own redistricting decisions,”

Lawyer v. Dep’t of Justice, 521 U.S. 567, 576 (1997),

the burden is on plaintiffs to show that this settled

principle evaporates after the first replacement plan.

They have not met that burden.

Plaintiffs suggest there was not enough time for

the legislature to enact a new plan, Mot.20, but the

only reason the election was “fast-approaching” when

the district court ruled was because it refused to act

expeditiously based on its misconception that the

legislature was “not entitled” to another chance.

JS.App.106. In other words, the court intentionally

obstructed the State from performing “one of the most

significant acts a State can perform.” LULAC, 548

U.S. at 416. At a bare minimum, this Court should

vacate the Special Master’s Plan and restore North

Carolina’s sovereign right to draw its own districts.

13

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

May 15, 2018