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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellees Brief
- **Published:** January 1, 2016

## Text

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,
v.

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.

A.

B.

Direct Evidence Demonstrates that
Race Predominated in CD1.................

Circumstantial Evidence Demon-
strates that Race Predominated in
a

THE DISTRICT COURT PROPERLY
FOUND THAT RACE PREDOMI-
TUT III sisacintictosncase <exchsadoeincséninnans

A.

B.

C.

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)

12

18

18

22

25

31

36

ii
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

il

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

iv

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.

Vv

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

vi

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.

2

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

3

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-

4

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

5

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

6

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

7

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.

8

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

9

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).

10

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”).

11

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.”).

12

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

13

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

14

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:

15

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

17

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.

18

(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.

19

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).

20

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.

21

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”).

22

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).

23
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).

24

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%

25

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

26

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

27

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

28

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.”).

29

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,

30

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

31

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

32

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

33
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

34

“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.

35

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”).

36

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

37

“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).

38

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”).

39

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

40

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).

41

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

42

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.

43

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

44

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

45

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).

46

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.

47

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

48

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.

49

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.”

50

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.

51

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

52

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

53

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

54

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).

55

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

56

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0661%3A13. Public record. Not legal advice.