EXHIBIT D
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- Doc. Ex. 1213 -
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
STATE OF NORTH CAROLINA
COUNTY OF WAKE
MARGARET DICKSON; et aI.,
Plainli/#,
v.
)
)
)
II CVS 16896
)
ROBERT RUCHO, et aI.,
lJejimdanrs.
NOIrrt-1 CAROLINA STATE CONFERENCE
OF BRANCHES OF THE NAACP, et aI.,
Plaintiffi',
v.
'llIE STAT'll OF NORTH CAROLINA, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
11 CVS 16940
(Consolidated)
AF.FIJ)AVIT OF. THOMAS n.
.-IOFELER, Ph.D.
)
INTRODUCTION
The undersigned, under penalty of pCt:iury, declares as follows:
I.
My name is Thomas B. I-Iorellcr, PhD. My resume is attached as Exhibit I.
During the 2011 redistricting process in North Carolina, I was engaged
by counsel Thomas .J.
Farr to provide demographic expertise in the drawing of redistricting maps lor the Leadership of
the North Carolina General Asscmbly.
2.
C~lroliLKI.
[ am a Partner in Geographic Strategies, LLC, located in Columbia, South
Geographic Strategies provides redistricting services including database construction,
strategic political and lcgul planning in prep(\fution .Ibl' uctuallinc drawing, support services unci
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training on the usc of geographic infonmltion systems (GIS) used in redistricting, analysis of
plan drafts, and (lelualline-drawing when requested, The corporation and its principals also
provide litigation support.
3.
I hold ,1 Ph.D. from Claremont Gradll,ltc University, where my major fields of
study were American political philosophy, urban studies and American politics. I hold a B.A.
from Claremont McKenna College with a mqjor in political science.
4.
I have been involved in the redistricting process for over 46 years, and have
played a major role in the development of computerized redistricting systems, having first
supervised the construction of such a system Jor the California State Assembly in 1970-71.
5.
I hnvl) been active in the redistricting process leading up to and following each
decennial census since 1970. I have been intimately involved with the construction of databases
combining demographic data received from the United S!(ttes Census Bureau with election
infbrmation which is used to detcrminc the probable success of'partics and minorities in
proposed and newly enacted districts. Most of my experience has been related to congressional
and legislative districts, but I have also had the opportunity to analyze municipal and countylevel dish·iets.
6.
I served lor a year and one half as Staff Director
[(n'
tho U. S.Housc
Subcommittee on tho Census in 1998-99.
7.
I was StaffDirectol' of the Subcommittee when the Census Bureau was proposing
to substitute the American Community Survey (ACS) for the usc of the decennial long Ji:l1'lTI
2
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- Doc. Ex. 1215 -
questionnaire in the 2000 and previous decennial Censuses. The long fbrm was not used in the
2010 Dcccnni(li Census.
8.
I havc drafted and analyzed plans in most states including, but not limitcd to,
California, Nevada, Arizona, New Mexico, Colorado, Texas, Oklahoma, Kansas, Missouri,
Minnesota, Wisconsin, Illinois, Indi(lna, Ohio, Arkansas, Mississippi, Louisiana, Alabumu,
Georgia, Florida, South Carolinn, North Carolina, Virginia, New York, New Jersey and
Massachusetts.
9.
In this decennial round of redistricting, I have already been intensely involved in
Texas, Alabama, North Carolina, Virginia and Massachusetts. As much of my consulting
activities involve work in states subject to the provisions of Section 5 of the Voting Rights Act, I
am very familiar with the dutu used to mmlyze the expected performance of redrawn and newly
created minority districts. I regularly advise clients about the characteristics of minority districts
in their plans, and whether or not they are meeting the requirements of both Sections 2 and 5 of
the Voting Rights Act.
10.
I have given testimony as an expert witness in a number of important redistricting
c(lses including, but not limited to, Gingles":LJifiJ.ui§tI;11, 590 F. Supp. 345 (N.D.N.C. 1984), q/l'd
in fi(ll'( and rev'd in part Hlornburg v. GingL,,§ 478 U.S. 30 (1986); State of Mississippi v. Uni.!.9fl,
States, 490 F. Supp. 569 (D.C.D.C. (979); Shaw \CJjunt, 92-202-CIV-5-BR, U.S. District Court
for the Eastern District of North C(lroJina, R(\leigh Division (1993-4); Ketg,hU!1) v. Byrne, 740
F,2d 1398, cat. denied f,;Lty. Council of Chicago v. Ketchum, 471 U.s. 1 \35 (1985), on remand,
.r~9J9J:l!lIJLy,.C.i!y..QLt;;;JJj9J)gQ
630 F. Supp. 551 (N.D. Ill. 1985); and Arizonan~J,QLE(!jI
3
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- Doc. Ex. 1216 -
J{.eprcscntation v. Symington, CIV 92-0256, U.S. District Court Arizona (1992), '!ftd ml!m. sub
nom.
Ari~(ll1a
11.
Community Forum v. Symington, 506 U.S. 969 (1992).
In this Declaration, I have been ,lsked to bdel1y (lddress three issues. First, I will
give a brief explanation of the criteria I was instructed to follow in drawing legislative and
congressional maps. Second, I will respond to incorrect allegations made by the NC NAACP
and tho plaintiffs in two lawsuits pending in Wake County Superior Court, that the 20 II enacted
Senate, House and Congrcssion(ll Plans "packcd" African-American population into too few
districts. Third, I will cxamine Dr. Poterson's conclusions in his second affidavit to the Court.
PRIMARY CRITERIA USED TO ORA W PLANS
12.
In drawing the legislative maps I was directed by leadership of the General
Assembly to follow the criteria established by the United States Supreme Court and the North
Carolina Supreme Court in Strickland v. Bartlett. I was also instructed to follow the criteria
established under the State constitution in the Stephenson cases. Finally, [ was also instructed to
explore the possibility of creating a sul1ieient number of majority Ati'iean-American districts so
that African-American voters could have a roughly proportional opportunity to elect their
preferred candidates of choice. I was instructed that plans which provide Afriean-Americ<l11
voters a roughly proportional opportunity to elect candidates of their choice provide the State of
North Carolina with a strong defense against any claims of vote dilution undor the Fourteenth
Amendment to the United StMes Constitution or Section 2 of the Voting Rights Act. DeGrandy
v. Johnson. Rough proportionality would consist of 9 to 10 majority TBY AP senato districts and
24 to 25 mlljority TBY AP house districts.
13.
Regarding congressional districts, I was instructed by the leadership to ensure that
all congrcssional districts comply with the one person, one vote rule. I was also instructed to
4
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draw the First Congressional District as a mqjority All'ican-Amcrican district in compliance with
the United States Supremo Court's holding in Strickland v. Bartlett and consistent with the
holding by the District Court in Easley v. Cromartie, 532 U.S. 234 (2001). I was subsequontly
instructed to modify the First Congressional District so that tho African-American voting age
population in counties covered by Section 5 or tbe Voting Rights Act equaled or exceeded the
total voting age population found in Section 5 counties within the 200 I vcrsion of the First
Congressional District.
I was also instructed to draw two strong Dcmocnltic congressional
districts (Districts 4 and 12).
This was accomplished by assigning census voting districts
(VTDs) and census blocks to each district which rd1ccted strong support fbI' President Obama in
the 2008 general election.
14.
For legislative and congressional plans, I was also instructed to ensmc that nonc
of the plans involved illegal "packing" of African-Amorican voters, based upon my
understanding of how the term "packing" has been def1ned by the United States Supreme Court.
I understand the tcrm "packing" to mean situations in which two or more super majority Ati'icanAmerican districts are drawn with the intent or effect of preventing the creation of an adjacent
additional m[~ority Ali'ican-American district. The term "packing" would also apply when a
plan created a single super majority A!\'ican-Amcrican district when two majority AfricanAmerican adjacent districts could be created, 'am not aware of any evidence that the enacted
legislative plans or the cnacted congressional plan illegally "pack" African-American voters.
ImLATIVE CONCENTRATION OF AFRICAN-AMKRICAN VOTERS IN ENACTED
I.'LANS AS COMI'AREH TO ALTERNATIVE PLANS
15.
The NC NAACP alleges that the enacted 2011 Senate Plan "packs" 47% of all
African-American votcrs into 10 senate districts, 50% of all African-American voters into 25
5
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- Doc. Ex. 1218 -
house districts, and 48% of all African"American voters into three congressional districts. I urn
not aware of any allegations by the NC NAACP that the 20 II enacted plans created super
majority districts in order to prevent the creation of additional majority African-American
districts. Nor urn I awnrc of any allegations that the enacted 20 II pl(lns, as compared to any
altcnmtive plan, created fower districts that allow African-Americans to elect their preferred
candidate of choice in the presence of ntcblly pol(lrizcd voting.
16.
I (1m not aware of any C(lSCS holding th(lt the creation of a majority African-
American district or a series of majority An'ican-American districts in the percent(lge ranges
found in the General Assembly's enacted plans constitutes packing.
17.
'rhe NC NAACP allegations are out of context because they do not account for
the concentration of African-American population found in alternative plans submitted during
the public he(lring or legisl(ltive process. When the enacted plans are comp(lred to the alternative
plans, it becomes clear th(lt all pl(lns belorc the General Assembly concentrated the AfricanAmerican population of North Carolina in a minority of the total districts. Moreover, nil of
plaintiffs' redistricting schemes sacrifice majority TBV AI' districts in order to create a higher
number of districts that would be likely to dect white Democrats, but unlikely to elect AI\'icanAmericans in the presence of racially polarized voting. [will explain this (lnalysis below starting
with the enacled 2011 Scnnto Plnn.
2011 SENATE PLAN
18.
In prOP((ring this (lffid(lvit, I reviewed the oftlcial reports published by the General
Assembly tor the enacted 2011 Sen(lte Plan ("2011 Senate Plan) and alternative pbllls offered by
the Alliance tilr Fair Redistricting and Minority Voting Rights ("AFRAM"), Senate Minority
Loader M(lrtin Nesbitt ("Nesbitt Plan"), and the Lender of the Legislative Black Caucus, Sonator
6
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- Doc. Ex. 1219 -
reloyd McKissick ("McKissick Plan"). The repotts for all fout plans include the amount of
"Total Black Voting Age Population" ("TOVAP") that is included in each district. I
I then
ordered all districts in each plan based upon the percentage of TBV AI' f(llmd in each district
starting with the district with the highest TBV AI' porcentage and ending with the district with the
lowest percentage of ·rOVAI'. By making this calculation (br the enacted plan as well as all
alternatives, it bCC(lmc apparent that all plans ('oncentraled the African-American voting age
population in (I minority of the total Senate districts. Chart A below oxplains this comparison fbr
the lburteen districts in all four plans with the highest percentage of TBVAI'. Appendix A
contains
<l
chart which lists all the relevant information on all these plans lor all the districts in
the State.
Chl,rt A
Compllrison of AfriclIll-Amcricllll COllccntnltion of THV AP ill SenlltcP11I1lS
I
2
3
4
5
6
7
8
9
10
II
12
!
2011 Senate
Plan
5.61 %
10.61 %
15.25 %
20.06%
24.70 %
29.32 %
33.75 %
38.29 %
43.09 %
46.97%
49.42 %
51.88 %
AFRAM
.---.....•.... -.--...-,Senate
.. .. ...-•.......--. .....•.. ...•..._-_ ...- ....
5.24%
10.00 %
14.48 %
19.23 %
23.78 %
28.20 %
32.31 %
36.40 %
40.12 %
43.51 %
46.64 %
49.35 %
,~""
'
Ncsbitt
Sell lite
4.91 %
9.24%
13.49 %
17.76 %
21.72 %
25.74 %
29.59 %
33.40 %
37.15 %
40.18 %
43.18%
46.32 %
McKissicl,
.Senate
__ ........•..........'.,-,
4.99%
9.61 %
14.24 %
18.49 %
22.58 %
26.60 %
30.66 %
34.20 %
37.95 %
41.13%
44.16%
47.16 %
The Census Buteau counted the total voting age population ofthosc who considered themselves single~l'acc bblCk
(Black Voting Agc Population 0'· "llVAP") and those who considered themselves any pan black (TBVAP). which is
I"01\".,·c(\ to by the Census L1meau a, "I M APBLK" (18 years or above - any pm·t black). The State of North
Ca .."lin" ,·cfc," to this as "CTBVAI')".
7
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- Doc. Ex. 1220 -
19.
Thus, as shown by Chart A, the enacted 2011 Senate Plan concentrates 46.97% of
the TBVAP in ten districts while all the (llternate plans have over 46% of the TBV AI' in either
elev()n districts (AFRAM Plan) or twelve districts (Nesbitt Plan and McKissick Plan).
20.
One re(lson fbI' the slight difference in clleh plan's concentration of 46% of the
statewide TBV AI' into 10 to 12 districts is to the number of majority TBV AI' districts that arc
included in each plan. The enacted 20 II Scnute Plan establishes nine distrids in excess of 50%
TBVAP (Districts 3, 4, 5, 14, 20, 21, 28, 38 and 40) as compared to live in the AFRAM Plan
(Districts 3, 4, 28, 38 and 40), one in the Nesbitt PI(lIl (District 4), and none in the McKissick
Plan. Further, the enacted Senate Plan includes more districts in excess of 40% TBV AI' (ten) as
compared to SCSJ (nine), the Nesbitt Plan (seven) or the McKissick PI(ttl (cight).
21.
Another explanation for the slightly different concentration levels between the
enacted 20 II Senate Plan and alternative plans is the preference in the alternative plans for
districts in which the TBV AI' is between 40% and 50%.
For purposes of comparison, the 20 II
Senate Plan has only one district that arguably Hts within this deHnition (District 32). The
AFRAM Senate Plan has four districts with TBV AP between 40% and 50% TBVAP (Districts
14,20,21 and 32), thc Nesbitt Plan has six districts between 40% and 50% TBVAP (Districts 3,
14, 21, 28, 38 ,m(/ 40) and thc McKissick Plan has eight districts between 40% and 50% TBV AI'
(Districts 3, 4, 14,20,21 28,38 (Uld 40).
22.
The difference in concentration levels is also explained by an invidious intent
found in all alternative plans to fracture African-Amcrican population away {hIm potential
majority TBV AI' districts, or even crossovcr districts, to create adjoining districts that will more
than likely elect non-minority Democrat senators, onhancing the probability of electing
Democrat majority to thc State Senate.
(l
The motivation behind this racial gerrymandering
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- Doc. Ex. 1221 -
drawing African-American population away from potential majority minority and 40 - 50 percent
districts is plainly alluded to by the plaintiffs' counscl, Anita Earls, in a letter Ms, l?arls sont to
tho United States Department ofJustico ("lJSDO.J"), on behalf of the SCSJ and the NC NAACP,
in opposition to the preclearance under Section 5 of tho Voting Rights Act of the 2011 Senate
and House Plans. See Exhibit 2.
23.
In her letter to the USDOJ, Ms. Earls slaled that the "packing" [of the 2011
Senate Plan's majority THV AI' districts] "depletes the adjacent districts of a significant number
of African-American voters. As a result, the African-Americans remaining in these adjacent
districts have less ability to clect their candidates of choice, a clear relwgrcssivc effect under
Section 5 [of the Voting Rights Actl. Many of these adjacent districts are currently represented
by a Democrat, the candidate of choice for the African-American voters. With fewer majority
voters, these districts llre Illr more likoly to now clect a Republican candidate." See Exhibit 2, p.
8. 'I'he "candidate of choice" to which Ms. Earls refers is clearly intended to be a non-AfricanAmerican Democrat.
24.
In her statement, Ms. Earls identitied lour mltiority THV AI' districts in the 2011
Plan which allegedly "packed" voters - Senate Districts 14, 20, 21 and 28? She then identities
the allegedly impacted adjacent districts (7, 13, 16, 18, 26 and 27) noting that these districts (irc
currently represented by Del1locmts.
In twth, all of the districts cited by Ms. Earls were
represented by white Democrats except Illr District 26 which is currently represented by white
Republican Majority Leader, Phil Berger.
., Ms. Earls did not identify two majority TBY AP districts located in Mccklcnbu('g County as "packed" districts
(Districts 38 and 40), possibly because Ms. Earls' proposed r"m ('ccommended that both of these districts be drawn
at a m'ljority 'THY AI' level. Moreover, m'ljority TBY AI' District 5 i8 not mcntioned, possibly because it replaced
the 2003 version or District 5. The 2003 version of Di'trict 5 was "pp!"Oxima!ely 30% TBV AP and a Alhcan"
American incumbent, Don Davis, wm:: defeated by white candidate Louis Pate in the 2010 General Election.
9
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- Doc. Ex. 1222 -
25.
Ms. Earls summarized her argument to lJSDOJ with strong accusations of
discrirnimltory intent by the General Assembly and contended that the 2011 Senate Plan was
enacted with "the invidious intent to reduce and minimize the influence of African-Americans
across the State of North Carolifl(l and those who share their policy gO<lls,"' i.e., other Democrats.
26.
Having considered Ms. Earls' argurnents, the USDOJ precleared all three enacted
2011 plans within the tirst 60 days of th<:ir submission to lJSDOJ. Preclearance by the USDOJ
means that USDOJ has concluded that the Stato has carried the burden of showing th(lt the 20 I I
redistricting plans arc not retrogressive of Alt-ieHn-American voting rights and thnt the plans
have no discriminatory purpose.
2011 HOUSE .I'LAN
27.
Chart B below explains the levels of concentration of the statewide TBVAP in tho
enacted 20 II House Plan as compared to the three altel"llative plans prepared by the SCSJ
("SCSJ House Plan"), Representative Grier Martin ("Martin House PI,111"), and Legislative Black
Caucus member Kelly ("LBC Plan"), all of which I have reviewed for purposes of making this
declaration.
10
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- Doc. Ex. 1223 -
Cllllrt B
Comparisoll of COllcclltrlltion of THV AI' in House Plnlls
2011 House
2.32%
4.27%
6.53%
8.62%
10.64%
12.58%
14.56%
16.66%
18.75%
20.68%
22.66%
24.77%
26.75%
28.78%
30.88%
32.77%
34.82%
36.73%
38.79%
40.74%
42.66%
44.56%
46.63%
48.32%
50.02%
51.25%
52.42%
53.55%
54.64%
I
2
3
4
5
6
7
8
9
10
I1
12
13
14
IS
16
17
18
19
20
21
22
23
24
25
26
27
28
29
28.
AFRAM I-louse
2.26%
4.36%
6.55%
8.61%
10.75%
12.86%
14.84%
17.01%
19.22%
2 I.l 4%
23.16%
25.08%
26.79%
28.52%
30.35%
32.16%
33.85%
35.56%
37.19%
38.80%
40.33%
41.87%
43.35%
44.51 %
45.70%
46.89%
48.08%
49.26%
50.46%
Martiu House
2.08%
4.11%
5.19%
8.40%
10.44%
12.43%
14.39%
16.54%
18.43%
20.25'%
22.19%
23.90%
25.81%
27.52%
29.20%
32.00%
32.60%
34.38%
35.99%
37.67%
39.76%
40.82%
42.35%
43.72%
45.23%
46.61 %
47.78%
48.91%
50.21%
LBC House
2.25%
4.17%
6.32%
8.30%
10.34%
1.2.38%
14.43%
16.52%
18.62%
20.52%
22.46%
24.33%
26.14%
27.90%
29.72%
31.47%
33.28%
34.95%
36.82%
38.61%
40.25%.
41.73%
43.42%
44.84%
46,(17%
47.25%
48.37%
49.59%
50.81%
As shown by Chart 8, the enacted 2011 I-!ouse Plan concentrates 50.02% of (he
statewide TBV AI' in 25 districts while all three alternative plans concentrate over 50% of the
statewide TBVAI' in 29 districts. Furthermore, the AFRAM redistricting scheme concentrates
more TBVAP in the first thirteen districts th,m the 2011 enacted House Plan. This means that
some of the AFRAM districts have higher minority concentrations than the 201 I enacted HOllse
(>1,111.
11
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- Doc. Ex. 1224 -
29.
Thc enacted 2011 House Plan has twenty-three majority TBVAP districts
(Districts 5, 7,12, 21, 23, 24, 27, 29, 31, 32, 33, 38, 42, 43, 48, 57, 58, 60, 99, 101, 102, 106
and 107) and a twenty-fourth district that is a majority AfHcan-American citizen voting age
district (District 71).
In contrast, the AFRAM Plan has cleven m,\jority TBVAP districts
(Districts 7, 8, 24, 27, 31, 33, 43, 58, 60, 101 and 107). The Martin Plan hus nine Il)(tiority
TBVAP districts (Districts 5, 7, 24, 27, 33, 43, 58, 60 and 101) and the .LBC Plan hns ten
rH(~jority
TBVAP districts (Districts 5, 7, 8, 24, 27, 33, 43, 58, 60 and 101). Moreover, the
enacted (·Iollse Plan has more districts with
(l
'fBVAP in excess of 40% (twenty-livc us
compared to the AFRAM Plan (twenty-one), tho Martin Plan (twcnty-onc) or the LBC Plan
(twenty-three).
30.
In further contrast, all of the alternative plans have more 40% to 50% districts
than the 20 II enacted House Plan which has two such district; but District 72 is a 50% plus
CBV AI' district. The AFRAM Plan has ten districts between 40% and 50% TBV AI' (Districts
5,12,21,42,48,71,72,99,100 and 102); the Martin Plan has twelve districts Ii-om 38.18% to
48.69% (Distl'icts 8, 12, 21, 28, 29, 31, 42, 48, 71, 72, 99, and I (7); and the LHC Plan has
thirteen districts from 40% to 50% TBVAP (Districts 12, 21,25, 29, 31, 32, 42, 48, 71, 72, 99,
102, and 1(7). In all the alternative plans the combination of majority-minority and potcntial
40% to 50% districts is less than that tound in the cnacted IIouse Plan.
31.
Yet another explanation, for a slightly higher conccntmtioJ1 of THV AI' in enactcd
20 II House Plan's districts, relates to the way counties were grouped to comply with the county
grouping requirement under Stephenson.
Under the Stephenson standard that districts mllst
have ellough population to be within plus or minus five percent of the ideal population,
Mecklenburg County barely contains suff1cient population lor twelve house districts.
If all
12
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- Doc. Ex. 1225 -
twolve Mecklenburg I-louse districts contained exactly the ideal population H)r a house district
(79,462 x 12), the total population IOC(lted in all twelve Mecklenburg districts would be
953,544. In fact, the total populatioil in Mecklenburg's twelve districts, and that of the entire
county, is only 919,628, or 33,916 below the ideal 11)1' twelve house districts. This results in all
twelve Mecklenburg districts having populations signilicantly under the ideal district
population, with deviations ranging from (·2.20%) to (-4.94%).
32.
[n order to balanec the cumulative under population of Mecklenburg's twelve
house districts, (lnd districts in several other county groups, as compared to the ideal population
Ibl' a house district, (lnd to remain in compliance with the Stephenson county grouping criteria,
the enacted I-Iouse Plan was required to contain a twenty-county group running from Stanly
County through south central and southeastern North Carolina to Dare County on the Atlantic
coast. Almost all of the districts in this county group had to be over-populated, as compared to
tho idoal number
fOl· II
house district, in order to counter tho under-populated Mecklenburg
house districts and only contain fourteen districts. If this fourteen-district county group were to
contain 15 districts, the entirc pbn would have 121 districts. This includes two of the three
mt\jorily TBV AP districts located in this county grouping. For example, enacted Districts 21
has a population deviation of 4.48% while tho corresponding district in the Martin House Plan
has a deviation of -4.25%. Similarly, enacted District 48 h(ls
(I
deviation of 4.96% us compared
to the Martin House Plan District 48 which has a negative dcvilttion of -4.98%. The remaining
enacted District 12 in this county grouping had to be drawn with a deviation of -3.85% to allow
it to have a TBV AP percentage above 50 (50.60%) in order to conll)rm to Stephenson and to
provide a sale harbor under Strickland. This further complicated the district deviation levels
within the group, causing them to be even higher on the positive side (averaging +4.63%).
13
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- Doc. Ex. 1226 -
33.
A IInal explanation fbI' the slight differences in concentration levels found in the
various house plans is explained by the decisions of the drafters of !11l alternative plans to
fhlcture TBV AP away from potential m(uority TBV AP districts in order to create more
"influence" districts designed to elect whitc Democrats. This is again admitted by the SCSJ ([net
the NC NAACP in their submission to the USDOJ in opposition to the preclearance of the
Gcnor(ll
Assembly's three plans.
34.
Summarizing their opposition to the enacted House Districts, the SCSJ and the
NAACP argued to USDOJ thaI:
By packing these house dislricts, the 2011 House Plan
depletes the adjacent districts of a signil1cant number of AfricanAmerican voters. As a result, the Alrican-Americans remaining in
these adjacent districts have less ability to elect the candid(lte of
choice for African-American voters. With fewer minority voters
these districts arc flu' more likely to elect a Republican candidate?
35.
The SCSJ letter then lists nine allegedly packed districts in the 20 II House Plan
(Districts 5, 12, 21, 24, 29, 42, 48, 99 and 102) and fifteen other "Democrat" districts, all
represented by white Democrats, which arc allegedly impacted by the creation of majority
TBVAP districts (Districts 1,2,8,20,22,23,30,44,45,47,54,55,56, 100 and 106).
36.
As with their criticism of the Sen(lte Plan, the main complaint oEthe SCSJ and the
NC NAACP is not the 'lbility of AIi'iean-Americans to elect their preferred candidate of choice
in the Hlce of racially polarized voting. They cannot make this alleg(ltion because the 2011
[louse Plan, like the 2011 Senate Plan, provides African-American voters with a greater
opportunity to elect their preferred candidates of choice than any prior enacted or proposed
:!
In this quote, the SCSJ incOI'l'cclly llSCS the tel'm Itcandidate of choice" to include white Democrats in n{)n~
majol'ily minol'ily di'tl'icts. This is" position which was rejected by the United States Supreme cOlin in LlJIAC v.
PeriJ', 548 U.S. 399 (2006).
14
Case 1:15-cv-00399-TDS-JEP Document 23-5 Filed 10/07/15 Page 15 of 23
- Doc. Ex. 1227 -
house plan. To the contrary, the SCS] and the NC NCAACP arc advocating the cracking of
rm~jority
TBV AI' districts in order to create safe Democrat districts that will likely clect white
candidates, as opposed to Ali'ican Americans, because of racially polatizcd voting.
2011 CONGIU;SSIONAL PLAN
37.
The General Assembly considered three congressional plans during tho: 2011
public hearing and legislative process: the enacted 2011 Congressional Plan, the AFRAM
Congressional Plan, a plan introduced by Senator Josh Stein ("Stein Plan") and a plan introduced
by HOllse Minority Leader .Toe H(lekney ("Hackney Plan"). The Stein Plan and the Hackney
Plan,lfe identical.
38.
Chart C below explains the levels of cOl1contmtion of tho statewide TBVAP in the
enacted 2011 Congressional Plan us compared to the enacted 2001 Congressional Plan and two
alternative plans placed beforc the 2011 General Assembly. Appendix C contains a chart which
lists all the relevant information on all these plans for all the districts in the State.
Chart C
Comparison of African-American Conccntrntion of TBV AI' in Congression"l 1)llIns
1.997
(2010
Census)
15.41%
31.11%
41.42%
51.90%
61.46%
69.08%
I
2
3
4
5
6
39.
2011
(2010 Census)
SCS,J
(2010 Ccnsus)
Hnckney-Stein
(2010 Census)
19.24%
37.20%
48.85%
55.70%
62.21%
68.55%
17.36%
33.04%
45.03%
55.86%
63.88%
71.66%
17.44%
32.32%
43.63%
53.29%
61.41%
69.32%
Thus, as shown above, the enacted 2011 Congressional Plan contains 37.20% of
tho statewide TBV AI' in its two congrossional districts with the highest number of Ali'ican-
15
Case 1:15-cv-00399-TDS-JEP Document 23-5 Filed 10/07/15 Page 16 of 23
- Doc. Ex. 1228 -
American adults, while the corresponding levels are 33.04% J()1' the SC8J Plan and 32.32% for
the H(\ckney/8toin P\nns.
It is interesting to note that the enacted 2011 Congressional Plan
contains 55.70')1" of the statewide TBVAP in its ibur congressional districts with the highest
number of Ati'ican-American adults, while the corresponding levels arc 55.86%ibr the SCSJ
Plan and 53.29% fbr the Hackney/Stein Plans. All three plans, as well
(IS
the enacted 200 I Plan
each have only two districts which exceed a THV AI' of 40%. In each of these pl(lns, the district
with the third highest number of African-Americans, the THV AI' does not exceed 32.76%.
40.
The General Assembly adopted a guideline directing that District I would be
drawn so that the number of Afric(ln-American adults it contained in counties covored under
Section 5 would be equal to the number of similarly situated African-Americans in the enacted
2001 Plan. This guideline, not used in the original publically-rcleased draft, was adopted at the
request of the incumbent member. The other adopted guideline directcd that the district be
drawn with a THV AI' over 50% to protect the State (l'om possible liability under VRA Section 2
or 5. Because the benchmark District 1 was under populated by 13.3%, or 97,563 persons, it was
necess,lry to include
(l
signiJlcant number of additional Ali'ican-American (Idul(s to bring the
TBV AI' percentage above 50. So rather than contorting the boundaries of the District further, it
was decided to move the District into Durham County.
41.
The version of enacted District 12 closcly corresponds in shape and placement to
the same district in the enacted 2001 Plan and was drawn to incorporate VTDs which voted in
high percentages for President Obama in the 200R General Election.
The incorporation of
strongly Democratic VTDs in District 12 was the same justification used by the General
Assembly in adopting District 12 in 1997 in response to a successful court challengc, and which
was subsequently upheld by the United States Supreme Court (See Cromartie v Hunt 526 U.S.
16
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- Doc. Ex. 1229 -
541 (1999». Obviously, the AFRAM and the Democrat members who drafted altcrnative maps
elected to create a less Democratic District 12 in order to spread out Democratic votes to
adjoining districts, which better suited their political goal of drawing a plan move favorable to
their white incumbents.
42.
Enacted District 4
W(lS
dnlftcd to gather the most heavily Democrat voting VTDs
in the Raleigh-Durham and Fayetteville arens to create a snic Democrat district and strengthen
the Republican vote in surrounding districts.
43.
While .it is true that the AFRAM and the Democrat plan draftcrs strongly object to
the enacted 2011 Plan, it is evident that their principal goal is a political onc. They wish to
distribute VTDs with strong Democratic voting percentages among more districts than Districts I
and 12 in order to continue their political gerrymandering.
I note that in the 20 I 0 General
Election, the Democratic candidates only received 45.53% of all the two-party votes cast Illr
congressional candidates, yet won seven of the 13 scats (53.8%).4 All of their proposed 20 II
corresponding redistricting maps seem to be drawn with the maintenance of this electoral
imbalance as their primary goal.
44.
Since the alternative maps did not assert that n third majority TBY AI' or
opportunity congressional district should be constructed, it is difficult to justi fy (In allegation that
the General Assembly's enacted 2011 Congressional Plan contained packed districts in !lny legal
sense.
RESPONSE TO SECONll AFFIJ)A VIT OF OAVm W ..PETERSON,
45.
"H. I).
I was also requested to examine the Second Allidavit of David W. Peterson,
Ph.D., to evaluatc its usefulness for determining the motivation behind the choices made in the
4
Sec Appendix 3.
17
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- Doc. Ex. 1230 -
constl'Uction of the 12th District contained in the 20 II Congressional Plan (Rucho-Lewis
Congress 3) enacted by the North Carolina General Assembly.
46.
Dr. Peterson has elected to base his opinion the usc of a "segment analysis"
perflmned by the staff of the Southern Coalition lor Social Justice (SCSJ), which he evaluated.
47.
The data llll' SCS.f's segment analysis appears to consist of330 voting district
(VTD) pairs located along the 12th Distfiet boundary as well as associated political and
dcmographic data li)f each of the VTDs in the pnir. The study first determined the adjacency of
VTD pairs found along the perimeter of the 12th District, the pairs being adjacent interior and
exterior VTDs.
48.
Although Dr. Peterson statos that all the relevant data arc contained in the
appendix to his affidavit, I was unable to lind a listing of the actual pairs along with the
associated data. It was stated that VTDs which only touched by a single point were not included.
His anldavit did not indicate how multiple adjacencies wcrc handled, since often there is a oneto-many or many-tn-many relationship between exterior and interior boundary VTDs ..1"01'
instance, there is onc intcrior VTD in Guilford County (VI'!) name "HP") which is (\djacont to
six exterior VTDs. It cannot be determined from Peterson's affidavit whether or not that turned
into 6 pairings or that the interior VTD was only paired oncc.
49.
Because there ure no d(lta values given, it is also not possible to determine the size
of either the rdative dem<)gruphic or political numbers within each pair, or tbe population of one
pair in relation to another. So It VTD within a pair or the pair together could contain (ltly number
of persons or voters, with all VTDs considered (\s h(lving equal weight for purposes ofSCSJ's
analysis.
18
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- Doc. Ex. 1231 -
50.
[n nddition to being unable to determine the rolntivc weight of eaeh VTD pair, the
dekrmination of the differences in the percentages of racial composition oCthe residents of each
pair and the differences of the percentages of party preferences arc also missing. So the
ditTcrcnces in percentage could rangc between .01 and 99.99. SCSJ is once again treating each
comparison with equal weight, determining just which way the difference turns out, not its
amplitude.
51.
It is also important to note that, of the 330 unknown VTD pairs determined fbr the
segment analysis, it appears that SCSJ only used Ii·om 9 (2,72'%) to 18 (5.45%) of the 330
segment pairs to makc a sweeping generalization that the drafters placement of the boundary was
more based on "racial considerations" thnn "party nffiliations." They did so based on unweighted
sizes ~lTld pcrcentnge differences.
52.
Also, no explanation was given for whieh political contests were selected and
why both totlll nnd voting age popuintion were used since only the latter is used in voting rights
determ inations.
53.
Thus, on the basis of 6 of 12 segmcnt analyses using, at a maximum of 18 out of
330 segment pairs which seem to indicated some undetermined level of imbalance between
mdal composition and voting behavior between the pairs, Dr. Peterson draws his grand
conclusion. This, of course, glosses over the fact that 6 of the 12 segments annlyses do NOT
support his anulysis.
54.
It is diffkult to understand how so little information would be considered
determinative, particularly since the method upon which his annlysis relies does not actually
reflect thc way map drafters make these choices. They do not make them ns n result of
19
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- Doc. Ex. 1232 -
comparisons between pairs of adj(lcent VTDs. They are oftcn comparing one VTD to another (It
non-adjacent locations in the district.
55.
A better way to look (tt the cbanges between the 2001 and 2011 12th
Congressional Districts would he to examine the <Letllal maps and the actual aggregate data,
which are more relevant and readily available.
56.
I have provided a map which shows the geographic relationship of the 200 I
district to the 2011 district. Appendix 1 shows the territory contained in both districts in three
colors. The green areas are common to both the old and new districts. 'fhe blue areas arc only
contained in the new District 12, while the red <Lrcas arc only contained in the old District 12.
57.
Far more re1cv(ll1t than an academic statistical study of selective pairs of boundary
VTDs would be a study of the aggregate numbers ofthc colorcd portions of the map. This
alleviates the problems in accounting for multiple pair adjacencies, the differences in VTD
population sizes and differences in amplitude between the demographic and political percentages
within the pairs. In also avoids the bias caused by basing a conclusion on a difference of two of
12 studies using only 5.45 of the VTD pairs out ofa total 01'330.
58.
I used the census block file downloaded from the General Assembly's redistricting
computer system and data received from that same system which was loaded on my personal
laptop computer into Caliper Corporation's Maptitude fbr Redistricting softwarc, which is the
same system used by the General Assembly. The demographic data were originally obtained
(I'om the United States Bureau of the Census 2010 Redistricting Data File released in early 2011.
I"rom these data I constructed Appendix 2.
20
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- Doc. Ex. 1233 -
59.
Appt:ndix 2 clearly shows that the choice of VTDs included in the 20 II Fnncted
lih arc more consistent with the goal of including more Democratic VTDs than the Democrats'
200 I redistricting scheille. The final coluilln in the chart shows the Obama percentages in the
(U\)(\s
common to hoth the enacted and the prior I2lh district as well
(IS
tho ,lrc(\S only in the prior
12111 and the enacted lih. In the areas common to both, Obama received 79.92% (lCthe vote. In
the area included in only the enacted 12th district, Obama received 75.39% of the vote, which b
generally consistent with the rest of the district. On the other hand, the areas thal wert) included
only in the prior 121h district, voted for Obama at a rate of 53.01 %, a dramatic differential.
Clearly if the principal goal is to place those VTDs which have the highest Obama vote as their
measurc of Democratic perf()rmancc, then the enacted 121h district docs a far better job at
accomplishing this goal than the prior redistricting scheme, or any of plaintiffs' alternatives
which are based on the prior Iih district. The only political decision which onc can perceive by
the desire to place the lower pedll1'ming VTDs into the 12111 district is
(Ill
attempt to submerge
Republican vote in a safe Democrat seat.
60.
For these reasons, and the fact that I was closely involved in the drafting o[the
General Assembly's newly enacted 2011 congressional map, I lind the conclusions and the
underlying study behind Dr. Peterson's atlidavit inconclusive with regard to his proposed
hypothesis that the primary motivation driving 12th districts construction was l'<lcially b(\scd.
21
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- Doc. Ex. 1234 -
This the 19th day of January, 2012.
Sworn and subscribed before me
22
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