Jurisdictional Statement — North Carolina v. Covington, 137 S. Ct. 2262 (2017) (No. 16-1023)

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BRIEKE sre 21 2017

-_—— elaales OF THE CLERK |

In the

Supreme Court of the Anited States

STATE OF NORTH CAROLINA, ET AL.,

Appellants,

SANDRA LITTLE COVINGTON, ET AL.,

Appellees.

On Appeal from the United States District Court

for the Middle District of North Carolina

JURISDICTIONAL STATEMENT

THOMAS A. FARR PAUL D. CLEMENT

PHILLIP J. STRACH Counsel of Record

OGLETREE, DEAKINS, ERIN E. MURPHY

NASH SMOAK & MICHAEL D. LIEBERMAN

STEWART, P.C. KIRKLAND & ELLIS LLP

4208 Six Forks Road 655 Fifteenth Street, NW

Suite 1100 Washington, DC 20005

Raleigh, NC 27609 (202) 879-5000

ALEXANDER MCC. PETERS paul.clement@kirkland.com

NORTH CAROLINA

DEPARTMENT OF

JUSTICE

P.O. Box 629

Raleigh, NC 27602

Counsel for Appellants

February 21. 2017

QUESTIONS PRESENTED

A three-judge district court declared that North

Carolina's state legislative districts were the product

of unconstitutional racial gerrymandering. The court

allowed the 2016 election to go forward as planned,

but it ordered the State to draw new districts for the

2018 election. But after the 2016 election results

were in—and after the State already had filed its

notice of appeal and jurisdictional statement in this

Court—the district court decided to expand the scope

of relief it had previously ordered by partially

invalidating the results of the 2016 election and

ordering off-year special elections in substantial

parts of the State. This extraordinary remedy

effectively halved the constitutionally specified terms

of Representatives and Senators in much of the

State. The district court did not identify anything

exceptional about this case that would warrant this

extraordinary remedy. This Court granted a stay of

the special-election order, pending the filing and

disposition of this jurisdictional statement.

The questions presented are:

1. Did the district court have jurisdiction to

expand upon its previously ordered remedy after the

State filed its notice of appeal?

2. Did the district court exceed the bounds of its

equitable discretion by partially invalidating election

results, abrogating several provisions of the state

constitution, and ordering a special election—all

without any discussion of the competing equities?

PARTIES TO THE PROCEEDING

The following were parties in the court below:

Plaintiffs:

James Edward Alston; Marshall Ansin;

Valencia Applewhite; Marvin Cornelous

Arrington; Susan Sandler Campbell; Sandra

Little Covington; Mark R. Englander; Viola

Ryals Figueroa; Jamal Trevon Fox; Dedreana

Irene Freeman; Claude Dorsey Harris, III;

Channelle Darlene James; Crystal Graham

Johnson; Catherine Wilson Kimel; Herman

Benthle Lewis, Jr.; David Lee Mann; Cynthia

C. Martin; Vanessa Vivian Martin; Marcus

Walter Mayo; Latanta Denishia McCrimmon;

Catherine Orel Medlock-Walton; Antoinette

Dennis Mingo; Rosa H. Mustafa; Bryan Olshan

Perlmutter; Julian Charles Pridgen, Sr.; Milo

Pyne; Juanita Rogers; Ruth E. Sloane; Mary

Evelyn Thomas; Gregory Keith Tucker; John

Raymond Verdejo

Defendants:

The State of North Carolina; North Carolina

State Board of Elections; Rhonda K. Amoroso,

in her official capacity; Philip E. Berger, in his

official capacity; Paul J. Foley, in his official

capacity; Joshua B. Howard, in his official

capacity; Maja Kricker, in her official capacity;

David R. Lewis, in his official capacity; Joshua

D. Malcolm, in his official capacity; Timothy K.

Moore, in his official capacity; Robert A.

Rucho, in his official capacity

lil

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................... EBA i

PARTIES TO THE PROCEEDING ..................00....... il

A a ccnsocsncensencncessoccessetuesooes vi

a sansenecsndensenunncs ae

a cipspsenebiie 3

Sa eunapnstineribins 3

CONSTITUTIONAL AND STATUTORY

EES BOI MED cccccceccescncscsccesssoseezeccosooes 3

STATEMENT OF THE CASE ............0.0.....s0ceeecceeeee. 4

A. The 2011 Redistricting Process ................... 4

Be BOND CUES BARIIEIOG .......ccccccccccscccccvecsccrscee: 6

C. Federal Court Litigation.........................0.0. 6

D. The Subsequent Remedial Order................. 9

REASONS FOR SUMMARILY REVERSING OR

NOTING PROBABLE JURISDICTION ............... 11

I. The District Court Did Not Have

Jurisdiction To Issue The Remedial Order ...... 12

Il. The Extraordinary Remedy Of A Special

ae 16

A. Courts Must Exercise Extreme Caution

and Carefully Weigh the Equities Before

Ordering Special Elections......................... 17

B. The Extraordinary Remedy of a Special

Election Is Inappropriate in this Case ...... 22

Ill. There Was No Constitutional Violation To

APPENDIX

Appendix A

Memorandum Opinion, United States

District Court for the Middle District

of North Carolina, Covington

v. North Carolina, No. 1:15-cv-399

a RESIN Fe Sear aS Lyte ls App-1l

Appendix B

Order and Judgment, United States District

Court for the Middle District

of North Carolina, Covington

v. North Carolina, No. 1:15-cv-399

oe Me App-148

Appendix C

Defendants’ Notice of Appeal, United States

District Court for the Middle District of

North Carolina, Covington

v. North Carolina, No. 1:15-cv-399

Eh eee eel App-150

Appendix D

Jurisdictional Statement, North Carolina v.

Covington, No. 16-649 (Nov. 14, 2016) ... App-151

Appendix E

Remedial Order, United States District

Court for the Middle District of North

Carolina, Covington v. North Carolina,

No. 1:15-cv-399 (November 29, 2016)..... App-198

Appendix F

Defendants’ Notice of Appeal, United States

District Court for the Middle District of

North Carolina, Covington

v. North Carolina, No. 1:15-cv-399

I cE Ne App-205

Appendix G

U.S. Const. amend. XIV........................... App-206

Appendix H

Relevant Statutes 200.000.0000 oocccececcccescecesecee App-208

TABLE OF AUTHORITIES

Cases

Acevedo-Garcia v. Vera-Monroig,

ee ee ee en es ccuunaunbaneedsene 14

Ala. Legislative Black Caucus v. Alabama,

I Oh ceacdieubiasaeneda 6

Ala. Legislative Black Caucus v. Alabama,

2017 WL 378674 (M.D. Ala. Jan. 20, 2017).......... 17

Allen v. State Bd. of Elections,

393 U.S. 544 (1969) ............................00« 19, 20, 23, 24

Baker v. Carr,

I a senlsenoesen 19, 21

Bell v. Southwell,

376 F.2d 659 (5th Cir. 1967) ............................ 20, 23

Bowes v. Ind. Sec’y of State,

837 F.3d 813 (7th Cir. 2016)...................... 20, 21, 25

Bush v. Vera,

SEE Rea er ac 34

City of Cookeville v. Upper Cumberland Elec.

Membership Corp.,

484 F.3d 380 (6th Cir. 2007).....0.0........ccccecc eee eeees 14

Cousins v. City Council of Chicago,

FA | Ts nen 18

Dickson v. Rucho,

TEE A ae 6

Dickson v. Rucho,

766 S.E.2d 238 (N.C. 2014) ......................-. 6, 23, 31

Dickson v. Rucho,

761 B.3.36 404 GN.C. 3016) ........0..00.00ccceees. 6, 23, 31

vl)

Dickson v. Rucho,

No. 11 CVS 16896

(N.C. Super. Ct. July 8, 2013) .........cccceccsccecceeee. 6, 31

Dickson v. Rucho,

No. 11 CVS 16940

(N.C. Super. Ct. July 8, 2013) ....... 0... 6, 31

Donovan v. Richland Cty. Ass’n,

Se a eseen 14

E. Carroll Par. Sch. Bd. v. Marshall,

RE SE oR a eR 15

Easley v. Cromartie,

I 32

FCC v. League of Women Voters of Cal.,

REET EA a a 16

Gjersten v. Bd. of Election Comm'rs,

791 F.2d 472 (7th Cir. 1986) ................00.000.... passim

Griggs v. Provident Consumer Disc. Co.,

a ceeminnnounioidsiaiadud 13

Hadnott v. Amos,

394 U.S. 358 (19G9)................ccceccccsccesescoees 20, 21, 24

Hunt v. Cromartie,

EERE rer eens 18

Johnson v. Miller,

864 F. Supp. 1354 (S.D. Ga. 1994) 000. 18

Liddell v. Bd. of Educ.,

73 F.3d 819 (6th Cir. 1996)......................cccecccsseeee. 14

Lopez v. City of Houston,

ee ty BD iceccciccenecensonesencesecsrenns 20

Vill

McClatchy Newspapers v. Cent. Valley

Typographical Union,

GB6 F.3d 731 (th Cir. 196B)............cccccccccocccccccsees: 14

Miller v. Johnson,

ER San Re ee 32

NAACP v. Hampton Cty. Election Comm’n,

Nee ae. cacdasowussseedvenn 19. 20

NLRB v. Cincinnati Bronze, Inc.,

829 F.2d 585 (6th Cir. 1987)...................ccccesseceecees 14

Pender Cty. v. Bartlett,

ee en LIE, IED... 0 svssnesnsenendessbescunsesees 5

Purcell v. Gonzalez,

I al eeetnabuninienal 22, 28

Reynolds v. Sims,

I IE os ccncannainghniopnnabauvtetneanenenedd 17, 19

Shaw v. Hunt,

I. ccaccseemeniiemnbennieetuaneenand 18

Shaw v. Reno,

se nlicnsomianioaaionnd 26

Smith v. Beasley,

946 F. Supp. 1174 (D.S.C. 1996) ...........000.. eee 18

Smith v. Cherry,

489 F.2d 1098 (7th Cir. 19738).............. cece ccc ececeeeeee 24

Stephenson v. Bartlett,

Ss Sr ED... cecccsecseuetvasseescesonce 32

Thornburg v. Gingles,

i oeeieeinasiimaamnania 4

Toney v. White,

466 F.26 310 (Gtih Cir. 1978)........0...00ccccerserccceccesess

United States v. Brooks,

145 F.3d 446 (lst Cir. 1998) .................. cece cccee seen eee 13

United States v. City of Houston,

800 F. Supp. 504 (S.D. Tex. 1992)................... 22, 28

United States v. Diveroli,

729 F.3d 1339 (11th Cir. 2013) .....................0....... 13

Vera v. Bush,

933 F. Supp. 1341 (S.D. Tex. 1996)...............0000..... 18

Weaver v. Bonner,

309 F.3d 1312 (11th Cir. 2002).............00.00..... 21, 26

Zimmer v. McKeithen,

467 F.2d 1381 (5th Cir. 1972)..........00.............. 14, 15

Constitutional Provisions

ag I a waco snasnansodousibis 2, 29

I is ssisrinevanincerionen 2, 29

I i cs ersciinierensnsudentamnpebionn 2, 29

Statute

en ee a ssutunansseiutnicegoun 29

Rules

Fed. R. App. P. 4(a)(4) .....-.......cce eee eee octaiddiainbamesuedie 16

I eis cs arose nebo nemebinns 16

I I sas a ssccentcanedevsnsindecinnteretnits 16

Other Authorities

16A Charles Alan Wright & Arthur R. Miller,

Federal Practice & Procedure (4th ed. 2016)........ 13

20-303 James Wm. Moore et al., Moore’s

Federal Practice (8d ed. 2016) ...............0..00ccccceesees 13

Jurisdictional Statement, North Carolina v.

Covington, No. 16-649 (filed Nov. 14, 2016) ........... 9

Official General Election Results, North

Carolina State Board of Elections

(last visited February 20, 2017),

http:/Mit.ly/2ZheSRBV .............eccccceccoceccecess..

Order, North Carolina v. Covington,

No. 16A646 (Jan. 10, 2017)

Stephen M. Shapiro et al., Supreme Court

Practice (10th ed. 2013)

INTRODUCTION

A few months before the November 2016

election, a three-judge district court invalidated

North Carolina’s state legislative districting plan,

ruling that the legislature’s good-faith effort to

navigate the narrow channel between the competing

demands of the Equal Protection Clause and the

Voting Rights Act (“VRA”) was unsuccessful. The

district court allowed the 2016 election to take place

as scheduled and ordered the legislature to enact a

new districting plan before the next election. The

State timely filed a notice of appeal from that order

and then filed a jurisdictional statement in this

Court, which remains pending.

The 2016 election proceeded as scheduled, with

millions of North Carolina voters casting ballots for

the state legislators who would represent them for

two-year terms in accordance with the North

Carolina Constitution. After the results were in,

however, the district court decided to expand upon

the remedy it had previously ordered. Without

explaining how it could exercise jurisdiction over a

case that was already on appeal to this Court, and

without explaining the inadequacy of the remedy it

previously ordered (a remedy that has sufficed in

every case in which this Court has found a Shaw

violation), the district court declared that most of the

newly elected legislators would serve only one-year

terms, and it ordered the State to hold off-cycle

special primary and general elections in 2017. In

doing so, the district court expressly abrogated

multiple provisions of the North Carolina

Constitution, including the requirement that

senators and representatives serve two-year terms,

N.C. Const. art. I], §8, and the requirement that any

candidate reside in the district in which she is

running for at least one year preceding the election,

id. art. II, §§6, 7.

This Court already has issued an emergency stay

halting the district court's extraordinary remedial

order. See Order, North Carolina v. Covington,

No. 16A646 (Jan. 10, 2017). The Court should now

note probable jurisdiction and vacate that order,

which was issued with neither jurisdiction nor

justification. The district court lacked jurisdiction

because the State’s notice of appeal divested the

court of the power to expand upon its previously

ordered remedy. And the district court lacked

justification because this simply is not the rare and

extraordinary case that might justify the federalism-

obliterating remedy of invalidating election results

and ordering off-year special elections throughout the

State. Absolutely nothing about this case warrants

departing from the standard remedy for a Shaw

violation—i.e., requiring a new districting plan for the

next regularly scheduled election. In fact, multiple

factors make the extraordinary remedy of a special

election particularly inappropriate here, including

the pendency of related cases before this Court, the

tenuousness of the finding of a violation (as

evidenced by a state court decision rejecting the same

challenges), the unlikelihood that the alleged

violation affected any election results, and the

district court’s failure to make clear ex ante that the

2016 elections were for abbreviated terms.

As explained in the State’s previously filed

jurisdictional statement on the merits, the district

court’s underlying decision finding a constitutional

violation is so fundamentally flawed that it should be

summarily reversed. But no matter how this Court

resolves the merits dispute, it should vacate the

district court’s ultra vires and unjustifiable remedial

order.

OPINIONS BELOW

The opinion of the three-judge district court

invalidating the challenged districts and requiring

the State to enact a new districting plan before the

next regularly scheduled elections is reported at 316

F.R.D. 117 and reproduced at App.1-147. The

remedial order requiring a special election in 2017 is

reported at 2016 WL 7667298 and reproduced at

App.198-204.

JURISDICTION

The district court issued its final judgment on

August 15, 2016. Appellants filed their notice of

appeal on September 15, 2016. The district court

issued its additional remedial order on November 29,

2016. Appellants filed their notice of appeal from

that order on December 22, 2016. This Court has

jurisdiction under 28 U.S.C. §1253, at least to the

extent necessary to vacate the remedial order

because the district court lacked jurisdiction.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Equal Protection Clause and the relevant

provisions of the VRA are reproduced at App.206-11.

STATEMENT OF THE CASE

A. The 2011 Redistricting Process:

This appeal arises from the most recent round of

state legislative redistricting in North Carolina. The

redistricting process began in early 2011, when the

legislature selected Senator Bob Rucho as Chair of

the Senate Redistricting Committee and

Representative David Lewis as Chair of the House

Redistricting Committee. App.7-8. The Chairmen

were not working from a blank slate. Since

Thornburg v. Gingles, 478 U.S. 30 (1986), state

legislative districting plans in North Carolina have

included majority-minority districts where feasible to

ensure that politically cohesive and geographically

compact minority groups have an equal opportunity

to elect their candidates of choice.

The Chairmen accordingly began the 2011

redistricting process by collecting evidence about the

extent of racially polarized voting in jurisdictions

covered by Section 5 of the VRA and in areas with

significant minority populations. App.21-23. All the

evidence they collected confirmed that racially

polarized voting remains a reality in North Carolina

and that, accordingly, the districting plan should

include majority-minority districts to ensure

compliance with Section 2 of the VRA. That evidence

included two expert reports showing statistically

significant racially polarized voting; three alternative

districting plans (including one submitted by

1 The factual details of the underlying merits dispute are

described in greater detail in the State’s previously filed

jurisdictional statement. See App.151-97.

plaintiffs’ counsel in this case) that included either

majority-minority or coalition districts throughout

the State; public testimony confirming the presence

of racially polarized voting; and past election results

showing that minority-preferred candidates had

substantial success in majority-minority and

coalition districts, but almost no success in majority-

white districts. See Def.Exhs. 3000, 3001, 3013-1,

3013-5, 3013-6, 3013-8, 3033.

The Chairmen hired Dr. Thomas Hofeller to

draw the new districting plan and gave him three

primary instructions. App.8. First, they informed

him that the North Carolina Supreme Court’s

interpretation of the state constitutions Whole

County Provision (“WCP”) required that districts

drawn to avoid a VRA violation be drawn before any

other districts. App.20-23. Second, they told him

that, pursuant to the North Carolina Supreme

Court’s decision in Pender County v. Bartlett, 649

S.E.2d 364 (N.C. 2007), and this Court’s Strickland

decision affirming Pender, he should endeavor to

draw those districts as majority-minority districts.

App.19-20. Third, the Chairmen instructed Dr.

Hofeller to attempt to draw majority-minority

districts in a number roughly proportional to the

statewide minority population, but to do so only if the

districts were reasonably compact. App.24-29.

Dr. Hofeller closely followed those instructions

and created a districting map with 23 mapority-

minority House districts and nine majority-minority

Senate districts. App.31-33. The Chairmen publicly

released the plan in July 2011 and, after minor

modifications, the plan was passed by the General

Assembly, signed by the Governor, and precleared by

the Department of Justice. App.10-11.

B. State Court Litigation

In November 2011, two groups of plaintiffs filed

suit in North Carolina state court alleging that 27

state legislative districts (including most of the

majority-minority districts) and three federal

congressional districts were unconstitutional racial

gerrymanders. After a two-day bench trial, the

three-judge panel unanimously rejected their claims

in a 74-page opinion that incorporated and appended

a 96-page appendix with detailed factual findings.

Dickson v. Rucho, Nos. 11 CVS 16896, 11 CVS 16940

(N.C. Super. Ct. July 8, 2013). The plaintiffs

appealed, and the North Carolina Supreme Court

affirmed. Dickson v. Rucho, 766 S.E.2d 238 (N.C.

2014). The plaintiffs petitioned this Court for a writ

of certiorari, and the Court granted, vacated, and

remanded in light of Alabama Legislative Black

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

Dickson v. Rucho, 135 S. Ct. 1843 (2015) (mem.).

After further briefing and oral argument, the North

Carolina Supreme Court affirmed again. Dickson v.

Rucho, 781 S.E.2d 404 (N.C. 2015). Plaintiffs’

petition for a writ of certiorari from that decision is

pending. Dickson v. Rucho, No. 16-24. In the

meantime, the challenged plan was used in the 2012

and 2014 elections.

C. Federal Court Litigation

After the North Carolina Supreme Court's first

affirmance in Dickson—1t.e., almost four years after

the legislature enacted the districting plan and after

the State had used it in two rounds of elections—

plaintiffs filed suit in the U.S. District Court for the

Middle District of North Carolina. Like the Dickson

plaintiffs, they alleged that most of the majority-

minority districts in the Senate and House plans

were unconstitutional racial gerrymanders. App.13.

Plaintiffs did not dispute that the legislature needed

to take racial demographics into account in drawing

these districts in order to comply with federal law;

instead, they claimed that Section 2 of the VRA

required the legislature to draw fewer majority-

minority districts and more crossover or coalition

districts. The court granted their request for a three-

judge district court and held a five-day bench trial in

April 2016. App.14. The parties submitted proposed

findings of fact and conclusions of law in early May.

More than three months later, long after the

North Carolina Supreme Court rejected the nearly

identical redistricting challenges for the second time,

the district court invalidated the House and Senate

plans. The court began by disclaiming any

suggestion that “the General Assembly acted in bad

faith or with discriminatory intent in drawing the

challenged districts.” App.3 n.1. Then, in a footnote,

it tersely dismissed the State’s argument that

plaintiffs’ claims were barred by res judicata or

collateral estoppel in light of Dickson. App.13-14 n.9.

Turning to the merits, the court ruled that “race

was the predominant factor motivating the drawing

of all challenged districts.” App.2, 14-113. It then

addressed whether the districting legislation was

narrowly tailored to serve the State’s compelling

interest in complying with Sections 2 and 5 of the

VRA. App.113-42. The court rejected North

Carolina’s Section 2 defense, holding that, even

though no party to the litigation took the position

that racially polarized voting was a thing of the past

in North Carolina, the legislature lacked a strong

basis in evidence to draw any of the challenged

districts as ability-to-elect districts. App.121-35. In

so holding, the court expressly declined to resolve

plaintiffs’ argument that the legislature should have

drawn the districts as coalition districts rather than

majority-minority districts. App.18 n.10. Instead, it

held that the legislature “failed to demonstrate a

strong basis in evidence for any potential Section 2

violation,” id. (emphasis added), and thus should not

have considered race at all in drawing the districts.

As for Section 5, the court “conclude[d] that

Defendants have not put forth a strong basis in

evidence that any of [the districts in covered

counties} were narrowly tailored to avoid

retrogression.” App.136.

The court then considered the appropriate

remedy for the constitutional violation it found.

Although plaintiffs had requested an immediate

injunction blocking the use of the districts in the

November 2016 election, the court determined that

“there is insufficient time, at this late date, for: the

General Assembly to draw and enact remedial

districts; this Court to review the remedial plan; the

state to hold candidate filing and primaries for the

remedial districts; absentee ballots to be generated

as required by statute; and for general elections to

still take place as scheduled in November 2016.”

App.143. The court accordingly “decline[d] to order

injunctive relief to require the state of North

Carolina to postpone its 2016 general elections,”

instead allowing the elections to proceed as

scheduled under the challenged maps. App.144. The

court did, however, order the legislature to draw new

maps for use in the next round of state legislative

elections, which are scheduled for 2018. App.144-45.

The district court’s accompanying order expressly

stated: “This judgment is final.” App.149.

The same day, the district court ordered the

parties to “meet and confer about the appropriate

deadline for the North Carolina legislature to draw

new districts, the question of whether additional

relief would be appropriate before the regularly

scheduled elections in 2018, and, if so, the nature and

form of that relief.” Dkt.124. All parties filed status

reports three weeks later, advising the court that

they were unable to reach any agreement. Dkt.128,

129. Defendants then timely filed a notice of appeal

from the district court’s final judgment, App.150, and

a jurisdictional statement in this Court, see North

Carolina v. Covington, No. 16-649 (filed Nov. 14,

2016), reproduced at App.151-97.?

D. The Subsequent Remedial Order

Nearly five million North Carolinians exercised

their right to vote in the November 2016 election, all

operating under the understanding (confirmed by the

district court’s final judgment and the absence of any

subsequent order) that the normal rules applied and

that they were voting for Representatives and

2 The jurisdictional statement is fully briefed and was

distributed for the conference of January 19, 2017. This Court

has not taken any action on the case since the conference.

Senators who would represent them for their

constitutionally prescribed two-year terms.

Just three weeks after the results were in,

however, the district court changed course and

decided that the remedy it previously ordered was

insufficient. See App.198-204. In addition to

requiring the State to enact its new districting plan

by March 15, 2017, App.202, the court declared that

“(t]he term of any legislator elected in 2016 and

serving in a House or Senate district modified by the

General Assembly under the redistricting plan shall

be shortened to one year,” App.203, and ordered the

State to “hold special primary and general elections

in the fall of 2017” in every district that is modified

in the new districting plan (an estimated 116

districts), App.204. The district court also cast aside

the residency requirements in the state constitution,

declaring that “[a]ny citizen having established their

residence in a House or Senate district modified by

the General Assembly under the redistricting plan as

of the closing day of the filing period for the 2017

special election in that district shall be qualified to

serve as Senator or Representative

notwithstanding the requirement of Sections 6 and 7

of Article II of the North Carolina Constitution.”

App.203.

The district court did not explain the basis for its

jurisdiction; nor did it purport to conduct any

balancing of the equities, to consider the sovereign

harms a special election would impose on the State,

or to provide any explanation for why it waited until

after the election results were in to inform voters that

the candidates for whom they voted would serve only

one-year terms.

Defendants filed an emergency motion to stay

the remedial order in the district court, Dkt.141, and

then filed an emergency stay application in this

Court, North Carolina v. Covington, No. 16A646.

The district court denied a stay, but this Court

granted a stay pending the timely filing and

disposition of a jurisdictional statement. See id.

REASONS FOR SUMMARILY REVERSING OR

NOTING PROBABLE JURISDICTION

The district court had neither jurisdiction nor

justification to enter its extraordinary remedial order.

The court lacked jurisdiction because the State

already had filed its notice of appeal from the court’s

original final judgment when the court imposed its

follow-on expanded remedy. The filing of a notice of

appeal formally confers jurisdiction on the appellate

court and divests the district court of jurisdiction.

Here, the district court issued a final judgment

declaring the districts unconstitutional and ordering

the State to draw new a districting plan for use in

future elections. Defendants timely filed a notice of

appeal from that judgment, thereby divesting the

district court of jurisdiction to modify its merits

ruling or expand its injunction. The district court’s

subsequent remedial order, issued almost three

months after defendants filed their notice of appeal,

was therefore ultra vires.

Even if the district court had _ retained

jurisdiction, its remedial order would still merit

review and reversal, as it far exceeded the bounds of

the court’s equitable discretion. The standard remedy

for a Shaw violation is the one the district court

initially ordered: requiring the State to redraw the

districts for the next regularly scheduled election.

Indeed, that has been the remedy for every Shaw

violation this Court has ever found. Even assuming

that federal courts have the power to invalidate past

election results and order special elections to remedy

Shaw violations, that power should be reserved for

the most extraordinary of cases, and exercised only

after careful balancing of the equities at stake. Here,

the district court ordered a special election in a case

that is extraordinary only because it is highly

debatable whether any constitutional violation even

occurred, and it did so without even considering the

harms a special election would inflict on the State, its

legislators, its voters, or this Court’s orderly review.

The remedial order cannot stand. Whether

because the district court lacked jurisdiction, or

because it failed to conduct the required analysis, or

because any even-handed analysis would militate

against a special election—or because there was no

constitutional violation in the first place—this Court

should summarily reverse or note probable

jurisdiction and vacate the remedial order.

I. The District Court Did Not Have

Jurisdiction To Issue The Remedial Order.

The district court lacked jurisdiction to issue its

remedial order because the State’s previously filed

notice of appeal divested it of power over the case.

“The filing of a notice of appeal is an event of

jurisdictional significance”—it confers jurisdiction on

the appellate court and divests the district court of

jurisdiction over the matters appealed. Griggs uv.

Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982).

Accordingly, any “attempt by the district court to

change the judgment after a notice of appeal from its

ruling has been filed is ineffective.” Stephen M.

Shapiro et al., Supreme Court Practice §7.5, at 537

(10th ed. 2013). As soon as jurisdiction passes to the

appellate court, “the district court generally lacks

power to act,” and any actions it attempts to take are

“null and void.” 16A Charles Alan Wright & Arthur

R. Miller, Federal Practice & Procedure §3949.1 (4th

ed. 2016).

This “black-letter rule” prevents “clashes

between institutions that occupy different tiers

within the federal judicial system.” United States v.

Brooks, 145 F.3d 446, 456 (1st Cir. 1998). Without it,

appeals would become moving targets, with district

courts free to modify decisions while they are under

review. The rule also ensures fairness to the parties,

“who might otherwise be forced ... to fight a ‘two front

war’ for no good reason.” United States v. Diveroli,

729 F.3d 1339, 1342-43 (11th Cir. 2013) (alteration in

original). Thus, “to promote judicial economy and

avoid the confusion and inefficiency that might flow

from putting the same issue be.ore two courts at the

same time,” 20-303 James Wm. Moore et al., Moore’s

Federal Practice §303.32(1) (8d ed. 2016), a district

court and an appellate court “should not attempt to

assert jurisdiction over a case simultaneously,”

Griggs, 459 U.S. at 58.

To be sure, district courts retain the power to

implement or enforce unstayed injunctions during

the pendency of an appeal. District courts may, for

example, supervise a continuing course of conduct,

Liddell v. Bd. of Educ., 73 F.3d 819, 822 (8th Cir.

1996), hold parties in contempt for violating previous

orders, Acevedo-Garcia v. Vera-Monroig, 368 F.3d 49,

58 (1st Cir. 2004), or clarify the scope of previous

orders, NLRB v. Cincinnati Bronze, Inc., 829 F.2d

585, 589 (6th Cir. 1987). But courts draw a clear line

between enforcement of an injunction and expansion

of one, with the latter prohibited after the notice of

appeal is filed. At that point, the district court may

not decide new legal issues or expand upon

previously ordered remedies. City of Cookeville v.

Upper Cumberland Elec. Membership Corp., 484 F.3d

380, 394-95 (6th Cir. 2007); McClatchy Newspapers v.

Cent. Valley Typographical Union, 686 F.2d 731, 734-

36 (9th Cir. 1982).

This Court has applied and approved that rule

on numerous occasions, including in cases on direct

appeal and in redistricting cases. In Donovan v.

Richiand County Association, 454 U.S. 389 (1982), a

Ninth Circuit panel attempted to alter its judgment

after appellants had filed their notice of appeal to

this Court. Jd. at 390 n.2. This Court disregarded

the altered judgment, explaining that “[t]he filing of

the notice of appeal clearly divested the Court of

Appeals of any jurisdiction that it otherwise had to

decide the merits of this case.” Jd.

Similarly, in Zimmer v. McKeithen, 467 F.2d

1381 (5th Cir. 1972), after the defendants filed a

notice of appeal from a court-ordered apportionment

plan, the district court attempted to modify its order

to encompass an alternative apportionment plan.

The Fifth Circuit refused to consider the second

order, ruling that it had been issued “without

jurisdiction” because it postdated the notice of

appeal. /d. at 1382. The case later came before this

Court, which noted approvingly that “the Court of

Appeals vacated the [second] order on the ground

that when the appeal was filed, the District Court

lost jurisdiction over the case.” FE. Carroll Par. Sch.

Bd. v. Marshall, 424 U.S. 636, 638 n.4 (1976).

The same result should follow here. The district

court issued its initial order and judgment on

August 15, 2016. App.148-49. That order addressed

both liability and remedy: It declared the challenged

districts unconstitutional, enjoined future elections

“until a new redistricting plan is in place,” and

ordered the State to “redraw new House and Senate

district plans.” Jd. While the order also “retain[ed]

jurisdiction to enter such orders as may be

necessary... to timely remedy the constitutional

violation,” it expressly stated that “[t]his judgment is

final.” Jd. at 149. And the State filed its notice of

appeal from that final judgment on September 13,

2016, App.150, placing the questions of liability and

remedy squarely before this Court—and divesting

the district court of jurisdiction over both.

From that point forward, while the district court

retained (and still retains) the power to enforce its

initial order by ensuring that the State draws new

districts before the next scheduled election, the

State’s notice of appeal divested the district court of

jurisdiction to expand the scope of relief. Yet by

halving constitutionally prescribed terms and

ordering the State to conduct special elections in

2017, the district court unquestionably exceeded its

authority. Because the district court lacked

jurisdiction to issue its sweeping remedial order, this

Court should vacate the order regardless of how it

resolves the underlying merits dispute.

Il. The Extraordinary Remedy Of A Special

Election Is Improper.

Even if the district court had jurisdiction to

expand its original remedy, the remedial order would

still be inappropriate and require vacatur. This case

lacks the exceptional features that might justify

invalidating past election results, truncating

constitutionally prescribed legislative terms, and

ordering off-year special elections in substantial parts

of the State. Indeed, if the extraordinary remedy of a

special election were appropriate here—where the

legislature’s good faith is not questioned by the

district court, the districts were upheld by the State’s

highest court, and the alleged violation did not affect

any election results—then special elections would be

appropriate in every racial gerrymandering case. Yet

the opposite rule has held sway: In every one of this

8 Under Fed. R. App. P. 4(a)(4), the timely filing of certain

post-judgment motions suspends a previously filed notice of

appeal until the district court rules on the motion. Rule 4(a)(4),

however, does not apply in direct appeals to this Court. FCC v.

League of Women Voters of Cal., 468 U.S. 364, 373 n.10 (1984).

In all events, plaintiffs did not timely file any of the motions

listed in Rule 4(a)(4). Moreover, even if their “Motion for

Relief,” Dkt.132, were construed as a motion “to alter or amend

the judgment under Rule 59,” Fed. R. App. 4(a)(4)(A)(iv), it

would be untimely because it was filed more than 28 days after

the district court’s judgment, see Fed. R. Civ. P. 59(e) (“A motion

to alter or amend a judgment must be filed no later than 28

days after the entry of the judgment.”); see also Fed. R. Civ. P.

6(b)(2) (“A court must not extend the time to act under [Rule

59(e)].”).

Court's Shaw cases finding a violation, the remedy

has been limited to ordering that new districting plans

be used in the next regularly scheduled election.

Neither plaintiffs nor the district court have identified

anything about this case that would justify making it

the first exception to that rule, and the equities weigh

firmly against such a massive intrusion on state

sovereignty.

A. Courts Must Exercise Extreme Caution

and Carefully Weigh the Equities

Before Ordering Special Elections.

The standard remedy for an unconstitutional

districting scheme is the one the district court initially

imposed: requiring the districts to be redrawn for use

in the next scheduled election. See Reynolds v. Sims,

377 U.S. 5338, 585 (1964) (“[O]nce a State’s legislative

apportionment scheme has been found to be

unconstitutional,” courts should “insure that no

further elections are conducted under the invalid

plan.”). Indeed, neither this Court nor any other has

remedied any of the Shaw violations this Court has

found by unseating elected legislators or cutting their

terms short; instead, the remedy in every one of this

Court’s Shaw cases has been limited to ordering that

new districting plans be used in the next regularly

scheduled election.

Just last month, for example, the district court on

remand in Alabama Legislative Black Caucus v.

Alabama ruled that twelve districts were racial

gerrymanders and remedied that violation by

enjoining “the use of these twelve districts in future

elections.” 2017 WL 378674 at *106 (M.D. Ala. Jan.

20, 2017) (Pryor, J.). The same remedy followed this

Court's decision in Shaw v. Hunt, 517 U.S. 899

(1996), where the district court ordered the State to

enact a new districting plan for use in future

elections. See Hunt v. Cromartie, 526 U.S. 541, 543

(1999). Likewise, the district court on remand from

Bush v. Vera ordered the State to use a court-drawn

map at the next general election to remedy the racial

gerrymander. Vera v. Bush, 933 F. Supp. 1341, 1352

(S.D. Tex. 1996). And in Miller v. Johnson, this Court

affirmed the district court’s judgment enjoining future

elections in the challenged district. See Johnson uv.

Miller, 864 F. Supp. 1354, 1393 (S.D. Ga. 1994), affd,

515 U.S. 900 (1995). In all of those cases, courts

ordered prospective relief to ensure that no future

elections were held in the unconstitutional districts,

but declined to retroactively abrogate past election

results or require special off-year elections.‘

This unbroken line of cases makes clear that the

presumptive remedy for a Shaw violation is the

remedy the district court initially imposed in this case.

4 In fact, special elections are so rare that plaintiffs could

identify at most two courts that ever have imposed that remedy

for a Shaw violation—and even then, in readily distinguishable

circumstances and in decisions that were not reviewed by this

Court. In Cousins v. City Council of Chicago, 503 F.2d 912 (7th

Cir. 1974), decided decades before Shaw, the Seventh Circuit

noted (without actually reviewing or endorsing the remedy) that

the district court ordered a special election in a single city

council ward because of “purposeful” discrimination. In Smith

v. Beasley, 946 F. Supp. 1174 (D.S.C. 1996), after finding

“overwhelming” evidence of racial gerrymandering, the district

court ordered special elections in only 30 of the State’s 170

districts, and also ordered that relief before the general election,

thereby ensuring that voters and candidates were at least fully

informed on election day. Jd. at 1212.

The remedy of a special election, on the other hand, is

a “drastic if not staggering” remedy that “courts

should grant only under the most extraordinary of

circumstances” (if ever). Gyjersten v. Bd. of Election

Comm’s, 791 F.2d 472, 478 (7th Cir. 1986). A federal

court’s invalidation of a state election necessarily

“implicates important concerns of federalism and state

sovereignty,’ and no court should resort “to this

intrusive remedy until it has carefully weighed all

equitable considerations.” I/d.; see also NAACP uv.

Hampton Cty. Election Comm’n, 470 U.S. 166, 183

n.36 (1985) (directing district court to engage in “the

equitable weighing process” to determine a remedy);

Reynolds, 377 U.S. at 585 (relief should be “fashioned

in the light of well-known principles of equity”); Baker

v. Carr, 369 U.S. 186, 250 (1962) (Douglas, J.,

concurring) (same).

This Court has not set out the precise test that

courts should apply when determining how to remedy

a districting violation. But this Court’s decisions in

other voting cases, along with the decisions of the

lower courts, highlight three considerations that guide

the equitable inquiry.

First, district courts should not order special

elections unless the legislature acted in bad faith or

committed an egregious violation. In Allen v. State

Board of Elections, 393 U.S. 544 (1969), for example,

this Court considered the proper remedy for a State’s

failure to comply with Section 5’s_ preclearance

requirement. Plaintiffs asked the Court to “set aside

the elections ... and order that new elections be held.”

Id. at 571. This Court, however, “decline[d] to take

corrective action of such consequence” because the

case involved “issues subject to rational disagreement”

and the State did not act in “deliberate defiance” of

the VRA. Jd. at 571-72; see also Hampton Cty., 470

U.S. at 183 n.36 (“The factors to be weighed include ...

‘whether it was reasonably clear at the time of the

election that the changes were covered by §5.”).

Likewise, in Lopez v. City of Houston, 617 F.3d

336 (5th Cir. 2010), the Fifth Circuit rejected the

plaintiffs’ request to invalidate past election results,

explaining that such an “extraordinary remedy ... can

only be employed in exceptional circumstances,

usually when there has been egregious defiance of the

Voting Rights Act.” Jd. at 340. Because the plaintiffs

“made no claim of the kind of egregious or invidious

discrimination that would make invalidation of the

2009 election an appropriate remedy,” the Fifth

Circuit declined to grant the requested relief. Id.; cf.

Bell v. Southwell, 376 F.2d 659, 664 (5th Cir. 1967)

(ordering special election because of “gross,

unsophisticated, significant, and obvious racial

discriminations” at the polling place).

Second, district courts should not order special

elections unless plaintiffs can “demonstrate that the

unconstitutional practice had a significant impact on

the particular election they seek to have declared

invalid.” Bowes v. Ind. Sec’y of State, 837 F.3d 813,

818 (7th Cir. 2016). In Hadnoti v. Amos, 394 U.S.

358 (1969), for instance, this Court held that

Alabama violated Section 5 of the VRA by failing to

obtain preclearance for a change in ballot eligibility

rules that disqualified members of the National

Democratic Party of Alabama (NDPA) from ballots

for offices in Greene County. Jd. at 365-66. To

remedy the violation, this Court ordered “a new

election in Greene County,” explaining that “NDPA

candidates in Greene County would have won had

they been on the ballot,” as more ballots “were marked

for the NDPA ‘straight ticket” than for any other

candidate. Jd. at 361, 367.

Conversely, in Weaver v. Bonner, 309 F.3d 1312

(llth Cir. 2002), the Eleventh Circuit refused to

order a special election after finding that the

violation did not affect the election results. During

the campaign, the State had violated a candidate's

First Amendment rights by ordering him to cease

and desist from distributing certain campaign

materials. /d. at 1318-24. The candidate defied the

unconstitutional order, but still lost the election.

After the election, the court denied the plaintiffs

request to invalidate the results, reasoning that

there was no allegation of “voter fraud, vote dilution,

or a similar scheme which would mandate a special

election.” Jd. at 1325. The voters “were free to vote

for their candidate of choice,” and more voters chose

the plaintiffs opponent. IJd.; see also Bowes, 837 F.3d

at 819 (special election might be appropriate if the

challenged practice had a “significant impact” on the

election, but not if it had “only some impact”).

Third, a district court should not order a special

election unless the _ special election’s benefits

outweigh “the state’s significant interest in getting

on with the process of governing once an electoral

cycle is complete.” Bowes, 837 F.3d at 818. A

legislature “elected under an unfair apportionment

scheme ... is nonetheless a legislature empowered to

act.” Baker v. Carr, 369 U.S. at 250 n.5 (Douglas, J.,

concurring). Special elections, however, “disrupt the

decision-making process” and “place heavy campaign

costs on candidates and significant election expenses

on local government.” Gyjersten, 791 F.2d at 479.

Those costs to governance “should not be cavalierly

brushed away by other branches of government,

whether federal or judicial, that neither pay it nor

impose the tax burden on which a remedy depends.”

United States v. City of Houston, 800 F. Supp. 504,

506 (S.D. Tex. 1992) (three-judge panel). Moreover,

the State “has an interest in placing a reasonable

limit on the number of times voters are called to the

polls,” Gjersten, 791 F.2d at 479, thereby avoiding

“voter confusion and consequent incentive to remain

away from the polls,” Purcell v. Gonzalez, 549 U.S. 1,

4-5 (2006). Courts therefore should not order special

elections unless the benefits they produce will

outweigh the costs they impose on governance and

state sovereignty.

B. The Extraordinary Remedy of a Special

Election Is Inappropriate in this Case.

This case does not come close to warranting the

extraordinary remedy of a special election. At the

outset, the remedial order should be vacated for the

simple reason that the district court failed to

meaningfully weigh any equitable considerations.

Instead, it just summarily asserted: “While special

elections have costs, those costs pale in comparison to

the injury caused by allowing citizens to continue to

be represented by legislators elected pursuant to a

racial gerrymander.” App.200. With that, the court

declared that a “special election in the fall of 2017 is

an appropriate remedy.” Jd. That conclusory

statement is no substitute for a meaningful balancing

of the equities—or even a meaningful appreciation

that the special-election remedy is extraordinary,

rather than de rigueur, in Shaw cases. The court’s

breezy approach allowed it to avoid confronting the

enormous intrusion on sovereign prerogatives that its

order worked. The lack of analysis alone is grounds

to vacate the remedial order. See Gjersten, 791 F.2d

at 479 (reversing order requiring special election

because “the district court did not adequately

consider all the relevant equitable factors”).

Had the district court considered the relevant

equitable factors, it would have concluded that they

foreclose a special election. First, as explained in

greater detail in the State’s first jurisdictional

statement, far from being egregious, the alleged

constitutional violation is highly debatable; at a

minimum, it is certainly “subject to rational

disagreement.” Allen, 393 U.S. at 572; see also infra

Part LI. In fact, the North Carolina Supreme Court

has twice upheld the challenged districts against

identical constitutional attacks, concluding that “the

enacted House and Senate plans... satisfy state and

federal constitutional and statutory requirements.”

Dickson v. Rucho, 781 S.E.2d 404, 441 (N.C. 2015);

see Dickson v. Rucho, 766 S.E.2d 238 (N.C. 2014).

The state supreme court’s decision should have

foreclosed this follow-on federal case as a matter of

claim preclusion and collateral estoppel, see App.172-

76, but at a bare minimum, the disagreement

between two co-equal courts should categorically

preclude the use of a drastic remedy that is properly

reserved for “gross, spectacular, completely

indefensible” violations. Bell, 376 F.2d at 664.

Nor was this a case in which the legislature

acted with discriminatory animus or in “deliberate

defiance” of the Constitution. Allen, 393 U.S. at

571-72. To the contrary, the district court’s merits

decision expressly disclaimed any “finding that the

General Assembly acted in bad faith or with

discriminatory intent in drawing the challenged

districts,” App.3 n.1, and its remedial order made no

such finding either, see App.198-204. A State’s good-

faith effort to navigate the relatively narrow channel

between the competing demands of the VRA and the

Equal Protection Clause should not give rise to the

extraordinary remedy of a special election, even if the

good-faith effort is ultimately deemed unsuccessful.

Second, the district court did not—and could

not—find that the alleged constitutional violation

had a “significant impact” on election results in the

challenged districts. Gyjersten, 791 F.2d at 479.

Plaintiffs themselves made no such claim in the

district court or in their response to the State’s stay

application. Nor could they, as candidates in 20 of

the 28 challenged districts ran unopposed, see

Official General Election Results, North Carolina

State Board of Elections (last visited February 20,

2017), http://bit.ly/2heSRbV, and among the eight

contested seats, the narrowest margin of victory was

35 points. See id. Moreover, plaintiffs did not claim

or submit any evidence that the alleged violations

prevented any candidate from running or prevented

any person from voting. Cf. Hadnott, 394 U.S. 358

(candidates excluded from ballot); Smith v. Cherry,

489 F.2d 1098 (7th Cir. 1973) (voters deceived into

voting for a particular candidate). Because there is

no evidence or suggestion that the alleged violation

had any impact on the results—let alone a

“significant” one—the drastic remedy of a special

election is unwarranted.

Third, the limited benefits of a special election in

these circumstances do not outweigh the State’s

sovereign interest “in getting on with the process of

governing once an electoral cycle is complete.”

Bowes, 837 F.3d at 818. First, it is not clear that a

special election would provide any benefit to voters in

the challenged districts. As discussed, plaintiffs

never claimed that the alleged violation changed the

election results in those districts. It is thus little

wonder that plaintiffs insisted that there also be

special elections in the nearly 100 wnchallenged

districts whose boundaries would be modified by a

new map. Dkt.132 at 3; see Dkt.136 at 6. Holding

special elections in the challenged districts alone

could not provide plaintiffs’ backers with any political

gain, but getting a second chance at multiple contests

in border districts throughout the State (especially

with the distorted turnout inherent in off-year

special elections) presents the possibility of unseating

legislators from the other political party. That may

be a “benefit” from plaintiffs’ perspective, but

providing ancillary benefits to plaintiffs’ political

party surely is not the sort of equitable consideration

that supports a special election.

Moreover, it is highly debatable whether the type

of abstract harm involved in racial gerrymandering

cases would ever justify a special election. Racial

gerrymandering claims are not about “voter fraud,

vote dilution, or any similar scheme that would

require a special election” to restore the franchise.

Weaver, 309 F.3d at 1318. In those contexts, a special

election is at least a plausible (albeit extreme) cure

for the type of ongoing harms at issue, as those kinds

of violations have the potential to inflict ongoing

representational harms throughout the

constitutionally prescribed term. But Shaw claims

are different. They are about the legislature’s

infliction of expressive harms by treating minority

voters as if they “think alike, share the same political

interests, and will prefer the same candidates at the

polls” simply because of the color of their skin. Shaw

uv. Reno, 509 U.S. 630, 647 (1993). The remedy for

that type harm is not a special election that will

unseat duly elected legislators wherever a zig in the

enacted plan becomes a zag in the remedial one, but

rather a judicial declaration of unconstitutionality

and the creation of a new districting plan that does

not inflict expressive harms—i.e., the remedy the

district court initially ordered, and the remedy that

has been ordered in every case in which this Court

has found a Shaw violation (indeed, in nearly every

Shaw case, period).

On the other side of the ledger, the harms to

governance caused by the remedial order are

immense. Legislators, instead of acting for their

constituents, would be required to spend a significant

portion of their abbreviated terms designing and

enacting a new districting plan. That process is

guaranteed to be time-consuming, as the legislature

must either collect even more robust evidence of

racially polarized voting than it did the first time

around, or risk the Section 2 litigation that inevitably

will follow if it draws the districts without any

consideration of race at all. That same dynamic

already played out with respect to the State’s

congressional districts: When the General Assembly

drew a race-neutral congressional map to remedy the

purported racial gerrymander in Harris v. McCrory,

No. 15-1262, the plaintiffs turned around and

accused the legislature of vote dilution for failing to

pay enough attention to race. See Dist. Ct. Dkt.154-

1, at 21-30. As that regrettably predictable result

confirms, drawing maps that actually satisfy

plaintiffs will be no easier this time around.

Moreover, because legislators would have to turn

around and compete in special primary elections

mere months later, they would be forced to do more

campaigning and less governing than they otherwise

would have, at the expense of the constituents they

were elected to represent. And members with

redrawn districts would have every incentive to

neglect their current constituents and focus their

efforts on voters in neighboring districts whose votes

would count in the upcoming elections. And even

after the special elections, the problems would recur,

as the newly elected representatives would have only

a one-year term and thus would once again have

their attention diverted from governing to re-election

the very next year.

Meanwhile, the elections board would be forced

to spend its limited time and resources preparing for

the special election, which is a months-long process

with estimated costs in excess of $15 million.

Dkt.136-3 at 12-13. That is an exceedingly high price

to pay for elections that are unlikely to make any

difference in the challenged districts, especially

where the resulting legislative terms would last only

one year. See Toney v. White, 488 F.2d 310, 316 (5th

Cir. 1973) (reversing remedial order “given both the

expense of holding a special election and the short

terms of office which would remain”). And because

the financial and administrative cost of a special

election is so high, “a jurisdiction forced into holding

a special election has much less to spend on ... other

necessities.” City of Houston, 800 F. Supp. at 506.

A special election also would harm North

Carolina voters. Because the district court waited

until after the election results were in to announce

its extraordinary remedy (even though it issued its

merits decision and initial remedy all the way back

in August, and plaintiffs first made their request for

a special election in September), millions of voters

went to the polls with the belief that the legislators

they elected would serve two-year terms. The

remedial order cuts those terms in half, effectively

halving the voting power of millions of North

Carolinians. That is true not just for legislators and

voters in the challenged districts, but for those in any

of the (at least) 116 districts that will be modified if

remedial maps must be drawn.

Special elections would impose representational

harms of their own as well, as turnout at special

elections in North Carolina has historically been

abysmal. See Dkt.136-3 at 15. Moreover, because

this special election would not be statewide, it

inevitably would “result in voterconfusion and

consequent incentive to remain away from the polls.”

Purcell, 549 U.S. at 4-5. The timing of the remedial

order also raises at least the appearance that if the

elections results had been different, then the

remedial order might have been different. Even the

possibility of voters drawing that conclusion weighs

against this extraordinary order.

The district court’s remedial order also harms

the State’s sovereign interests by unnecessarily

abrogating multiple provisions of state law. No one

has ever suggested that there is anything suspect

about North Carolina’s sovereign determinations

that legislators should serve two-year terms or that

candidates should live in the district they seek to

represent for one year before an election. N.C. Const.

art. IJ, §§6-8. Yet the district court’s extraordinary

remedy casts both those provisions aside without

even acknowledging the legitimate and important

public interests that they serve. Furthermore, the

remedial order contradicts North Carolina’s

sovereign determination that special elections

generally are not worth the time and expense. Under

North Carolina law, vacancies that arise in the

General Assembly due to resignation or death are

filled not by a special election, but by Gubernatorial

appointment, with the voters weighing in at the next

regularly scheduled election. N.C. Gen. Stat.

§163-11. By ordering a special election anyway, the

district court failed to accord proper weight to the

State’s sovereign determination about how best to

structure its own government. Cf. Gjersten, 791 F.2d

at 479 (directing district court to “consider the

legislative determination in Illinois that, when a

vacancy occurs in the last twenty-seven months of a

four year term, a special election need not be held”).

Finally, the pendency of multiple Shaw cases,

including the earlier appeal in this case, before this

Court, made the district court’s demand that the

State take immediate steps toward a special election

particularly inappropriate. By imposing the special-

election remedy when it knew that the underlying

merits decision and initial remedial order were on

appeal to this Court, the district court failed to

respect this Court’s appellate function. Whatever the

merits of a special-election remedy in a case on

remand from this Court or where the State has

signaled it will not appeal the merits determination

to this Court, a_ special-election remedy is

particularly inappropriate when it will skew this

Court’s review of the merits. As noted, the State’s

appeal of the district court’s earlier judgment

divested the district court of jurisdiction to issue this

more intrusive and problematic remedy. But

jurisdictional difficulties aside, the district court

plainly abused its discretion by failing to consider the

impact of its special-election remedy on this Court’s

review. If this Court reverses the district court on

the merits, as it should, see infra, then no remedy

will be appropriate. If this Court provides further

guidance in its merits review in this case or other

pending Shaw cases, then those developments may

also overtake the special-election remedy. Needless

to say, this Court already ameliorated the harms of

the special-election order by staying it, but the fact

remains that the order wholly ignored the reality of

this Court’s appellate role. The special-election order

effectively put this Court “on the clock,” forcing it to

either issue a stay or alter the timing of its

deliberations in pending merits cases.

~ * *

Unless special elections are to become the go-to

remedy for Shaw violations, the district court's

remedial order cannot stand. Neither plaintiffs nor

the district court have identified anything that

makes this the extraordinary case in which a Shaw

claim cannot be remedied by simply ordering new

maps before the next regularly scheduled election.

The legislature acted in good faith; the finding of a

violation is tenuous at best; the alleged violation had

no impact on election results; and the special election

would work massive and unwarranted harms on the

State and its citizens. This is thus the very last case

in which the courts should resort to a remedy

reserved for only the most egregious of violations.

Ill. There Was No Constitutional Violation To

Remedy.

This Court also should vacate the remedial order

for the simple reason that there was no constitutional

violation to remedy in the first place, as more fully

explained in the State’s previously filed jurisdictional

statement. App.151-97.

At the outset, this second-in-time, federal-court

case should have been barred as a matter of res

judicata and collateral estoppel. Before this lawsuit

was filed, a three-judge panel of the North Carolina

state trial court had already rejected claims identical

to those at issue here, see Dickson v. Rucho, Nos. 11

CVS 16896, 11 CVS 16940 (N.C. Super. Ct. July 8,

2013), and the North Carolina Supreme Court has

since affirmed that decision twice, Dickson v. Rucho,

781 S.E.2d 404 (N.C. 2015); Dickson v. Rucho, 766

S.E.2d 238 (N.C. 2014). To allow plaintiffs and the

organizations behind this litigation to take a second

bite at the apple in federal court would be unfair to

the State as a litigant and demeaning to the State as

a sovereign, as it would allow a federal court to

ignore the factual findings of a co-equal state court

and to effectively overrule a decision by the state

supreme court. See App.172-76.

Having decided to second-guess the state

supreme court, the district court then erred in

concluding that race predominated. Strict scrutiny

does not apply simply because a districting plan

contains majority-minority’ districts. Rather,

challengers must prove that “race for its own sake,

and not other districting principles, was _ the

legislature’s dominant and controlling rationale.”

Miller v. Johnson, 515 U.S. 900, 913 (1995). Here,

the court’s own assumptions reveal that the race did

not predominate over other districting goals. For

instance, the court assumed (as the North Carolina

Supreme Court twice held) that the districts

complied with the Whole County Provision. App.22.

Yet it failed to realize that compliance with the WCP

is itself proof that race did not predominate, and that

the WCP serves the traditional districting principles

of “compactness, contiguity, and respect for political

subdivisions.” Stephenson v. Bartlett, 562 S.E.2d

377, 389 (N.C. 2002). By applying strict scrutiny just

because majority-minority districts were involved,

the court failed to hold plaintiffs to their demanding

burden of proving that race “predominantly explains”

a district's boundaries.” Easley v. Cromartie, 532

U.S. 234, 243 (2001). See App.176-79.

Even assuming strict scrutiny applied, the

district court plainly erred in reaching its astounding

conclusion that the legislature did not have good

reasons to fear “any potential Section 2 violation,”

App.18 n.10, and thus should not have considered

race at all. Even plaintiffs have never made the

extraordinary argument that there is no longer a

single region in North Carolina where the legislature

must draw ability-to-elect districts. But the district

court went far beyond plaintiffs’ actual claims and

concluded that the legislature lacked good reasons to

fear any Section 2 liability, and thus lacked good

reasons to draw either majority-minority or coalition

or crossover districts in regions that have had one or

the other for decades. App.2-3, 18 n.10.

That holding is demonstrably wrong. The

legislature had more than enough evidence to justify

its conclusion that Section 2 required ability-to-elect

districts in the same counties and regions in which

they had long appeared. The legislature received

uncontradicted evidence confirming the existence of

racially polarized voting in all of the relevant regions.

That evidence would have sufficed to prove that

sufficient racially polarized voting to create a VRA

problem actually exists, and it plainly sufficed to

prove that the legislature had a “strong basis” for

reaching that conclusion.

Indeed, plaintiffs themselves have never denied

that they believe the State would violate Section 2 if

it failed to draw the challenged districts as crossover

or coalition districts—in other words, if it eschewed

consideration of race entirely. And notwithstanding

its conclusion that the legislature violated the Equal

Protection Clause by drawing the challenged districts

as majority-minority districts, the district court then

bite at the apple in federal court would be unfair to

the State as a litigant and demeaning to the State as

a sovereign, as it would allow a federal court to

ignore the factual findings of a co-equal state court

and to effectively overrule a decision by the state

supreme court. See App.172-76.

Having decided to second-guess the state

supreme court, the district court then erred in

concluding that race predominated. Strict scrutiny

does not apply simply because a districting plan

contains majority-minority districts. Rather,

challengers must prove that “race for its own sake,

and not other districting principles, was_ the

legislature's dominant and controlling rationale.”

Miller v. Johnson, 515 U.S. 900, 913 (1995). Here,

the court's own assumptions reveal that the race did

not predominate over other districting goals. For

instance, the court assumed (as the North Carolina

Supreme Court twice held) that the districts

complied with the Whole County Provision. App.22.

Yet it failed to realize that compliance with the WCP

is itself proof that race did not predominate, and that

the WCP serves the traditional districting principles

of “compactness, contiguity, and respect for political

subdivisions.” Stephenson v. Bartlett, 562 S.E.2d

377, 389 (N.C. 2002). By applying strict scrutiny just

because majority-minority districts were involved,

the court failed to hold plaintiffs to their demanding

burden of »roving that race “predominantly explains”

a district’s boundaries.” Easley v. Cromartie, 532

U.S. 234, 243 (2001). See App.176-79.

Even assuming strict scrutiny applied, the

district court plainly erred in reaching its astounding

conclusion that the legislature did not have good

reasons to fear “any potential Section 2 violation,”

App.18 n.10, and thus should not have considered

race at all. Even plaintiffs have never made the

extraordinary argument that there is no longer a

single region in North Carolina where the legislature

must draw ability-to-elect districts. But the district

court went far beyond plaintiffs’ actual claims and

concluded that the legislature lacked good reasons to

fear any Section 2 liability, and thus lacked good

reasons to draw either majority-minority or coalition

or crossover districts in regions that have had one or

the other for decades. App.2-3, 18 n.10.

That holding is demonstrably wrong. The

legislature had more than enough evidence to justify

its conclusion that Section 2 required ability-to-elect

districts in the same counties and regions in which

they had long appeared. The legislature received

uncontradicted evidence confirming the existence of

racially polarized voting in all of the relevant regions.

That evidence would have sufficed to prove that

sufficient racially polarized voting to create a VRA

problem actually exists, and it plainly sufficed to

prove that the legislature had a “strong basis” for

reaching that conclusion.

Indeed, plaintiffs themselves have never denied

that they believe the State would violate Section 2 if

it failed to draw the challenged districts as crossover

or coalition districts—in other words, if it eschewed

consideration of race entirely. And notwithstanding

its conclusion that the legislature violated the Equal

Protection Clause by drawing the challenged districts

as majority-minority districts, the district court then

turned around and suggested that the VRA may in

fact compel the legislature to do exactly that. See

App.145. The district court’s decision thus leaves

North Carolina in precisely the untenable position

this Court has sought to avoid: “trapped between the

competing hazards of liability” under the VRA and

the Constitution. Bush v. Vera, 517 U.S. 952, 977

(1996). See App.179-96.

CONCLUSION

This Court should summarily reverse or note

probable jurisdiction and vacate the district court's

remedial order.

Respectfully submitted,

THOMAS A. FARR PAUL D. CLEMENT

PHILLIP J. STRACH Counsel of Record

MICHAEL D. MCKNIGHT ERIN E. MURPHY

OGLETREE, DEAKINS, MICHAEL D. LIEBERMAN

NASH SMOAK & KIRKLAND & ELLIS LLP

STEWART, P.C. 655 Fifteenth Street, NW

4208 Six Forks Road Washington, DC 20005

Suite 1100 (202) 879-5000

Raleigh, NC 27609 paul.clement@kirkland.com

ALEXANDER MCC. PETERS

NORTH CAROLINA

DEPARTMENT OF

JUSTICE

P.O. Box 629

Raleigh, NC 27602

Counsel for Appellants

February 21, 2017

APPENDIX

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TABLE OF APPENDICES

Appendix A

Memorandum Opinion, United States

District Court for the Middle District

of North Carolina, Covington

v. North Carolina, No. 1:15-cv-399

LS RR RE aa AR i AEN PP App-1l

Appendix B

Order and Judgment, United States

District Court for the Middle District

of North Carolina, Covington

v. North Carolina, No. 1:15-cv-399

i ae sontpadaionmnnecoices App- 148

Appendix C

Defendants’ Notice of Appeal, United

States District Court for the Middle

District of North Carolina, Covington

v. North Carolina, No. 1:15-ev-399

I Sa eee App-150

Appendix D

Jurisdictional Statement, North

Carolina v. Covington, No. 16-649

I oo App-151

Appendix E

Remedial Order, United States District

Court for the Middle District of North

Carolina, Covington v. North Carolina,

No. 1:15-cv-399 (November 29, 2016)..... App-198

Appendix F

Defendants’ Notice of Appeal, United

States District Court for the Middle

District of North Carolina, Covington

v. North Carolina, No. _ 1:15-cv-399

EE Re Re REREINE OPS App-205

Appendix G

Ree MIUNOE, GUI, TEE occsneccncscececsesccceves App-206

Appendix H

RN IO it cntasctieniavicctnacncwainiese App-208

App-l

Appendix A

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

NORTH CAROLINA

No. 1:15-cv-399

SANDRA LITTLE COVINGTON, et al.,

Plaintiffs,

THE STATE OF NORTH CAROLINA, et al.,

Defendants.

Filed: August 11, 2016

MEMORANDUM OPINION

Circuit Judge James A. Wynn, Jr., wrote the

opinion, in which District Judge Thomas D.

Schroeder and District Judge Catherine C. Eagles

joined:

More than two decades ago, the Supreme Court

considered a legal challenge to election districts that

assigned voters to districts primarily on the basis of

race. Shaw v. Reno (Shaw J), 509 U.S. 630 (1998). In

holding that the plaintiffs had stated a claim under

the Equal Protection Clause of the Fourteenth

Amendment, the Court explained that racial

gerrymandering “reinforces the perception that

members of the same racial group... think alike,

App-2

share the same political interests, and will prefer the

same candidates at the polls.” Jd. at 647. Race-based

districting also sends the “pernicious” message to

representatives that “their primary obligation is to

represent only the members of [a single racial]

group.” /d. at 648. In light of these harms, the

Supreme Court later invalidated the redistricting

plan. Shaw v. Hunt (Shaw II), 517 U.S. 899, 902

(1996).

Plaintiffs charge that in 2011 the North Carolina

General Assembly created State House and Senate

redistricting plans through the predominant and

unjustified use of race. Defendants contend that race

was not the primary factor used in the redistricting,

and that even if it was, their use of race was

reasonably necessary to serve a compelling state

interest—namely, compliance with Section 2 and

Section 5 of the Voting Rights Act (“VRA”).

After careful consideration of the evidence

presented, we conclude that race was the

predominant factor motivating the drawing of all

challenged districts. Moreover, Defendants have not

shown that their use of race to draw any of these

districts was narrowly tailored to further a

compelling state interest. In particular, Defendants

have not shown that their use of race was reasonably

necessary to remedy a violation of Section 2 of the

VRA, since they have not demonstrated that any

challenged district was drawn with a strong basis in

evidence that the “majority votes sufficiently as a

bloc to enable it... usually to defeat the minority’s

preferred candidate.” Thornburg v. Gingles, 478 U.S.

30, 51 (1986). Similarly, Defendants have not

App-3

provided a strong basis in evidence demonstrating

that their use of race was reasonably necessary to

comply with Section 5, ie., to prevent “retrogression

in respect to racial minorities’ ‘ability ...to elect

their preferred candidates of choice.” Alabama

Legislative Black Caucus v. Alabama, 135 S. Ct.

1257, 1263 (2015) (quoting 52 U.S.C. § 10304(b)).

Because Defendants have failed to demonstrate

that their predominant use of race was reasonably

necessary to further a compelling state interest, the

twenty-eight challenged districts in North Carolina’s

2011 State House and Senate redistricting plans

constitute racial gerrymanders in violation of the

Equal Protection Clause of the United States

Constitution. We therefore must order that new

maps be drawn.!

This opinion proceeds as follows: Part I outlines

the federal and state legal background relevant to

redistricting in North Carolina, the 2011

redistricting process, and the lhtigation stemming

from the 2011 redistricting. Part Il analyzes

statewide and district-specific evidence regarding the

use of race in the 2011 redistricting, finding that

race-based criteria predominated over race-neutral

—

' In reaching this conclusion, we make no finding that the

General Assembly acted in bad faith or with discriminatory

intent in drawing the challenged districts, which were

precleared by the Justice Department pursuant to Section 5 of

the VRA. Nor do we consider whether the challenged districts

involved any impermissible “packing” of minority voters, as

Plaintiffs acknowledge that they bring no such claim. Finally,

we do not reach the issue of whether majority-minority districts

could be drawn in any of the areas covered by the current

districts under a proper application of the law. See infra Part V.

App-4

criteria in creating the challenged districts. Part LII

concludes that the race-based districting does not

survive strict scrutiny because Defendants have

failed to show a strong basis in evidence that their

use of race was reasonably necessary to comply with

the VRA. Part IV addresses the proper remedy.

I. Factual and Procedural Background

A. Legal Context for Redistricting

Every ten years, the North Carolina General

Assembly—comprised of the North Carolina House of

Representatives and the North Carolina Senate—

must conduct a statewide redistricting based on the

latest decennial census. N.C. Const. art. II, §§ 3, 5.

Redistricting legislation must comply with a complex

array of federal and state legal requirements, all of

which combine to make redistricting perhaps “the

most difficult task a legislative body ever

undertakes.” Page v. Va. State Bd. of Elections, No.

3:13CV678, 2015 WL 3604029, at *7 (E.D. Va. June

5, 2015) (quoting Smith v. Beasley, 946 F. Supp.

1174, 1207 (D.S.C. 1996)), appeal dismissed sub nom.

Wittman v. Personhuballah, 136 S. Ct. 1732 (2016).

Federal election law requirements include the

one person, one vote standard, see Baker v. Carr, 369

U.S. 186 (1962), and the provisions of the VRA.

Section 2 of the VRA, as relevant to this case,

prohibits redistricting plans that result in vote

dilution, which occurs when “based on the totality of

circumstances, it is shown that...members of a

[protected group] have less opportunity than other

members of the electorate to participate in the

political process and to elect representatives of their

choice.” 52 U.S.C. § 10301(b).

App-5

Section 5 of the VRA applies only to covered

jurisdictions and prohibits retrogression, i.e., the

adoption of any electoral change affecting a covered

jurisdiction “that has the purpose of or will have the

effect of diminishing the ability of any [protected

group] to elect their preferred candidates of choice.”

Id. §10304(b). Because the Supreme Court

invalidated the criteria used to determine which

jurisdictions are covered by Section 5’s requirements,

Shelby Cty. v. Holder, 133 S. Ct. 2612, 2631 (2013),

no North Carolina jurisdictions remain subject to

Section 5. However, during the 2011 redistricting and

prior to Shelby County, forty North Carolina counties

were subject to those requirements, meaning that

any state laws affecting voting in those jurisdictions,

including new election districts, had to be precleared

as non-retrogressive by the Justice Department or a

three-judge panel of the U.S. District Court for the

District of Columbia. See 52 U.S.C. §§ 10303-10304:

28 C.F.R. pt. 51 app. (2016).

Finally, any state legislative redistricting plan

must also comply with various state legal

requirements. The North Carolina Constitution’s

“Whole-County Provision” (the WCP) requires that

“[njo county shall be divided in the formation of a

senate district,” N.C. Const. art. II, § 3(3), or

“representative district,’ id. §5(3). Because this

proscription is often impossible to implement without

violating federal law, the Supreme Court of North

Carolina has reinterpreted the WCP to require that

redistricting planners group counties together in

drawing districts, generally keeping such groups as

small as possible and minimizing the number of

traverses across county boundaries within groups.

App-6

See Stephenson v. Bartlett (Stephenson I), 562 S.E.2d

377, 396-98 (N.C. 2002); Stephenson v. Bartlett

(Stephenson II), 582 S.E.2d 247, 250-51 (N.C. 2003);

see also infra section I].A.1.b.

B. Factual Context for Redistricting

Between 1991 and 2010, the number of

“majority-black districts”’—i.e., districts with a black

voting-age population (“BVAP”) above fifty-percent—

in North Carolina’s state House and Senate

districting plans gradually declined.? In the House,

for instance, between 1991 and 2010, the number of

majority-black districts decreased from a high of

thirteen in 1991 to a low of nine starting in 2002.

Defs.’ Ex. 3001 at 19-24, 42-48, 83-87, 143-50, 227-34,

298-300, 315-17 (Historical House Maps 1991-2010).

Similarly, in the Senate, the number of majority-

black districts decreased from four in 1991 to zero

beginning in 2003. Defs.’ Ex. 3000 at 18-20, 30-32,

46-47, 73-76, 116-19, 151 (Historical Senate Maps

1991-2010). The redistricting plan that was in place

in the House at the tume of the 2011 redistricting (the

“Benchmark House Plan”) was enacted in 2009, and

as drawn it had nine majority-black districts.* Defs.’

Ex. 3001 at 315-17. The “Benchmark Senate Plan,”

2 As used in this opinion, and in accordance with the statistics

utilized by Defendants throughout the redistricting process,

"BVAP" refers to the “total black” portion of the voting-age

population, i.e., the portion that is “any-part black.”

3 The benchmark districts corresponding to the House districts

challenged in this case were not changed between the 2003 and

2009 House redistricting plans. Thus, for the purposes of this

opinion, the term “Benchmark House Plan” accurately refers to

both the 2003 and 2009 House redistricting plans.

App-7

enacted in 20038, had zero majority-black districts.

Defs.’ Ex. 3000 at 151.

Many African-American General Assembly

candidates, however, had electoral success even when

running in non-majority-black districts. African-

American candidates certainly experienced losses in

such districts, but their overall success was

significant. For example, in the three election cycles

preceding the 2011 redistricting, African-American

candidates for the North Carolina House won thirty-

nine general elections in districts without a majority

BVAP (including eleven such elections in 2010 alone),

and African-American candidates for the North

Carolina Senate won twenty-four such elections

(including seven such elections in 2010). Defs.’ Ex.

3020-14 at 2-5 (North Carolina House of

Representatives Election Contest Winners); Defs.’

Ex. 3001 at 315-17; Defs.’ Ex. 3020-13 at 2-3 (North

Carolina Senate General Election Winners); Defs.’

Ex. 3000 at 151.

C. The 2011 Redistricting Process

The redistricting process at issue here began and

ended within the 2011 calendar year. On January 27,

2011, Senator Robert Rucho was appointed Chair of

the Senate Redistricting Committee. Second Joint

Stip. § 1, ECF No. 80; Defs.’ Ex. 3013 at 2 (Aff. of

Robert Rucho in Dickson v. Rucho). On February 15,

2011, Representative David Lewis was appointed

Chair of the parallel House’ Redistricting

Committee.4 Second Joint Stip. 4 1; Defs.’ Ex. 3037 at

4 The House also appointed Representatives Nelson Dollar and

Jerry Dockham as redistricting chairs, but Representative

App-8

2 (Aff. of David Lewis in Dickson v. Rucho). Together,

Senator Rucho and Representative Lewis (the

“Redistricting Chairs” or “Chairs”) were

“effectively ...the manager[s] of the [redistricting]

process,” Trial Tr. vol. III, 119:1-4 (Lewis), and they

“worked very closely” with each other throughout

that effort, Defs.’ Ex. 3013 at 2 (Rucho).

Although the Redistricting Chairs led the

redistricting, they did not actually draw the maps.

That work was done by Dr. Thomas Hofeller, whom

the General Assembly’s private counsel engaged to

design the 2011 redistricting plans. Second Joint

Stip. 4 3. Dr. Hofeller was to be the “chief architect”

of the plans. Trial Tr. vol. IV, 41:22-24 (Rucho);

Second Joint Stip. § 6; Joint Ex. 1051 at 71. In other

words, the Chairs would rely on him to translate

their policy directives into actual districts. Trial Tr.

vol. IV, 17:21-18:3 (Rucho); see also id. at 41:11-16

(“Dr. Hofeller was given clear instructions as to what

was required of him .. . just as much as I would do if

I were asking an architect to build my home.”).

In March 2011, soon after receiving the 2010

census data, Dr. Hofeller began his work. Second

Joint Stip. § 5. The Redistricting Chairs were the

only ones who gave him instructions, see Trial Tr.

vol. IV, 216:2-9 (Hofeller); Second Joint Stip. 4 7, and

they only communicated with Dr. Hofeller orally,

Trial Tr. vol. III, 199:5-8 (Lewis); Trial Tr. vol. IV,

216:2-9 (Hofeller).

Lewis was the “senior chair and the manager of the process” in

the House. Trial Tr. vol. ITI, 119:1-4 (Lewis).

App-9

It appears that no one besides the two Chairs

and Dr. Hofeller had any substantive role in

designing the 2011 districts. Dr. Hofeller never

attended a Redistricting Committee meeting or

reviewed any Redistricting Committee meeting

transcripts. Trial Tr. vol. V, 89:5-10 (Hofeller). The

Redistricting Committees did not participate in

defining redistricting criteria for Dr. Hofeller, nor

were Dr. Hofeller’'s draft maps presented to the

Redistricting Committees for their input prior to

public release. Trial Tr. vol. II], 213:17-23 (Lewis);

Defs. Ex. 3013-1 at 1-3 (Timeline of 2011

Redistricting Process); Joint Ex. 1022 at 37 (June 15,

2011, Joint Redistricting Committee Meeting) (Rep.

Joe Hackney). Dr. Hofeller did not attend any of the

public hearings on redistricting, review any

transcripts of those hearings, or confer with anyone

other than Representative Lewis and Senator Rucho

about the redistricting. Trial Tr. vol. V, 88:23-89:4,

89:11-16 (Hofeller).

The Redistricting Chairs instructed Dr. Hofeller

to begin the line-drawing process by identifying

geographically compact minority populations and

then drawing majority-minority districts in those

locations, where possible, so that African-American

voters would have a roughly proportional opportunity

statewide to elect their preferred candidates of

choice. Trial Tr. vol. V, 96:7-97:15 (Hofeller). They

termed these majority-minority districts “VRA

districts,” which they considered to be districts with

geographically compact, politically cohesive minority

populations, where there was some evidence of

racially polarized voting. Trial Tr. vol. Ill, 222:23-

223:24 (Lewis); see also Trial Tr. vol. IV, 49:1-17

App-10

(Rucho). The Chairs instructed Dr. Hofeller that each

of these districts was to have at least 50%-plus-one

BVAP. See infra section II.A.1.5

On June 17, 2011, as the first step in making Dr.

Hofeller’s plans public, the Chairs released a map for

both the House and Senate (the “VRA maps”)® that

included only the purported “VRA districts” they

claimed were necessary for compliance with the VRA.

Second Joint Stip. ¥ 8; Defs.’ Ex. 3013-1 at 2, 3. On

July 12, the Chairs proposed full House and Senate

redistricting plans to the public. Second Joint Stip.

4 11; Defs.’ Ex. 3013-1 at 2, 3.

On July 20, a slightly modified version of that

full Senate plan (“Rucho Senate 2”) was released to

the public and, the following day, presented to the

Senate Redistricting Committee. Second Joint Stip.

4 12; Defs.’ Ex. 3013-1 at 3. On July 25 and July 27,

the Senate and House, respectively, passed that

modified plan. Second Joint Stip. {4 15-16; Defs.’ Ex.

3013-1 at 4-5.

A similarly streamlined sequence of proposal and

passage unfolded in the House. After a full House

®° The Chairs—and not any court or regulator—designated these

“VRA districts” as such. The Chairs’ use of the term “VRA

district” reflected their stated goal of complying with the VRA.

Throughout this opinion, our use of the Chairs’ term “VRA

district” in no way indicates this court’s view, one way or the

other, regarding whether the VRA required such districts.

6 Throughout this opinion, “Senate VRA map” refers to “Rucho

Senate VRA Districts.” Joint Ex. 1001. “House VRA map” refers

to “Lewis House VRA - Corrected,” Joint Ex. 1002, which was

released June 21 and reflects an immaterial change to the June

17 map, Defs.’ Ex. 3013-1 at 3; infra note 30.

App-11l

plan was released to the public on July 12, a slightly

modified version of that plan (“Lewis-Dollar-

Dockham 2”) was released to the public on July 20

and presented to the House Recistricting Committee

the following day. Second Joint Stip. § 17; Defs.’ Ex.

3013-1 at 3. The full House passed that plan on Julv

25. Id. After a few further modest revisions made by

the Senate Redistricting Committee, the full Senate

approved the House plan (later termed “Lewis-

Dollar-Dockham 4”) on July 27. Second Joint Stip.

44 20-21; Defs.’ Ex. 3013-1 at 3.

Rucho Senate 2 (the “Enacted Senate Plan”)

became law on July 27, 2011. Second Joint Stip. 4 16;

Defs.’ Ex. 3013-1 at 4; see 2011 N.C. Sess. Law 402.

Lewis-Dollar-Dockham 4 (the “Enacted House Plan”)

became law on July 28, 2011.7 Second Joint Stip.

4] 22; Defs.’ Ex. 3013-1 at 2; see 2011 N.C. Sess. Laws

404. Those plans were subsequently precleared by

the Justice Department pursuant to Section 5 of the

VRA.

In short, within a month-and-a-half, Dr.

Hofeller’s draft maps were released in near-final

form to the public, presented to the Redistricting

Committees, and passed without — significant

modification by the General Assembly. And because

those maps were the work of Dr. Hofeller, who was in

turn directed only by the two Redistricting Chairs, it

is clear that three individuals substantially carried

out North Carolina’s 2011 statewide redistricting

effort. See Trial ‘ir. vol. III, 213:24-214:2 (Lewis)

? Together, we refer to the Enacted House Plan and the Enacted

Senate Plan as the “Enacted Plans.”

App-10

(Rucho). The Chairs instructed Dr. Hofeller that each

of these districts was to have at least 50%-plus-one

BVAP. See infra section II.A.1.5

On June 17, 2011, as the first step in making Dr.

Hofeller’s plans public, the Chairs released a map for

both the House and Senate (the “VRA maps”)® that

included only the purported “VRA districts” they

claimed were necessary for compliance with the VRA.

Second Joint Stip. 9 8; Defs.’ Ex. 3013-1 at 2, 3. On

July 12, the Chairs proposed full House and Senate

redistricting plans to the public. Second Joint Stip.

§] 11; Defs.’ Ex. 3013-1 at 2, 3.

On July 20, a slightly modified version of that

full Senate plan (“Rucho Senate 2”) was released to

the public and, the following day, presented to the

Senate Redistricting Committee. Second Joint Stip.

4] 12; Defs.’ Ex. 3013-1 at 3. On July 25 and July 27,

the Senate and House, respectively, passed that

modified plan. Second Joint Stip. 94 15-16; Defs.’ Ex.

3013-1 at 4-5.

A similarly streamlined sequence of proposal and

passage unfolded in the House. After a full House

5 The Chairs—and not any court or regulator—designated these

“VRA districts” as such. The Chairs’ use of the term “VRA

district” reflected their stated goal of complying with the VRA.

Throughout this opinion, our use of the Chairs’ term “VRA

district” in no way indicates this court’s view, one way or the

other, regarding whether the VRA required such districts.

® Throughout this opinion, “Senate VRA map” refers to “Rucho

Senate VRA Districts.” Joint Ex. 1001. “House VRA map” refers

to “Lewis House VRA - Corrected.” Joint Ex. 1002, which was

released June 21 and reflects an immaterial change to the June

17 map, Defs.’ Ex. 3013-1 at 3; infra note 30.

App-1ll

plan was released to the public on July 12, a slightly

modified version of that plan (“Lewis-Dollar-

Dockham 2”) was released to the public on July 20

and presented to the House Redistricting Committee

the following day. Second Joint Stip. | 17; Defs.’ Ex.

3013-1 at 3. The full House passed that plan on July

25. Id. After a few further modest revisions made by

the Senate Redistricting Committee, the full Senate

approved the House plan (later termed “Lewis-

Dollar-Dockham 4”) on July 27. Second Joint Stip.

{{ 20-21; Defs.’ Ex. 3013-1 at 3.

Rucho Senate 2 (the “Enacted Senate Plan”)

became law on July 27, 2011. Second Joint Stip. {| 16;

Defs.’ Ex. 3013-1 at 4; see 2011 N.C. Sess. Law 402.

Lewis-Dollar-Dockham 4 (the “Enacted House Plan”)

became law on July 28, 2011.7 Second Joint Stip.

{ 22; Defs.’ Ex. 3013-1 at 2; see 2011 N.C. Sess. Laws

404. Those plans were subsequently precleared by

the Justice Department pursuant to Section 5 of the

VRA.

In short, within a month-and-a-half, Dr.

Hofeller’s draft maps were released in near-final

form to the public, presented to the Redistricting

Committees, and passed without _ significant

modification by the General Assembly. And because

those maps were the work of Dr. Hofeller, who was in

turn directed only by the two Redistricting Chairs, it

is clear that three individuals substantially carried

out North Carolina’s 2011 statewide redistricting

effort. See Trial Tr. vol. III, 213:24-214:2 (Lewis)

7 Together, we refer to the Enacted House Plan and the Enacted

Senate Plan as the “Enacted Plans.”

App-12

(“[Q:] [W]ith only a few minor changes, those

districts, your districts and Dr. Hofeller’s districts,

became the law of North Carolina, didn’t they? [A;:]

Yes, sir.”).

D. Litigation Challenging the 2011 Enacted Plans

In November 2011, two sets of plaintiffs

collectively challenged in North Carolina state court

twenty-seven state House and Senate districts, as

well as three Congressional districts, alleging that

they were unconstitutional racial gerrymanders. See

Mem. in Supp. of Mot. to Stay, Defer, or Abstain Ex.

1, at 7, 15, N.C. Superior Ct. Op. in Dickson v. Rucho,

ECF No. 32. A three-judge panel was appointed, the

two cases were consolidated, and a two-day bench

trial was held in June 2013. Jd. at 7-8. In July 2013,

the court issued a decision upholding the challenged

districts. Id. at 48-49.

The Supreme Court of North Carolina affirmed

the trial court’s judgment. Dickson v. Rucho, 766

S.E.2d 238 (N.C. 2014). The U.S. Supreme Court

then granted certiorari, vacated, and remanded the

case for further consideration in light of Alabama,

135 S. Ct. 1257. Dickson v. Rucho, 135 S. Ct. 1843

(2015) (Mem). On December 18, 2015, the North

Carolina Supreme Court reaffirmed the trial court’s

judgment. Dickson v. Rucho, 781 S.E.2d 404, 410-11

(N.C. 2015).

Meanwhile, in October 2013, two plaintiffs

uninvolved in the Dickson litigation brought suit in

federal district court, alleging that two Congressional

districts drawn during the 2011 redistricting were

racial gerrymanders. Harris v. McCrory, No. 1:13-

CV-949, 2016 WL 482052, at *6 (M.D.N.C. Feb. 5,

App-13

2016), prob. juris. noted, No. 15-1262, 2016 WL

1435913 (U.S. June 27, 2016). After the appointment

of a three-judge panel, a three-day bench trial was

held in October 2015. Jd. That court found, on

February 5 of this year, that both challenged

Congressional districts were unconstitutional racial

gerrymanders, and it ordered the General Assembly

to draw remedial districts. Jd. at *2, *21.

Plaintiffs, who are thirty-one U.S. citizens

registered to vote in North Carolina,® brought this

action on May 19, 2015, against the State of North

Carolina, the Redistricting Chairs, the North

Carolina Board of Elections, and other state officials.

Compl., ECF No. 1; First Am. Compl. 44 10-49, ECF

No. 11.

Plaintiffs allege that North Carolina Senate

Districts 4, 5, 14, 20, 21, 28, 32, 38, and 40 and North

Carolina House of Representatives Districts 5, 7, 12,

21, 24, 29, 31, 32, 33, 38, 42, 43, 48, 57, 58, 60, 99,

102, and 107 (together the “challenged districts”) are

racial gerrymanders in violation of the Equal

Protection Clause. First Am. Compl. 4 1. Each of the

challenged districts was included as a purported

“VRA district” in the House and Senate VRA maps

released on June 17, 2011. Plaintiffs seek a judgment

declaring unconstitutional the challenged districts

and a permanent injunction blocking their use.® First

Am. Compl. at 92.

8 Plaintiffs collectively reside in each of the challenged districts.

Second Joint Stip. {4 35-65.

9 We reject Defendants’ contention that Plaintiffs’ claim is

barred by res judicata as a result of the Supreme Court of North

Carolina’s decision in Dickson, 781 S.E.2d 404. Under North

App-14

Because the Plaintiffs’ action “challeng[es] the

constitutionality of...the apportionment of af[]

statewide legislative body,” 28 U.S.C. § 2284(a), the

Chief Judge of the U.S. Court of Appeals for the

Fourth Circuit granted Plaintiffs’ request for a three-

judge panel on August 18, 2015. Order, ECF No. 18.

After an expedited discovery period, this court held a

five-day bench trial from April 11 to April 15, 2016.

The issues are now ready for our consideration.

II. Analysis of Evidence of Racial Predominance

At the outset of our analysis, it is important to

emphasize that a finding that race was the

predominant motive in drawing a district does not

automatically render that district unconstitutional.

Nor does it signify that the legislature acted in bad

faith or with discriminatory intent in its

redistricting. Indeed, redistricting legislatures will

almost always be aware of racial demographics, but

“[t]hat sort of race consciousness does not lead

inevitably to impermissible race discrimination.”

Shaw I, 509 U.S. at 646.

Carolina law, which governs here, see Marrese v. Am. Acad. of

Orthopaedic Surgeons, 470 U.S. 373, 375 (1985), the doctrine of

res judicata applies only where the parties in a later case are

the same as or in privity with the parties in a prior case,

Williams v. Peabody, 719 S.E...i 88, 94 (N.C. Ct. App. 2011).

Recognizing none of the Plaintiffs in this action was either a

plaintiff in the Dickson litigation or in privity with one,

Defendants argue that the exception to privity recognized in

Th mpson v. Lassiter, 97 S.E.2d 492 (N.C. 1957), applies.

However, Defendants have not produced sufficient evidence to

prove the elements of the Lassiter exception. See Williams, 719

S.E.2d at 94-95.

App-15

As it must in do when undertaking any official

action, a state must draw electoral districts in

accordance with equal protection principles. Miller v.

Johnson, 515 U.S. 900, 905 (1995). Consequently, if

Plaintiffs show that race predominated over

traditional race-neutral redistricting principles, we

apply strict scrutiny, and Defendants have the

burden of “show[ing] not only that _ [their]

redistricting plan was in pursuit of a compelling state

interest, but also that ‘[their] districting 'egislation is

narrowly tailored to achieve [that] compelling

interest.” Shaw IT, 517 U.S. at 908 (quoting Miller,

515 U.S. at 920).

In proving whether race predominated in a racial

gerrymandering case, a plaintiffs burden is a

“demanding one,” Easley v. Cromartie (Cromartie I),

532 U.S. 234, 241 (2001) (quoting Miller, 515 U.S. at

928 (O’Connor, J., concurring)), because “the

underlying districting decision is one that ordinarily

falls within a legislature’s sphere of competence,” id.

at 242. Specifically, a plaintiff must “show, either

through circumstantial evidence of a district’s shape

and demographics or more direct evidence going to

legislative purpose, that race was the predominant

factor motivating the legislature’s decision to place a

significant number of voters within or without a

particular district.” Alabama, 135 S. Ct. at 1267

(quoting Miller, 515 U.S. at 916). In general, that

requires proof that “the legislature subordinated

traditional race-neutral districting principles,

including .. . compactness, contiguity, and respect for

political subdivisions...to racial considerations.”

Miller, 515 U.S. at 916. Put differently, the

predominance of racial considerations is evident

App-16

where “|rjace was the criterion that, in the State’s

view, could not be compromised,” such _ that

traditional districting principles were applied “only

after the race-based decision had been made.”

Shaw II, 517 U.S. at 907.

In evaluating whether racial considerations

predominated in a districting decision, the Supreme

Court has considered both direct and circumstantial

evidence of legislative intent, including statements

by legislators identifying race as a chief districting

criterion, see Miller, 515 U.S. at 917-18; indications

that attaining a racial percentage within a given

district was nonnegotiable, see Shaw II, 517 U.S. at

906-07; bizarre or non-compact district shape, see

Shaw I, 509 U.S. at 646-48; and district lines that cut

through traditional geographic boundaries or local

election precincts, see Bush v. Vera, 517 U.S. 952, 974

(1996) (plurality opinion). Moreover, in light of

Alabama, we are mindful that a legislature’s “policy

of prioritizing mechanical racial targets above all

other districting criteria (save one-person, one-vote)”

provides particularly strong evidence of racial

predominance. 135 S. Ct. at 1267.

As elaborated below, we find evidence of all of

the above here.

A. Analysis of Statewide Evidence of Racial

Predominance

Although racial gerrymandering claims are

properly brought district by district, evidence that

applies statewide—especially direct evidence

revealing legislative intent—-will frequently also be

material. See Alabama, 135 S. Ct. at 1265. Therefore,

before proceeding to an analysis of the particular

App-17

geographic and demographic features of individual

districts, we begin by considering evidence relevant

to all challenged districts.

1. The Chairs’ Redistricting Criteria and Instructions

to Dr. Hofeller

There is overwhelming and consistent evidence

before us as to the intentions of the Enacted Plans’

authors. The primary criteria that guided North

Carolina’s 2011 redistricting were articulated

repeatedly and with little variation by the Chairs

throughout the redistricting process and have been

affirmed under oath by the Chairs and Dr. Hofeller

on numerous occasions since. These countless

statements show without real dispute that there

were three main instructions the Chairs gave to Dr.

Hofeller about redistricting. All three instructions

centered around the creation of what the Chairs

called “VRA districts,” which, as noted above, see

supra section I.C, the Chairs considered to be

districts with geographically compact, politically

cohesive minority populations where there was some

evidence of racially polarized voting. The Chairs

instructed Dr. Hofeller (1) to draw each of these VRA

districts with at least 50%-plus-one BVAP; (2) to

draw these districts first, before drawing the lines of

other districts; and (3) to draw these districts

everywhere there was a minority population large

enough to do so and, if possible, in rough proportion

to their population in the state.

a. VRA Districts at 50%-Plus-One BVAP

First, the Redistricting Chairs instructed Dr.

Hofeller to draw all purported VRA districts to reach

a 50%-plus-one BVAP threshold. Trial Tr. vol. V,

App-18

97:9-11 (Hofeller) (“[Q:] [Y]ou were... instructed to

draw each VRA district at 50 percent plus one or

greater; isn’t that correct? [A:] If possible, yes.”);

Trial Tr. vol. TI, 201:19-21 (Lewis) (“[Q:] You told

(Dr. Hofeller] to draw the [VRA] districts at more

than 50 percent [BVAP]; right, Representative

Lewis? [A:] I believe that would be correct, yes, sir.”);

Joint Ex. 1018 at 28 (July 21, 2011, House

Redistricting Committee Meeting Transcript) (Lewis)

(“[W]e felt that it was a prudent course of action to

draw the districts that we were going to call and

think of as VRA districts at 50 percent plus one.”);

Joint Ex. 1013 at 10 (July 21, 2011, Senate

Redistricting Committee Meeting Transcript) (Rucho)

(“[I]n constructing the VRA districts, the Chairs

recommended, where possible, these districts be

drawn at a level equal to 50 percent plus one

BVAP.”); Joint Ex. 1015 at 94-95 (July 25, 2011,

Senate Floor Session) (Rucho) (“In the absence of

any... legal or factual basis for not doing so, we

have decided to draw all of our Voting Rights Act

districts at a 50 percent-plus level.”).

The Chairs’ 50%-plus-one instruction was based

on their interpretation of the plurality opinion in

Bartlett v. Strickland, 556 U.S. 1 (2009), which they

took to mean “that if you were going to draw districts

to comply with the Voting Rights Act... the districts

had to exceed 50 percent in minority population.”

Trial Tr. vol. III, 120:20-23 (Lewis). !9

10 In light of our conclusion that Defendants failed to

demonstrate a strong basis in evidence for any potential

Section 2 violation, see infra section III.A, we need not decide

here whether this interpretation of Strickland was proper.

App-19

It is clear that the name of the Strickland case

operated as a shorthand for the Chairs’ 50%-plus-one

instruction whenever it was employed. In other

words, throughout the redistricting process,

“complying with Strickland” meant drawing all

purported VRA districts at 50%-plus-one BVAP. The

Chairs made that clear in their very first public

statement, which accompanied the June 17 release of

the House and Senate VRA maps. See Joint Ex. 1005

at 2 (“Under the Strickland decisions, districts

created to comply with section 2 of the Voting Rights

Act, must be created with a {[BVAP] at the level of at

least 50% plus one. Thus, in constructing VRA

majority black districts, the Chairs recommend that,

where possible, these districts be drawn at a level

equal to at least 50% plus one ‘BVAP.”).

The 50%-plus-one requirement, always tied to

Strickland, was then repeated in every formal public

statement issued by the Chairs, and in nearly every

explanatory comment made to other legislators

throughout the redistricting process. See Joint Ex.

1006 at 7 (Joint Statement by Redistricting Chairs

Prior to June 23, 2011, Public Hearing) (“[VRA]

districts must comply with Strickland... and

[therefore] be drawn at a level that constitutes a true

majority of black voting age population.”); Joint Ex.

1007 at 4-5 (July 12, 2011, Joint Statement by

Redistricting Chairs) (“[Strickland} require{s] that

[VRA] districts ... be drawn with a [BVAP] in excess

of 50% plus one... . [I]n light of [Strickland], we see

no principled legal reason not to draw all VRA

districts at the 50% or above level when it 1s possible

to do so.”); Joint Ex. 1015 at 89 (July 25, 2011,

Senate Floor Session) (Rucho) (“Strickland . . . said

App-20

that any district drawn to comply with or avoid

liability under Section 2 of the Voting Rights Act

must be drawn at...50 percent or more of black

voting age population.”); Joint Ex. 1020 at 52 (July

25, 2011, House Floor Session) (Lewis) (“[O]ur

proposed plan complies with Section 2 of the Voting

Rights Act under the decision by the United States

Supreme Court in Strickland .... The state is now

obligated to draw majority black districts with true

majority black voting age population.”); see also Trial

Tr. vol. III, 195:15-18 (Lewis) (“[W]e felt ... that the

Strickland requirement of majority-minority

districts... meant that we should draw the VRA

districts at over 50 percent... .”); 1d. at 195:25-196:2

(“It was my understanding of the Strickland decision

that drawing the districts at 50 percent plus one was

the threshold for creating a VRA district.”).

It is clear, then, that the 50%-plus-one BVAP

target was of paramount concern for the Chairs as

they drew purported VRA districts, including the

challenged districts.

b. VRA Districts First

Another main instruction the Chairs gave Dr.

Hofeller regarding the purported VRA districts was

to draw those districts first, before any other “non-

VRA” districts were drawn or any other redistricting

criteria (besides the 50%-plus-one requirement) were

considered. Trial Tr. vol. III, 207:12-14 (Lewis) (“[Q:]

And one instruction was to draw the VRA districts

first? You told Dr. Hofeller to draw thfose] districts

first? [A:] Yes, sir.”); Joint Ex. 1005 at 1 (“VRA

districts [must] be created before other legislative

districts.”). In fact, as described above, the VRA

App-21

districts were not only drawn first, but also released

first—nearly one month before the release of the full

redistricting maps. Second Joint Stip. 44 8, 11; Defs.’

Ex. 3013-1 at 2, 3.

The Chairs’ instruction to draw VRA districts

first was grounded in a pair of opinions issued by the

Supreme Court of North Carolina. See Stephenson I,

562 S.E.2d 377; Stephenson I, 582 S.E.2d 247. As

mentioned above, see supra section [.A, both

Stephenson I and Stephenson I! sought to harmonize

the state constitution’s WCP with federal election

law, including the one person, one vote requirement

and the VRA. Recognizing the supremacy of federal]

legal requirements, the Stephenson decisions set

forth an enumerated, hierarchical list of steps to

guide the enactment of “any constitutionally valid

redistricting plan.” Stephenson IJ, 582 S.E.2d at 250.

As explained in Stephenson LI, step 1 of any

North Carolina redistricting process is_ that

“legislative districts required by the VRA shall be

formed prior to creation of non-VRA districts.” and

that “to the maximum extent practicable, such VRA

districts shall also comply with the legal

requirements of the WCP.” Id. Compliance with one

person, one vote is step 2. /d. Later steps require the

formation of single-district, one-county groups (step

3); the formation of multi-district, single-county

groups (step 4); the formation of multi-county

groupings, with a preference for fewer counties per

App-22

group (steps 5 and 6); and the consideration of

communities of interest (step 7). Jd."'

As discussed below, it is clear that as the map-

drawing process unfolded, the Chairs and Dr.

Hofeller did attempt to comply with the WCP as

defined by the Stephenson cases. See infra section

I1.A.2. However, it is equally clear that, in

accordance with those cases, the Chairs and Dr.

Hofeller made drawing VRA districts—as_ they

understood them—their first priority. See Trial Tr.

vol. IV, 7:17-25 (Rucho) (“Stephenson required the

General Assembly, as we were drawing these maps,

to take on the Voting Rights Act issue first because of

federal dominance over the state law. The second

part was that we also needed to harmonize what is

the [WCP].” (emphasis added)); id. at 48:22-49:4

(“[Q:] You say you complied with Stephenson; that

was your goal? [A:] Yes, sir. We followed the

Stephenson decision to its letter. [Q:] And under that

analysis, what was the first thing that you believed

you had to do? [A:] Well, the first step, as required,

would have been for us to identify potential[}] VRA

districts.” (emphasis added)); Trial Tr. vol. IV, 219:2-

9 (Hofeller) (“The Stephenson case instructed,

according to my understanding of it, that the first

thing that had to happen was an analysis of the

areas of concentrations of minority voters in the state

'! The final two requirements are that multi-member districts

be evoided unless “necessary to advance a compelling

governmental interest” and, generally, that any departures

from “the legal requirements set forth herein” occur “only to the

extent necessary to comply with federal law.” Stephenson IT, 582

S.E.2d at 250-51.

App-23

to determine where VRA districts could be drawn and

then to proceed to draw districts.” (emphasis added)):

Joint Ex. 1024 at 22 (House 2011 Section 5

Submission) (“[The Stephenson cases hold] that

districts ‘required by the Voting Rights Act’ must be

created before any other districts.”); Joint Ex. 1023 at

20 (Senate 2011 Section 5 Submission) (same).

Further, because the Chairs and Dr. Hofeller

believed that Strickland required all VRA districts to

be drawn at 50%-plus-one BVAP, they applied that

purported requirement at Stephenson's first step. In

other words, complying with Stephenson to the

Chairs meant drawing 50%-plus-one districts, and

drawing them firsi. See Trial Tr. vol. IV, 46:20-47:1

(Rucho) (“[Q:] And is it your understanding that

Strickland is encompassed in the way that you

understand the Stephenson case? [A:] Yes, sir. The

Stephenson case...included the decision on

Strickland requiring the 50 percent plus one, as far

as saying that if you are building a VRA district, then

you can go ahead and follow that as part of the law.”);

id. at. 32:25-33:3 (“[Q:] [Yjou applied the 50 percent

plus one rule across the state, didn’t you? [A:] That

was what was expected of us as we followed the

Stephenson criteria.”).

The Chairs’ combined understanding of the

Strickland and Stephenson cases thus operated to

make the 50%-plus-one BVAP threshold Dr.

Hofeller’s first consideration—both in time and

App-24

priority—in drawing all VRA districts and therefore

all challenged districts. !2

c. Near-Maximization of VRA Districts

Finally, in addition to instructing Dr. Hofeller to

draw all purported VRA districts first and to draw

them at 50%-plus-one BVAP, the Chairs instructed

him to draw enough VRA districts “to provide North

Carolina’s African American citizens with a

substantially proportional and equal opportunity to

elect their preferred candidates of choice.” Joint Ex.

1005 at 3. According to the Chairs, this would mean

“the creation of 24 majority African American House

districts and 10 majority African American Senate

districts.” Jd. Like the invocation of Strickland and

Stephenson, this proportionality criterion was

stressed in each of the Chairs’ public statements, and

it was repeated throughout the redistricting process.

Id.; Joint Ex. 1006 at 7 (explaining that any proposed

maps must “provide black voters with a substantially

proportional _ state-wide opportunity to elect

candidates of their choice”); Joint Ex. 1007 at 5 (“Our

proposed plan provides black voters in North

Carolina with substantial or rough proportionality in

the number of VRA districts in which they have an

equal opportunity to elect their preferred candidates

of choice.”); see also Joint Ex. 1018 at 12-14 (July 21,

2011, House Redistricting Committee Meeting); Joint

'2 We express no view as to whether the Stephenson cases

require that VRA districts be drawn first both in priority and in

time. As the record shows, and as is sufficient for our analysis,

the Chairs interpreted those cases to require that VRA districts

be drawn before all other districts.

App-25

Ex. 1021 at 21 (July 27, 2011, Senate Redistricting

Committee Meeting).

As with their 50%-plus-one BVAP target, the

Chairs sought to ground their proportionality goal in

case law. Citing Johnson v. De Grandy, 512 U.S. 997

(1994), they asserted that achieving proportionality

would “further[] the State’s obligation to comply with

Section 2 of the Voting Rights Act,” Joint Ex. 1005

at 4, in that it would “give the State an important

defense to any lawsuit that might be filed

challenging the plans under Section 2,” Joint Ex.

1007 at 5. Representative Lewis stated his belief that

proportionality would likely “insulate [the state] from

lawsuits,” Trial Tr. vol. III, 196:7-11, and Senator

Rucho indicated at least once his understanding that

proportionality was “required,” Joint Ex. 1021 at 21.

This was not a proper interpretation of the law.

De Grandy considered rough proportionality—a.e.,

whether “minority voters formjed] effective voting

majorities in a number of districts roughly

proportional to the minority voters’ respective shares

in the voting-age population”’—as one “relevant fact

in the totality of circumstances” bearing on a Section

2 vote dilution claim. 512 U.S. at 1000. That same

case also clarified that under no circumstances is

proportionality to be considered a “safe harbor” from

Section 2 litigation, id. at 1017-21, and that

proportionality should not be sought if it requires

destroying “communities in which minority citizens

are able to form coalitions with voters from other

racial and ethnic groups, having no need to be a

majority within a single district in order to elect

candidates of their choice,” id. at 1020. In other

App-26

words, proportionality is not required, not a safe

harbor, and not to be pursued at the cost of

fracturing effective coalitional districts.!4

Though grounded in legal misconceptions, the

proportionality goal was nevertheless applied to

effect a major increase in the number of majority-

black districts across the state. The Benchmark

House Plan as drawn had only nine majority-black

districts, Defs.’ Ex. 3001 at 315-17, meaning that the

Chairs’ proportionality goal would require creating

fifteen new majority-black districts to reach their

twenty-four-district target. The Benchmark Senate

Plan as drawn had no majority-black districts, Defs.’

Ex. 3000 at 151, meaning that the Chairs’

proportionality goal would require creating ten new

majority-black districts to reach their ten-district

‘8 The Chairs also came close to conflating rough

proportionality, a permissible redistricting consideration, with

“proportional representation,” which Section 2 expressly

excludes from the scope of its protections. See 52 U.S.C. §

10301(b). While proportionality “links the number of majority-

minority voting districts to minority members’ share of the

relevant population,” proportional representation relates the

number of elected representatives who are members of a

particular minority group to that minority’s population. De

Grandy, 512 U.S. at 1014 n.11 (emphasis added). The Chairs

suggested a concern with proportional representation, for

instance, when they cited the number of African-American

candidates who had actually been elected to the General

Assembly in justifying their proportionality goal. See Joint Ex.

1005 at 3. Similarly, later in the redistricting process, the

Chairs spoke of providing a certain number of “seats” for

African-American representatives. Joint Ex. 1018 at 12 (Lewis);

Joint Ex. 1021 at 21 (Rucho).

App-27

target.'4 Overall, the Chairs sought to more than

triple the muumber of majority-black General

Assembly districts, from nine to thirty-four.

The Enacted Plans fell just short of the stated

goal.'5 In the House, while the VRA map released on

June 17 had imcluded twenty-four majority-black

districts, Joint Ex. 1005 at 3, the Chairs “elected to

delete a majority black district [they] had proposed

for southeastern North Carolina based

upon ... strong statements opposing such a district,”

14 We recognize that comparisons to benchmark plans and

districts may be of limited value because such plans are based

on outdated census information, and so could not have been

reenacted without modification to comply with one person, one

vote requirements. However, compamsons to benchmarks may

still yield useful insights, particularly where there are marked

differences between past and present plans. See Alabama, 135

S. Ct. at 1271 (examining “individuals that the new

redistricting laws auded to the population of’ a benchmark

district as relevant to the predominance inquiry).

16 Even though the Chairs fell one majority-black district short

in each chamber of the targets they set forth in their June 17

statement, they nevertheless insisted that they had succeeded

in achieving their proportionality goal. Joint Ex. 1007 at 2

(“[The twenty-three majority-black districts,] combined with two

over 40% BVAP districts, continue to provide black voters with

a substantially proportional and equal opportunity to elect

candidates of their choice.”); Joint Ex. 1005 at 6 (“If adopted by

the General Assembly, proposed [Senate] District 32 will

provide African American citizens with a more equal, and tenth

opportunity, to elect a candidate of choice.”); Joint Ex. 1007 at 3-

§ (explaining that Senate District 32, drawn with a BVAP of

42.53%, counted as one of the ten Senate VRA districts). This is

a conclusion difficult to square with the Chaus’ repeated

assertions that only 50%-plus-one BVAP districts could satisfy

the VRA.

App-28

Joint Ex. 1007 at 2. The Chairs also noted that, due

to “the lack of black population,” they could not draw

“two majority BVAP [House] districts ...in Forsyth

County.” Joint Ex. 1007 at 5.

As for the Senate, the Chairs explained that they

had “been unable to identify a reasonably compact

majority African American population to create a

tenth majority African American [Senate] district.”

Joint Ex. 1005 at 4; see also Joint Ex. 1006 at 2; Joint

Ex. 1007 at 4 (“{[O]ur tenth [majority-black] senate

district, District 32, cannot be drawn within Forsyth

County in excess of 50% plus one.”).

Either way, the end result of the proportionality

goal was a striking increase in the number of

majority-black General Assembly districts. The

Enacted House Plan contains twenty-three majority-

black districts, and the Enacted Senate Plan contains

nine, meaning that the total number of majority-

black General Assembly districts increased from nine

to thirty-two. Joint Ex. 1023 at 10; Joint Ex. 1024 at

10.

The fact that the goal sought to increase,

significantly, the number of majority-black General

Assembly districts suggests that here the

proportionality target functionally operated as a goal

to maximize the number of majority-black districts.

In response to a question regarding’ the

proportionality instruction, Senator Rucho responded

that his instruction was for Dr. Hofeller to draw VRA

districts “wherever he could...but with no

requirement of maximization.” Trial Tr. vol. IV, 36:4-

5. It is difficult to see, though, how the instruction to

draw VRA districts “wherever” one can or “where

App-29

possible,” ‘Trial Tr. vol. V, 81:17-20 (Hofeller); Joint

Ex. 1005 at 2-3, is meaningfully different from a goal

to maximize such districts.

Even if the proportionality goal was not quite a

maximization policy, there is no doubt that this

statewide numerical target was based on race, and

that it was of principal importance during the 2011

redistricting process. Because the proportionality

goal was considered to be a component of VRA

compliance, that priority—along with the 50%-plus-

one requirement—was folded into the first

Stephenson step, and thereby the first step of the

redistricting. See Trial Tr. vol. IV, 36:6-10 (Rucho)

(‘[Q:] And the [Senate] plan that was enacted

included ten districts that you believed met the

State’s obligations under the Voting Rights Act;

correct? [A:] In our understanding of what was

expected of us following the Stephenson decision and

the criteria, yes.”).

That meant that two numerical racial targets—

the 50%-plus-one goal and the proportionality goal—

took precedence in the redistricting process.

d. Three “Primary” Criteria

It is not just that the 50%-plus-one instruction,

the proportionality goal, and compliance with

Stephenson (including its requirement to draw VRA

districts first) were the criteria most frequently or

prominently cited by the Chairs. Those three

considerations were also often identified by the

Chairs themselves and by Dr. Hofeller as the only

“primary criteria.

For example, in his affidavit, Dr. Hofeller

identified Strickland (ie., the 50%-plus-one

App-30

requirement), Stephenson (including the instruction

to draw VRA districts first), and the proportionality

goal as the three “primary criteria used to draw [the

redistricting] plans.” Defs.’ Ex. 3026 at 4. And when

the Chairs first proposed a complete plan, they

announced in their accompanying public statement

that their “primary goal [was] to propose maps that

will survive any possible legal challenge,” and then

identified Stephenson, Strickland (meaning the 50%-

plus-one requirement), and compliance with the VRA

(meaning proportionality, in addition to the 50%-

plus-one requirement) as the “legal requirement[s]”

that would ward off such litigation. Joint Ex. 1007 at

1-2.

The Chairs also indicated these were the criteria

that “could not be compromised.” Shaw II, 517 U.S.

at 907. For instance, after announcing their proposed

VRA districts, the Chairs stated that any alternative

proposals should comply with three criteria: the

Stephenson cases, Strickland, and the proportionality

goal. Joint Ex. 1005 at 8. Six days later, the Chairs

again stressed in a public statement that they would

“entertain any specific suggestions” for alternative

districts, but only if those suggested alternatives

satisfied the proportionality and 50%-plus-one

targets. Joint Ex. 1006 at 7. Even before proposing

any plans, they asked the Legislative Black Caucus

to “take into consideration the requirements of

Strickland ...as well as the Stephenson line of

cases” in suggesting possible districts. Defs.’ Ex.

3013-5 at 2 (Apr. 5, 2011, Email and Letter from

Redistricting Chairs to Leaders of the Legislative

Black Caucus).

App-31

By their own characterization, then, the 50%-

plus-one target and the proportionality goal were two

of the three “primary” criteria the Chairs and Dr.

Hofeller employed. And the third—compliance with

the Stephenson cases—-assured that those two

“mechanical racial targets,” which the Chairs took to

be necessary for compliance with the VRA, would be

“prioritiz[ed] ... above all other districting criteria

(save one-person, one-vote).” Alabama, 135 S. Ct. at

1267.16

In other words, the overriding priority of the

redistricting plan was to draw a predetermined race-

based number of districts, each defined by race.

2. Dr. Hofeller’s Implementation of the Chairs’

Instructions

Given clear instructions, Dr. Hofeller closely

followed them.

One of Dr. Hofeller’s first tasks, conducted in

March 2011 soon after receipt of the 2010 census

data, was the creation of a spreadsheet *#lculating

the exact number of majority-black districts in the

House and Senate that would achieve the Chairs’

proportionality goal. Pls.’ Ex. 2037 (Carolina

16 [t should be noted that the Chairs also referenced and sought

to comply with the one person, one vote requirement, which was

incorporated by the Stephenson cases. See, e.g., Joint Ex. 1005

at 5; Joint Ex. 1007 at 1-2. That does not affect our

predominance analysis, however. See Alabama, 135 S. Ct. at

1270 (“|A}n equal population goal is not one factor among other's

to be weighed against the use of race to determine whether race

‘predominates. Rather, it is part of the redistricting

background, taken as a given, when determining whether race.

or other factors, predominate ... .”).

App-32

Proportionality Chart); Second Joint Stip. 4 4; Trial

Tr. vol. V, 89:17-91:16 (Hofeller).

Next, for both the House and Senate, Dr.

Hofeller conducted “a demographic analysis... to

determine where in the State sufficiently populous,

compact minority populations were present to form

single-member African-American... districts

containing minority population percentages in excess

of 50%.”!7 Defs.’ Ex. 3030 at 5 (Second Expert Report

of Thomas B. Hofeller, Ph.D.). Based on this analysis,

he drew VRA “exemplar districts,” which were

“racially defined” in that they embodied nothing more

than “concentrations of minority voters” capable of

constituting a district that could satisfy the 50%-

plus-one BVAP threshold. Trial Tr. vol. IV, 228:5-12

(Hofeller); Trial Tr. vol. V, 104:4-105:1 (Hofeller). Dr.

Hofeller drew the VRA exemplar districts without

reference to any communities of imterest or

geographic subdivisions, such as county lines and

precinct lines. Trial Tr. vol. V, 104:21-105:6

(Hofeller). !®

17 That “demographic analysis” also accounted for one area of

the state with a high concentration of Native American voters,

which was included as House District 47 in the proposed House

VRA map and Enacted House Plan. Defs.’ Ex. 3030 at 5; Joint

Ex. 1005 at 6; Joint Ex. 1004 at 1 (Enacted House Plan Map).

18 Tn this opinion, we use the term “precincts” to refer to “voter

tabulation districts” (VTDs). Counties in North Carolina draw

precinct lines based on the latest census. Joint Ex. 1012 at 19.

The General Assembly created VTDs on January 1, 2008,

defined by the precinct lines as they existed on that date. N.C.

Gen. Stat. § 163-132.1B. For the most part, precincts and VTDs

in North Carolina remain the same, although since

January 1, 2008, some counties have divided certain VTDs into

App-33

After drawing exemplar 50%-plus-one BVAP

districts across the state, Dr. Hofeller then drew a

separate ‘optimum [county] grouping map” in

accordance with the criteria outlined by the

Stephenson cases. Trial Tr. vol. IV, 240:8-11

(Hofeller). Because the boundary lines of the

optimum county grouping map often crossed the lines

of the VRA exemplar districts, Dr. Hofeller then

engaged in what he termed “an iterative

harmonization project” in order to create county

groups that could accommodate 50%-plus-one VRA

districts, and vice versa. Jd. at 240:11-241:1; see also

id. at 237:10-14; Trial Tr. vol. V, 28:9-12 (Hofeller)

(“[T]he optimal county groups..., because of the

Voting Rights Act provision in Stephenson, had to be

modified in order to create the districts that we felt

needed to be created.”).

Ultimately, the optimum county groups were

substantially modified, such that in many of those

areas of the state where purported VRA districts

were drawn, the optimum county groups were not

enacted. See Defs.’ Ex. 3030 at 100-01 (Maps 9 and

10) (optimum groups excluded from Enacted Plans in

multiple precincts. Only twenty-three VTDs that were further

divided into precincts were split by the Enacted House Plan,

and only sixteen VTDs that were further divided into precincts

were split by the Enacted Senate Plan. Pls.’ Ex. 2092 at 3

(Second Aff. of Theodore Arrington, Ph.D. in N.C. State

Conference of Branches of the NAACP v. North Carolina, No. 11-

CV-01640 (N.C. Super. Ct.)). Significantly, the Enacted Plans

did not split any of these further-divided VTDs along the newly

formed precinct lines. Jd. In other words, for our purposes,

“VTD” and “precinct” are essentially synonymous.

App-34

white); Trial Tr. vol. IV, 236:10-25 (Hofeller); Trial

Tr. vol. V, 28:7-17 (Hofeller).

In contrast, “[a]ll of the 2011 enacted VRA

districts for the General Assembly are substantially

based on the compact minority populations found in

the corresponding exemplar districts.” Defs.’ Ex. 3029

at 9 (First Decl. of Thomas B. Hofeller, Ph.D.).

Indeed, the vast majority of the African-American

population included in Dr. Hofeller’s VRA exemplar

districts was eventually included in enacted VRA

districts. Trial Tr. vol. IV, 238:18-21 (Hofeller) (“[T]he

plans created and enacted have to contain a very

high percentage of those minority areas from one or

more of those [exemplar] districts in the district

which is enacted.”). On average, 90.25% of the total

BVAP in the House VRA exemplar districts and

83.64% of the total BVAP in the Senate VRA

exemplar districts were incorporated into an enacted

VRA district. Defs.’ Ex. 3029 at 28.

Most significantly, although the boundaries of

some VRA exemplar districts did shift as Dr. Hofeller

sought to “harmonize” them with the county

groupings, the Chairs’ 50%-plus-one BVAP target

was not compromised.’ Indeed, Dr. Hofeller did

whatever it took to meet that racial threshold, even

where doing so required major sacrifices in terms of

respect for other traditional districting principles.

Trial Tr. vol. V, 20:12-19 (Hofeller) (“[A]s you tried to

19 There was one exception among the challenged districts:

Senate District 32 was enacted with a BVAP of 42.53%. Third

Joint Stip. ¥ 107, ECF No. 90. We therefore consider it

separately and independently in our predominance analysis. See

infra section II.B.7.

App-35

lift the black voting-age population in the districts up

above 50 percent, it became increasingly difficult to

include territory in those districts which had the

requisite number of African-American adults in them

percentage-wisc. So as you were reaching out to do

that, it became more and more difficult, and that, in

turn, governed the shapes of those districts.”); td.

at 32:17-21 (“[A]ls you attemptfed] to raise the

minority percentage in some of these districts... it

became increasingly difficult to find areas that had

high percentages of African-Americans to raise that

district up.”); see also id. at 105:7-14; Trial Tr. vol.

IV, 231:2-4 (Hofeller).

As Dr. Hofeller strived to keep VRA districts at

50%-plus-one BVAP throughout the “harmonization”

process, the boundaries of those districts generally

became less compact. Although some lines in multi-

county groupings did follow county boundaries, that

often had the effect of making any remaining, non-

county lines more irregular so that the 50%-plus-one

BVAP threshold could be attained. See Trial Tr. vol.

IV, 237:10-14 (Hofeller) (explaining that the

exemplar version of House District 12 was more

compact prior to harmonization with the optimum

county groupings); id. at 238:5-8 (explaining that “the

compact version” of House District 48, Le., the

exemplar district, crossed into multiple county

groups).

In short, Dr. Hofeller drew race-defined

exemplar districts across the state in order to

implement the 50%-plus-one BVAP and

proportionality goals for the purported VRA districts.

Those exemplar districts, while modified somewhat

App-36

in their boundaries to accommodate the Stephenson

criteria, were nevertheless substantially enacted as

drawn to achieve the uncompromising 50%-plus-one

target. Trial Tr. vol. IV, 231:2-4 (Hofeller) (“[T]hose

[exemplar] areas quickly morphfed] into actual

districts, which would be the proposed districts in the

3. The Subordination of Race-Neutral Districting

Criteria

As might now be clear, because race-based goals

were primary in the 2011 redistricting process, other

“traditional race-neutral districting principles,

including . . . compactness, contiguity, and respect for

political subdivisions or communities defined by

actual shared interests,” Miller, 515 U.S. at 916,

were secondary, tertiary, or even neglected entirely

in the Chairs’ instructions to Dr. Hofeller, and in his

implementation of those instructions.

a. Political Subdivisions and Communities of Interest

The Supreme Court has indicated that one

“traditional districting principle[]” whose disregard

may indicate racial predominance includes “respect

for political subdivisions.” Shaw I, 509 U.S. at 647.

For example, the division of counties, municipalities,

and precincts may be _ evidence of racial

predominance. Miller, 515 U.S. at 908, 918.

Additionally, if the legislature has split “communities

of interest” and instead grouped areas with

“fractured political, social, and economic interests,”

connected solely by race, that too may indicate that

race was the predominant factor in redistricting. Jd.

at 919.

App-37

The Chairs did not give Dr. Hofeller any

instructions to keep towns or cities whole, to preserve

communities of interest, or to avoid splitting

precincts. Trial Tr. vol. III, 202:1-203:22 (Lewis).

Consequently, aside from seeking to create county

groupings that were compliant with Stephenson (and

even then only after satisfying the 50%-plus-one

goal), Dr. Hofeller paid little attention to political

subdivisions or communities of interest as he drew

his lines, and he divided precincts as necessary in

order to satisfy the 50%-plus-one target. Trial Tr. vol.

V, 104:21-105:6 (Hofeller); Trial Tr. vol. [V, 43:16-20

(Rucho) (“[Q:] You and Dr. Hofeller divided precincts

as necessary to get to your 50 percent goal;

correct? ...[A:] Yes ...it was essential for us to be

able to do whatever—to use whatever tools were

necessary for Dr. Hofeller to harmonize the

criteria.”); id. at 44:6-8 (“([Q:] Following the law

required you to divide precincts; is that your

testimony”? . . . [A:] Following the law—yes, it did.”).

As a result, it is not surprising that the Enacted

House and Senate Plans split a high number of

precincts. Of the 2,692 precincts in North Carolina,

the Enacted House Plan splits 395 precincts, where

the Benchmark House Plan split only 285. Pls.’ Ex.

2091 at 3 (First Aff. of Theodore S. Arrington, Ph.D.

in N.C. State Conference of Branches of the NAACP v.

North Carolina, No. 11-CV-01640 (N.C. Super. Ct.));

Defs.’ Ex. 3017-7 at 2 (Aff. of Dan Frey in Dickson v.

Rucho, Ex. 7). The contrast is even starker in the

Senate. While the Enacted Senate Plan splits 257

precincts, the Benchmark Senate Plan split only 79.

Pls.’ Ex. 2091 at 3; Defs.’ Ex. 3017-7 at 2.

App-38

Aside from the large overall number of precinct

splits, there is statistically significant evidence that

precincts were generally divided for the purpose of

separating voters according to race. As an initial

matter, it should be noted that racial data—but not,

for example, political data—is available below the

precinct level, and is reported for every census block.

Pls.’ Ex. 2091 at 3-4; Trial Tr. vol. I, 113:19-114:14,

161:9-11 (Arrington). Not surprisingly, then, when

precincts were split in both the House and Senate

Enacted Plans, the portions that were more heavily

African-American in population were systematically

assigned to predominantly black districts, and the

predominantly white portions to white districts. Pls.’

Ex. 2091 at 7-10, 14, 18-19; Trial Tr. vol. I, 117:10-

121:16 (Arrington). Precincts were “almost never”

split between two white districts. Trial Tr. vol. I,

121:23 (Arrington). And precinct splitting occurred

most often in the most racially diverse areas of the

state, 1.e., those areas with both substantial white

and substantial black populations. Jd. at 122:20-

124:11; Pls.’ Ex. 2092 at 10-11, 22, 24-25 (Second Aff.

of Theodore S. Arrington, Ph.D. in N.C. State

Conference of Branches of the NAACP v. North

Carolina, No. 11-CV-01640 (N.C. Super. Ct.)).

Generally, it appears that little to no attention

was paid to political subdivisions, communities of

interest, or precinct boundaries when drawing the

challenged districts’ lines. All such criteria were

“subordinated ...to racial considerations.” Méiller,

515 U.S. at 916.

App-39

b. Compactness

The Supreme Court has also _ identified

“compactness” as among those “traditional districting

principles” whose disregard may indicate the

predominance of race in redistricting. Shaw J, 509

U.S. at 647. The regularity and compactness of a

district “may be persuasive circumstantial evidence

that race for its own sake, and not other districting

principles, was the legislature's dominant and

controlling rationale in drawing its district lines.”

Miller, 515 U.S. at 913; see also League of United

Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399,

433 (2006) (“In the equal protection context,

compactness focuses on the contours of district lines

to determine whether race was the predominant

factor in drawing those lines.”); Shaw II, 517 U.S. at

905-06 (considering a district’s bizarre shape and

non-compactness to affirm a finding of racial

predominance).

As with other traditional redistricting principles,

Dr. Hofeller was not instructed to make compactness

a “primary” or even “secondary” redistricting

criterion. Trial Tr. vol. V, 97:16-18 (Hofeller). In Dr.

Hofeller’s words, “(clompactness would

not...‘trump’ the need to create 50 percent

districts.” Id. at 97:14-15. In fact, although the map-

drawing software program Dr. Hofeller used could

calculate eight compactness measures, Dr. Hofeller

never ran those numbers at any time prior to the

Plans’ enactment.”° Jd. at 99:8-21.

20 Plaintiffs’ expert Anthony Fairfax testified that the eight

measures available in the map-drawing software program are

known as Reock, Ehrenburg, Polsby-Popper, Schwartzberg,

App-40

The results show. The Enacted House Plan is

less compact than the Benchmark Plan according to

all eight of the measures calculated by Dr. Hofeller’s

map-drawing program, Maptitude. Pls.’ Ex. 2094 at

10 (Second Aff. of Anthony E. Fairfax in Dickson v.

Rucho). The Enacted Senate Plan is less compact

than the Benchmark Plan on seven of those eight

measures. Id. at 9.

Of course, statewide compactness scores cannot

establish whether race predominated in drawing a

particular district, and numerical compactness scores

have limited value in_ determining racial

predominance. See generally section I1.B. But the fact

that these particular compactness scores were

available to Dr. Hofeller as he drew district lines and

yet were apparently given little consideration does

suggest that compactness was subordinated to the

Chairs’ racial goals throughout the redistricting.

c. The WCP

As an initial matter, the WCP cannot be relied

upon as having determined the shape of district lines

drawn within a single county. See Defs.’ Ex. 3028

at 11 (Third Aff. of Thomas B. Hofeller, Ph.D. in

Dickson v. Rucho) (“The 16 minority districts drawn

within single counties did not require

reconfigurations of the county groups.”).

Perimeter, Length-Width, Population Circle, and Population

Polygon. Trial Tr. vol. I, 168:24-173:12. Using data from the

General Assembly and the same software utilized by Dr.

Hofeller, Mr. Fairfax generated scores on all eight measures for

the Enacted House and Senate Plans, as well as the Benchmark

House and Senate Plans. Pls.’ Ex. 2094 at 2-3.

App-41

However, as we have seen, in seeking to comply

with the WCP as articulated in the Stephenson cases,

the Chairs and Dr. Hofeller did pay substantial

attention to county groupings. Those groupings, in

turn, certainly influenced the overall shape and

location of some of the challenged districts. But there

is no doubt that WCP compliance was nevertheless

subordinated to the 50%-plus-one and proportionality

targets.

First, in applying the Stephenson criteria, the

Chairs directed that all purported VRA districts be

drawn first, before any other districts. See section

I].A.1.b. Because the Chairs’ 50%-plus-one and

proportionality goals applied to VRA districts, those

targets necessarily predominated over the remaining

Stephenson criteria, including the requirement to

minimize the size of county groupings. In addition,

Dr. MHofeller testified that such subordinate

Stephenson rules as the county traversal rule—under

which the crossing of county lines is minimized

within a county group—could only be broken if doing

so facilitated the creation of districts required by the

VRA, which under the Chairs’ definition meant

districts greater than 50% BVAP. See Trial Tr. vol. V,

11:8-23.

Second, as discussed above, where there was

conflict between the optimum county groupings and

the VRA exemplar districts, Dr. Hofeller generally

resolved that conflict in favor of the latter. The

optimum county groupings were often excluded from

the Enacted Plans in challenged areas of the state,

and the vast majority of the BVAP encompassed in

App-42

VRA exemplar districts was included in enacted VRA

districts. See supra section I].A.2.

Finally, and perhaps most importantly, even

where county groupings or county lines played some

role in the eventual shape of the enacted district,

what was never compromised was the 50%-plus-one

BVAP target.

In other words, the concern with WCP

compliance “came into play only after the race-based

decision[s] had been made.” Shaw II, 517 U.S. at 907.

Consequently, that the WCP influenced the

redistricting efforts “does not in any way

refute...that race was’ the... predominant

consideration.” Jd.

d. Politics

Finally, there is no evidence in this record that

political considerations played a primary role in the

drawing of the challenged districts. Indeed, the

evidence suggests the opposite. In one of their first

public statements, the Chairs made a point of

responding to the claim that “[t]he proposed VRA

districts plan is solely an attempt to maintain

Republicans’ political power,” which they

characterized as an “erroneous statement[].” Joint

Ex. 1006 at 1, 3. The Chairs’ response to the claim

was that “[t]he State has an obligation to comply

with the f[VRA],” and that any increased

competitiveness for Republicans merely “result[ed]

from [that] compliance.” Id. at 3-4. Senator Rucho

said the same thing the next month during a Senate

Redistricting Committee Meeting. Joint Ex. 1013 at

36 (“I mean, very simply, we're following ... the

letter of the law. And if it makes the rest of the

App-43

districts more competitive, then very simply, you

know, is that wrong that they’re more competitive? I

don’t think so.”). Although there was an increase in

the maps’ political favorability for North Carolina

Republicans, see Defs.’ Ex. 3031 (Revised Aff. of Sean

P. Trende in Dickson v. Rucho), these statements

suggest that such an increase was attributable to

VRA compliance.

In other words, according to the Chairs’

statements, politics was an afterthought. And aside

from a few scattered references in the record to the

“political” nature of redistricting, see Trial Tr. vol. III,

123:23-124:5 (Lewis), or the fact that “[pJolitics has

traditionally played a role in redistricting,” Defs.’ Ex.

3069 at 15 (2011 Legislator’s Guide to North

Carolina Legislative and Congressional

Redistricting), there is nothing in the record in

connection with the districts at issue here to suggest

that statewide political considerations motivated the

2011 redistricting process.?!

21 That easily distinguishes this case from the Cromartie cases,

where there was substantial direct evidence supporting the

State’s “legitimate political explanation for its districting

decision.” Cromartie IJ, 532 U.S. at 242; Hunt v. Cromartie

(Cromartie D, 526 U.S. 541, 549 (1999) (detailing evidence,

including affidavit testimony from the two legislators

responsible for the relevant redistricting plan to the effect that

their aims were “to protect incumbents, to adhere to traditional

districting criteria, and to preserve the existing partisan

balance in the State’s congressional delegation’). The Court in

Cromartie II also stressed that the direct evidence of racial

predominance was weak. Sce 532 U.S. at 254 (finding evidence

“less persuasive than the kinds of direct evidence... found

significant in other redistricting cases.” including concessions by

the state that its goal was the creation of majority-minority

App-44

x*x* *

In sum, there is copious statewide evidence that

race-based criteria predominated—and that race-

neutral criteria were subordinated—in the creation of

the Chairs’ 50%-plus-one purported VRA districts.

B. Analysis of District-Specific Evidence of Racial

Predominance

As a racial gerrymandering claim “applies

district-by-district,” and not to the state “as an

undifferentiated ‘whole,” we must also consider

district-specific evidence’ signifying that race

predominated in drawing the challenged districts.

Alabama, 135 S. Ct. at 1265. For all the challenged

districts, the overwhelming statewide evidence

provides decisive proof that race predominated. See

id. (“Voters, of course, can present statewide evidence

in order to prove racial gerrymandering in a

particular district.”). But a look to the district-specific

evidence in this case supports and confirms that

conclusion, and provides concrete illustrative

examples of how compactness, traditional political

and geographic boundaries, communities of interest,

and the WCP were compromised in order to meet the

50%-plus-one target and proportionality goal.

districts). Given these considerable distinctions between the

cases, we see no basis for requiring Plaintiffs to present us with

alternative plans showing that the “legislature could have

achieved its legitimate political objectives in alternative ways.”

Id. at 258; see Harris, 2016 WL 482052, at *17; Page, 2015 WL

3604029, at *7 n.12. Indeed, Defendants have not identified

with any specificity which “legitimate political objectives” any

alternative plans ought to have “achieved.”

App-45

Before we delve into the _ district-specific

evidence, certain key concepts and categories of

evidence warrant further explanation.

First, in certain cases the Supreme Court has

emphasized districts’ compactness, see Shaw II, 517

U.S. at 905-06; Miller, 515 U.S. at 913, but it is

important to note that a district's degree of

compactness is usually not dispositive in a racial

gerrymandering claim. “In some exceptional cases, a

reapportionment plan may be so highly irregular

that, on its face, it rationally cannot be understood as

anything other than an effort to

‘segregat(e] ... voters’ on the basis of race.” Shaw I,

509 U.S. at 646-47 (alteration in original) (quoting

Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960)).

However, it is not the case that “a district must be

bizarre on its face before there is a constitutional

violation.” Miller, 515 U.S. at 912. Compactness is

simply one factor that can indicate whether race

played a predominant role in drawing a district, and

here our discussions of compactness merely serve to

reinforce our conclusions’ regarding racial

predominance.

There are two primary ways that courts evaluate

compactness. One way is through quantitative

measures of compactness, like the eight measures

available in Dr. Hofeller’s map-drawing software and

entered into evidence as part of Mr. Fairfax’s expert

report. See Pls. Ex. 2094 at 2. “Substantial

divergences from a mathematical standard of

compactness may be symptoms of illegitimate

gerrymandering.” Karcher v. Daggett, 462 U.S. 725,

755 (1983) (Stevens, J., concurring). However, the

App-46

Supreme Court has not established clear numerical

standards defining when a district becomes non-

compact. See Bethune-Hill v. Va. State Bd. of

Elections, 141 F. Supp. 3d 505, 535 (E.D. Va. 2015)

(discussing the challenges of utilizing compactness

scores when “no one can agree what [compactness] is

or, as a result, how to measure it”), prob. juris. noted,

136 S. Ct. 2406 (2016). And there is no clear

consensus among scholars defining the exact score on

a particular measure that divides compact from non-

compact districts. Trial Tr. vol. I, 183:7-13 (Fairfax).

Instead, compactness scores are most useful to show

relative compactness, by comparing one district to

alternative or benchmark versions of that district, or

comparing scores to the statewide or nationwide

average. See Vera, 517 U.S. at 960 (citing a study

measuring the relative compactness of districts

nationwide).

The other way to measure compactness is “by an

‘eyeball’ approach,” Vera, 517 U.S. at 960, or what

has been called the “interocular test,” Trial Tr. vol. I,

157:18-158:7 (Arrington). Although visually assessing

districts necessarily involves some _ subjective

judgment, the Supreme Court has repeatedly relied

upon such assessments to determine if a district is

“bizarre” or “irregular.” See, e.g., Vera, 517 U.S. at

965-66; Shaw II, 517 U.S. at 905-06; Shaw I, 509

U.S. at 646-47.

Besides compactness, another districting concept

in need of further explanation is “contiguity.” The

Supreme Court has identified contiguity as one of the

“traditional race-neutral districting principles,”

Miller, 515 U.S. at 916, and the North Carolina

App-47

Constitution requires that each of the state’s

“district[s] shall at all times consist of contiguous

territory,” N.C. Const. art. IT, §§ 32), 5(2). In

Stephenson IJ, the Supreme Court of North Carolina

affirmed a lower court’s finding that “a district whose

parts are ‘held together’ by the mathematical concept

of ‘point contiguity’ does not meet the .. . criteria for

contiguity.” 582 S.E.2d at 254. The U.S. Supreme

Court has likewise noted point contiguity as a sign

that traditional districting criteria were

compromised. See Shaw J, 509 U.S. at 636 (“At one

point the district remains contiguous only because it

intersects at a single point with two other districts

before crossing over them.”). Additionally, districts

may be contiguous, but only because they are

connected by narrow “land bridges,” which connect

the more populous parts of the district (or in the case

of a racial gerrymandering claim, the parts with

higher concentrations of minority voters) with a

narrow, sparsely populated strip. Miller, 515 U.S. at

908, 917. This, too, can be a sign of race

predominating.

Finally, racial demographic data may help

explain the location and idiosyncrasies of a district

boundary. Jd. at 917 (noting that even if a district is

not “bizarre on its face,” the predominance of race

may become clearer “when its shape is considered in

conjunction with its racial and population densities”);

see also Vera, 517 U.S, at 961-62. Thus, in this case

we may look to “racial density maps,” which are

shaded to indicate the percentage of the population

in each census block that identified as any-part

black. Because Dr. Hofeller testified that he used

data of this nature while drawing the challenged

App-48

districts, the racial density maps can provide useful

insights into whether district boundaries reflect

racial differences in the population. Trial Tr. vol. V,

100:14-101:18; see Pls.’ Ex. 2062 (providing a

screenshot of racial density data projected onto a

map in the map-drawing software used by Dr.

Hofeller).2?

Racial demographic data can also be useful

because it may signify whether “race was the

predominant factor motivating the legislature’s

decision to place a significant number of voters

within or without a particular district.” Miller, 515

U.S. at 916. Thus, the Supreme Court has considered

the race of the individuals who were added to or

subtracted from the benchmark district in order to

form the enacted district. See Alabama, 135 S. Ct. at

1263, 1271. We also may consider testimony

providing an explanation for the “contours” of the

district. LULAC, 548 U.S. at 433.

Keeping these principles in mind, we turn to our

district-specific analysis. Based on the following

22 We acknowledge that the racial density maps are limited in

their value because they do not indicate the total number of

African-American or white voters in a particular census block.

See Trial Tr. vol. V, 59:9-60:17 (Hofeller). Particularly in rural

locations, the census blocks may be shaded very dark

(indicating a high proportion of BVAP) when only a few

individuals live in that block, or may be completely white when

there are no inhabitants in the census block at all. Jd. Despite

this shortcoming, these maps provide useful information

regarding the racial make-up of each district. See Vera, 517 U.S.

at 961-62 (finding that the state used “racial data at the block-

by-block level” to “make more intricate refinements on the basis

of race than on the basis of other demographic information”).

App-49

evidence regarding each district, and our analysis of

the statewide evidence above, we find that race was

the predominant criterion in drawing all of the

challenged districts.

1. Senate District 4

The enacted version of Senate District 4 is a

majority-black district in northeastern North

Carolina. The benchmark version of Senate District 4

had a BVAP of 49.14% under the 2000 census, which

grew to a BVAP of 49.70% under the 2010 census.

Defs.’ Ex. 3000 at 151, 158. Enacted Senate District 4

was drawn with a BVAP of 52.75%, thus achieving

the Chairs’ goal of drawing each VRA district above

50% BVAP. Third Joint Stip. 4 3, ECF No. 90; Joint

Ex. 1003 at 120 (Enacted Senate Plan map and

statistical information). Senate District 4 was one of

the VRA districts originally identified in the June 17

Senate VRA map and was enacted without

substantial changes to the shape, location, or BVAP

level of the proposed VRA district. Joint Ex. 1001 at

1, 67 (Senate VRA Map and statistical information);

Joint Ex. 1003 at 1, 120; Pls.’ Ex. 2072 at 1.

Enacted Senate District 4 encompasses the

entirety of Vance, Warren, and Halifax Counties,

then snakes through portions of Nash County and

Wilson County, ending just south of the city of

Wilson, North Carolina. Not only is enacted Senate

District 4 less visually compact than the benchmark

version, which was made entirely of whole counties,

Pls.’ Ex. 2012 at 1, but it is also quantitatively less

compact than the benchmark district on six of the

eight measures analyzed by Mr. Fairfax, Pls.’ Ex.

2094 at 18, 20.

App-50

Enacted Senate District 4 divides two counties,

five municipalities,2*> and two precincts. Third Joint

Stip. $5; Joint Ex. 1003 at 6-8, 104. The

demographic evidence suggests that these political

and geographic units were divided on the basis of

race. For instance, the portion of Nash County drawn

into Senate District 4 has a BVAP of 51.03%,

whereas the remainder of Nash County has a BVAP

of only 25.78%. Defs.’ Answer to Am. Compl.

(“Answer”) | 75, ECF No. 14. Similarly, the portion of

Wilson County assigned to Senate District 4 has a

BVAP of 63.62%, whereas the remainder of the

county has a BVAP of only 24.10%. Id. 4 77.

Additionally, Senate District 4 captures roughly 52%

of the city of Rocky Mount in eastern Nash County,

but manages to grab 84.26% of the voting-age

African- Americans who reside in that city. Third

Joint Stip. ¥ 8; Joint Ex. 1003 at 104. In the two split

precincts, 82.2% of the voting-age African-Americans

were assigned to Senate District 4. Third Joint

Stip.46. Finally, the racial density map

demonstrates that the boundaries in the split

23 The record contains statistical information on each enacted

district, including a list of the municipalities in each district

and the percentage of the municipalities’ population found in

that district. See Joint Ex. 1003 at 86-117 (for the Enacted

Senate Plan); Joint Ex. 1004 at 104-41 (for the Enacted House

Plan). Municipalities are listed in these exhibits even when a

district splits a city by capturing a de minimis amount of the

population. See, e.g., Joint Ex. 1003 at 104 (noting that Senate

District 4 contains 0.55% of the city of Red Oak). We adopt a

definition more friendly to Defendants and consider a

municipality “split” when the population is divided between two

districts, and each district contains at least 10% of the voters in

that city.

App-51

counties in enacted Senate District 4 seem to trace

areas that have a high proportion of African-

Americans. Id. { 18.

When viewed in conjunction with the strong

statewide evidence, the district-specific evidence

confirms that race was the predominant motive in

drawing Senate District 4.

2. Senate District 5

Enacted Senate District 5 is a majority-black

district located in Wayne, Greene, Pitt, and Lenoir

Counties. The benchmark version of Senate District 5

had a BVAP of 30.14% under the 2000 census and

30.99% under the 2010 census. Third Joint Stip. 4 20.

Enacted Senate District 5 was drawn with a BVAP of

51.97%, thus achieving the Redistricting Chairs’

50%-plus-one target. Id. { 21; Joint Ex. 1003 at 120.

The Chairs identified Senate District 5 as a proposed

VRA district in the Senate VRA map, and the

enacted district substantially comports with the

proposed district’s shape, location, and BVAP. Joint

Ex. 1001 at 1, 67; Joint Ex. 1003 at 1, 120; Pls.’ Ex.

2072 at 2. Further, Senator Rucho stated during

debate on the Senate floor that “Senate District 5 has

been drawn in such a way as to include a 50 percent-

plus bfljack voting age population to rectify” a

perceived VRA violation. Joint Ex. 1015 at 93.

Enacted S

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