Amicus Curiae Brief — Robert A. Rucho, et al., Appellants v. Common Cause, et al.

No. 18-422

IN THE

Supreme Court of the United States

________________

ROBERT A. RUCHO, ET AL.,

Appellants,

v.

COMMON CAUSE, ET AL.,

Appellees.

________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

_________________________________________________

BRIEF OF AMICI CURIAE

DEMOCRACY NORTH CAROLINA AND

THE PEOPLE’S ALLIANCE FUND

IN SUPPORT OF APPELLEES

________________________________________________

JONATHAN K. YOUNGWOOD

Counsel of Record

ISAAC RETHY

JOSHUA C. POLSTER

SIMPSON THACHER & BARTLETT LLP

425 Lexington Avenue

New York, NY 10017

(212) 455-2000

JYoungwood@stblaw.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF THE AMICI CURIAE .......................1

A. Democracy North Carolina .............................2

B. The People’s Alliance Fund You Can Vote

Program ...........................................................3

SUMMARY OF ARGUMENT.....................................4

ARGUMENT ...............................................................7

I.

AMICI’S EFFORTS TO MOBILIZE VOTER

PARTICIPATION AND ENGAGEMENT

ARE HINDERED BY PARTISAN

GERRYMANDERING ........................................7

A. Amici’s Substantial Efforts Towards Voter

Registration And Engagement .......................8

B. Partisan Gerrymandering Discourages

Voter Participation........................................10

C. Partisan Gerrymandering Disincentivizes

Legislators From Responding To Their

Electorate ......................................................14

D. Partisan Gerrymandering Divides Natural

Communities, Diminishing Voters’ Voice

And Influence ................................................16

ii

II.

NORTH CAROLINIANS HAVE NO

REASONABLE PROSPECTS OF ENDING

PARTISAN GERRYMANDERING

LEGISLATIVELY .............................................21

A. North Carolinians Oppose Partisan

Gerrymandering And Have Petitioned

The State Legislature To Draw District

Lines Impartially ..........................................21

B. Because The North Carolina Legislature

Is A Product Of Partisan Gerrymandering,

It Has Refused To Act ...................................23

CONCLUSION ..........................................................26

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abrams v. Johnson,

521 U.S. 74 (1997) ............................................... 16

Arizona State Legislature v. Arizona Indep.

Redistricting Comm’n,

135 S. Ct. 2652 (2015)..................................... 6, 25

Common Cause v. Rucho,

318 F. Supp. 3d 777 (M.D.N.C. 2018) ......... passim

Cooper v. Harris,

137 S. Ct. 1455 (2017)......................................... 11

Covington v. North Carolina,

316 F.R.D. 117 (M.D.N.C. 2016), aff’d,

137 S. Ct. 2211 (2017)......................................... 24

League of United Latin Am. Citizens v.

Perry,

548 U.S. 399 (2006) ....................................... 14, 15

Lucas v. Forty-Fourth Gen. Assembly of

State of Colo.,

377 U.S. 713 (1964) ............................................. 16

Vieth v. Jubelirer,

541 U.S. 267 (2004) ............................................... 6

iv

Bills

H.B. 674, 2017 Gen. Assemb., Reg. Sess.

(N.C. 2017) .......................................................... 24

S.B. 702, 2017 Gen. Assemb., Reg. Sess.

(N.C. 2018) .......................................................... 24

Other Authorities

retMark Barrett, Districts Or Not, Asheville A

a

B

Liberal City,

CITIZEN TIMES (July 8, 2016) .............................. 19

esJoel Burgess, Asheville Gerrymandering

rg

u

B

Focus Of New HBO/‘Vice’ Segment,

Other National Media,

CITIZEN TIMES (Sept. 21, 2017) ........................... 20

Kim Dinan, Area Economy Continues

a

in

D

Growth, Low Unemployment,

MOUNTAIN XPRESS (July 6, 2018) ....................... 19

Will Doran, Common Cause Video Says

n

ora

D

Half Of All NC Legislative Races Are

Uncontested Due To Gerrymandering,

POLITIFACT NORTH CAROLINA (Aug. 9,

2016) .................................................................... 25

House Principal Clerk’s Office,

Miscellaneous Data Sheet, General

Election for 2017 House of

Representatives,

North Carolina General Assembly (Nov.

10, 2016) .............................................................. 25

v

Ella Nilsen, North Carolina’s Extreme

ilsen

N

Gerrymandering Could Save The House

Republican Majority,

VOX (May 8, 2018) ............................................... 17

Office of the Senate Principal Clerk,

Unofficial General Election Data For

The North Carolina Senate 2017

General Assembly 2016 General

Election – November 8, 2016,

North Carolina General Assembly (Aug.

2, 2016) ................................................................ 25

Public Policy Polling, Democrats Have

Edge, Energy in North Carolina For

2018 (Jan. 23, 2018) ............................................ 22

E

O

R

L

Y

N

D AURA ROYDEN, MICHAEL LI, AND YURIJ

RUDENSKY, BRENNAN CENTER FOR

JUSTICE, EXTREME GERRYMANDERING &

THE 2018 MIDTERM

(Mar. 23, 2018) .................................................... 13

Spectrum News Staff, NC A&T Students

March Against Voting Hurdles,

SPECTRUM NEWS (Oct. 29, 2018)......................... 17

lsNicholas Stephanopoulos, Redistricting

ou

n

a

h

tep

S

and the Territorial Community,

160 U. PA. L. REV. 1379 (2012) ........................... 17

erKari VanDerVeen, Examining The Role Of

D

n

a

V

Gerrymandering In Campaign

Discourse,

ST. OLAF COLLEGE NEWS (Sep. 17, 2018) ........... 15

vi

WLOS Staff, District Line Puts FloorMates At UNC Asheville In Different

Precincts,

WLOS (Nov. 3, 2016) .......................................... 20

1

INTEREST OF THE AMICI CURIAE1

This amici curiae brief in support of Appellees is

filed on behalf of Democracy North Carolina (“Democracy NC”) and The People’s Alliance Fund, which are

nonpartisan, nonprofit corporations incorporated in

North Carolina and organized under Section 501(c)(3)

of the Internal Revenue Code. Collectively, Democracy NC and You Can Vote, which is a program of The

People’s Alliance Fund (together, “Amici”) have registered tens-of-thousands of North Carolinians to vote

and have engaged with hundreds-of-thousands of

North Carolinians to help them exercise their right to

vote.

Amici’s mission and work to organize, educate,

and assist voters and potential voters across the State

gives Amici a substantial interest in this case, as well

as a unique perspective on the harms of the 2016 Congressional Redistricting Plan (“2016 Plan”), which

was properly invalidated by the District Court below.

The partisan gerrymander of North Carolina’s congressional districts has engineered noncompetitive

elections, created unresponsive legislators, and diluted the votes of North Carolinians. Through their

substantial contact with potential North Carolina voters, Amici have directly experienced the detrimental

impacts of partisan gerrymandering on North Caro-

1 Counsel for all parties have filed blanket consents to the filing

of amici curiae briefs. No counsel for any party authored this

brief in whole or in part, and no entity or person, aside from

amici curiae and their counsel, made any monetary contribution

toward the preparation or submission of this brief.

2

linians’ civic engagement, trust in democratic institutions, and political participation. This case presents

this Court with an opportunity to confirm that the

Constitution provides a remedy for these harms.

A.

Democracy North Carolina

Democracy NC engages in nonpartisan research,

organizing, public education, and advocacy in order to

increase voter participation and realize pro-democracy reforms, which it believes are mutually necessary goals and prerequisites to the empowerment of

historically excluded communities in the political process. For more than 25 years, Democracy NC and its

predecessor organization have promoted reforms to

make the election system more accessible to underrepresented voters, while also sponsoring educational programs to expand public involvement in the

political process.

Democracy NC researches and reports on the administration of elections, the role of money in politics,

voter participation, and good government; advocates

for policies to make voting more accessible, such as

early voting; participates in court cases that seek to

maintain voting rights, eliminate corruption in the

voting process, and promote transparency; and authors materials and sponsors events to train community members in organizing and advocacy, and the

registration and turn-out of voters.

Democracy NC has six offices across the State

with staff members who conduct dozens of trainings

and educational forums each year about the election

process. Democracy NC distributes hundreds-of-

3

thousands of brochures, voter guides, and other materials to encourage public involvement in elections

during the more than 300 events it holds each year.

Democracy NC has also filed legal actions against

Democratic and Republican elected officials, candidates, parties, and political committees whose actions

undermine the public’s faith in fair elections.

Democracy NC trains groups of 100–200 volunteers in every county in the State who engage and

support North Carolina residents in pro-democracy

initiatives. In 2018, Democracy NC registered more

than 4,000 North Carolinians to vote and educated

and assisted hundreds-of-thousands of North Carolinians to help them exercise their right to vote. Among

other things, Democracy NC’s voter information website, “NCvoter.org,” was viewed over 765,000 times in

the run-up to the 2018 elections.

Through its original research, policy advocacy,

grassroots organizing, civic engagement, and leadership training, Democracy NC seeks to achieve a government that is truly of, by, and for the people.

B.

The People’s Alliance Fund You

Can Vote Program

The People’s Alliance Fund is a nonprofit organization that supports progressive education, research,

and service activities in North Carolina communities.

You Can Vote was launched in 2014 as a program of

the People’s Alliance Fund to educate voters on photo

identification requirements mandated by North Carolina’s 2013 legislation. Since then, You Can Vote has

grown to have a broader mission: You Can Vote is a

4

nonpartisan program that trains and mobilizes volunteers to educate, register, and empower all North Carolina citizens to vote.

You Can Vote works to accomplish its mission by

educating voters on topics such as early and absentee

voting, residency and photo identification requirements, and on the offices on the ballot. You Can

Vote’s volunteers also register voters and assist voters

in updating their registrations.

Because its volunteers are well-trained and nonpartisan, You Can Vote has partnerships with over

150 community organizations in the State that allow

its volunteers to talk with voters in their facilities.

These include schools, colleges, hospitals, community

centers, courthouses, health clinics, and churches of

multiple denominations.

Since its launch, You Can Vote has registered

27,000 voters in North Carolina, including more than

8,000 in 2018 alone. You Can Vote has also held over

350,000 one-on-one conversations with potential voters across the State—including 150,000 in 2018—to

educate and prepare North Carolinians to exercise

their right to vote.

SUMMARY OF ARGUMENT

Amici are devoted to helping North Carolinians

exercise their right to participate in government, including by voting to elect representatives of their

choosing who are responsive to the voters in their districts. Collectively, Amici’s staff and volunteers have

registered more than 30,000 North Carolinians to

5

vote and spoken with hundreds-of-thousands of potential voters to educate them on voting requirements

and urge them to go to the polls. Through these efforts, Amici have witnessed the harms wrought by

partisan gerrymandering on the people of North Carolina.

In the 2016 Plan, the State legislature intentionally drew the district lines to engineer elections where

the outcome would be all-but predetermined. As

found by the District Court, the North Carolina General Assembly has ensured that each district is either

a “safe” Republican district with little chance of electing a Democrat or a “packed” Democratic district

where Republican voters have no real chance to elect

a member of their party.

Because elections are noncompetitive, potential

voters rightly believe the system has been rigged

against them to minimize the impact of their votes.

As found by the District Court, both the intent and

effect of the General Assembly’s districting was to “dilute the votes of voters who favored non-Republican

candidates.” Common Cause v. Rucho, 318 F. Supp.

3d 777, 814 (M.D.N.C. 2018). Further, because North

Carolina’s districts are, by design, safely Democratic

or Republican, voters rightly believe that their representatives are not responsive to members of the opposite party or to independents because cross-party support is not necessary for any given legislator to secure

reelection.

Amici have also witnessed district lines that have

divided neighborhoods and other natural communities of interest into separate districts, weakening the

6

collective voice of the voters in those communities.

For instance, the line between District 6 and District

13 divides the city of Greensboro, and specifically the

campus of North Carolina A&T State University—the

largest historically black university in the country.

The 2016 Plan thereby dilutes and diminishes the

voice and voting power of the citizens of Greensboro

and the students of North Carolina A&T.

Amici engage daily with the citizens of North

Carolina, who strongly support district lines that are

drawn in a nonpartisan manner and are not calculated to favor voters from one party or another. The

General Assembly, however, is itself a product of partisan gerrymandering that entrenches the party that

draws the district lines and of elections that by design

are not competitive. The legislature therefore perpetuates the practice despite popular opposition.

“‘[P]artisan gerrymanders . . . [are incompatible]

with democratic principles.’” Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S.

Ct. 2652, 2658 (2015) (quoting Vieth v. Jubelirer, 541

U.S. 267, 292 (2004)) (brackets in original). The District Court correctly held that “the drawing of [North

Carolina’s] legislative district lines to subordinate adherents of one political party and entrench a rival

party in power . . . strikes at the heart of [] foundational constitutional principle[s]” and voting rights.

Rucho, 318 F. Supp. 3d at 800. For these reasons, this

Court should affirm.

7

ARGUMENT

I.

AMICI’S EFFORTS TO MOBILIZE

VOTER PARTICIPATION AND

ENGAGEMENT ARE HINDERED BY

PARTISAN GERRYMANDERING

Amici’s mission and work to organize, educate,

and assist voters and potential voters across the State

give Amici unique, on-the-ground insight into the attitudes and experiences of North Carolinians, and, as

a result, into the detrimental impacts of the unconstitutional conduct at issue in this case.

As the District Court found, the North Carolina

General Assembly intentionally drew the district

lines in the 2016 Plan to “ensure Republican candidates would prevail in the vast majority of the State’s

congressional districts and would continue to do so in

future elections.” Rucho, 318 F. Supp. 3d at 801. Specifically, in creating the State’s congressional districts, the legislature drew the district lines to create

“safe Republican” majorities in nine districts and to

pack the Democratic votes into three districts. Id. at

810.2 Congressional elections are thus designed to be

noncompetitive, congressional representatives are incentivized to be nonresponsive, and natural communities of interest are divided by district lines. All of

2 The District Court also found a safe Republican majority was

created in a tenth district (District 5), but unlike for the other

“safe” Republican districts, held that Plaintiffs had not shown

the district was drawn intentionally to increase Republican voting strength. Id. at 909.

8

these effects undermine Amici’s pro-democracy and

pro-voter mission.

A.

Amici’s Substantial Efforts Towards Voter Registration And Engagement

Democracy NC works to achieve increased civic

participation and pro-democracy reforms. It strives

to promote greater voter participation, remove barriers to voting, and safeguard against corruption. Democracy NC’s extensive engagement with North Carolina citizens is integral to fulfillment of this mission.

Democracy NC generates extensive nonpartisan

research and impartial data on voting procedures,

laws, and candidates, which its volunteers and staff

distribute to North Carolina voters during the more

than 300 Democracy NC events each year. In addition, Democracy NC organizers identify and train

groups of 100–200 volunteers in each county who mobilize around particular pro-democracy issues by coordinating public information sessions, organizing

rallies, and engaging voters through phone calls and

door-to-door canvassing. Democracy NC staff and volunteers also register and mobilize voters.

In 2018, Democracy NC registered more than

4,000 North Carolinians to vote, reached out to

more than 221,000 voters via phone and text

messaging, and distributed more than 1.5 million

voter guides and other literature. The organization

also maintains “NCvoter.org,” a website with information on voting procedures and registration which

9

was viewed over 765,000 times in the run-up to the

2018 elections.

Similarly, You Can Vote works to register, educate, and empower North Carolinians to vote. To accomplish this mission, You Can Vote relies on trained

volunteers who engage with voters in partner agency

locations and in public settings where they can talk to

large numbers of eligible voters. You Can Vote trains

its volunteers to have meaningful conversations with

individual voters to elicit and answer voters’ questions about elections and voting. You Can Vote emphasizes outreach to voters who have been underrepresented at the polls and who may face barriers

to voting, including low-income voters, minority voters, young voters, seniors, people with disabilities,

and formerly incarcerated individuals who have completed their sentences.

You Can Vote volunteers help voters complete or

update their voter registrations. Volunteers also educate voters about assigned precincts, locations for

early voting, and voting deadlines and procedures, including whether any documents will be required at

the polls. Throughout these conversations, You Can

Vote volunteers remain nonpartisan and do not engage in speech about candidates, political parties, or

issues.

Since its launch in 2014, You Can Vote volunteers

have held over 3,000 voter drives or events and have

had over 350,000 one-on-one conversations with eligible voters. In 2018 alone, You Can Vote trained 1,979

volunteers, held 1,500 voter education drives or

10

events, and engaged in approximately 150,000 oneon-one conversations with North Carolina voters.

Since 2014, You Can Vote has helped over 27,000

voters complete their registrations, registering over

8,000 voters in 2018 alone. Further, voters registered

by You Can Vote turn out to vote at a rate higher than

the State as a whole, exceeding the statewide average

in 2018 by 10%.

B.

Partisan Gerrymandering Discourages Voter Participation

During the course of Amici’s registration and mobilization efforts, they have had conversations with

hundreds-of-thousands of voters and potential voters

across the State. Many have expressed a belief that

the outcome of the congressional elections in their districts are “predetermined” because the district lines

have been drawn to favor one party or the other. As

a result, countless citizens with whom Amici have interacted believe their votes do not matter and the

votes of those in their communities do not matter.

Many potential voters tell Amici that because they believe that their votes do not matter, they are not going

to vote.

Kate Fellman, You Can Vote founder and Program Director, reports that voters “feel that the elections are predetermined” and that, as a result, the

“the level of mistrust in the community regarding voting is staggering.” Amici’s staff and volunteers working in the community to register and mobilize voters

frequently hear responses such as “Why should I

11

vote? It doesn’t make any difference” and “Our votes

never count.”

Plaintiffs in this case report similar apathy

among North Carolinians. “Multiple Plaintiffs testified that in ‘the most recent election, a lot of people

did not come out to vote’—despite Plaintiffs’ concerted

get-out-the-vote efforts—‘[b]ecause they felt their

vote didn’t count.’” See Rucho, 318 F. Supp. 3d at 931;

see also id. (quoting Plaintiff Peck’s testimony that “I

can’t tell you how many people told me this election,

Republicans as well as Democrats, ‘This system is

rigged. My vote doesn’t count.’ It was really hard to

try to galvanize people to participate.”); id. at 822

(quoting Plaintiff Taft’s testimony that his “vote really is meaningless because . . . there is no way a candidate who is a Democrat can win in that district”);

id. at 823 (quoting Plaintiff Freeman’s testimony that

in his district “there is no remote chance of any Democrat winning, so my vote is just a total waste”).

Amici have found that the perception that the system is “rigged” against the voters is particularly

strong in minority communities, which have been

subject to repeated efforts by the State to pack their

votes into noncompetitive districts through racial gerrymandering. See Cooper v. Harris, 137 S. Ct. 1455,

1465 (2017) (discussing history of racial gerrymandering in North Carolina). Val Applewhite, a Democracy

NC Field Organizer with particular focus on minority

communities, for instance, reports that citizens have

a “loss of faith in government” as a result of the

State’s repeated efforts to dilute their votes.

12

Young people also frequently express particularly

strong feelings of disillusionment and disengagement

from politics and voting, resulting in part from gerrymandering. Young Democrats in districts where the

Democratic vote has been cracked have noted that

they have not had a Democratic representative during

their lifetimes and expressed the belief that they are

unlikely to ever have a representative from their

party. The same would be true for a young Republican living in a district where Democratic voters have

been packed. Margaret Clemen, for instance, a retired teacher and You Can Vote volunteer, reports frequently hearing from young people that “they are not

going to vote because their votes will not make any

difference.”

Importantly, not only is there a perception among

North Carolinians that their votes have no impact,

the statistical evidence before the Court shows that

partisan gerrymandering has had the effect of minimizing the impact of North Carolinians’ votes. Because Democratic Plaintiffs were sorted into either

cracked districts, where the Democratic candidate

had no realistic chance of winning, or into packed districts, where the Democratic candidate was favored

by a large margin, Plaintiffs’ votes carried less weight

than they would have had the districting been nonpartisan. Rucho, 318 F. Supp. 3d at 819; see also id.

at 884 (finding that while State-wide votes were relatively evenly split between Republicans and Democrats, in the three districts packed with Democratic

votes, the Democratic candidate received 67.95% of

the vote and in the ten other districts, the Republican

candidate received 60.27% of the vote); see also, e.g.,

id. at 820–21 (finding that Plaintiff Hall’s vote would

13

have had greater impact in 99.85% of hypothetical alternative districts in which Hall could have been

placed); id. at 821–23 (finding that Plaintiff Berger’s

vote would have had greater impact in more than 99%

of hypothetical alternative districts).

If allowed to stand, the State’s deliberate dilution

of North Carolinians’ votes is highly likely to persist

into the future. The District Court found that the

margin of victory in every district “exceed[s] the

thresholds at which political science experts, including Legislative Defendants’ expert [ ], consider a seat

to be ‘safe’—i.e., highly unlikely to change parties in

subsequent elections.” Id. at 885. In other words, the

noncompetitive elections will continue to be noncompetitive. Regardless of the particular candidates on

the ballot, the districts packed with Democratic voters

will continue to elect Democrats while the districts

where the Democratic vote has been cracked will continue to elect Republicans. See also LAURA ROYDEN,

MICHAEL LI, AND YURIJ RUDENSKY, BRENNAN CENTER

FOR JUSTICE, EXTREME GERRYMANDERING & THE 2018

MIDTERM 25 (Mar. 23, 2018), available at

https://www.brennancenter.org/publication/extremegerrymandering-2018-midterm (“[I]n order for more

than two Republican seats to be at risk [in North Carolina], an electoral wave unlike anything North Carolina has seen in recent history would be required.”).

In short, when potential voters tell Amici that the

system is “rigged” against them, they are correct. The

districts in North Carolina have been intentionally

drawn to diminish citizens’ voting power. This partisan gerrymandering discourages citizens from voting

14

and undermines Amici’s mission of increasing voter

participation.

C.

Partisan Gerrymandering Disincentivizes Legislators From Responding To Their Electorate

North Carolinians have also expressed to Amici

that representatives in districts that have been designed by the State to be “safe” are not responsive to

voter concerns. This is because a representative who

does not believe his seat is at risk in the general election has less incentive to engage with and be responsive to voters of the opposite party or independents

than if that representative believed bipartisan support would be necessary to win election. See League

of United Latin Am. Citizens v. Perry, 548 U.S. 399,

470–71 (2006) (LULAC) (Stevens, J., dissenting in

part) (“Members of Congress elected from . . . safe districts need not worry much about the possibility of

shifting majorities, so they have little reason to be responsive to political minorities within their district.”);

Rucho, 318 F. Supp. 3d at 893 (“We find that the 2016

Plan has the effect of entrenching Republican candidates in power, even in the face of significant shifts in

voter support in favor of non-Republican candidates,

and thereby likely making Republican elected representatives less responsive to the interests of non-Republican members of their constituency.”).

The testimony in the record is illustrative of this

problem. Evidence offered by the League of Women

Voters (“League”) is that “candidates were often not

‘motivated’ to participate ‘in voter forums, debates,

[or] voter guides, because the outcome is so skewed in

15

favor or in disfavor of one [candidate] or the other.’”

Rucho, 318 F. Supp. 3d at 831. Plaintiff Fox testified

that because her congressman is “in a safe seat,” he

has “less need[] to engage with the people that he represents” and does not “have to be as responsive to . . .

citizen activists.” Fox Dep. 29:24–30:2, 30:16–21,

ECF No. 101-4, Mar. 22, 2017.

Moreover, because a representative in a “safe”

district need not appeal across party lines, he or she

is likely to take more polarized positions and use more

polarized rhetoric antagonistic to the opposite party.

See, e.g., LULAC, 548 U.S. at 471, n.10 (2006) (Stevens, J., dissenting in part) (citing literature explaining that “safe seats produce more polarized representatives”); see also Kari VanDerVeen, Examining The

Role Of Gerrymandering In Campaign Discourse, ST.

OLAF COLLEGE NEWS (Sep. 17, 2018), https://wp.stolaf.edu/news/researchers-explore-the-role-of-partisan-gerrymandering-in-campaign-discourse (discussing recent research finding campaign rhetoric on congressional candidates’ websites to be more extreme

when the district’s party breakdown was not reflective of the state as a whole).

This movement towards partisanship is concerning for Amici, who often hear from citizens that they

are turned off from voting by the partisanship displayed by both parties. District lines that encourage

partisanship and discourage representatives from appealing across party lines are detrimental to voter engagement.

16

D.

Partisan Gerrymandering Divides

Natural Communities, Diminishing

Voters’ Voice And Influence

The 2016 Plan also undermines voter participation by dividing communities of interest. One of the

principal objectives in drawing district lines should be

to maintain natural geographic communities within

the same district. See Abrams v. Johnson, 521 U.S.

74, 92 (1997). People living within a particular town

or other geographic community tend to share particular interests as a result of, for instance, common social

or economic factors that affect their community.

Where district lines are drawn to place a community

within a single district, community members can

unite to elect or to petition the support of a particular

representative. See Lucas v. Forty-Fourth Gen. Assembly of State of Colo., 377 U.S. 713, 750 (1964)

(Stewart, J. dissenting) (“[Legislators] represent people . . . with identifiable needs and interests . . . which

can often be related to the geographical areas in

which these people live. The very fact of geographic

districting . . . carries with it an acceptance of the idea

of legislative representation of regional needs and interests.”).

Conversely, where a district line is drawn to divide a community into multiple districts that include

other regions not part of that community, the collective power of the community to elect or petition a representative is weakened and there is less incentive for

a representative to be responsive to that particular

community. The ability of community members to influence policy is therefore diminished when the com-

17

munity is improperly divided among disparate districts. See Nicholas Stephanopoulos, Redistricting

and the Territorial Community, 160 U. PA. L. REV.

1379, 1390–1393 (2012).

Despite the interest of North Carolinians in maintaining geographic communities within single districts, congressional district lines were intentionally

drawn to divide geographic communities so as to increase partisan advantage. For instance, the cities of

Greensboro, Fayetteville, and Asheville, and numerous counties, were intentionally divided into multiple

districts in order to diminish the collective voice of

those cities’ and counties’ citizens. Rucho, 318 F.

Supp. 3d at 883; see id. at 902–22 (discussing examples where the 2016 Plan “divides municipalities and

communities of interest along partisan lines”).

In Greensboro, the line between Districts 6 and 13

was drawn to divide the city and was specifically

drawn through the middle of the campus of North

Carolina A&T State University.3 Students in nine

dormitories vote in one district while students in six

dormitories vote in another.4 North Carolina A&T is

the largest historically black university in the country

See Ella Nilsen, North Carolina’s Extreme Gerrymandering

Could Save The House Republican Majority, VOX (May 8, 2018,

11:00

AM),

https://www.vox.com/policy-and-politics/2018/5/8/17271766/north-carolina-gerrymandering-2018midterms-partisan-redistricting.

3

4 See Spectrum News Staff, NC A&T Students March Against

Voting Hurdles, SPECTRUM NEWS (Oct. 29, 2018, 11:27 AM),

https://spectrumlocalnews.com/nc/triad/news/2018/10/29/nca-tstudents-march-against-voting-hurdles.

18

with 10,000 students,5 and a natural community of interest. By dividing the community between districts,

the voice and voting power of the citizens of Greensboro, and in particular North Carolina A&T students,

are diluted. As one student noted, if united in the

same district, North Carolina A&T students could

“have the power to sway [an] election” but “dividing

that in half” with each half in a majority-Republican

district, “dilutes the vote.”6

The City of Fayetteville and surrounding Cumberland County—which include large clusters of historically Democratic districts—have been cracked by

the line between Districts 8 and 9. Districts 8 and 9

are “serpentine” districts, each spanning eight counties, and “join[ing] sections of the state that have little

in common.” Rucho, 318 F. Supp. 3d at 913–16. While

historically, congressional districts that included portions of Cumberland County were “reasonably competitive,” id. at 824, the 2016 Plan ensured Districts

8 and 9 would be “safe Republican” districts. Id. at

913–15. As a result, the Districts’ representatives are

disincentivized from spending time in Cumberland

and Asheville. Ms. Applewhite, the Democracy NC

Field Organizer—a former three-term member of

Fayetteville’s City Council and Air Force veteran—reports that the representatives for Districts 8 and 9 do

not spend time interacting with Fayetteville and

Cumberland citizens, and particularly the City’s minority and military communities. In the words of Ms.

5 Id.

6 Id.

19

Applewhite, “it feels like the people of Fayetteville

and Cumberland have no representation.”

To take another example, Asheville is the largest

city in western North Carolina and has a long history

of voting Democratic.7 The surrounding Buncombe

County has vibrant health care and manufacturing

sectors and one of the lowest unemployment rates in

the State.8 Asheville-Buncombe voters have a community of interests different from those of voters in

surrounding rural counties. See, e.g., Sarver Dep. 9–

33:4, ECF No. 101-23, April 10, 2017 (testimony of

Plaintiff Sarver, an Asheville resident, that Asheville

has distinct economic, cultural, and political interests).

Historically, Buncombe County (and Asheville)

has been within one district in which elections were

competitive. Rucho, 318 F. Supp. 3d at 825. Yet, the

2016 Plan splits Buncombe County and Asheville between two “safe” Republican districts, id., where the

preferred candidate of most people in Asheville and

Buncombe County has no real chance at election. Id.

at 897. As Plaintiff Sarver testified, “because Asheville is divided into two Congressional Districts the

Mark Barrett, Districts Or Not, Asheville A Liberal City,

CITIZEN TIMES (July 8, 2016, 12:26 PM), https://www.citizentimes.com/story/news/politics/elections/2016/07/08/districts-notasheville-liberal-city/86859454/.

7

8 Kim Dinan, Area Economy Continues Growth, Low Unemploy-

ment, MOUNTAIN XPRESS (July 6, 2018), https://mountainx.com/news/area-economy-continues-growth-low-unemployment/.

20

political voice is diluted.” Sarver Dep. 25:12–14, ECF

No. 101-12, April 10, 2017; see also id. at 25:21–25

(“[I]f Asheville was in one Congressional District I feel

like there would be a lot more accountability for [representatives] to show up to a town hall or to respond

to constituents . . . .”). Asheville’s mayor explains that

the people of Asheville believe “their voice has been

eradicated by gerrymandering.”9

Moreover, as in Greensboro, the district line

through Asheville was intentionally drawn through a

university campus (the University of North Carolina

Asheville),10 diluting the voice of that campus community.

In addition to diluting communities’ voices

through cracking, the District Court also found that

the 2016 Plan “divides municipality and communities

of interest” by packing. For instance, the line between

Districts 2 and 4 divides Wake County in order to

pack historically Democratic voters into District 4

(along with concentrations of Democratic voters in

Raleigh, Durham and Chapel Hill) while placing the

Joel Burgess, Asheville Gerrymandering Focus Of New

HBO/‘Vice’ Segment, Other National Media, CITIZEN TIMES

(Sept.

21,

2017,

7:44

AM),

https://www.citizentimes.com/story/news/local/2017/09/21/asheville-gerrymandering-focus-new-hbo-vice-segment-other-national-media/689845001/.

9

10 WLOS Staff, District Line Puts Floor-Mates At UNC Asheville

In

Different

Precincts,

WLOS

(Nov.

3,

2016),

https://wlos.com/news/local/district-lines-run-through-2-uncasheville-dorms.

21

county’s historically Republican precincts into District 2 to create a safe Republican district. Rucho, 318

F. Supp. 3d at 822, 904–906; see also Fox Dep. 20:10–

14, ECF No. 101-4, Mar. 22, 2017 (Plaintiff Fox explaining that in Wake County, “all of the Democrats

are smooshed together so that they’re going to win

with a huge surplus of votes because everybody’s been

packed into one heavily Democratic district.”).

The division of communities is antithetical to the

mission of Amici, which aim to assist North Carolinians in exercising their collective voice and in electing

representatives responsive to the concerns of their

constituents.

II.

NORTH CAROLINIANS HAVE NO

REASONABLE PROSPECTS OF ENDING

PARTISAN GERRYMANDERING

LEGISLATIVELY

A.

North Carolinians Oppose Partisan

Gerrymandering And Have Petitioned The State Legislature To

Draw District Lines Impartially

In Amici’s experience, the substantial majority of

North Carolinians oppose partisan gerrymandering.

Recent polling suggests nearly 60% of registered voters support laws that would require congressional

22

maps be drawn in a nonpartisan fashion.11 This support cuts across party lines.12

Amici have organized public education efforts

around this opposition to partisan gerrymandering.

Both Democracy NC and You Can Vote participated

in the 2017 Fair Maps campaign which had the goal

of mobilizing support for a process for drawing district

maps that is fair, open to the public, and nonpartisan.

As part of the Fair Maps campaign, hundreds

of Amici’s volunteers participated in phone banks,

went door-to-door, and set up booths at community

events. Over a nine-month period in 2017, Democracy

NC collected nearly 23,000 petition signatures in support of nonpartisan districting. The majority of the

signatures came from North Carolinians with no previous connection to Democracy NC, but who were

nonetheless motivated to take action because of the

harms caused by partisan gerrymandering. Amici

also collected nearly 2,500 postcards addressed to individual North Carolina representatives calling on

them to support an independent, nonpartisan districting process. Still more postcards were mailed directly

by citizens to their representatives. Other citizens

contacted their representatives by phone and email to

urge their support for nonpartisan districting. Citi-

11 See Public Policy

Polling, Democrats Have Edge, Energy in

North Carolina For 2018, 1 (Jan. 23, 2018), https://www.publicpolicypolling.com/wp-content/uploads/2018/01/PPP_Release_NC_12318.pdf.

12 Id. at 1, 7.

23

zens also expressed their opposition to partisan gerrymandering in-person to their representatives. On

March 1, 2017, Democracy NC co-hosted the “Citizens

Lobby Day to End Gerrymandering” at the North Carolina Legislative Building in Raleigh. Nearly 400 citizens attended, coming from across the State.

Through this work, Amici found overwhelming

popular opposition to partisan gerrymandering. For

instance, of the 1,290 people who You Can Vote volunteers spoke to during their door-to-door efforts,

1,239–i.e., 96%–completed a postcard to their representative in support of nonpartisan districting. North

Carolinians support political districts that are not

drawn to diminish the power of their votes.

B.

Because The North Carolina Legislature Is A Product Of Partisan

Gerrymandering, It Has Refused To

Act

Despite the efforts of Amici and tens-of-thousands

of North Carolinians, the North Carolina General Assembly has refused to take action to end partisan gerrymandering. During the 2017-2018 Session, bills

were introduced in both the North Carolina House

and Senate that would require congressional districts

be drawn in a nonpartisan manner that does not intentionally dilute the strength of votes based on party

24

affiliation.13 Neither bill has been passed out of committee for a vote.14

The refusal of the State legislature to end partisan gerrymandering is not surprising because the

State legislators are themselves products of partisan

gerrymandering. Similar to the U.S. congressional

districts at issue in this case, the State House and

Senate district lines were intentionally drawn to pack

and crack the Democratic votes, thereby making elections noncompetitive and entrenching incumbents

and the party which drew the lines. See DefendantsAppellees’ Brief on Remand at 56, Dickson v. Rucho,

2015 WL 4456364 (N.C. 2015) (State’s brief acknowledging that district lines “were drawn to maintain Republican majorities in the General Assembly and increase the number of Republican leaning congressional seats.”).15 The “chief architect” of the State legislative districts was the same Thomas Hofeller who

drew the U.S. congressional district lines at issue

here. Covington v. North Carolina, 316 F.R.D. 117,

126 (M.D.N.C. 2016) (internal quotations omitted),

aff’d, 137 S. Ct. 2211, (2017).

13 H.B. 674, 2017 Gen. Assemb., Reg. Sess. (N.C. 2017); S.B. 702,

2017 Gen. Assemb., Reg. Sess. (N.C. 2018).

14 H.B. 674, 2017 Gen. Assemb., Reg. Sess. (N.C. 2017); S.B. 702,

2017 Gen. Assemb., Reg. Sess. (N.C. 2018).

15 The State legislative districts were also a product of unconsti-

tutional racial gerrymandering. Covington v. North Carolina,

316 F.R.D. 117, 130 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211

(2017).

25

Tellingly, in the 2016 State House of Representatives general election, nearly half of the seats—57 of

120—were not contested.16 Nearly 30% of the State

Senate seats—15 of 50—were uncontested.17

Through partisan districting, the North Carolina legislature has thereby entrenched both itself and the

State’s U.S. congressional representatives and diluted the votes of North Carolinians who overwhelmingly support nonpartisan districts.

The District Court therefore correctly found that

the 2016 Plan violates “‘the core principle of [our] republican government . . . that the voters should

choose their representatives, not the other way

around.’” Rucho, 318 F. Supp. 3d at 801 (quoting Arizona State Legislature, 135 S. Ct. at 2677 (2015)). As

16 See House Principal Clerk’s Office, Miscellaneous Data Sheet,

General Election for 2017 House of Representatives, North Carolina

General

Assembly

(Nov.

10,

2016),

https://www.ncleg.gov/DocumentSites/HouseDocuments/Election%20Documents/2017%20NC%20House%20General%20Election%20Data

%20Sheet.pdf.

17 See Office of the Senate Principal Clerk, Unofficial General

Election Data For The North Carolina Senate 2017 General Assembly 2016 General Election – November 8, 2016, North Carolina

General

Assembly

(Aug.

2,

2016),

https://www.ncleg.gov/DocumentSites/SenateDocuments/2017%20Election%20Documents/Senate%202016%20General%20Election%20Data.pdf; see also Will

Doran, Common Cause Video Says Half Of All NC Legislative

Races Are Uncontested Due To Gerrymandering, POLITIFACT

NORTH CAROLINA (Aug. 9, 2016, 7:46 PM), https://www.politifact.com/north-carolina/statements/2016/aug/09/commoncause/common-cause-video-says-half-all-nc-legislative-ra/.

26

such, the 2016 Plan violates the constitutional rights

of North Carolinians.

CONCLUSION

The judgment of the District Court should be affirmed.

Respectfully submitted,

JONATHAN K. YOUNGWOOD

Counsel of Record

ISAAC RETHY

JOSHUA C. POLSTER

SIMPSON THACHER & BARTLETT LLP

425 Lexington Avenue

New York, NY 10017

(212) 455-2000

JYoungwood@stblaw.com

Counsel for Amici Curiae

March 8, 2019