Appellees Brief — McCrory v. Harris, 136 S. Ct. 2512 (2016) (No. 15-1262)

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No. 15-1262

IN THE

Supreme Court of the United States. _

—— ee eS

PATRICK McCrory, Governor of North Carolina,

NORTH CAROLINA STATE BOARD OF ELECTIONS,

AND A. GRANT WHITNEY, JR., Chairman of the

North Carolina Board of Elections,

Appellants,

DAVID HARRIS & CHRISTINE BOWSER,

Appellees.

On Appeal from the

United States District Court for the

Middle District of North Carolina

BRIEF FOR APPELLEES

KEVIN J. HAMILTON MARC E, ELIAS

WILLIAM B. STAFFORD Counsel of Record

ABHA KHANNA JOHN M, DEVANEY

PERKINS COLE LLP BRUCE V. SPIVA

1201 Third Avenue PERKINS COIE LLP

Suite 4900 700 Thirteenth Street, N.W.

Seattle, WA 98101-3099 Suite 600

(206) 359-8000 Washington, D.C. 20005-3960

(202) 654-6200

EDWIN M. SPEAS, JR. MElias@perkinscoie.com

CAROLINE P. MACKIE

POYNER SPRUILL LLP

301 Fayetteville Street

Suite 1900

Raleigh, NC 27601

(919) 783-6400

Counsel for Appellees David Harris & Christine Bowser

October 12, 2016

WILSON-EPES PRINTING CO., INC - (202) 769-0096 - WASHING

TABLE OF CONTENTS

Re Cl FART BOONE BE ectescsesecesssccesicecorveseas

IIE icicle dicnstieninntntiapubnadnddcaiclevinbeiemieliniiinne

SUMMARY OF ARGUMENT .................::02:ceeeees

I dst tsvchetndienniimincniunnicnacnistiniaiiiisbtsainiias

I. THE DISTRICT COURT PROPERLY

FOUND THAT RACE PREDOMI-

HN vertentenecenniiantansssaccabiquesentyins

Il.

ITT.

Direct Evidence Demonstrates that

Race Predominated in CD1.................

Circumstantial Evidence Demon-

strates that Race Predominated in

THE DISTRICT COURT PROPERLY

FOUND THAT RACE PREDOMI-

TUT III sisacintictosncase <exchsadoeincséninnans

Direct Evidence Demonstrates that

Race Predominated in CD12...............

Circumstantial Evidence Demon-

strates that Race Predominated in

Political Considerations Were Sub-

a a naiaamibahie

D. An Alternative Plan Is Unnecessary

Where Other Evidence Establishes

Racial Predominance. ........................+.

CD1 AND CD12 CANNOT SURVIVE

BE SNE OED te sctisinceciswtiesinsssoseavecess

(i)

TABLE OF CONTENTS—Continued

Page

A. Appellants Concede CD12 Fails Strict

BI icirtsscocicnsgiindslepdpousdssacnumuineabesuatines 36

B. The General Assembly Had No Strong

Basis in Evidence to Support the

Race-Based Redistricting of CD1........ 36

C. Strickland Does Not Inoculate the

Race-Based Redistricting of CD1........ 47

ITV. APPELLEES’ CLAIMS ARE NOT

Se RRR es a See ES ERE cade RT oe Ba 50

TR ea FREELY DE TOD 56

TABLE OF AUTHORITIES

CASES Page(s)

Ala. Leg. Black Caucus v. Alabama,

oF Be Be Og | | errr passim

Anderson v. City of Bessemer City,

es SE IE icctnintecceunavcdccedentasenssnsn 19, 25

Bartlett v. Strickland,

4 Xe | ERD aa eerwe mare ae passim

Black Political Task Force v. Galvin,

300 F. Supp. 2d 291 (D. Mass. 2004)........ 45

Bush v. Vera,

er Sy I a I siieictsh sridensccondocncsononesteden passim

Cano v. Davis,

211 F. Supp. 2d 1208 (C.D. Cal. 2002),

affd, 537 U.S. 1100 (2003) ....................... 39

Coors Brewing Co. v. Mendez-Torres,

oe ELS Le ee 53

Covington v. North Carolina,

No. 1:15-cev-399, 2016 WL 4257351

2 Bk foe et eee passim

Cromartie v. Hunt,

133 F. Supp. 2d 407 (E.D.N.C. 2000),

reu'd, 632 U.S. 234 (2001).............0-....00220 32

Easley v. Cromartie,

Ee Me GP nb sivotincnsidcesatncnstonssotins passim

Exxon Mobil Corp. v. Saudi Basic Indus.

Corp.,

ee kas kincncrnveoesisnisepenssonnens 54

Griffin v. Burns,

570 F.2d 1065 (1st Cir. 1978)................... 53

TABLE OF AUTHORITIES—Continued

Growe v. Emison,

Pe SPs Se CRD oon ccccccctececcrecvesessss

Hansberry v. Lee,

RS | ene

Hoffman v. Sec’y of State of Me.,

574 F. Supp. 2d 179 (D. Me. 2008)

Hunt v. Cromartie,

Ba Fe OE CRO ac cnccscsivveevessscnsves

Johnson v. De Grandy,

512 U.S. 997 (1904).........................

Levin v. Commerce Energy, Inc.,

ee SFA. SO CP ovesnsvcceseesccsesceses:

Lewis v. Alamance Cty.,

99 F.3d 600 (4th Cir.1996)..............

McClellan v. Carland,

BEF Wes Be CRS) vecsvecsiccsssceccscvenee

Miller v. Johnson,

615. U.S. 900 (1995)........................

N. C. State Conference of NAACP

v. McCrory,

No. 16-1468, 2016 WL 4053033

(4th Cir. July 29, 2016).........000......

NAACP v. Fordice,

105 F.3d 655 (5th Cir. 1996) .........

Page(s)

inceaniates 37

New Orleans Pub. Serv., Inc. v. Council of

New Orleans,

491 U.S. 350 (1989)...................000.

TABLE OF AUTHORITIES—Continued

Page(s)

Ortiz v. Jordan,

BOR US. BD CROLA). ccsivccscisssssccmeetenne 51

Page v. Bartels,

144 F. Supp. 2d 346 (D.N.J. 2001) .......... 39

Pérez-Guzmdn v. Gracia,

346 F.3d 229 (1st Cir. 2003) ..................... 53

Quilter v. Voinovich,

981 F. Supp. 1032 (N.D. Ohio 1997),

aff'd, 523 U.S. 1043 (1998) ............cceeeeee es 46

Quilter v. Voinovich,

No. 5:91-CV-2219, 1992 WL 677145

(N.D. Ohio Mar. 19, 1992) ...............c.ccc000 39

Richards v. Jefferson Cty.,

GAT Ue. Fe Ce vv cnncccecscecissivessreacaiasnm 54

Rodriguez v. Pataki,

308 F. Supp. 2d 346 (S.D.N.Y.), affd 543

U7, GBF CRG) osevcusviesssecessscsessevesaenee 39, 40

Shaw v. Reno,

BOD UB. GEO CIBGS).. .ccsessecsenssastesinvcnsmenane passim

Shaw v. Hunt,

Sy eik Sk) ee passim

Shaw v. Hunt,

861 F. Supp. 408 (E.D.N.C. 1994)............ 4

Shelby Cty., Ala. v. Holder,

ROS TH. CE. DR CB cevc cs cscssscosmanconass 30

Smith v. Bayer Corp.,

564 U.S. 299 (2011) ................ ssrenpbeicaaiaae 52, 54

TABLE OF AUTHORITIES—Continued

Page(s)

Sprint Commce’ns, Inc. v. Jacobs,

134 8S. Ct. 684 (2013).............0....000+. cts 54

Taylor v. Sturgell,

a ciscscccsscececessesessareosees 52, 54

Thornburg v. Gingles,

in cscccscenns cacveeconsecoconccncs passim

Uno v. City of Holyoke,

72 F.3d 973 (1st Cir. 1995)....................... 45

Valladolid v. City of Nat'l City.

976 F.2d 1293 (9th Cir. 1992)................... 45

Westwego Citizens for Better Gov’t v. City

of Westwego,

872 F.2d 1201 (5th Cir. 1989)........... aouaas 45-46

Williams v. Taylor,

ns nic dcscpeenissiianennososcenses 55

CONSTITUTION

I MIN TED ievacscnascscevscesésccsecesess 2.3

STATUTES

Voting Rights Act of 1965, 42 U.S.C. §

Nee ss cseniensennnnny passim

RULES

ccs csconcesastesisessntencéesevens 25

TE cciclantaeaisis ide cagsitnnesonoatetetedotecosess 18

vil

TABLE OF AUTHORITIES—Continued

COURT FILINGS Page(s)

Motion to Affirm or Dismiss, Harris v.

McCrory, No. 16-166, 2016 WL 4709487

CEs Sle ii, SEINE derceccniisecesunsacncatinocntdmnese 31, 34

Br. Opposing Appellees’ Motion to Dismiss

or Affirm, Harris v. McCrory, No. 16-166

GER y Ces NE BED csvvsbectsntsnenecsessectneseeat 34

OTHER AUTHORITIES

H.R. Conf. Rep. No. 104—518 (1996)............ 55

STATEMENT

This case presents, as the _ district court

appropriately put it, a “textbook” example of racial

gerrymandering. See Jurisdictional Statement Appen-

dix (“J.S. App.”) 20a. This is no surprise: The State of

North Carolina wrote the book on racial gerryman-

dering, and its efforts to string together disparate

black communities from far-flung parts of the state in

Congressional District 1 (“CD11”) and Congressional

District 12 (“CD12”) contravene both the first and

latest chapters of the Court’s racial gerrymandering

jurisprudence.

In Shaw v. Reno, 509 U.S. 630 (1993) (“Shaw I”),

and Shaw v. Hunt, 517 U.S. 899 (1996) (“Shaw IT”), the

Court analyzed and struck down a predecessor version

of CD12 as a racial gerrymander, rejecting the State’s

contention that drawing a bizarre, noncompact district

so as to maximize its black voter population was “a

remedy narrowly tailored to the State’s professed

interest in avoiding” liability under the Voting Rights

Act (““VRA”). Shaw IT, 517 U.S. at 911. The teaching of

those cases appears to have been lost on the State.

For decades since the Shaw cases, African-American

voters in CDs 1 and 12 were able to elect their

candidates of choice, “|djespite the fact that African-

Americans did not make up a majority of the voting-

age population in these earlier versions of CD 1 or CD

12.” See J.S. App. 8a. In CD1, the African-American

candidate of choice won each and every election by a

landslide, never winning less than 59% of the vote. Jd.

8a-9a. In CD12, meanwhile, the African-American

candidate of choice won every election between 1992

and 1998 with no less than 56% of the vote—and

no less than 64% in every election held between

2000-2012. Joint Appendix (“JA”) 367-79, 2369.

Unsurprisingly, given this history of unalloyed success

by African-American-preferred candidates, no lawsuit

was brought under the VRA challenging these dis-

tricts. See Appellants’ Br. (“Br.”) 8 (citing J.S. App. 9).

In redrawing the congressional map in 2011,

however, the North Carolina General Assembly

ignored the actual electoral history of these districts.

Rather, premised on a fundamental misconstruction of

Section 2 of the VRA as described in Bartlett v.

Strickland, 556 U.S. 1 (2009), and on the Department

of Justice’s (“DOJ”) 1992 objection under Section 5 of

the VRA (which gave rise to the Shaw cases), see J.S.

App. 32a, the State set out to draw two new majority-

minority districts in the apparent belief that doing so

would inoculate the State from liability under the

VRA. See J.S. App. 20a. As a result, the General

Assembly markedly increased the black voting age

population (“BVAP”) of the districts. In CD1, the

BVAP was raised from 47.76% to 52.65%. Id. 13a. The

BVAP of CD12 was ramped up even more

dramatically—from 43.77% to 50.66%. See id. The

result is unsurprising—because the State purpose-

fully packed African Americans into these districts,

African-American candidates of choice won with even

larger margins of victory. In 2012, for example,

African-American candidates of choice won with 75%

and 80% of the vote in CDs 1 and 12, respectively.

But contrary to the State’s understanding, the VRA

is designed to ameliorate and dissipate racial balkan-

ization, not perpetuate it. See Miller v. Johnson, 515

U.S. 900, 927-28 (1995) (“It takes a shortsighted and

unauthorized view of the [VRA] to invoke that statute,

which has played a decisive role in redressing some of

our worst forms of discrimination, to demand the

very racial stereotyping the Fourteenth Amendment

forbids.”). The State compounded its error, moreover,

by seeking to comply with the VRA by sorting

hundreds of thousands of voters on the basis of their

race to meet a numerical racial threshold unfounded

in any “strong basis in evidence.” Ala. Legislative

Black Caucus v. Alabama, 135 S. Ct. 1257, 1274 (2015)

(citation omitted); compare J.S. App. 52a-53a with

Alabama, 135 8. Ct. at 1271, 1273 (finding “strong,

perhaps overwhelming, evidence that race did pre-

dominate” where a legislature “relied heavily upon a

mechanically numerical view” of the VRA).

On October 24, 2013, North Carolina voters filed

this action, challenging the constitutionality of CDs 1

and 12 as racial gerrymanders in violation of the

Equal Protection Clause of the Fourteenth Amend-

ment. Compl. J 1. The case went to trial in October

2015. On February 5, 2016, the three-judge panel (the

“Panel”) issued a majority opinion finding that CDs 1

and 12 were unconstitutional racial gerrymanders.

J.S. App. 56a.

Here, Appellants disagree with the way that the

Panel weighed the record evidence, the inferences it

drew, and its resolution of disputed facts, including its

credibility determinations. But the Panel’s findings

were far from “clearly erroneous.” Miller, 515 U.S. at

917. The Panel had ample evidence to support its

conclusions—including direct admissions of race-

based intent by the plan’s legislative architects and

the mapdrawer, corroborating testimony by the

incumbent representatives of CDs 1 and 12, and

circumstantial evidence of the type relied on by this

Court time and again. The Panel’s careful and

thoughtful opinion is firmly rooted in this Court’s

racial gerrymandering jurisprudence and _ well-

supported by the factual record. The Court should

affirm.

SUMMARY OF ARGUMENT

The standard for a racial gerrymandering claim is

well established. Plaintiffs must prove race was

the “predominant factor” motivating the districting

decision in question. Miller, 515 U.S. at 916. The

burden then shifts to defendants to satisfy strict

scrutiny. Bush v. Vera, 517 U.S. 952, 976 (1996). On

appeal, the Court reviews the district court’s factual

findings only to determine if they are “clearly

erroneous.” Miller, 515 U.S. at 917. Here, there is no

basis in law or fact to disturb the Panel’s thorough and

well-reasoned decision.

The direct and circumstantial evidence of racial

predominance in CD1 was overwhelming. The plan’s

architects, Senator Bob Rucho and Representative

David Lewis, repeatedly confirmed that they had

drawn CD1 as a “VRA district” because they believed,

mistakenly, that Strickland requires states to draw

majority-minority districts whenever possible. They

instructed the mapdrawer, Dr. Thomas Hofeller,

accordingly. Moreover, both the plan architects and

the mapdrawer himself confirmed that traditional

districting principles were cast aside whenever they

got in the way of the overriding goal of drawing CD1

as a majority-BVAP district.

The result is a behemoth sprawling from the rural

Coastal Plain to the City of Durham, extending

tendrils to sweep in pockets of African-American

voters. What used to be a “distinctively rural” district,

Shaw v. Hunt, 861 F. Supp. 408, 469 (E.D.N.C. 1994),

reud, 517 U.S. 899 (1996), now includes a significant

urban population. CD1 houses only five whole

counties, with the other 19 split between CD1 and one

or more other districts, and further splits 21 cities or

towns. And these splits occur along racial lines, which

the plan architects and mapdrawer confirm was done

purposefully. In short, as the Panel found, this is a

“textbook” case of racial predominance, where the

State included and excluded population from the

district based on race, and the district’s racial purpose

manifested obviously in the way the district lines were

drawn.

The direct and circumstantial evidence as to CD12

is similarly compelling. The General Assembly

drastically increased the BVAP of the district from

43.77% to just over 50%. This was not happenstance.

As the incumbent congressman testified at trial, he

was informed by one of the plan architects that the

General Assembly was ramping up the BVAP in CD12

to more than 50% because it believed the VRA

compelled that result. Consistent with that testimony,

the plan architects instructed the mapdrawer to

include portions of Guilford County in CD12 because

it was, at the time, covered by Section 5 of the VRA.

The State then announced in its preclearance

submission that it had drawn CD12 as an “African-

American .. . district” to comply with the DOJ’s 1992

preciearance objection, in which the DOJ had

instructed North Carolina to draw a second majority-

minority district per its “max black” policy of the time.

Notably, Appellants do not even try to explain why it

was appropriate for the State to draw districts based

on DOJ guidance from more than two decades ago,

especially considering that this Court expressly

rejected DOJ’s “max black” reading of the VRA.

There is no dispute that the result of this process is

a district that does not comport with traditional

districting principles. CD12 is one of the most bizarre

congressional districts in the country. It is a 120-mile-

long, serpentine district that is a mere 20 miles across

at its widest part, connecting fragments of Charlotte

and Greensboro by a thin strip that traces Interstate

85. A person traveling on Interstate 85 between the

two cities would exit the district multiple times. CD12

consists entirely of split counties (six in all) and splits

13 cities and towns.

Appellants claim that political considerations

predominated over racial ones in CD12, but the Panel

carefully considered the record evidence and found to

the contrary. Appellants cannot demonstrate clear

error in that conclusion.

The Panel’s subsequent determination that both

CDs 1 and 12 failed strict scrutiny is similarly well-

supported in the record. As to CD12, this is not in

dispute. Appellants do not contest that if the Panel’s

racial predominance finding is affirmed, the district

fails strict scrutiny.

As to CD1, the Panel appropriately found that the

State lacked a strong basis in evidence for its belief

that the VRA compelled it to draw CD1 as majority-

BVAP. The State apparently believed that Strickland

establishes a “safe harbor” that both allows and

compels states to draw districts as majority-minority

without determining whether doing so is necessary or

even advisable under the VRA. Accordingly, the State

conducted no analysis of whether the three Gingles

preconditions were met. See Thornburg v. Gingles, 478

U.S. 30 (1986). In particular, the State failed to

consider whether there existed a reasonably compact

African-American community that would be routinely

outvoted by a white majority voting as a bloc. To the

contrary, the African-American candidate of choice in

CD1 had won in landslide elections year after year in

a district that was not majority-BVAP, and the

enacted CD1 is anything but compact.

ARGUMENT

I. THE DISTRICT COURT PROPERLY FOUND

THAT RACE PREDOMINATED IN CD1

Appellants do not dispute that in constructing the

enacted plan, the State placed a large number of voters

within or without the boundaries of CD1 because of

their race, and that this directly impacted the

construction of the district. This is the very definition

of racial predominance. See Miller, 515 U.S. at 916.

Thus, Appellants offer only a terse, conclusory, and

half-hearted argument to the contrary. Unable to offer

any contrary evidence—let alone evidence establish-

ing clear error—Appellants instead mischaracterize

the Panel’s decision or ignore outright the bases on

which it rested.

A. Direct Evidence Demonstrates that Race

Predominated in CD1

In their Jurisdictional Statement, Appellants

asserted (without support or citation) that “the North

Carolina General Assembly used other criteria besides

equal population and race to construct CD1.” J.S. 28.

In their opening brief, however, they do not argue—let

alone adduce evidence—that any factor other than

equal population and race even informed the

redistricting of CD1. See Br. 11-13, 44-47; see also

Alabama, 135 S. Ct. at 1270 (equal population “is not

one factor among others to be weighed against the use

of race to determine whether race ‘predominates”).

Appellants cannot meet their burden of establishing

clear error for this reason alone.

In any event, the Panel’s finding of racial

predominance in CD1 was amply supported. As the

Panel noted, CDi “presents a textbook example of

racial predominance.” J.S. App. 20a. The Panel

pointed to the “extraordinary amount of direct

evidence” demonstrating that the General Assembly

used a “racia] quota” to construct CD1, which then

“operated as a filter through which all line-drawing

decisions had to pass.” Jd. 20a-21a. Indeed, the Panel

found that “(i]t cannot seriously be disputed that the

predominant focus of virtually every statement made,

instruction given, and action taken in connection with

the redistricting effort was to draw CD 1 with a BVAP

of 50 percent plus one person.” Jd. 28a.

The mapdrawer, Dr. Hofeller, confirmed that the

plan architects, Senator Rucho and Representative

Lewis, instructed him to—and he did—draw CD1 as a

majority~-BVAP district. See J.S. App. 23a. Dr. Hofeller

was instructed that turning CD1 inte a majority-

BVAP district was nonnegotiable and that he “had no

discretion to go below 50-percent-plus-one-person

BVAP.” Id. 25a (citing JA 2802-03). That is, Dr.

Hofeller was instructed that he could take other

considerations into account in drawing CD1 only if the

“net result” was a majority-BVAP district. Jd. 24a

(citing JA 2802); see Shaw II, 517 U.S. at 907 (race

predominated where it “was the criterion that, in the

State’s view, could not be compromised” and other

considerations “came into play only after the race-

based decision had been made”).'

* The statements, instructions and actions of the 2011

congressional! plan architects and map drawer mirror their

statements, instructions and actions in drawing the 2011 state

legislative plans struck down as racial gerrymanders in

The legislative record is “replete with statements

by the plan’s architects that CD1 was a “VRA district”

that had been drawn purposefully to achieve a

predetermined racial target. See J.S. App. 21a-22a.

The architects stated that CD1 “was drawn with

race as a consideration,” that CD1 “must include a

sufficient number of African-Americans so that [CD1)

can re-establish as a majority-black district,” and that

they consciously “elected to draw the VRA district at

50 percent plus one” BVAP. /d. (citations omitted).

Compare Alabama, 135 S. Ct. at 1271.

Citing the State’s purported obligations under the

VRA, Senator Rucho and Representative Lewis issued

multiple public statements reiterating that race

predominated in the construction of CD1. See J.S. App.

22a-23a. For example, the statement accompanying

the release of the 2011 Congressional Plan stated:

”

[T]he State is now obligated to draw majority

black districts with true majority black voting

age population. Under the 2010 Census, the

current version of the First District does

not contain a majority black voting age

population.

Because African-Americans represent a high

percentage of the population added to the

First District ... we have... been able to re-

establish Cengressman Butterfield’s district

as a true majority black district.

JA 355-56; see also JA 474.

Covington v. North Carolina, No. 1:15-cv-399, 2016 WL 4257351,

at *7-10 (M.D.N.C. Aug. 11, 2016).

Appellants do not dispute any of this evidence.

Indeed they “readily admit” it. Br. 46-47. Rather,

Appellants argue that the Panel found that race

predominated based on the “bare fact” that the State

consciously constructed CD1 as a majority-minority

district. Id. at 44. Neither the opinion nor the record

below supports that baseless assertion.

As an initial matter, the fact that a state consciously

sets out to ensure that a district has a particular racial

composition is “the kind[] of direct evidence [the Court

has} found significant in other redistricting cases.”

Easley v. Cromartie (“Cromartie IT”), 532 U.S. 234, 254

(2001).° A state cannot simply invoke the VRA as an

automatic means of refuting racial predominance.

Indeed, the Court has repeatedly upheld findings of

racial predominance where race-based districting

decisions were made in purported service of the VRA.

See, e.g., Shaw I, 517 US. at 904-05 (strict scrutiny

applies “whether or not the reason for the racial

classification is benign or the purpose remedial”);

Vera, 517 U.S. at 957 (same, where districts were

drawn “with a view to complying with the [VRA]”);

Miller, 515 U.S. at 907 (same, where goal was to gain

Section 5 preclearance); Shaw J, 509 U.S. at 655 (no

“carte blanche to engage in racial gerrymandering in

the name of” VRA compliance).

—- ——

* See id. (citing Vera, 517 U.S. at 959 “(State conceded that one

of its goals was to create a majority-minority district)”; Miller,

515 U.S. at 907 “State set out to create majority-minority

district)"; Shaw I, 517 ULS. at 906 “(recounting testimony by

Cohen that creating a majority-minonty district was the ‘princi-

pal reason’ for the 1992 version of District 12)"), Alabama, 135 S.

Ct. at 1267, 1271-73 (finding “strong, perhaps overwhelming”

evidence of ractal predominance where a legislature “prioritizled|

la] mechanical racial target|] above all other districting criteria”).

More importantly, the State’s overriding purpose of

creating CD1 as a majority-minority district was no

abstraction. Appellants’ claim that there was no

evidence of “a single line-drawing decision on which

that purported ‘filter’ had any impact, let alone a

‘direct and significant’ one,” Br. 46, is pure sophistry.

The Panel, in fact, found that “Dr. Hofeller inten-

tionally included high concentrations of African-

American voters in CD1 and excluded less heavily

African-American areas from the district.” J.S. App.

24a. The record provides no shortage of supporting

examples. In drawing CD1, the mapdrawer knew the

“net result had to be 50 percent,” JA 2802, so he

carefully combed through 19 counties, selecting voters

along the way on the basis of race. For instance,

when asked whether he moved into CD1 “the heavily

African-American part” of Durham County, he

responded simply, “Weii, 1. had to be.” JA 2818.°

Appellants also argue that the Panel made no

finding that the challenged district lines “departed

from traditional principles.” Br. 46. That is simply

wrong. In fact, the Panel explicitly found that “[iJn

order to achieve the goal of drawing CD 1 as a

majority-BVAP district, Dr. Hofeller not only

subordinated traditional race-neutral principles but

* See also JA 2742 (“With the exception of Greene County, the

percentage of the African-American population outside (CD1|

was lower than the percentage inside the district, which is exactly

what you would think would be the case since the district we're

talking about is an African-American majority district.”); JA 2736

(“[I]f you build a minority district in a group of counties and .. .

only part of some of the counties are in the minority district, . . .

it's completely logical that the portions .. . of the counties

that are in the minority district, which in this case would be

District 1, would have a much higher number of minority

residents ... in them than the portion outside the district.”).

disregarded certain principles such as respect for

political subdivisions and compactness.” J.S. App.

26a-27a.

To be clear, this was not an inference the Pane! had

to draw—-the mapdrawer and the plan architects

outright conceded that traditional redistricting

criteria were subordinated to the singular pursuit of

drawing CD1 as a majority-BVAP district. See id.

Dr. Hofeller candidly acknowledged that “it wasn't

possible to adhere to some of the traditional

redistricting criteria in the creation of [CD1]” because

“the more important thing was to . . . follow the

instructions that {he had] been given by the two

chairmen” to draw the district as majority BVAP. JA

2807. Thus, “Hofeller testified that he would split

counties and precincts when necessary to achieve a 50-

percent-plus-one-person BVAP in CD1,” and Senator

Rucho and Representative Lewis acknowledged that

“ImJost of our precinct divisions were prompted by the

creation of . . . [the} majority-black First Congressional

District.” See J.S. App. 26a-27a (citations omitted).

Remarkably, none of this evidence makes an

appearance in Appellants’ brief.

In short, the direct evidence reveals that North

Carolina’s myopic pursuit of establishing CD1 as a

majority-minority district led it to disregard tradi-

tional districting principles and to place a substantia!

number of voters within and without the district

because of the color of their skin.

B. Circumstantial Evidence Demonstrates

that Race Predominated in CD1

The tale told by the direct evidence is borne out by

the circumstantial evidence. The General Assembly’s

overriding racial goals had a direct and significant

impact on the configuration of CD1.

The Court has recognized that redistricting “is one

area in which appearances do matter.” Shaw /, 509

U.S. at 647. Appellants’ suggestion that CD1 is

anything other than “extremely irregular” on its face,

Br. 45 (citation omitted), is based on chutzpah, not

reality. Given the demographics of northeastern North

Carolina, Dr. Hofeller needed to hunt far and wide to

find a sufficient number of African-American voters to

add to CD1. The appearance of CD1 manifests its

singular racial purpose.

Columbu —

Dr. Hofeller did not consider measures of

compactness in drawing CD1 and, in fact, substan-

tially reduced the district’s compactness. J.S. App.

27a. That sacrifice of traditional districting principles

is plain on the face of the district. CD1 is grossly non-

compact because compactness was subordinated to the

State’s overriding racial goals, which required Dr.

Hofeller to draw a district which multiple grasping

tendrils to capture disparate pockets of black voters.

See infra tbl.1.

Likewise, CD1 runs roughshod across county

lines because Dr. Hofeller split counties whenever

necessary to achieve a BVAP majority in CD1. See

JA 2809. The result is that CD1 was constructed from

five whole counties and pieces of an additional 19

counties. CD1 also splits a total of 21 cities and towns.

See JA 1105-06 JJ 45, 47. By contrast, the benchmark

version of CD1 split only 10 counties and 16 cities and

towns. /d.

The data bear out Dr. Hofeller’s admission that he

assigned citizens to CD1 or surrounding districts on

the basis of race. In the five whole counties, the BVAP

exceeds 50%. JA 493-98; JA 385 ¥ (1)(a)(xviii). These

counties are adjacent and form the geographic core of

the district but contain a mere 21% percent of CD1’s

total BVAP. JA 493-98. Meanwhile, consistent with

Dr. Hofeller’s testimony, supra 11 & n.3, in the pieces

of 19 split counties that are included in CD1, the

portions of the counties contained in CD1 are

systematically higher than those designated to sur-

rounding districts. JA 493-98; JA 385 ¥ (1)(a)(xviii).

The evidence of racial sorting is stark and compelling:

Table 1

— BVAP

BVAP BVAPin_ difference

in part part of between

of countyin CD11 and

county other other

County inCD 1 District(s) District(s)

Beaufort 52.19% 20.56% 31.63%

Chowan 44.72% 15.04% 29.68%

Craven 41.03% 16.03% 25.00%

Durham 49.02% (CD 4) 26.54%

22.48%

(CD 6)

16.81% 32.21%

(CD 13)

9.59% 39.43%

Edgecombe 68.20% 30.51% 37.69%

Franklin | 44.68% 19.16% 25.52%

Gates 49.95% 27.23% 22.72%

Granville 41.04% (CD6) 6.45%

34.59%

(CD 13) -

payne 21.51%

Greene 36.12% 38.91% 2.79% ;

Lenoir 62.78% (CD3) 27.76%

35.02%

(CD 7)

beget 45.70% |

Table 1

“ ; BVAP

BVAP BVAP in difference

in part part of between

of county in CD1 and

county other other

County inCD1 District(s) District(s)

“Martin 54.01% 20.31% 33.70%

Nash 54.26% 23.54% 30.72%

Pasquotank 51.17% 19.03% 32.14%

Perquimans 35.38% 15.75% 19.63%

Pitt 6.45% 22.72% 33.73%

Vance 53.73% 35.45% 18.28%

Washington 59.50% 27.11% 32.39%

| Wayne 49.71% 18.46% 31.25% |

| Wilson re 65.03% 23.78% 41.25% |

JA 493-98; JA 385 4 (1)a)(xviii); see also generally

JA 313-21 (analyzing pattern of racial sorting in CD1).

Similarly, when it was necessary for Dr. Hofeller to

split precincts to achieve a BVAP majority in CD1, he

did so. See JA 2809. The plan architects announced

that most “precinct divisions were prompted by the

creation of Congressman Butterfield’s majority-black

First Congressional District.” JA 360. It is thus not

surprising that no fewer than 35 precincts were split

along racial lines with far more black voters assigned

to CD1 than to the adjoining districts. JA 493-98. For

instance, the boundary between CD1 and CD3 in

Pasquotank, Pitt, and Wilson Counties is formed

almost entirely by split precincts that fall along racial

lines. JA 496-98; JA 385 J (1)(a)(xviii).

In sum, the Panel based its predominance finding

on the same kind of evidence the Court found to be

“strong, perhaps overwhelming, evidence that race did

predominate” in drawing an Alabama senate district.

Alabama, 135 S. Ct. at 1271. As in Alabama, (1) the

mapdrawer understood that the primary redistricting

goal was to achieve a precise racial percentage in CD1,

compare id. with J.S. App. 21a-23a; (2) CD1 became

significantly less compact, compare Alabama, 135 S.

Ct. at 1271, with J.S. App. 27a; (3) black voters were

disproportionately added to CD1 while white voters

were disproportionately excluded, compare Alabama,

135 S. Ct. at 1271, with J.S. App. 24a; (4) counties,

cities, towns, and precincts were split along racial

lines, compare Alabama, 135 8. Ct. at 1271, with JS.

App. 26a-27a; and (5) the mapdrawer achieved his

professed racial target, compare Alabama, 135 S. Ct.

at 1271, with J.S. App. 23a. Appellants’ gross over-

simplification of the basis of the Panel’s decision is

belied by the Panel’s extensive, undisputed factual

findings.

Like the original Shaw district, CD1 “includes in one

district individuals who belong to the same race, but

who are otherwise widely separated by geographical

and political boundaries, and who may have little in

common with one another but the color of their skin.”

Shaw I, 509 U.S. at 647. Like the original Shaw

district, CD1 “bears an uncomfortable resemblance to

political apartheid.” Jd.

(1. THE DISTRICT COURT PROPERLY FOUND

THAT RACE PREDOMINATED IN CD12

The Panel’s factual determination that race

predominated in CD12 is also wel] supported by the

evidence. See J.S. App. 30a-44a.

A. Direct Evidence Demonstrates that Race

Predominated in CD12

The BVAP in CD12 was ratcheted up from 43.77%

under the 2001 Congressional Plan to 50.66% under

the 2011 Congressional Plan—an increase of nearly

seven percentage points. JA 479. As with CD1, the

Panel drew on ample direct evidence that this

dramatic increase in BVAP (to just over 50%) was not

mere happenstance (as Appellants argue) and, in fact,

was the predominant purpose behind CD12.

Mel Watt, who represented CD12 in 2011, testified

at trial that Senator Rucho told him that

he “had to ramp the minority percentage in my

Congressional District up to over 50 percent [black] to

comply with the Voting Rights Law.” JA 2368-69. The

Panel, “[blased on its ability to observe firsthand

Congressman Watt .. . creditled] his testimony and

[found] that Senator Rucho did indeed explain to

Congressman Watt that the legislature’s goal was to

‘ramp up’ CD 12’s BVAP.” J.S. App. 34a-35a.*

' Perhaps cognizant that this race-based yoal lacked

justification, Senator Rucho “was not very comfortable” knowing

that he had “to go out and justify that [redistricting goal} to the

African-American community.” JA 2369. Congressman Watt

responded by stating, “If you ramp my Congressional District

African-American percentage up to over 50 percent, I'll probably

get 80 percent of the vote, and — and that's not what the Voting

Rights Act was designed to do.” Jd.

Appellants argue that this testimony has “little

probative value” because Senator Rucho denied

making the statement. Br. 41.5 But gauging witness

credibility is a classic prerogative of the trial court and

“can virtually never be clear error.” Anderson v. City

of Bessemer City, 470 U.S. 564, 575 (1985). This rule is

particularly applicable here, where Appellants chose

not to call Senator Rucho to testify, despite the fact

that he was listed as a witness and present at trial.

J.S. App. 34a.

Appellants also argue that even if Senator Rucho did

tell Representative Watt that he was going to ramp up

CD12’s BVAP above 50%, the testimony is irrelevant

because Congressman Watt “convinced Senator Rucho

that no such ameliorative action was necessary.”

Br. 41-42. This is a puzzling argument, given what

Senator Rucho did next.

That is, consistent with Congressman Watt’s

testimony, Senator Rucho and Representative Lewis

promptly unveiled a plan wherein CD12 was drawn at

just over 50%, along with a _ public statement

emphasizing the racial purpose behind the district.

This statement indicated that “|[blecause of the

presence of Guilford County in the Twelfth District

lwhich was covered by Section 5 of the VRA], we have

drawn our proposed Twelfth District at a black voting

age level that is above the percentage of black voting

age population found in the current Twelfth District.

We believe that this measure will ensure preclearance

of the plan.” JA 358. Compare Alabama, 135 S. Ct. at

° Appellants characterize this statement as “double hearsay,”

Br. 41, but do not suggest the Panel erred by considering it. For

good reason. Appellants did not object to this testimony at trial.

JA 2368-69. In any event, it is an admission by a party opponent

See ER 801(d)(2).

1271 (finding strong evidence of racial predominance

where “(tlhe legislators in charge of creating the

redistricting plan believed .. . that a primary

redistricting goal was to maintain existing racial

percentages in each majority-minority district, insofar

as feasible”).

Appellants dismiss this express admission of race-

based redistricting as a mere description of the “resu/ts

of the redistricting, not the motivation behind it.”

Br. 36. This revisionist history ignores both the plain

language of the plan’s architects and the express

concessions of the plan’s mapdrawer. The public state-

ment issued by Senator Rucho and Representative

Lewis stated that the BVAP of CD12 was increased

“lblecause of the presence of Guilford County,” JA 358

‘emphasis added), negating Appellants’ contention

that Section 5 was an afterthought to the redistrict-

ing process. Moreover, the plan sponsors admittedly

instructed the mapdrawer to move black residents of

Guilford County into CD12 because of their race. J.S.

App. 38a-39a. As the mapdrawer put it, “in order to be

cautious and draw a plan that would pass muster

under the Voting Rights Act, it was decided to reunite

the black community in Guilford County into the

Twelfth.” JA 558; J.S. App. 38a (noting Dr. Hofeller’s

testimony that he was “aware of the fact that Guilford

County was a Section 5 county” and that he “was

instructed [not] to use race in any form except perhaps

with regard to Guilford County”) (quoting JA 2791,

2821). The mapdrawer’s admission that he was

instructed to use race in constructing CD12 explains

why the Panel found the mapdrawer’s assertion that

he did not consider race in constructing CD12 to ring

“hollow.” J.S. App. 39a n.8. Again, Appellants simply

ignore that inconvenient aspect of the Panel’s decision.

This also answers Appellants’ attempt to compare

this statement to an ambiguous statement from

Cromartie II, in which a legislator stated that the plan

there “overall .. . provides for a fair, geographic, racial

and partisan balance throughout the State of North

Carolina.” Cromartie II, 532 U.S. at 253 (citation

omitted). This Court found that a _ generalized

statement that race was considered as one factor

among many as to the plan as a whole did not

demonstrate that a specific challenged district had

been drawn using race as the predominant factor. Jd.

Here, by contrast, the plan architects explained that

the reason for increasing the BVAP in this specific

district was the pursuit of preclearance under

Section 5, making clear that the General Assembly’s

(mistaken) attempts at VRA compliance were the

driving factor behind both of the new majority-

minority districts.

Furthermore, the State’s preclearance submission

(1) confirms that “[o]ne of the concerns of the

Redistricting Chairs was that in 1992, the Justice

Department had objected to the 1991 Congressional

Plan because of a failure by the state to create a second

majority minority district,” (2) indicates that the State

“drew the new CD 12 based on these considerations,”

and (3) emphasizes that by increasing the BVAP of

CD12 from 43.77% to 50.66%, the enacted plan

“maintains, and in fact increases, the African-

American community’s ability to elect their candidate

of choice in District 12.” J.S. App. 32a-33a (quoting JA

478-79); see also JA 478-79 (stating that the General

Assembly drew “District 12 as an African-American ...

district that has continually elected a Democratic

African American since 1992” and that CD12 had been

drawn to protect “African-American voters in Guilford

and Forsyth”).

The significance of this submission cannot be

overstated. The 1992 DOJ objection drove the enact-

ment of the original Shaw district. Shaw IJ, 517 U:S.

at 912-13. The State, in other words, expressly stated

that it drew CD12 as a majority-minority district to

comport with an antiquated DOJ objection premised

on the “max-black” policy the Court repudiated in

Miller and which led it to strike down the last version

of CD12 drawn as majority-black in Shaw /I. See JS.

App. 33a (citing Miller, 515 U.S. at 921-24). Thus, the

State’s suggestion that Section 5 of the VRA somehow

compelled the redrawing of CD12 as a majority-

minority district confirms the State’s efforts to

reconstruct the original racial gerrymander of CD12.

It is unsurprising that Appellants back away from

this telling admission now, claiming (without author-

ity) that the Panel’s reliance on the State’s explanation

of its motivations in its preclearance statement is

“contrary to this Court’s cases.” Br. 37. To the con-

trary, the Court routinely relies on preclearance

submissions in examining racial predominance.®

B. Circumstantial Evidence Demonstrates

that Race Predominated in CD12

As with CD1, CD12’s tortured shape and race-based

county splits reinforce the direct evidence of racial

predominance.

®° See Vera, 517 U.S. at 960 (submission noted “three new

congressional districts should be configured in such a way as

to allow members of . . . minorities to elect Congressional

representatives”) (citation and quotation marks omitted); Shaw

77,517 U.S. at 906 (submission described legislature’s “overriding

purpose ... to create two congressional! districts with effective

black voting majorities”) (citation omitted).

The barest glance at CD12 reveals that it cannot be

explained by traditional redistricting criteria.

Surry | Stokes Rockingham

CD12, the least compact district in the State, “is

a ‘serpentine district [that] has been dubbed the

least geographically compact district in the Nation.”

J.S. App. 35a (quoting Shaw IJ, 517 U.S. at 906). In

redrawing CD12 in 2011, the State managed to reduce

the compactness of CD12 even further. J.S. App. 35a-

36a. Compare Alabama, 135 S. Ct. at 1271 (describing

“change of districts shape from rectangular to

irregular” as evidence of racial predominance).

CD12 is constructed from pieces of six counties:

Mecklenburg, Cabarrus, Rowan, Davidson, Forsyth,

and Guilford. A thin line of precincts running through

Cabarrus, Rowan and Davidson counties connects

African-American population centers in Mecklenburg

(Charlotte), Forsyth (Winston-Salem), and Guilford

(Greensboro). CD12 splits 13 cities and towns. JA 312

4 17.

There is no dispute that—just like in CD1, where

the State admits it used race to draw the lines—the

county divisions in CD12 fall along racial lines:

| Table 2

BVAP BVAP

in part BVAP in difference

of part of between

county county in CD12 and

in other other

County CD12 District(s) _District(s) _

Cabarrus 15.14% 14.71% A3%

aeeaae 18.57% (CD 8) 12.9% |

5.67%

(CD 5)

5 89% 13.04%

Forsyth 70.58% 18.44% 52.14%

uilford 58.18% «15.21% 42.97% _|

klenburg 51.76% (CD 9) 37.54%

14.22%

(CD 8)

38.13% 13.63%

lRowan 27.92% (CD 5) 8.09%

19.83%

yarcciond 22.13%

5.79%

JA 499-502; JA 385 J (1)a)(xviii). In five out of six

counties, the BVAP in the portion of the county in

CD12 is three to four times greater than the BVAP in

the portion of the county in the neighboring district.

Id.

Thus, CD12’s “shape and demographics” fully

supports the Panel’s conclusion that the General

Assembly subordinated traditional districting criteria

to racial considerations in crafting CD12. Miller, 515

U.S. at 916.

C. Political Considerations Were Subor-

dinated to Race

None of this is in dispute. Appellants do not argue

that CD12 was, in fact, drawn to comply with

traditional districting principles. Rather, they argue

that CD12 was drawn “to maximize political

opportunities for the party in power.” Br. 24. They

advanced the same argument below, and the Panel

thoroughly considered and rejected it in light of the

record evidence, which showed that Appellants’

“politics not race” argument, “was more of a post-hoc

rationalization than an initial aim.” J.S. App. 40a.

This conclusion is well supported by the record

evidence sct out in the Panel’s opinion and is not

clearly erroneous.

In arguing otherwise, Appellants rely almost

entirely on Dr. Hofeller’s testimony. In essence,

Appellants complain that the Panel should have found

his testimony credible but did not. See Br. 28-29. As

noted above, the Panel carefully considered this

testimony and determined that it was not credible. See

J.S. App. 37a-39a; see also Anderson, 470 U.S. at 575

(“When findings are based on determinations regard-

ing the credibility of witnesses, Rule 52(a) demands

even greater deference to the trial court’s findings; for

only the trial judge can be aware of the variations in

demeanor and tone of voice that bear so heavily on the

listener’s understanding of and belief in what is

said.”). Specifically, the Panel noted how Dr. Hofeller’s

deposition testimony (in which he testified that he

relied on race in drawing CD12) was inconsistent with

his trial testimony (in which he claimed that he did not

rely on race in drawing CD12). J.S. App. 38a-39a. The

Panel was understandably dubious of Dr. Hofeller’s

attempt to whitewash his earlier testimony in light of

his statements about the alleged importance under

Section 5 of reuniting the African-American commu-

nity of Guilford County in CD12. Id. 39a.

Indeed, the inconsistencies between Dr. Hofeller’s

two expert reports further calls into question this

witness’s credibility. Dr. Hofeller’s first report (dated

January 17, 2014) notes that Section 5 not only

informed the drawing of CD12 but also directly

contributed to making it less compact.

The General Assembly, mindful that Guilford

County was covered by Section 5 of the VRA,

determined that it was prudent to reunify the

African-American community in Guilford

County. This could avoid the possibility of a

charge of fracturing the community and,

inhibiting preclearance by DOJ under Section

5. This extension of the New 12th District

further to the northeast into Guilford County

caused the circumscribing circle around the

district to increase . . . in diameter and

lowered the Reock Score.

JA 1103. Dr. Hofeller’s second expert report (dated

June 4, 2015), however, makes no mention of Section

5, instead echoing the same refrain repeated in

Appellants’ Brief. See JA 1146 (“To repeat, the GOP

policy goal behind the location of the 2011 12th

District in Guilford County was to remove as many

strong Democrat VTDs from the remainder of the

county.”). Appellants simply ignore the inconsistencies

in Dr. Hofeller’s testimony that suggest a post-hoc

attempt to bury the racial purpose behind CD12 and

that led the Panel to give more weight to other

evidence. To be sure, Appellants fail to offer the Court

any reason to believe the Panel’s credibility determi-

nation was clearly erroneous.

The Panel’s conclusion was further bolstered by the

plan architects’ statements trumpeting the way they

increased CD12’s BVAP in purported service of the

VRA, JA 358, while “attempt[ing] to downplay the

‘claim|| that [they] have engaged in extreme political

gerrymandering” as “overblown and inconsistent

with the facts.” J.S. App. 39a (quoting JA 362-63).

Appellants airily dismiss this evidence. “Under-

standably,” Appellants suggest, the plan architects

misrepresented the true “partisan impact of the new

plan in an attempt to garner bipartisan support.”

Br. 29; see also id. at 35 (“[A] public-facing statement

made by legislators seeking to quell partisan

opposition to their redistricting plan says very little

about the legislators’ predominant motives in drawing

the plan[.]”). In other words, Appellants argue that

the Panel committed clear error by accepting the

architects’ public statement as true rather than

presuming they were pulling the wool over the eyes of

the electorate. They present no authority supporting

the startling and profoundly cynical proposition that

courts should assume that legislators are lying to their

constituents when it comes to redistricting.’

The Panel’s predominance determination was “fur-

ther supported” by testimony provided by Appellees’

experts, who—using different methodologies—offered

additional circumstantial evidence that race rather

than politics better explained the contours of CD12.

J.S. App. 40a. Offering the same arguments that the

Panel considered and rejected, id. 40a-42a, Appellants

complain that the Panel put too much reliance on this

expert evidence, even though it had (in their view)

“little” probative value. Br. 37.

As an initial matter, the Panel appropriately noted

that, while not dispositive, Appellees’ expert evidence

provided additional “circumstantial support for the

conclusion that race predominated.” J.S. App. 42a.

Appellants’ various criticisms of the experts’ analyses,

meanwhile, miss the mark. Appellees’ expert Dr.

Peterson concluded, on the strength of a boundary

segment analysis, that “race ‘better accord[ed] with’

the boundary of CD12 than did politics.” J.S. App. 40a-

41a (citation omitted). This is the same analysis he did

in the Cromartie cases, which the Court credited even

if it found it was not dispositive in and of itself. Hunt

v. Cromartie (“Cromartie I”), 526 U.S. 541, 550 (1999);

Cromartie I, 532 U.S. at 251-52. Putting aside their

efforts at obfuscation, Appellants do not dispute the

' Indeed, Senator Rucho and Representative Lewis were

hardly shy about admitting their brazenly partisan ende and

means in drafting the purported “remedy” to the enacted plan.

See Dkt. 155 at 103 (Rep. Lewis “acknowledge/d) freely that [the

new plan| would be a political gerrymander”); fd. at 205 iSen.

Rucho: “I think electing Republicans is better than clecting

Democrats. So I drew |the new plan] in a way to help foster what

| think is better for the country.”).

Panel’s description of Dr. Peterson’s results, which

demonstrated that the racial imbalance was “more

pronounced” than the political imbalance, J.S. App. 41a.

Dr. Ansolabehere, meanwhile, used a different

methodology to conclude that the changes to CD12

“can be only explained by race and not party.” JA 2553;

see also JA 328-37. Appellants offer one and only one

rejoinder to Dr. Ansolabehere’s testimony—he exam-

ined voter registration figures, which is a “defect” that

was “exposed” in Cromartie II. Br. 37. But Cromartie

II did not create a legal rule banning consideration of

voter registration figures in all racial gerrymandering

cases. Rather, it relied on the available evidence to

conclude that, on that record (developed nearly two

decades ago), evidence of voting registration was

“inadequate” to predict voter preference. Cromartie IJ,

532 U.S. at 245-46 (citing deposition transcripts and

appendix). The record evidence in this case is

different.

Appellants grossly mischaracterize Dr. Ansolabehere’s

testimony. His “best explanation” for why he used

registration was not that it was “a pretty good

indicator of voting behavior.” JA 2535. Rather, he

explained that he was fully aware of Cromartie IT, but

that after conducting a thorough analysis of present

conditions, he found that “black registration was

actually a much better indicator of voting behavior

than the black voting-age population was,” and one

that allowed a more granular analysis than other

available data. Id.; see also JA 2561 (“I looked at the

relationship between the election results and the

registration data to confirm that the registration data

were indeed predicative of voting behavior” and found

“that the [black] registration data from North

Carolina, especially around the area of CD1 and CD12,

were much stronger predictors of voting behavior

than were black voting-age population.”). The Panel

credited that conclusion based on the record pre-

sented. J.S. App. 41a-42a.

Appellants dismiss Dr. Ansolabehere’s conclusions,

but offer no evidence or argument that they were

inaccurate. That is, they present no evidence that

Dr. Ansolabehere’s conclusions were erroneous as a

factual matter. Rather, they simply suggest that

North Carolina courts are forever bound by the factual

record on voter registration data as paraphrased by

the Court fifteen years ago. This disregards both

common sense and law. Cf. Shelby Cty., Ala. v. Holder,

133 S. Ct. 2612, 2631 (2013) (requiring voting rights

legislation to be considered in terms of “current

conditions”).

To put it mildly, it is hard to square Appellants’

contention that voter registration data is irrelevant

with their repeated deployment of such data as a

predictor of voting behavior whenever it suits them

to do so. For instance, in their July 19, 2011 press

release, the plan’s architects defended against

criticism that the map was drawn to advantage

Republicans by pointing to the number of registered

Democrats across all districts. See J.S. App. 42a (citing

JA 363). Their outside counsel similarly instructed

that “registration advantage is the best aspect to focus

on to emphasize competitiveness|, as] [i]t provides the

best evidence of pure partisan comparison.” Jd. 40a

(quoting JA 259). Likewise, in their briefing below,

Appellants touted voter registration figures to defend

the General Assembly’s remedial plan against the

attack that it is a partisan gerrymander. Dkt. 159 at

18. And in their defense of Appellees’ cross-appeal,

which challenges the remedial plan drawn to replace

the racial gerrymander at issue here, Appellants rely

extensively on voter registration figures. Motion to

Affirm or Dismiss, Harris v. McCrory, No. 16-166, at

17, 26. Appellants’ endorsement of registration data

when it suits their needs thoroughly undermines their

argument that reliance on voter registration data here

is reversible error.

In short, Appellants cannot establish that the

Panel’s factual findings are clear error—nor distort

those factual findings as legal error—merely by

expressing their disagreement with the inferences

fairly drawn by the Panel from the record evidence.

D. An Alternative Plan Is Unnecessary

Where Other Evidence Establishes Racial

Predominance

Unable to show that the Panel’s factual findings are

clear error, Appellants next claim that the direct and

circumstantial evidence outlined above simply makes

no difference. They contend that, regardless of the

strength of the evidence on racial predominance, all

racial gerrymandering plaintiffs are “required” to

proffer circumstantial proof in the form of alternative

plans which would have achieved the legislature’s

purported political objectives. Br. 31. Thus, Appellants

assert that an alternative map reflecting a direct

conflict between race and politics is a necessary

element of a Shaw claim.

This grossly misreads Cromartie. “The issue in

\Cromartie was) evidentiary.” Cromartie IT, 532 U.S.

at 241. The Cromartie cases were the aftermath of the

Shaw cases. There, the General Assembly had

redrawn CD12 to remedy the majority-minority

district struck down in Shaw II. The General

Assembly redrew the district “guided by two avowed

goals: (1) curing the constitutiona: defects of the 1992

Plan by assuring that race was not the predominant

factor in the new plan, and (2) drawing the plan to

maintain the existing partisan balance in the State’s

congressional delegation.” Cromartie v. Hunt, 133

F. Supp. 2d 407, 413 (E.D.N.C. 2000), rev’d sub nom.

Easley v. Cromartie, 532 U.S. 234 (2001). Accordingly,

the General Assembly drastically reduced the BVAP

of CD12— from the majority-minority district struck

down in Shaw II to a 48% BVAP district. See

Cromartie I, 526 U.S. at 544. Unsurprisingly, then, the

record in Cromartie was nearly devoid of evidence that

race was considered in drawing the district, and

replete with overwhelming evidence that political

considerations predominated. Cromartie II, 532 U.S.

at 242; see also Cromartie I, 526 U.S. at 549 (plaintiffs

“presented no direct evidence of intent”); Br. 7 (“The

evidence that politics predominated over race was so

strong that Justice Stevens, joined by Justices Souter,

Ginsburg, and Breyer, wrote separately to suggest

that the State may have been entitled to summary

judgment.”).

Thus, the State took pains to minimize its use of

race and emphasize its political goals, and the

evidence bore that out. The plaintiffs in Cromartie

could initially muster “only circumstantial! evidence in

support of their claim,” and that circumstantial

evidence “supportied] both a political and racial

hypothesis.” Cromartie I, 526 U.S. at 547, 550. This

Court held, on the largely circumstantial record, that

the plaintiffs had “not successfully shown that race,

rather than politics, predominantly accounts for” the

resulting map. Cromartie IT, 532 U.S. at 257. In that

kind of case, where other available evidence did not

establish racial predominance, and race and party are

highly correlated, the Court noted that a plaintiff

could surmount a claim that politics predominated by

showing that the legislature could have achieved its

legitimate political objectives “in alternative ways that

are comparably consistent with traditional redistrict-

ing principles.” Jd. at 258.

Nothing in Cromartie II suggests that a court must

turn a blind eye to compelling direct and circum-

stantial evidence of racial predominance for lack of an

alternative plan. Were that what the Court intended,

the first twenty pages of Cromartie II, in which the

Court weighs all of the available evidence, would have

been an exercise in futility. The Panel did not commit

clear error in discharging its duty to evaluate all of the

evidence to determine racial predominance rather

than dismissing the case outright for lack of an

alternative plan.

Indeed, the record here is markedly different. It

simply is not true that “this is Cromartie II all over

again.” Br. 23. If anything, this is Shaw II all over

again, as the General Assembly here reconstructed the

Shaw district. Whereas in Cromartie the General

Assembly greatly reduced the BVAP in CD12 to

remedy the Shaw violation, here it dramatically

increased the BVAP of CD12 to over 50%. This was

consistent with Senator Rucho’s explanation to

Representative Watt of the race-based motivation

behind increasing the BVAP in CD12, the press

release citing Section 5 of the VRA as the basis for the

BVAP increase, and the State’s explanation that it

drew CD12 as a majority-minority district to respond

to the DOJ’s 1992 preclearance objection. In short, as

the Panel found, Cromartie I] bears scant resemblance

to the record here, where “at the outset district lines

were admittedly drawn to reach a racial quota” and

“political concerns” were then “noted at the end of the

process.” J.S. App. 43a.°

Appellants’ reasoning, moreover, would give states

carte blanche to use race to draw district lines so long

as there are concurrent political benefits, thereby

vitiating the well-recognized rule that a state cannot

use race as a “proxy” for partisan ends. See Vera, 517

U.S. at 968 (“[Tlo the extent that race is used as a

proxy for political characteristics, a racial stereotype

requiring strict scrutiny is in operation.”); Miller, 515

U.S. at 920 (“[Wlhere the state assumes from a group

of voters’ race that they ‘think alike, share the same

political interests, and will prefer the same candidates

at the polls,’ it engages in racial stereotyping at odds

with equal protection mandates.”) (quoting Shaw /,

509 U.S. at 647); N.C. State Conference of NAACP v.

McCrory, No. 16-1468, 2016 WL 4053033, at *8 (4th

Cir. July 29, 2016) (“Using race as a proxy for party

may be an effective way to win an election,” but

intentionally targeting a particular race “because its

members vote for a particular party, in a predictable

* Moreover, Appellants have effectively conceded—in the form

of the “remedial” plan Appellees challenge in their cross-appeal—

that they can meet their purported goal of “maximiz|{ing] political

opportunities for the party in power,” Br. 24, while better

comporting with traditional districting principles. See Motion to

Affirm or Dismiss, Harris v. McCrory, No. 16-166, at 21-22 (“It is

beyond dispute . . . that the 2016 Congressional Plan follows

traditional redistricting criteria better than any map in North

Carolina for at least the past 25 years.”). As Appellees have

explained, the General Assembly responded to the Panel’s Order

striking down CDs 1 and 12 by drawing a plan that eliminates

the serpentine CD12 while “preserving” the 10-3 “partisan

advantage” secured as a result of the racial gerrymander at issue

here. See generally Brief Opposing Motion to Dismiss or Affirm,

Harris v. McCrory, No. 16-166.

manner” triggers strict scrutiny, “even absent any

evidence of race-based hatred and despite the obvious

political dynamics.”).

But that is precisely what Appellants’ litigation

position suggests the State did. Appellants applaud

the General Assembly’s achievement of its partisan

goals. See Br. 24 (“[Jjudged in political terms, it was

a success[.]”); id. at 30 (citing favorable election

results as evidence of General Assembly’s “political

motivations”). But this hardly contradicts the over-

whelming evidence of racial predominance.® It simply

indicates that the General Assembly’s use of race—as

admitted by the plans’ architects and mapdrawer

and further reflected in the district’s shape and

demographics and the race versus party analyses

performed by Appellees’ experts—was in service of its

political objectives.

It is not surprising that the Genera! Assembly’s

purposeful packing of African-American voters into

CD12 benefits the legislators who engineered the

plan. See N.C. State Conference of NAACP, 2016

WL 4053033, at *17 (noting that the North Carolina

General Assembly used an elections bill “to entrench

itself... by targeting voters who, based on race, were

unlikely to vote for the majority party”). Where the

record evidence, as considered and weighed by the

district court, indicates that the General Assembly’s

partisan goals were achieved predominantly by shuf-

fling voters in and out of a district on the basis of race,

“ Appellants admit, for instance, that the State used race to

draw CD1 in purported service of the VRA, Br. 44, and that this

was entirely consistent with its partisan aims, fd. at 10 (noting

that Dr. Hofeller was instructed to favor Republican candidates

by “concentrating Democratic voting strength in District(] 1”).

no alternative plan is required to disentangle the

political ends from the racial means.

II. CD1 AND CD12 CANNOT SURVIVE STRICT

SCRUTINY

A. Appellants Concede CD12 Fails Strict

Scrutiny

The Panel’s conclusion that the predominant use of

race in CD12 was not narrowly tailored to a compelling

government interest is not in dispute. As the Panel

noted, Appellants “completely failled] to provide ...a

compelling state interest for the general assembly's

use of race in drawing CD 12.” J.S. App. 44a-45a.

Appellants do not challenge the Panel’s strict scrutiny

analysis for CD12 on appeal. Thus, if the Panel’s

factual determination that race predominated in

CD12 is not clearly erroneous, Appellants concede the

district fails strict scrutiny.

B. The General Assembly Had No Strong

Basis in Evidence to Support the Race-

Based Redistricting of CD1

The Panel’s conclusion that the General Assembly’s

predominant use of race in CD1 was not narrowly

tailored to a compelling government interest is also

well supported in the record evidence.

Appellants maintain that CD1 is narrowly tailored

to the State’s compelling interest in foreclosing a

claim under Section 2 of the VRA. In the districting

context, no liability under Section 2 of the VRA can

inure in the absence of the three “Gingles” precon-

ditions: (1) that the minority group in question is

“sufficiently large and geographically compact to

constitute a majority in a single-member district”; (2)

that the group “is politically cohesive”; and (3) that a

“white majority votes sufficiently as a bloc” such that

it can “usually . . . defeat the minority’s preferred

candidate.” J.S. App. 47a, 50a-51la (quoting Growe v.

Emison, 507 U.S. 25, 40 (1993)).

Proof of these three preconditions is necessary but

not sufficient to establish Section 2 liability. Johnson

v. De Grandy, 512 U.S. 997, 1011 (1994). A totality of

the circumstances test is applied upon proof of the

three Gingles preconditions, “not only because bloc

voting [is] a matter of degree, with a variable legal

significance depending on other facts, but also because

the ultimate conclusions about equality or inequality

of opportunity were intended by Congress to be

judgments resting on comprehensive, not limited,

canvassing of relevant facts.” Jd. (citation omitted).

The Panel concluded that CD1 failed strict scrutiny

because Appellants failed to establish any strong basis

in evidence establishing the third Gingles factor—that

a “white majority was actually voting as a bloc to

defeat the minority’s preferred candidates.” J.S. App.

50a-51la.'° For good reason: “CD1 has been an

extraordinarily safe district for African-American

preferred candidates of choice for over twenty years.”

Id. 53a. African-American preferred candidates—

without fail—“easily and repeatedly” won reelection

even though “African Americans did not make up a

majority of the voting-age population in CD1.” Id.

‘© The fact that CD1’s bizarre shape is predominantly

attributable to race indicates that the State failed to establish a

strong basis in evidence as to the first Gingles factor as well. See

Vera, 517 U.S. at 979 (“[Section] 2 does not require a State to

create, on predominantly racial Jines, a district that is not

‘reasonably compact.” (citation omitted).

Nonetheless, the General Assembly ratcheted up the

BVAP of CD1 from 47.76% to 52.65%. J.S. App. 53a.”!

The General Assembly did no analysis to determine

whether a 50%-plus-one BVAP threshold was com-

pelled under the VRA. See J.S. App. 49a. That is, even

though the Genera) Assembly's mapdrawer was a

seasoned redistricting expert with significant expe-

rience determining whether “minority districts .. .

meet the requirements of . . . Section[] 2,” JA 1094,

neither he nor anyone else in or on behalf of the

General Assembly ever analyzed whether a white

majority would (or could) usually vote to defeat

African-American preferred candidates unless CD1

was drawn as a majority-BVAP district. That is

undisputed. '”

Because an African-American-preferred candidate

had won every election easily for years in a district

that was not majority BVAP, and given that the State

admitted it did not analyze the third Gingles factor,

Appellants strain so mightily to adduce a “strong

basis” in evidence that they mischaracterize the record

entirely.

'! Appellants strain to dismiss the ease with which the African-

American candidate of choice won elections in the benchmark

CD1, noting that he won reelection in 2010 “by the smallest

margin of his political career” and “by only 33,000 votes.” Br. 58.

To be clear, that artful phrasing means that Congressman

Butterfield won in a landslide with roughly 60% of the vote, see

JA 378, and that was the closest election ever held in CD1 under

the benchmark map.

' This is consistent with Dr. Hofeller’s approach to drawing

the State’s legislative “VRA districts.” See Covington, 2016 WL

4257351, at *47 (Dr. Hofeller “drew the race-based districts

without regard to whether African-American candidates of choice

were actually elected or defeated”).

First, Appellants point to an expert report by Dr.

Ray Block, implying that Dr. Block conducted an

analysis of the proposed CD1 and found a high

degree of racially polarized voting, with “non-blacks

consistently votling] against African-American candi-

dates.” Br. 53 (quoting JA 956). But Dr. Block's report

presents only generalized conclusions regarding the

existence of racially polarized voting in North Carolina

as a whole. Dr. Block did not so much as consider

whether African Americans would be unable to elect

their candidates of choice in CD1 unless the district

was transformed into a majority-BVAP district. See,

e.g., Rodriguez v. Pataki, 308 F. Supp. 2d 346, 438-39

(S.D.N.Y.) (rejecting an “analysis {that] examines

racially polarized voting without addressing the

specifics of the third Gingles factor, which requires

white majority bloc voting that usually defeats the

{minority|-preferred candidate”) (emphasis omitted),

affd, 543 U.S. 997 (2004). Indeed, Dr. Block’s report

contains only one data point specific to CD1, which

directly contradicts Appellants’ position. See JA 896

(noting that more than 59% of whites voted for

Congressman Butterfield, the black candidate of

choice).'*

" See Cano v. Davis, 211 F. Supp. 2d 1208, 1236-37 «C.D. Cal.

2002) (third Gingles prong not established where more than 50%

of whites voted for Latine candidates in some races, and Latino

candidates won in other districts with less than 50%. of the white

vote), affd, 537 U.S. 1100 (2003); Page v. Bartels, 144 F. Supp. 2d

346, 365 (D.N.J. 2001) (rejecting Section 2 claim under third

Gingles prong where more than half of voters would vote for the

candidate preferred by African-American voters); Quilter v.

Voinovich, No. §:91-CV-2219, 1992 WL, 677145, at *4(N.D. Ohio

Mar. 19, 1992) (“|The white crossover vote for black legislative

candidates was very substantial, usually more than 50%. Such

voting is not legally significant racial bloc voting; rather, it is

Next, Appellants discuss Dr. Thomas Brunell’s

analysis, which similarly provides a generalized

assessment of the degree to which black voters sup-

ported black candidates in North Carolina counties.

See generally JA 971-1002, 1961-68. Like Dr. Block,

Dr. Brunell conducted no analysis of whether whites

could (or ever had) voted as a bloc to defeat the

minority candidate of choice in CDI. See id.

Dr. Brunell’s report thus could not and does not

provide a “strong basis” for concluding that the third

Gingles factor was established as to CD1.

It is for this reason that the Panel, upon considering

this evidence, found it wanting. See J.S. App. 49a-50a.

As the Panel explained, the “generalized” Block and

Brunell reports (1) did not relate specifically to CD1

and (2) did not demonstrate that a white majority

usually voted as a bloc to defeat African Americans’

candidates of choice. Jd. Indeed, a separate three-

judge district court examined the same _ reports

proffered by Appellants and rejected them on the same

basis. See Covington v. N. Carolina, No. 1:15-CV-399,

2016 WL 4257351, at *49 (M.D.N.C. Aug. 11, 2016)

(“[WJhile both reports conclude that there is evidence

of racially polarized voting in North Carolina, neither

report ‘speak/s]—one way or the other—to the effects

of racially polarized voting,’ i.e., to how racial

polarization is affecting election outcomes in any

geographic area.”) (quoting Rodriguez, 308 F. Supp. 2d

at 438).

coalitional voting, and this coalition of black and white voters is

the target of the Board’s plan. The [VRA] was not designed to

serve the purpose of preventing coalitional black and white

voting.”) (footnotes omitted).

In relying upon the Block and Brunell reports,

Appellants ignore entirely the only evidence available

to the General Assembly that directly addressed the

third Gingles factor: actual electoral outcomes. In

2011, the General Assembly had prepared and placed

on its website all of the congressional election results

by race and winning percentage from 1992 to 2010.

See JA 367-80. Those results, demonstrating that

African-American-preferred candidates had won hand-

ily every single election in CD1 even without a

majority BVAP, plainly revealed that the third

Gingles factor could not be established for CD1.

Nothing in the Block or Brunell reports even touches

upon the third Gingles factor, let alone refutes the

unequivocal electoral evidence. See Covington, 2016

WL 4257351, at *52 (“Defendants knew they were

increasing the BVAP in districts where African-

American candidates . . . were already consistently

winning under the Benchmark Plans. We can only

conclude that such information was irrelevant to them

when it came to determining the existence of Gingles’

third precondition and applying their 50%-plus-one

rule.”).

Third, Appellants baldly assert that the General

Assembly heard public testimony that “all .. .

corroborated the expert reports” and that “a good dea!”

of this testimony “was specific to CD1.” Br. 54.

Appellants advanced a similar argument in their

jurisdictional statement, citing to 20 exhibits from the

trial in this case. See J.S. 15 (citing D-36 through D-

56). In response, Appellees noted that—in fact—CD1

was mentioned only once in those exhibits, with a

witness informing the General Assembly: “|Ajs it

related to [the] First Congressional District . . . | don’t

want to see the packing going on’ so as to ‘create

another minority district, but lessen’ the opportunity

for minority candidates of choice to be elected in

surrounding districts.” Motion to Affirm 26 (quoting

1D-54 (Tr. 42:11-20)).

Appellants do not make the same mistake here.

Instead, they make a different one.’ In support of

their “lay testimony” argument, they do not cite to

primary evidence. Rather, they cite to state court

findings of fact purporting to summarize portions of

the State’s preclearance submission “dealing with

public input” for the Senate Plan—not the Congres-

sional Plan at issue here. See JA 2066 n.39. In so

doing, they avoid noting that, for example, they are

relying on a citizen’s testimony about two state

legislative districts, and that this citizen “warn(ed]

[the General Assembly} against packing of more

blacks into our majority-minority [legislative] districts

than are necessary to meet Voting Rights require-

ments.” Compare JA 2066 with D-48 (Tr. 14:1-15:15).

Next, Appellants argue that Congressman

Butterfield’s trial testimony is the “best source” of

evidence regarding whether the General Assembly

had a strong basis in evidence for using race to draw

CD1. Br. 55. This is a non sequitur. The General

Assembly could not have had a strong basis in

evidence for using race as the predominant factor to

draw CD1 in 2011 based on Congressman Butterfield’s

trial testimony in 2015. In any event, if Appellants

——

‘4 Indeed, Appellants’ jurisdictional statement cited to four

other pieces of “evidence” in support of their narrow tailoring

argument, J.S. 15-17, all of which proved to either have no

bearing on the existence or extent of racially polarized voting in

CD1 or directly contradict Appellants’ position, see Motion to

Affirm 27-28. While Appellants appropriately omit those

references here, their post boc struggle to piece together a

consistent—let alone compelling—defense is telling.

believe that Congressman Butterfield’s opinions

regarding the voting patterns of CD1 are near-

dispositive, then it is telling that they ignore his

testimony that the General Assembly was not justified

in redrawing CD1 as a majority-BVAP district:

|A]ny time you have a district that’s already

47 percent African-American, and contin-

uously, for more than a decade, has elected a

candidate who is the choice of the African-

American community, to then scoop up

additional communities of African-American

voters, and to add those voters to the existing

majority minority district, is — meets the

definition, in my view, of “packing.” It’s

putting too many into a community in order

to achieve a result.

JA 2428. Congressman Butterfield further testified

that the General Assembly’s use of “an unofficial

number, such as greater than 50 percent” was

inappropriate, that African-American candidates of

choice had a fair opportunity at election in a district

drawn at 47% BVAP, and that, indeed, the General

Assembly could have reduced somewhat the BVAP of

CD1 without impacting the ability of African-

American-preferred candidates to “compete fairly.” JA

2441-42.

Viewed with the utmost charity, all Appellants’

evidence suggests is that the General Assembly was

aware that there is some measure of racially polarized

voting in the State of North Carolina as a whole and

in at least some communities in northeastern North

Carolina. That probably sounds familiar: It is the

record from Shaw IT. See Shaw IT, 517 U.S. at 916-17

(finding “singularly unpersuasive” the State’s conten-

tion that “once a legislature has a strong basis in

evidence for concluding that a § 2 violation exists in

the State, it may draw a majority-minority district

anywhere, even if the district is in ne way coincident

with the compact Ging/es district, as long as racially

polarized voting exists where the district is ultimately

drawn”). The State’s justification is no more

compelling twenty years later. The General Assembly

did not have a “strong basis” in evidence for its

asserted belief that it had to greatly increase the

BVAP of a district that has long elected minority

candidates of choice to avoid Section 2 liability.

Appellants next complain that the Panel supposedly

held in error that (a) benchmark CD1 was a “white

majority” district and (b) that states cannot constitu-

tionally create “new” majority-minority districts. Br.

56-57. This both misreads the Panel’s decision and

turns that decision on its head.

As to the former point, the Panel did not make a

factual determination that the benchmark CDI was

white majority. Rather, in the context of explaining

why the State could not possibly have believed that the

third prong of the Gingles test was established, the

Panel noted that Appellants had not adduced any

evidence that a white majority could vote or had voted

routinely as a bloc to defeat African Americans’

candidates of choice in CD1—the record was starkly to

the contrary. See J.S. App. 49a-51la. Because CD1 had

not been a majority-BVAP district, the African-

American candidate of choice was being elected by

landslide margins on the strength of crossover voting.

Appellants’ failure to demonstrate that “the white

majority votes sufficiently as a bloc . . . usually to

defeat the minority’s preferred candidate,” Gingles,

478 U.S. at 51, dooms their narrow tailoring argu-

ment, as it demonstrates that any Section 2 claim

would necessarily fail. Appellants’ objection to the

term “white majority,” meanwhile, reflects their

dispute with the plain language of Gingles, not the

Panel opinion below.

Appellants’ second complaini—premised on the

assertion that the Panel inappropriately focused on

“past election results” (Br. 57)—also misses the mark.

Consideration of “past election results” is the well-

established means by which courts assess whether the

third Gingles precondition is met. See, e.g., Gingles,

478 U.S. at 56 (“[T]he question whether a given

district experiences Jegally significant racially polar-

ized voting requires discrete inquiries into minority

and white voting practices. .. . And, in general, a white

bloc vote that normally will defeat the combined

strength of minority support plus white ‘crossover’

votes rises to the level of legally significant white bloc

voting.”).*®

eee

'® See also, e.g., Black Political Task Force v. Galvin, 300 F.

Supp. 2d 291, 304 (D. Mass. 2004) (“Although the number of

elections that must be studied [to determine whether the third

Gingles factor is satisfied] will vary trom case to case, the

Supreme Court has cautioned that a pattern of polarized voting

extending over a period of time is customarily more probative

than the results of any single clection.”) (citing Gingles, 478 U.S.

at 57 & n.25); Uno v. City of Holyoke, 72 ¥.3d 973, 984 (1st Cir.

1995) (“(Tlhe question whether a given electoral district

experiences racially polarized voting to a legally significant

extent demands a series of discrete inquiries not only into election

results but also into minority and white voting practices over

time.”); Valladolid v. City of Nat'l City, 976 F.2d 1293, 1297 (9th

Cir. 1992) (third Gingles factor not met where past election

results “suggestled] that minority-preferred candidates usually

won”); Westwego Citizens for Better Gov't v. City of Westwego, 872

F.2d 1201, 1209 (5th Cir. 1989) (racial bloc voting is established

through evidence of endogenous and exogenous election results).

Obviously, then, “to have a strong basis in evidence

for the third Gingles precondition, a legislature must

give consideration to the actual and potential effect of

bloc voting on electoral outcomes.” Covington, 2016

WL 4257351, at *47 (“[A]ssessing whether ‘the white

majority votes sufficiently as a bloc to enable it .. .

usually to defeat, the minority’s preferred candidate,

[requires] at a minimum [considering] a representa-

tive cross-section of elections.”) (quoting Lewis v.

Alamance Cty., 99 F.3d 600, 608 (4th Cir. 1996)); see

also Quilter v. Voinovich, 981 F. Supp. 1032, 1061

(N.D. Ohio 1997) (“Given the overwhelming evidence

of coalitional voting in the challenged districts under

the existing plan and given the fact that the

Defendants had this information available to them

before they adopted the 1992 plan, the Defendants

could not reasonably conclude that the relevant

minority group could establish a prima facie case of a

violation of section 2 of the Voting Rights Act in the

four relevant districts.”), affd, 523 U.S. 1043 (1998).

The fact that the North Carolina General Assembly

had no strong basis in evidence to conclude that the

VRA compelled it to transform CD1 into a majority-

BVAP district does not mean that a State can never

draw a majority-minority district. It means that North

Carolina failed to meet its burden here. “Strict

scrutiny remains... strict.” Vera, 517 U.S. at 978.

In short, the record amply supports the Panel’s

conclusion that the State failed to meet its strict

scrutiny burden.

C. Strickland Does Not Inoculate the Race-

Based Redistricting of CD1

Appellants seek refuge in Strickland to justify the

State’s decision to draw CD1 as a majority-minority

district without a “strong basis in evidence” for doing

so. See Br. 49-50. Indeed, the record indicates the plan

architects held fast to Strickland as the sole »asis for

increasing the BVAP of CD1 above 50%. When asked

whether the conclusion that CD1 “needed to be raised”

above 50% BVAP was based on any analysis,

Representative Lewis responded: “{T]he most recent

court case, in 2009, . . . Bartlett versus Strickland, I

believe, defined that a majority of minority districts

meant 50 plus one. It seems intuitive to me that

majority-minority means that there are a majority of

minorities.” JA 619. Noting that CD1 had been drawn

as a majority-black district twenty years earlier to

comply with Section 2, the architects announced that

Strickland “now obligated” the State to “re-establish”

CD1 “as a true majority black district.” JA 355-56; see

also JA 474 (“{I]n light of the decision in Bartlett v.

Strickland, . . . districts drawn with the intent of

precluding a finding of liability against the State

under Section 2 of the [VRA] must be drawn with a

[BVAP] of at least 50% plus one.”).

According to the General Assembly and Appellants,

then, Strickland not only relieves the State from

performing any analysis whatsoever of racial voting

patterns when it draws majority-minority districts, it

compels the State to “re-establish” majority-minority

districts originally drawn in service of Section 2

regardless of current conditions. See Br. 50 (Strickland

“requirel|s]” the legislature to draw majority-minority

districts to comply with Section 2 of the VRA); see also

Covington, 2016 WL 4257351, at *53 (taking State

defendants “at their word” that “the 50%-plus-one rule

was applied to create majority-black districts .. .

‘whenever possible”) (citation omitted). Appellants’

misreading of Strickland runs deep.

In Strickland, a plurality of the Court held that a

Section 2 plaintiff cannot satisfy the first Gingles

precondition unless he or she establishes that it is

possible to draw a reasonably compact majority-

minority district. 556 U.S. at 25. “That is, section 2

does not compel the creation of crossover districts

wherever possible.” J.S. App. 51a n.10. This is, to state

the obvious, “a far cry from saying that states must

create majority-BVAP districts wherever possible,”

id., as Appellants argue here. To the contrary, the

Court has repudiated that interpretation of the VRA.

See generally Miller, 515 U.S. 900 (rejecting the

DOJ’s then-existent “maximization” policy); see also

Strickland, 556 U.S. at 16 (“{Rleading § 2 to define

dilution as any failure to maximize tends to obscure

the very object of the statute and to run counter to its

textually stated purpose.”) (citation omitted).

Strickland does not, as Appellants would have it,

establish some kind of “safe harbor” that allows

legislatures to evade constitutional scrutiny in racial

gerrymandering claims. Nothing in the plurality

decision in Strickland even suggests that the Court

intended to silently overrule Miller's unequivocal

holding that the VRA does not require a state to

pursue a “maximization” policy. And nothing in

Strickland suggests that it dispenses with the third

Gingles factor such that a state can use VRA

compliance as a defense to a racial gerrymandering

claim merely upon showing that it is possible to draw

a majority-minority district.

In fact, Strickland cautions against the creation of

majority-minority districts where minority candidates

of choice have been elected with crossover support, as

has long been the case in CD 1.

Our holding .. . should not be interpreted to

entrench majority-minority districts by

statutory command, for that, too, could pose

constitutional concerns. See Miller ov.

Johnson, supra; Shaw v. Reno, supra... .

Majority-minority districts are only required

if all three Gingles factors are met and if § 2

applies based on a totality of the

circumstances. In areas with substantial

crossover voting it is unlikely that the

plaintiffs would be able to establish the third

Gingles precondition—bloc voting by majority

voters. In those areas mayjority-minority

districts would not be required in the first

place[.|

Strickland, 556 U.S. at 23-24 (citation omitted). Thus,

a proper reading of Strickland would have seen it as a

warning that unnecessarily redrawing CD1 as a

majority-minority district would violate the Court’s

racial gerrymandering jurisprudence, not as an

invitation (let alone a command) to draw a majority-

minority district simply because it was possible (albeit

at the expense of traditional] districting criteria). To

the extent the State had any concerns about potential

Section 2 claims, moreover, Strickland explains that

“(sltates can—and in proper cases should—defend

against alleged § 2 violations by pointing to crossover

voting patterns and to effective crossover districts.”

Id. at 24.'® Accordingly, nut only does Appellants’

purported evidence of racially polarized voting in CD1

fall flat, see supra 39-43, the State’s failure to so much

as consider the actual electoral history of this

crossover district directly contradicts the case they

contend compelled the creation of CD1 as a majority-

minority district.

Because it misinterpreted Strickland in drawing the

congressional map in 2011, the State turned the VRA

on its head, transforming it into what amounts to a

tool for perpetuating electoral racial segregation. The

words of the Strickland Court apply with full force

here:

It would be an irony .. . if § 2 were interpreted

to entrench racial differences by expanding a

“statute meant to hasten the waning of

racism in American politics.” Crossover

districts are, by definition, the result of white

voters joining forces with minority voters to

elect their preferred candidate. The [VRA]

was passed to foster this cooperation.

556 U.S. at 25 (citation omitted). Far from “foster|{ing}

this cooperation,” the State’s race-based redistricting

of CD1 ignored the electoral success of minority-

preferred candidates and thwarted the goals of the

VRA. This approach is hardly narrowly tailored to a

compelling interest in VRA compliance.

IV. APPELLEES’ CLAIMS ARE NOT BARRED

Finally, seeking to avoid the merits altogether,

Appellants argue that Appellees’ claims are barred

by collateral estoppel and thus the Panel lacked

'® To be sure, the State can claim no compelling interest “in

avoiding meritless lawsuits.” Shaw I], 517 U.S. at 908 n.4.

authority to even reach the merits of Appellants’

claims. That Appellants did not even bother to include

this contention as a “question presented” for the

Court’s consideration (Br. i) is perhaps all that need be

said in response.

Indeed, what Appellants fail to mention is that the

Panel considered and denied Appellants’ motion for

summary judgment on these grounds more than a

year before trial. See Dkts. 74, 85. Appellants argued

that Appellees were “members” of the North Carolina

Conference of Branches of the NAACP (“NC

NAACP”)—one of the many plaintiffs in the state court

litigation—and were “bound” by the trial court’s

judgment. See Dkt. 74 at 12. In opposition, Appellees

stated that although they supported the mission of

organizations dedicated to the advancement of African

Americans’ rights, and had to that end made small

financial contributions over the years to the national

NAACP (in Mr. Harris’ case) and Mecklenburg County

NAACP (in Ms. Bowser’s case), they were not members

of the NC NAACP and, regardless, collateral estoppel

did not apply. See generally Dkt. 78. The Panel denied

Appellants’ motion given that, “with respect to

[Appellants’] affirmative defenses, there are factual

disputes and unresolved state law legal issues which

preclude summary judgment.” Dkt. 85 at 3.

Thereafter, Appellants abandoned their collateral

estoppel argument altogether. They failed to even

mention “estoppel” at trial, let alone present any

evidence in support of that affirmative defense. This is

why the Panel’s order is silent on Appellants’ newly-

resuscitated estoppel argument.

Thus, Appellants are asking the Court to review the

Panel’s interlocutory denial of their summary

judgment motion. This is improper as they have not

preserved the issue for appeal. Ortiz v. Jordan, 562

U.S. 180, 183-84 (2011) (“May a party .. . appeal an

order denying summary judgment after a full trial

on the merits? Our answer is no. . . . Once the case

proceeds to trial, the full record developed in court

supersedes the record existing at the time of the

summary-judgment motion.”).

Even if it had been preserved, Appellants’ collateral

estoppel argument is specious, as suggested by the fact

they cannot muster any record citations to support it.

Appellees were not parties to the state court litigation,

did not authorize any party to that case to act on their

behalf, and, indeed, were not even aware a state court

case existed at the time they filed this lawsuit. See

generally Dkt. 78. Moreover, the state court plaintiffs

are not plaintiffs in this case and have no ability to

control this matter. See id. at 2. Appellants do not

contend otherwise.

Nonetheless, Appellants claim that Appellees are

estopped because they “concede that they are members

of the plaintiff organization” in the state court

litigation. Br. 20 (citing nothing). No, they did not.

Both Appellees testified that they do not believe

that they are members of the NC NAACP. See Dkt. 78

at 3-4.

Perhaps even more fundamentally, Appellants’

claim that Appellees are bound as “members” of the

NC NAACP rests on a broad theory of “virtual

representation” that this Court has expressly rejected.

Taylor v. Sturgell, 553 U.S. 880, 901 (2008); see also

Smith v. Bayer Corp., 564 U.S. 299, 315 (2011) (noting

that the Court “unanimously” rejected the theory of

“virtual representation” in Taylor). And even if that

theory were viable, it would not apply here. Stripped

to its essence, Appellants’ argument is that Appellees

are bound to the results of a lawsuit they did not

authorize, control, or even know about because

Appellees are “black citizens seeking equal voting

rights and that the NAACP exists in part to secure

equal voting rights for blacks.” NAACP uv. Fordice,

No. 95-60293, 1995 WL 767432, at *3 (5th Cir. Dec. 23,

1996). That is, to put it mildly, “not sufficient.” Jd."’

Appellants also assert that, even if collateral

estoppel does not apply in this case, “[a]t a bare

minimum, the district court should have granted some

measure of deference to the directly on-point findings

of the state court.” Br. 22. Appellants cite no authority

supporting this estoppel-by-a-different-name proposi-

tion and for good reason. None exists.'®

! See also Coors Brewing Co. v. Méndez-Torres, 562 F.3d 3, 21

(Ist Cir. 2009), abrogated on other grounds by Levin v. Commerce

Energy, Inc., 560 U.S. 413 (2010) (brewer was not bound by

earlier judgment against trade association, absent evidence it

“either controlled the litigation strategy of the association or duly

approved the Jfassociatiun| to represent its interests” in

litigation); Pérez-Guzman v. Gracia, 346 F.3d 229, 286 (ist Cir.

2003) (party member not bound by judgment against party

absent evidence that he controlled prior litigation or that the

party “in the institution of this action, were engaged in tactical

maneuvering designed unfairly to exploit technical nonparty

status in order te obtain multiple bites of the litigatory apple”)

(citation omitted); Hoffman v. Sec’y of State of Maine, 574 F.

Supp. 2d 179, 187-88 (D. Me. 2008) (persons nominating

candidate were not in privity with candidate nor bound by

adverse judgment against candidate); Griffin v. Burns, 570 F.2d

1065, 1072 {1st Cir. 1978) (candidate was not in privity with

voters, as his efforts to advance voters’ interest were not “enough

to make him their actual personal representative whose action or

non-action in the state proceeding would legally bind them”),

‘8 Appellants’ argument is a convenicnt litigation position, not

a matter of principle. At the same time they offer a paean to

federalism and comity, they outright ignore any state court

Indeed, this argument runs afoul of the “principle of

general application in Anglo-American jurisprudence

that one is not bound by a judgment in personam in a

litigation in which he is not designated as a party or to

which he has not been made a party by service of

process.” Taylor, 553 U.S. at 884 (quoting Hansberry

v. Lee, 311 U.S. 32, 40 (1940)). “The application of

claim and issue preclusion to nonparties thus runs up

against the ‘deep-rooted historic tradition that

everyone should have his own day in court.” Id. at 892-

93 (quoting Richards v. Jefferson Cty., 517 U.S. 793,

798 (1996)). In fact, the Court has repeatedly rejected

litigants’ attempts to bind nonparties to judgments

where claim preclusion does not apply premised on

the same “policy concerns” Appellants proffer here.

See, e.g., Smith, 564 U.S. at 316-17 (argument that

“serial relitigation” would ensue unless nonparties

were bound to prior order denying certification of a

putative class “flies in the face of the rule against

nonparty preclusion”).

In the absence of collateral estoppel, there is simply

no reason why the Panel could or should have given

“deference” to state court findings. The Panel was

exercising its own original jurisdiction. In our federal

system of government, it is no surprise that the state

and federal courts may consider cases raising some of

the same issues. Accordingly, “[t]his Court has

repeatedly held that ‘the pendency of an action in the

state court is no bar to proceedings concerning the

same matter in the Federal court having jurisdiction.”

findings they find disagreeable, most notably the fact that CD1

was drawn with race as the predominant factor. Compare Br. 44

(Panel's conclusion that race predominated in CD1 “was error”),

with JA 1984-85 (determininy collectively that 26 “VRA

districts,” including CD1, were subject to strict scrutiny).

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544

U.S. 280, 292 (2005) (quoting McClellan v. Carland,

217 U.S. 268, 282 (1910)); see also Sprint Comme’ns,

Inc. v. Jacobs, 134 8. Ct. 584, 588 (2013) (“In the main,

federal courts are obliged to decide cases within

the scope of federal jurisdiction. . . . [FJederal courts

ordinarily should entertain and resolve on the merits

an action within the scope of a jurisdictional grant,

and should not ‘refus{e] to decide a case in deference

to the States.”) (quoting New Orleans Pub. Serv., Inc.

v. Council of New Orleans, 491 U.S. 350, 368 (1989)).'®

That is particularly true here, where the state court

litigation remains pending, has not been finally

resolved, and primarily concerns a challenge brought

on state statutory and constitutional grounds to 27

state legislative districts, in addition to CDs 1, 4, and

12. See JA 1984.”°

™ If Congress had wanted to require federal courts to give

deference to the factual findings of state courts in certain cases,

such as in the voting rights context, it could have expressly done

so. See ey.. Williams v. Taylor, 529 US. 362, 386 (2000)

(recognizing, in the habeas corpus context, that by passing the

Antiterrorism and Effective Death Penalty Act, Congress “plainty

sought to ensure a level of ‘deference to the determinations of

state courts,’ provided those determinations did not conflict with

federal law or apply federal law in an unreasonable way”)

(quoting H.R. Conf. Rep. No. 104-518, at 111 (1996)). It has not

done so here.

“ The trial court’s decision barely addresses CDs | and 12,

eschewing individualized analysis for cursory and collective

analysis of districts en masse. Thus, whereas Appellants tout the

state court's “74-page opinion” and “171-page appendix,” Br. 14,

they fail to note that (a) the 74-page opinion contains no findings

specific to CD1, instead conducting a unitary narrow tailoring

analysis of 26 “VRA districts” collectively (JA 1986-2018); (b)

CD12 is addressed collectively with three other districts in four

CONCLUSION

Appellees respectfully submit that the judgment of

the District Court should be affirmed.

KEVIN J. HAMILTON

WILLIAM B. STAFFORD

ABHA KHANNA

PERKINS COIE LLP

1201 Third Avenue

Suite 4900

Seattle, WA 98101-3099

(206) 359-8000

EDWIN M. SPEAS, JR.

CAROLINE P. MACKIE

POYNER SPRUILL LLP

301 Fayetteville Street

Suite 1900

Raleigh, NC 27601

(919) 783-6400

October 12, 2016

Respectfully submitted,

MARC E. ELIAS

Counsel of Record

JOHN M. DEVANEY

BRUCE V. SPIVA

PERKINS COIE LLP

700 Thirteenth Street, N.W.

Suite 600

Washington, D.C. 20005-3960

(202) 654-6200

MElias@perkinscoie.com

pages with no separate analysis of CD12 (JA 2020-23); and (c) as

to the “171-page appendix,” only a handful of pages addresses

either CD1 or CD12.

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.