# Jurisdictional Statement — North Carolina v. Covington, 137 S. Ct. 2262 (2017) (No. 16-1023) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0732%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 2017 ## Text “wo = 16-1023) BRIEKE sre 21 2017 -_—— elaales OF THE CLERK | In the Supreme Court of the Anited States STATE OF NORTH CAROLINA, ET AL., Appellants, v. SANDRA LITTLE COVINGTON, ET AL., Appellees. - On Appeal from the United States District Court for the Middle District of North Carolina 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? il 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 1V 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 vi 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, 28 466 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 x 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 2 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. 3 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. 4 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. 5 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 6 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— 7 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 8 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,” 9 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. 10 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 11 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 12 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. 13 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, 14 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 15 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 16 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)].”). 17 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 18 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. 19 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 20 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 21 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., 22 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 23 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. 24 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 25 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. 26 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 27 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 28 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 29 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 30 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. ~ * * 31 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 32 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 33 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 32 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 33 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 34 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 r = hs ve. he re ik : Vee Fi oy i 4 n ay a a ca t Tt: < Ot Ty hae Sen ' ee ‘i, rinath i nd eget 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 ll 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, We 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0732%3A2. Public record. Not legal advice.