TABLE OF CONTENTS
I.
INTRODUCTION ...............................................................................................................1
II.
STANDARD ON SUMMARY JUDGMENT AND ORGANIZATION OF THE
BRIEF ..................................................................................................................................5
III.
UNDISPUTED MATERIAL FACTS RELEVANT TO ALL CLAIMS ............................6
IV.
A.
The 2011 Redistricting Legislation ......................................................................... 6
B.
The Redistricting Process In The General Assembly ............................................. 8
C.
The Map Drawing Process .................................................................................... 10
D.
Senator Rucho And Representative Lewis’ Instructions To Dr. Hofeller ............ 13
E.
The Maps Of Districts Drawn By Mr. Hofeller For Senator Rucho And
Representative Lewis Became The Law ............................................................... 14
THE CHALLENGED DISTRICTS ARE A RACIAL GERRYMANDER THAT
VIOLATES THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES
CONSTITUTION ..............................................................................................................19
A.
B.
Undisputed Material Facts Relevant To The Racial Gerrymandering
Claims ................................................................................................................... 19
1.
Racial Quotas Used In Redistricting Process ......................................... 19
2.
Use Of Divided Precincts And Highly Irregular District
Boundaries .............................................................................................. 22
3.
Data Used By Mr. Hofeller In Designing His Maps .............................. 23
4.
Prior Election Of Candidates Of Choice Of Black Voters ..................... 24
5.
Information Available To Senator Rucho And Representative
Lewis On Racially Polarized Voting In North Carolina ........................ 26
The Individual Legislative And Congressional Districts Challenged By
Plaintiffs Are Unconstitutional Racial Gerrymanders .......................................... 28
1.
Race Predominated In Drawing The State Legislative Districts
Challenged By Plaintiffs ........................................................................ 29
2.
The Irregular Shapes Of The Legislative Districts Also
Establishes That The Challenged Districts Are Racial
Gerrymanders ......................................................................................... 31
i
a.
House Districts 42 and 45 ............................................................. 32
b.
House Districts 48 and 66 ............................................................. 34
c.
House District 7 ............................................................................ 36
d.
Senate Districts 20 and 22............................................................. 37
e.
Senate Districts 19 and 21............................................................. 39
f.
Senate Districts 14 and 18............................................................. 42
g.
House Districts 1 and 5 ................................................................. 43
h.
House Districts 2 and 32 ............................................................... 46
i.
House Districts 8 and 24 ............................................................... 47
j.
House Districts 4 and 21 ............................................................... 50
k.
House Districts 29 and 30 ............................................................. 52
l.
House Districts 34, 38, and 49 ...................................................... 54
m.
House Districts 57 and 59 ............................................................. 55
n.
House Districts 99, 102, 103 106, and 107 ................................... 58
o.
House District 51 and 54............................................................... 60
p.
Senate Districts 27 and 28............................................................. 61
q.
Senate Districts 31 and 32............................................................. 63
r.
Senate Districts 5 and 7................................................................. 66
s.
Senate Districts 38, 40 and 41....................................................... 68
t.
Senate District 4 ............................................................................ 70
3.
Race Predominated In Drawing Congressional Districts 1, 4 And
12 ............................................................................................................ 71
4.
Senator Rucho And Representative Lewis’ Admissions Establish
That They Had No Basis In Law To Draw Senate Districts 4, 5,
14, 20, 21, 28, 32, 38 And 40; House Districts 1, 5, 7, 12, 21, 24,
29, 31, 32, 33, 38, 42, 48, 57, 99, 102, 106 And 107; And
Congressional Districts 1 And 12 As Voting Rights Act Districts ........ 75
ii
V.
VI.
a.
Defendants’ Substantial Proportionality Requirement
Directly Conflicts with United States Supreme Court
Precedent ....................................................................................... 82
b.
The Challenged Districts were not Justified by Section 5 of
the Voting Rights Act ................................................................... 83
c.
The Defendants Failed to Employ Narrowly Tailored
Means in Creating the Challenged Congressional, State
House, and State Senate Districts ................................................. 84
SPLIT PRECINCTS IN THIS PLAN ARE UNCONSTITUTIONAL .............................86
A.
Undisputed Material Facts Relating To The Split Precinct Claims ...................... 86
B.
Excessive And Unjustified Split Precincts Violate The State And Federal
Constitutions ......................................................................................................... 91
1.
Burdening The Right To Vote On Equal Terms Fails Strict
Scrutiny Analysis Under The North Carolina Constitution’s
Article 1, § 19 ......................................................................................... 92
2.
Excessive Split Precincts Violate The Fourteenth Amendment’s
Equal Protection Clause ......................................................................... 93
3.
Excessive Split Precincts Disenfranchise Some Voters And
Cause Greater Confusion ....................................................................... 95
4.
The Intentional Splitting Of Precincts On The Basis Of Race
Violates The Equal Protection Clauses Of The State And Federal
Constitutions........................................................................................... 98
PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR
CLAIM THAT LDD4 AND RUCHO SENATE 2 VIOLATE THE WHOLE
COUNTY PROVISIONS OF ARTICLE II, SECTIONS 3 AND 5 OF THE
CONSTITUTION ............................................................................................................100
A.
Undisputed Material Facts Relating to the Whole County Claims ..................... 100
1.
Comparison Of Divided Counties In Rucho Senate 2 And In
Other Plans ........................................................................................... 102
2.
Comparison Of County Clusters In Rucho Senate 2 And In Other
Plans ..................................................................................................... 103
3.
Comparison Of Divided Counties In LDD4 And In Other Plans ........ 103
4.
Comparison Of County Clusters In LDD4 And In Other Plans ........... 104
iii
5.
B.
C.
Focusing On Clusters Does Not Keep Counties Whole ....................... 105
The Requirements of the Whole County Provisions of the State
Constitution ......................................................................................................... 107
1.
The Constitutional Provisions And The Context Of The
Stephenson Decisions ........................................................................... 107
2.
Defendants’ Argument Has No Basis In The Words Of The
Constitution Or In Logic ...................................................................... 110
3.
The Stephenson Decision In Fact Made It Clear That The
Measure Of Compliance With The Whole County Provision Is
The Number Of Counties Kept Whole ................................................. 112
4.
The Supreme Court’s Decision In Pender County v. Bartlett
Confirms That Keeping Counties Whole Is The Measure Of
Compliance With The Whole County Provision Of The
Constitution .......................................................................................... 113
VIOLATIONS OF THE WHOLE COUNTY PROVISIONS IN LDD4
AND RUCHO SENATE 2.................................................................................. 115
1.
There Is No VRA Or One-Person, One-Vote Justification For
Splitting Beaufort County And Lee County In LDD4 ......................... 115
a.
Beaufort County .......................................................................... 115
b.
Lee County .................................................................................. 116
2.
There Is No VRA Or One-Person, One Vote Basis For Splitting
An Extra County In The Piedmont In Rucho Senate 2 ........................ 117
3.
Defendants Have The Burden Of Proving That A Section 2
Violation Would Have Occurred In Each District Constructed
Using Parts Of One Or More Counties And Drawn For The
Purpose Of Preempting A Section 2 Lawsuit....................................... 117
4.
There Is No Valid VRA Basis For Splitting Pasquotank,
Richmond, Greene, Bladen Or Duplin Counties In LDD4 .................. 118
a.
Pasquotank County ..................................................................... 118
b.
Richmond County ....................................................................... 119
c.
Greene County ............................................................................ 120
d.
Bladen County ............................................................................ 121
iv
e.
5.
VII.
Duplin County............................................................................. 121
There Is No Valid VRA Basis For Splitting Wilson Or Lenoir
Counties In Rucho Senate 2 ................................................................. 122
a.
Wilson County ............................................................................ 122
b.
Lenoir County ............................................................................. 123
PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR
CLAIMS THAT LDD4 AND RUCHO SENATE 2 VIOLATE THE
COMPACTNESS REQUIREMENT ESTABLISHED IN THE STEPHENSON
DECISION .......................................................................................................................124
A.
Undisputed, Material Facts Relating To The Compactness Requirement. ......... 124
B.
The Compactness Requirement Under Stephenson ............................................ 127
C.
Numerous Districts In Senator Rucho And Representative Lewis’s Senate,
House, And Congressional Plans Violate The Requirement Of
Compactness ....................................................................................................... 130
1.
Non-Compact Senate Districts ............................................................. 131
2.
Non-Compact House Districts ............................................................. 139
3.
Non-Compact Congressional District .................................................. 152
4.
Conclusion ............................................................................................ 153
CONCLUSION ............................................................................................................................153
v
I.
INTRODUCTION
Redistricting is among the most consequential actions taken by the General Assembly. It
determines the ability of citizens to join together to exercise their constitutional right to elect
their representatives and their constitutional right “to assemble together to consult for their
common good, to instruct their representatives, and to apply to the General Assembly for redress
of grievances.” N.C. Const., Art. I, Sec. 12. The maps of the districts drawn in 2011 make it
fundamentally more difficult for North Carolina voters to participate in a meaningful way in their
own democracy in violation of the North Carolina Constitution and the United States
Constitution.
At the center of this case is an invidious attempt to turn the Voting Rights Act on its head
and use it as a means to justify the subversion of North Carolina Constitution’s whole county and
equal protection provisions. The mapmakers used a law designed to protect the voting rights of
the country’s most vulnerable citizens to in fact segregate those voters and to reduce their proven
ability to form cross-racial coalitions. The mapmakers’ stated goal of drawing as many districts
as possible with a African-American voting age population above 50%, and their focus on
counting clusters rather than drawing whole county districts, not only meant that race
predominated in the drawing of those districts, it also led them to (a) use the racial identity of
voters as the determinative basis for drawing other, non-Voting Rights Act districts, (b) divide
more of North Carolina’s counties than necessary, (c) create oddly shaped, non-compact
districts, and (d) divide an unprecedented number of precincts, impacting approximately two
million voters and disproportionately disadvantaging African-American voters.
In 2011 the maps of the districts that became the law were drawn outside of the General
Assembly and, frequently outside of North Carolina, by a non-North Carolinian, Thomas Brooks
Hofeller. The maps were drawn in secret and were based on vague, oral instructions, not from
the General Assembly, or even from the redistricting committees, but from two individual
legislators, Senator Robert Rucho and Representative David Lewis. Mr. Hofeller did not take
any public comment into account when drawing the maps and not a single African-American
legislator voted for them. Redistricting is the responsibility of the General Assembly, but when
that responsibility is carried out in wholesale disregard of the commands of the North Carolina
Constitution and the United States Constitution, this Court must act.
The Dickson and NAACP Plaintiffs’ seek partial summary judgment in this consolidated
action on these four main claims:
(1)
Racial gerrymandering: that racial considerations predominated in the drawing
of certain districts in each of the plans without justification and those districts are therefore
unconstitutional racial gerrymanders in violation of the equal protection clause of the 14th
Amendment to the United States Constitution and 42 U.S.C. § 1983;
(2)
Split precincts: that the excessive, unprecedented and unjustified number of split
precincts (or VTDs—Voting Tabulation Districts) in the plans disadvantages affected voters and
violates state and federal constitutional equal protection guarantees;
(3)
Whole counties: that the House and Senate plans disregard the North Carolina
state constitutional Whole County Provision by dividing more counties than is necessary; and
(4)
Compactness: that House Districts 4, 7, 10, 12, 21, 25 48, and 66; Senate
Districts 14, 18, 19, 21, 20, 22, 31, 32 and 41; and Congressional District 4 are so non-compact
that they violate the North Carolina Supreme Court’s interpretation of state constitutional equal
protection guarantees and the whole county provision in Stephenson v. Bartlett, 355 N.C. 354,
562 S.E.2d 377 (2002) (Stephenson I); 357 N.C. 301, 582 S.E.2d 247 (2003) (Stephenson II).
2
The key material facts regarding the origin, design and construction of these maps that
became the law, and the characteristics of the districts created by these maps are not disputable.
Indeed, this Court can resolve almost every claim remaining in the two complaints by answering
two basic legal questions:
(1)
does Section 2 of the Voting Rights Act as interpreted by the Supreme
Court in Bartlett v. Strickland, 556 U.S. 1 (2009), require maximization of both
the number of majority-black districts and the black population within those
districts; and
(2)
is compliance with the North Carolina Whole County Provision measured
by the number of county groupings or the number of counties kept whole in a
redistricting plan.
We address these questions in the context of our argument in this memorandum. When this
Court answers these two legal questions, in light of the undisputed facts, the four main claims
listed above can be resolved on summary judgment.1 Because the Voting Rights Act does not
require proportionality or maximization of majority-black districts and because the Whole
County Provision requires keeping as many of North Carolina’s counties whole as possible, the
undisputed evidence demonstrates the Plaintiffs are entitled to partial summary judgment.
Accordingly Plaintiffs, pursuant to Rule 56 of the Rules of Civil Procedure, respectfully
request the Court to:
1
Plaintiffs are not moving for summary judgment on the following claims: 1) that the racial
gerrymandering of certain districts violates the North Carolina Constitution’s equal protection guarantees;
and 2) that under Stephenson Congressional Districts 10 and 11 are so non-compact that they violate the
North Carolina Constitution.
3
1.
Declare that House Districts 5, 7, 12, 21, 24, 29, 31, 32, 33, 38, 42, 48, 54, 57, 99,
102, 106, and 107 are unconstitutional racial gerrymanders designed to maximize
the black population in each of those districts.
2.
Declare that House Districts 1, 2, 4, 8, 30, 34, 45, 49, 51, 59, 66, and 103 are
unconstitutional racial gerrymanders designed to minimize the black population in
each of those districts.
3.
Declare that Senate Districts 4, 5, 14, 20, 21, 28, 32, 38, and 40 are
unconstitutional racial gerrymanders designed to maximize the black population
in each of those districts.
4.
Declare that Senate Districts 7, 18, 19, 22, 27, 31, and 41 are unconstitutional
racial gerrymanders designed to minimize the black population in each of those
districts.
5.
Declare that Congressional Districts 1, 4 and 12 are unconstitutional racial
gerrymanders designed to maximize the black population in each of those
districts.
6.
Declare that Article VI, § 1 and Article 1, § 19 of the North Carolina Constitution
forbid Defendants from splitting precincts between or among House and Senate
Districts except in a narrowly tailored manner designed to achieve a compelling
state interest.
7.
Declare that the only compelling reasons for splitting precincts between or among
House and Senate districts are (a) compliance with Sections 2 or 5 of the 1965
Voting Rights Act and (b) compliance with constitutional one-person, one-vote
principles.
4
8.
Declare that compliance with whole county provisions of Sections 3 and 5 of
Article II of the North Carolina Constitution is measured by the number of
counties kept whole and not by the number of clustered counties.
9.
Declare that the House Plan unconstitutionally divides the following counties:
Beaufort, Richmond, Bladen, Duplin, Greene, Lee and Pasquotank.
10.
Declare that the Senate Plan unconstitutionally divides the following counties:
Wilson and Lenoir, and Iredell, Rowan or Randolph.
11.
Declare that House Districts 4, 7, 10, 12, 21, 25 48, and 66; Senate Districts 14,
18, 19, 21, 20, 22, 31, 32 and 41; and Congressional District 4 are not sufficiently
compact to comply with Article I, Section 19 of the North Carolina Constitution.
II.
STANDARD ON SUMMARY JUDGMENT AND ORGANIZATION OF THE
BRIEF
Summary judgment is appropriate when “there is no genuine issue as to any material
fact” and “any party is entitled to a judgment as a matter of law.” N.C.G.S. § 1A-1, Rule 56(c)
(2012).
Summary judgment “is a device whereby judgment is rendered if the pleadings,
depositions, interrogatories, and admissions on file, together with any affidavits, show that there
is no genuine issues as to any material fact and that any party is entitled to judgment as a matter
of law.” Dalton v. Camp, 353 N.C. 647, 650, 548 S.E.2d 704, 707 (2001). “The rule is designed
to eliminate the necessity of a formal trial where only questions of law are involved and a fatal
weakness in the claim of a party is exposed.” Id. “When considering a motion for summary
judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party.
Moreover, the party moving for summary judgment bears the burden of
establishing the lack of any triable issue.” Id. at 651, 548 S.E.2d at 707; accord Tart v. Martin,
353 N.C. 252, 254, 540 S.E.2d 332, 334 (2000).
5
Given the Answers filed by the Defendants, the Defendants’ own deposition testimony,
and the uncontroverted demographic and geographic information in this case, there simply are no
disputed material questions of fact regarding the claims that are the subject of this motion. The
only issue raised by Defendants involves the application of law to the undisputed facts; therefore
summary judgment is proper. Dixie Chemical Corporation v. Edwards, 68 N.C. App. 714, 716,
315 S.E.2d 747, 750 (1984).
Section III of this Memorandum identifies the undisputed material facts applicable to all
four main claims:
racial gerrymandering, split precincts, the whole county provision, and
geographic compactness. Section IV identifies undisputed material facts relating to the districts
that are racial gerrymanders and applies the law to those facts.
Section V identifies the
undisputed material facts regarding split precincts in all three redistricting plans and applies the
law to those facts. Section VI identifies the undisputed material facts relevant to the whole
county claims and applies the law to those facts. Section VII addresses the facts and law relating
to the compactness claims and applies the law to those facts. The undisputed material facts are
numbered consecutively throughout the brief.
Appendix 1 collects in one place all the short form references to the various redistricting
maps and redistricting terminology used herein.
Appendix 2 contains a timeline of the
significant events in the redistricting process. Appendix 3 is a chart listing each claim for relief
in both complaints and the sections of this brief containing the facts and law relating to that
claim.
III.
UNDISPUTED MATERIAL FACTS RELEVANT TO ALL CLAIMS
A.
The 2011 Redistricting Legislation
1.
On July 27, 2011 the General Assembly passed the State Senate Redistricting
Plan, 2011 S.L. 404, known as the “Rucho Senate 2” Plan, and the 2011 Congressional
6
Redistricting Plan, 2011 S.L. 403, “Rucho-Lewis Congress 3.” On July 28, 2011, the General
Assembly passed the State House Redistricting Plan, 2011 S.L. 402, the “Lewis-DollarDockham 4” Plan. Def. Answer to NAACP Am. Comp., ¶ 65.
2.
No African-American Representatives or Senators voted for any of the three
enacted plans. Def. Answer to NAACP Am. Comp., ¶ 66.
3.
No other map or plan redistricting the House, Senate or Congress was introduced
by any Republican member of the General Assembly. Lewis Dep. Tr. p. 38, Line 14-17, 19-22;
Rucho Dep. Tr. p. 23, lines 8-13.
4.
Representative Grier Martin, a Democrat, introduced alternative legislation for
redistricting the House on July 25. That plan was labeled “House Fair and Legal” and was
defeated. Lewis-Dollar-Dockham 4, Vote History, Plaintiffs' Joint Motion to Take Judicial
Notice of Facts (“Mot. for Jud. Not.), ¶ 2(b).
5.
Senator Martin Nesbitt, a Democrat, proposed an alternative plan for redistricting
the Senate on July 25, 2011. This plan was labeled “Senate Fair and Legal” and was defeated.
Rucho Senate 2, Vote History, Mot. for Jud. Not., ¶ 2(d).
6.
Senator Josh Stein, a Democrat, proposed an alternative plan for redistricting
North Carolina’s congressional districts on July 25, 2011. This plan was labeled “Congressional
Fair and Legal” and was defeated. Rucho-Lewis Congress 3, Vote History, Mot for Jud. Not.
¶ 2(c).
7.
On November 7, 2011, the General Assembly passed curative legislation to assign
all the areas left unassigned by the House Redistricting Plan, 2011 S.L. 402. The revised House
Plan was enacted into law as 2011 S.L. 416. The General Assembly also passed curative
legislation to assign all the areas left unassigned by the Senate Redistricting Plan, 2011 S.L. 404.
7
The revised Senate Plan was enacted into law as 2011 S.L. 413. Def. Answer to NAACP Am.
Comp., ¶ 65. On that day, the General Assembly also passed curative legislation to assign all the
areas left unassigned by the Congressional Redistricting Plan, 2011 S.L. 403. The revised
Congressional Plan was enacted into law as 2011 S.L. 414. Def. Answer to Dickson Am.
Compl., ¶ 367.
B.
The Redistricting Process In The General Assembly
8.
Senator Rucho and Representative Lewis were appointed Chairs of the Senate and
House Redistricting Committees, respectively, on January 27 and February 15, 2011. Def.
Answer to Dickson Am. Compl., ¶¶ 72-73.
9.
Senator Rucho was responsible for developing a proposed Senate map.
Representative Lewis was responsible for developing a proposed House map. Lewis Dep. Tr.
pp. 29-33. Jointly, Senator Rucho and Representative Lewis were responsible for developing a
proposed Congressional map. Rucho Dep. Tr. p. 24 lines 2-11; Def. Answer to Dickson Am.
Compl., ¶ 74.
10.
From January 27, 2011 until the first public presentation of a proposed map for
Senate Voting Rights Act (hereinafter “VRA”) districts on June 17, 2011, Senator Rucho was
responsible for, and determined, (a) the persons who would design and build the proposed Senate
map (hereinafter “architects”); (b) the criteria that the architects would use in drawing the
proposed map; (c) the process the architects would follow and the timing of their work; and
(d) the security procedures that would be followed to keep the maps confidential. Rucho Dep.
Tr. p. 23.
11.
Senator Rucho made all those decisions independently without the aid, advice or
approval of the Senate Redistricting Committee or any other Senator. He did keep Senator
Berger informed about the progress of his work. Rucho Dep. Tr. p. 22, lines 16-24.
8
12.
The Senate Redistricting Committee never met separately prior to the public
release of the Senate VRA districts on June 17, 2011. Rucho Dep. Tr. p. 25, lines 19-24.
13.
The Senate and House Redistricting Committees met jointly on March 30, 2011
and June 15, 2011, but no criteria for House, Senate or Congressional districts were discussed or
proposed at these meetings, no report given with regard to the persons already hired to design
and construct the redistricting maps, and no maps presented for review or comment. Mot. for
Jud. Not., ¶¶ 3(a), 3(c); Att. A, Att. C (official transcripts of the March 30, 2011 and June 15,
2011, joint redistricting committee meetings); Lewis Dep. Tr. p. 32; Rucho Dep. Tr. p. 24-26.
14.
The House Redistricting Committee met separately on April 7, 2011. No criteria
for districts were discussed or proposed at this meeting, no report given with regard to the
persons already hired to design and construct the maps and no maps presented for review or
comment. Mot. for Jud. Not., ¶¶ 3(b); Att. B (official transcript of the April 7, 2011 House
Redistricting Committee meeting).
15.
From February 15, 2011 until the first public presentation of a proposed map for
House VRA districts on June 17, 2011, Representative Lewis was responsible for, and
determined, (a) the persons who would draw the proposed House map (hereinafter “the
architects”); (b) the criteria that the architects would use in drawing the proposed map; (c) the
process the architects would follow and the timing of their work; and (d) the security procedures
that would be followed to keep the maps confidential. Lewis Dep. Tr. pp. 29-33.
16.
Representative Lewis made all these decisions independently without the aid,
advice or approval of the House Redistricting Committee or any other Representative. He did
keep Speaker Tillis informed of the progress of his work. Lewis Dep. Tr. pp. 29-33.
9
17.
From February until the first public presentation of a proposed map for
Congressional districts on July 1, 2011, Senator Rucho and Representative Lewis were jointly
responsible for, and determined, (a) the persons who would develop the proposed Congressional
map (hereinafter “the architects”); (b) the criteria that the architects would use in drawing the
proposed map; (c) the process the architects would follow and the timing of their work and
(d) the security procedure that would be followed to keep the maps confidential. Lewis Dep. Tr.
pp. 29, 33.
18.
Senator Rucho and Representative Lewis jointly made all these decisions without
the aid, advice or approval of the House and Senate Redistricting Committees and/or any other
member of the General Assembly. They did keep Senator Berger and Speaker Tillis informed
about the progress of their work. Lewis Dep. Tr. pp. 29-33.
C.
The Map Drawing Process
19.
Thomas Brooks Hofeller was engaged by Senator Rucho and Representative
Lewis to design and draw the House, Senate and Congressional maps. Senator Rucho described
Hofeller as the “chief architect” of the plans and Mr. Hofeller described himself the same way.
Rucho Dep. Tr. p. 31; Hofeller Dep. Tr. Vol. I, p. 30.
20.
Mr. Hofeller served as Redistricting Coordinator for the Republican National
Committee (hereinafter “RNC”) for the 1990, 2000 and 2010 redistricting cycles. He began
working for Senator Rucho and Representative Lewis in December, 2010. From then until April
1, 2011, Mr. Hofeller did not receive any compensation from the State for his services. After
April 1, 2011, Mr. Hofeller was paid for his services in North Carolina through an agreement
between his firm, Geographic Strategies, and the Ogletree law firm. Mr. Hofeller never had any
agreement for his services with the General Assembly or the redistricting Committees. He,
however, was paid for those services with state funds. Mr. Hofeller billed the Ogletree firm for
10
his services and the Ogletree firm then billed the State for Mr. Hofeller’s services and paid Mr.
Hofeller with those state funds. Hofeller Dep. Tr. Vol. I, p. 31, 38.
21.
According to Mr. Hofeller’s records, the only time he was physically in North
Carolina while providing services to Senator Rucho and Representative Lewis paid by the
General Assembly was on the following dates: June 16-17, June 26-July 1, July 7-12, July 16-22,
July 24-26 and October 8-14. Hofeller Dep. Ex. 431.
22.
In providing his services, Mr. Hofeller worked largely on his own and outside of
the General Assembly. He performed his work at his home in Virginia, during travel, at the
Republican National Committee headquarters in Washington, D.C., and at the North Carolina
Republican Party headquarters in Raleigh. Hofeller Dep. Tr. Vol. I, p. 37, 77.
23.
Members of the legislative staff were involved in data entry activities in February
2011 and assisted in transferring the maps drawn by Mr. Hofeller to the legislative data base in
June and July, 2011. They, however, played no role in the design or construction of legislative
or congressional maps for Senator Rucho and Representative Lewis. Rucho Dep. Tr. p. 156.
24.
Mr. Hofeller’s work for Senator Rucho and Representative Lewis was never
disclosed to the public or to the Democratic members of the General Assembly prior to the
enactment of the plans even though he had been engaged in drawing plans since late March. At
the joint meeting of the House and Senate Redistricting Committees on June 15, 2011, Senator
Rucho was asked but failed to disclose that Mr. Hofeller had been engaged in drawing maps
since March and failed to disclose that Mr. Hofeller had drawn the maps that were going to be
released to the public on June 17. See Mot. for Jud. Not., ¶ 3(c); Att. C, pp. 20-21 and 53. Mr.
Hofeller did not attend any of the public hearings held on redistricting, nor did he review the
transcripts from any of those hearings. Hofeller Dep. Tr. Vol. I, pp. 37-38.
11
25.
Mr. Hofeller was assisted in his role as the architect of the House, Senate and
Congressional Plans by Dale Oldham, John Morgan and Joel Raupe. Their work in drawing
maps was never disclosed to the public or to the Democratic members of the General Assembly
prior to the enactment of the plans. Hofeller Dep. Tr. Vol. I , p. 114, lines 12-16; Lewis Dep. Tr.
p. 39, lines 6-11, p. 105, lines 9-11, p. 107, lines 22-24.
26.
Dale Oldham served as Redistricting Counsel for the RNC in the 2000 and 2010
redistricting cycles. Oldham Dep. Tr. p. 10. Mr. Oldham is a native of South Carolina and is
licensed to practice law in South Carolina, but not North Carolina. Id. Mr. Oldham’s map
drawing responsibilities were limited to determining the ways in which counties could be
grouped together as a part of the process outlined by the Supreme Court in the Stephenson
decisions for complying with the constitutional requirement that “no county be divided in the
formation” of House or Senate Districts. Id. at p. 61-70; Lewis Dep. Tr. p. 45. In addition to
assisting Mr. Hofeller, Mr. Oldham was associated by the Ogletree firm to provide legal advice
to Senator Rucho and Representative Lewis. Mr. Oldham was not compensated for his services
to either Mr. Hofeller or Senator Rucho and Representative Lewis by the General Assembly or
the State. Oldham Dep. Tr. p. 26-27.
27.
John Morgan is a Republican demographer who resides in Virginia. He was
engaged by the Ogletree firm from late May, 2011 until July, 2011. The focus of his work was
to review existing maps of Senate districts for Senator Rucho and provide alternative
configurations for districts in the Mecklenburg, Forsyth, Guilford Wake and Cumberland
counties. Morgan Dep. Tr. p. 30-33, 45. The General Assembly did not compensate Mr.
Morgan for his work for Mr. Hofeller. His compensation was paid by an entity called “Fair and
Legal Redistricting.” Id. at p. 23. Rucho Dep. Tr. p. 29. Mr. Morgan’s work for Mr. Hofeller
12
was done using RNC data and computers at NC GOP headquarters or at his office in Northern
Virginia. Morgan Dep. Tr. p. 41; Rucho Dep. Tr. p. 33.
28.
Like Mr. Hofeller, Mr. Morgan and Mr. Oldham, Joel Raupe was not born in
North Carolina. Unlike Mr. Hofeller, Mr. Morgan and Mr. Oldham, Mr. Raupe has lived in
North Carolina since 1988. Mr. Hofeller described Mr. Raupe’s work as similar to that of a
paralegal. Rucho Dep. Tr. p. 31. All his work was done at the NC GOP headquarters in Raleigh
using RNC data and computers. Morgan Dep. Tr. p. 34. He was compensated by the same
private entity that compensated Mr. Morgan and Mr. Oldham. Morgan Dep. Tr. p. 23.
29.
No persons other than counsel to Senator Rucho and Representative Lewis
assisted Mr. Hofeller, Mr. Raupe, Mr. Morgan and Mr. Oldham in performing their work.
Counsel for Senator Rucho and Representative Lewis included Thomas Farr and Phil Strach of
the Ogletree firm, Art Pope and Dale Oldham. Mr. Farr and Mr. Strach were paid with state
funds. Mr. Oldham was not paid by state funds. Oldham Dep. Tr. p. 26.
D.
Senator Rucho And Representative Lewis’ Instructions To Dr. Hofeller
30.
Senator Rucho and Representative Lewis were the sole source of instructions to
Mr. Hofeller regarding the design and construction of the House and Senate maps. These
instructions were all oral but they were later reduced to writing. Rucho Dep. Tr. pp. 41-42, 147148; Lewis Dep. Tr. p. 71; Hofeller Dep. Tr. Vol. I, pp. 56-57. These after-the-fact written
instructions were in the form of public statements released jointly by Representative Lewis and
Senator Rucho on June 17 (announcing public hearing for June 23 on the House and Senate VRA
districts), on June 22 (responding to criticism from Senator Blue and others about the proposed
House and Senate VRA districts), and on July 12 (announcing the release of full House and
Senate plans, LDD1 and Rucho Senate 1). Churchill Dep. Ex. 55.
13
31.
Mr. Hofeller did not receive instructions from anyone other than Senator Rucho
and Representative Lewis with regard to the design and construction of the House and Senate
plans. Hofeller Dep. Tr. Vol. I, p. 56. Only Hofeller drew maps for Senator Rucho and
Representative Lewis. Lewis Dep. Tr. pp. 106-10. No Republican other than Rucho and Lewis
ever introduced a competing redistricting plan or proposed an amendment to any introduced
redistricting plan. Lewis Dep. Tr. p. 38.
32.
Senator Rucho and Representative Lewis also were the sole source of instructions
for Mr. Hofeller regarding the design and construction of congressional maps. Hofeller Dep. Tr.
Vol. I, p. 56. These instructions were all oral but they were later reduced to writing. These
written instructions were in the form of public statements released jointly by Senator Rucho and
Representative Lewis on July 1 (announcing the release of a congressional plan) and on July 12
(announcing the release of a revised congressional plan). Lewis Dep. Tr. pp. 105, 114; Dep.
Ex. 55.
E.
The Maps Of Districts Drawn By Mr. Hofeller For Senator Rucho And
Representative Lewis Became The Law
Maps of Senate Districts
33.
From late March until mid-June, Mr. Hofeller drew many drafts of Senate maps in
an effort to comply with Senator Rucho’s oral instructions. Some of these maps were reviewed
by Senator Rucho but none of these drafts were reviewed by, or made available to, any other
member of the General Assembly. Rucho Dep. Tr. p. 56-57, Hofeller Dep. Tr. Vol. I, p. 56,
p. 129. After mid-June three iterations of maps of Senate districts drawn by Mr. Hofeller for
Senator Rucho were made available to other legislators and the public: These were:
a.
“Rucho Senate VRA Districts” was drawn by Mr. Hofeller for Senator Rucho
and released to the public on June 17, 2011. This was not a full map; it only
14
included districts described by Mr. Hofeller as “VRA districts”. Rucho Dep.
Tr. p. 55, line 22 – p. 56 line 23.
b.
“Rucho Senate 1” was drawn by Mr. Hofeller for Senator Rucho and released
to the public on July 12. It was a full map of all 50 Senate Districts and was
filed in the General Assembly on July 23, 2011. Rucho Dep. Tr. p. 143, lines
17-18, Mot. for Jud. Not., 1(a)(xi) (Rucho Senate 1 Stat Pack).
c.
“Rucho Senate 2” as drawn by Mr. Hofeller for Senator Rucho was enacted
into law as 2011 SL 402 on July 27, 2011. Rucho Dep. Tr. p. 55 line 22 – p.
56 line 4. Mot. for Jud. Not., 1(a)(xii) (Rucho Senate 2 Stat Pack).
34.
Each of these three versions of maps of Senate districts drawn by Mr. Hofeller
was sent to the General Assembly’s staff in the form of electronic “block assignment files” and
the legislative staff then used software to convert these electronic “block assignment files” into
the words contained in bills, including the bill that became the law. Rucho Dep. Tr. p. 39.
35.
The districts challenged in these lawsuits, except for Senate District 32, were
enacted into law without significant or substantial modification from the form in which they
were drawn by Mr. Hofeller and first made public in either “Rucho Senate VRA Districts” or
“Rucho Senate 1”, as the following chart demonstrates. The data in this chart is taken from the
statistical information contained on the General Assembly’s website, of which Plaintiffs have
asked the Court to take judicial notice. Mot. for Jud. Not., ¶¶ 1(a)(x) (“Stat Pack” and “Split
Voting Tabulation Districts” for “Rucho Senate VRA Districts”); 1(a)(xi) (“Stat Pack” and “Split
Voting Tabulation Districts” for “Rucho Senate 1”); 1(a)(xii) (“Stat Pack” and “Split Voting
Tabulation Districts” for “Rucho Senate 2”). Note that the 6/17 map only included the Voting
15
Rights Act districts and therefore some of the districts challenged in this case had not yet been
released to the public at that time.
# Black
# Black
Voters* in Voters in
6/17 map 7/12 map
SD 4
75,903
75,903
SD 5
70,307
70,307
SD 7
n/a
23,077
SD 14
68,423
68,226
SD 19
n/a
28,889
SD 20
72,369
72,369
SD 21
64,995
65,791
SD 22
n/a
33,158
SD 27
n/a
24,310
SD 28
80,947
84,296
SD 37
n/a
36,562
SD 38
70,806
69,874
SD 40
68,796
69,385
SD 41
n/a
16,940
* Single Race Black VAP
36.
# Black
Voters in
7/27 map
75,905
70,307
23,077
68,184
28,889
72,369
65,790
33,158
24,310
84,296
36,562
69,874
69,385
16,938
# split
VTDs in
6/17 map
3
40
n/a
31
n/a
37
27
n/a
n/a
7
n/a
12
24
n/a
# split
VTDs in
7/12 map
3
40
40
35
35
37
35
37
19
19
11
8
17
19
# split
VTDs in
7/27 map
2
40
40
28
33
35
28
35
14
15
9
7
16
16
Senate District 32 changed significantly from June 17 when first presented to the
public until enactment on July 27. As the following chart demonstrates, the number of VTDs
divided in Senate District 32 increased from 1 in the June 17 map to 43 in the enacted map. Also
the number of Black citizens of voting age in the district increased from 55,887 to 58,334.
# Black
Voters in
6/17 map
55,887
# Black
Voters in
7/1 map
58,336
# Black
Voters in
7/27 map
58,334
# split
VTDs in
6/17 map
1
# split
VTDs in
7/1 map
45
# split
VTDs in
7/27 map
43
Maps of House Districts
37.
Mr. Hofeller drew many draft maps of House districts in an effort to comply with
Representative Lewis’ oral instructions from late March until mid-June. Some of these drafts
were reviewed by Representative Lewis but none were reviewed by, or made available to, any
other member of the General Assembly. After mid-June five iterations of House maps drawn by
16
Mr. Hofeller for Representative Lewis were made available to other legislators and the public.
These were:
a.
“Lewis House VRA Corrected” released to the public on June 17. This was
not a full map; it only included districts described by Mr. Hofeller as “VRA
districts”.
b.
“Lewis Dollar Dockham 1” released to the public on July 12. This was a full
map.
c.
“Lewis Dollar Dockham 2” filed as a bill in the General Assembly on July 21,
2011.
d.
“Lewis Dollar Dockham 3” filed as a committee substitute for LDD2 on July
21, 2011.
e.
“Lewis Dollar Dockham 4” as drawn by Mr. Hofeller was adopted as a
committee substitute for LDD3 on July 24 and enacted into law on July 28,
2011, as 2011 SL 416.
38.
Each of these versions of maps of House districts drawn by Mr. Hofeller was sent
to the General Assembly’s staff in the form of electronic “block assignment files” and the
legislative staff then used software to convert those electronic “block assignment files” into the
words contained in bills, including the bill that became the law.
39.
The districts challenged in these lawsuits, except for House Districts 21 and 24,
were enacted into law without significant or substantial modification from the form in which
they were drawn by Mr. Hofeller and first made public in either Lewis House VRA on June 17
or in Lewis Dollar Dockham 1 on July 12, as the following chart demonstrates. The data in this
chart is taken from the statistical information contained on the General Assembly’s website
17
which Plaintiffs have asked the Court to take judicial notice. Mot. for Jud. Not., ¶¶ 1(a)(ii) (“Stat
Pack” and “Split Voting Tabulation Districts” for “Lewis VRA House Districts”); 1(a)(iv) (“Stat
Pack” and “Split Voting Tabulation Districts” for “Lewis-Dollar-Dockham 1”); 1(a)(vii) (“Stat
Pack” and “Split Voting Tabulation Districts” for “Lewis-Dollar-Dockham 4”). Note that the
6/17 map only included the Voting Rights Act districts and therefore some of the districts
challenged in this case had not yet been released to the public at that time.
# Black
# Black
Voters* in Voters in
6-17 map 7-12 map
HD 4
n/a
9,809
HD 7**
32,056
29,101
HD 10
n/a
9,381
HD 12
28,775
28,912
HD 25
n/a
9,472
HD 29**
31,878
31,582
HD 31**
29,080
29,012
HD 33**
31,186
31,788
HD 34
n/a
11,060
HD 38**
29,799
29,728
HD 42
28,662
28,664
HD 43
29,570
29,575
HD 45
n/a
11,077
HD 47
9,179
9,852
HD 48
31,400
31,180
HD 57**
29,495
29,366
HD 58**
30,960
30,954
HD 60
30,715
30,376
HD 66
n/a
12,337
HD 75
n/a
7,137
HD 92
n/a
10,127
HD 99**
28,793
28,842
HD 102**
30,485
30,428
HD 106**
28,458
28,492
HD 107**
30,176
29,855
* Single Race Black VAP
# Black
Voters in
7-28 map
9,832
29,100
9,381
28,912
9,473
31,582
29,012
31,812
11,060
29,728
28,664
29,572
11,077
10,138
31,176
29,366
30,954
30,376
13,228
7,133
9,857
29,174
30,428
28,492
29,855
# Split
VTDs in
6-17 map
n/a
22
n/a
41
n/a
20
16
16
n/a
21
15
17
n/a
23
41
16
16
22
n/a
n/a
n/a
13
18
5
9
# Split
VTDs in
7-12 map
19
22
32
36
22
14
14
14
16
16
15
17
11
22
35
16
15
17
25
12
12
7
14
3
9
# Split
VTDs in
7-28 map
17
22
29
34
22
14
13
13
14
13
15
15
10
20
31
15
15
16
24
11
11
7
13
3
9
**The designated number of this district changed after the full map was released—the
number used here is the district number in the enacted plan. The data for the 6/17 map is the
equivalent district in that plan.
18
40.
The counties in which two House districts were initially located evolved between
the Lewis House VRA map and the enacted map. House District 21 in House VRA Corrected
was first constructed of parts of Wayne, Sampson and Pender counties. In the Lewis Dollar
Dockham series of maps, House District 21 remained in parts of Wayne and Sampson but the
part in Pender was removed and part of Duplin was added in its place.
41.
In Lewis House VRA Corrected the African-American population in Wilson
County was assigned to House District 8 and the African-American population in Pitt County
was assigned to House District 9. In the Lewis Dollar Dockham series of maps the AfricanAmerican population in Wilson and Pitt were joined together in HD 24.
42.
While the counties in which House Districts 21 and 24 changed over time, the
characteristics of these districts as measured by number of African American citizens assigned to
these districts and the number of split VTDs from which the districts were constructed did not
change much at all, as the following chart demonstrates:
HD 21
HD 24
IV.
# AfricanAmerican
voters in
6-17 map
31,950
_
# AfricanAmerican
voters in
7-1 map
31,899
35,165
# AfricanAmerican
voters in
7-28 map
31,876
35,165
# Split
VTDs In
6-17 map
# Split
VTDs In
7-1 map
# Split
VTDs In
7-28 map
41
_
28
12
26
12
THE CHALLENGED DISTRICTS ARE A RACIAL GERRYMANDER THAT
VIOLATES THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES
CONSTITUTION
A.
Undisputed Material Facts Relevant To The Racial Gerrymandering Claims
1.
43.
Racial Quotas Used In Redistricting Process
Senator Rucho and Representative Lewis told Mr. Hofeller: “draw a 50% plus one
district wherever in the state there is a sufficiently compact black population” to do so. Rucho
Dep. Tr. pp. 50-52, 130; Lewis Dep. Tr. p. 216. Other than directing Mr. Hofeller to apply
19
Stephenson grouping criteria, Senator Rucho and Representative Lewis did not give Mr. Hofeller
any instructions about how to determine whether the black population in an area was sufficiently
compact as required by the first prong of Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).
Rucho Dep. Tr. p. 126; Lewis Dep. Tr. p. 216.
44.
Senator Rucho and Representative Lewis also directed Mr. Hofeller “to include in
the House plan a sufficient number of majority African-American districts” to provide AfricanAmerican citizens “with a substantial proportional and equal opportunity to elect their
candidates”. Rucho Dep. Tr. pp. 50-52, 130, Lewis Dep. Tr. pp. 128-29.
45.
As soon as the 2010 Census data was released, Mr. Hofeller calculated that, using
voting age population - any part black, exact proportionality for the House plan was 25.44 seats
and for the Senate plan was 10.6 seats.
Using voting age population - black only, exact
proportionality for the House was 24.72 seats and for the Senate plan was 10.3 seats. Dep. Ex.
436; Hofeller Dep. Tr. Vol. I, pp. 80-81. The chart he prepared is reproduced below. He shared
these calculations with Representative Lewis and Senator Rucho. Id.
Chamber
Pct.
18+ Any Part Black
Exact
Proportio
Rounded
# Seats nality
Truncated Up
18+ Black Only (Single Race)
Exact
Proportio
Rounded
Pct. nality
Truncated Up
Senate
Proportio
nality
0.21
50
10.6
10
11 0.206
10.3
10
11
House
Proportio
nality
0.21
120
25.44
25
26 0.206
24.72
24
25
46.
In a statement issued on June 17, 2011 announcing a public hearing on the Voting
Rights Act districts, Senator Rucho and Representative Lewis recommended that any legislative
redistricting plan for North Carolina include a sufficient number of majority African-American
20
districts to provide substantial proportionality and stated that “proportionality for the African
American citizens in North Carolina means the creation of 24 majority African American House
districts and 10 majority Senate districts.” Churchill Dep. Ex. 55.
47.
The enacted House plan contains 24 districts with a black CVAP over 50%. Def.
Answer to NAACP Am. Compl, ¶ 107. In the 2009 plan, there were 9 districts with a black VAP
over 50%. Churchill Dep. Ex. 55, June 17 Joint Statement, p. 3.
48.
The enacted Senate plan contains 9 districts with a black VAP greater than 50%,
the 2003 plan had no districts with a black VAP greater than 50%. Def. Answer to NAACP Am.
Comp., ¶¶ 289-90.
49.
The Defendants admit that the following districts were drawn “to provide African
Americans with a roughly proportional opportunity to elect their preferred candidates of choice”:
House Districts 7, 12, 21, 24, 29, 31, 33, 38, 42, 43, 48, 57, 58, 60, 99, 102, and 107 (Def.
Answer to Dickson Am. Comp., ¶¶ 221, 233, 241, 249, 260, 266, 273, 283, 289, 295, 309, 317,
323, 329, 348, 355, 361); and Senate Districts 4, 5, 14, 20, 21, 28, 32, 38 and 40. Def. Answer to
Dickson Am. Compl., ¶¶ 110, 117, 129, 142, 150, 167, 174, 182, 189; Def. Answer to NAACP
Am. Compl., ¶ 289.
50.
The Defendants admit that the shape and location of the following districts “are
partially a function of the State’s decision to draw majority TBVAP Districts”: House Districts 4,
10, 25, 34, 45, 47, 66, 75, and 92 (Def. Answer to Dickson Am. Compl., ¶¶ 215, 228, 255, 279,
301, 306, 335, 340, 344); and Senate Districts 7, and 37. Def. Answer to Dickson Am. Compl.,
¶¶ 124, 178.
51.
In a joint statement issued on July 19, 2011, Senator Rucho and Representative
Lewis claimed that Section 2 of the Voting Rights Act required them to increase the black
21
population in Congressional District 1, which elects African-American Congressman G.K.
Butterfield, because it did not include a majority black voting age population according to the
2010 Census. Churchill Dep. Ex. 55, July 19 Joint Statement, p. 2.
52.
Senator Rucho and Representative Lewis admitted to drawing Congressional
District 12, which elects African-American Congressman Mel Watt, at 50.66% BVAP. In a joint
statement issued on July 1, 2011, they state that “we have drawn our proposed Twelfth District at
a black voting age level that is above the percentage of black voting age population in the current
Twelfth District. We believe that this measure will ensure preclearance of the plan.” Churchill
Dep. Ex. 55, July 1 Joint Statement, p. 5.
2.
53.
Use Of Divided Precincts And Highly Irregular District Boundaries
When precincts were split in the House, Senate and Congressional redistricting
plans they were split into “black pieces” and “white pieces,” and the “black pieces” were almost
uniformly assigned to “black districts,” while the “white pieces” were assigned to “white
districts.” First Aff. of Dr. Theodore Arrington, ¶¶ 23-24, 29.
54.
Majority African-American House and Senate districts have nearly three times as
many split precincts as do majority white House and Senate districts. Id. at ¶ 34. In all three
plans, this assignment on the basis of race would have happened by chance only five times in
10,000. Id. at ¶ 32.
55.
The Defendants have admitted that in order to draw districts with a Black voting
age population in excess of 50% they had to use pieces of precincts as a major tool. Def. Answer
to Dickson Am. Compl., ¶¶ 131 (Senate District 14 include pieces of 27 precincts); 144 (Senate
District 20 includes pieces of 35 precincts); 152 (Senate District 33 includes pieces of 33
precincts); 169 (Senate District 28 includes pieces of 15 precincts); 182 (Senate District 38
includes pieces of 8 precincts); 191 (Senate District 40 includes pieces of 16 precincts); 235
22
(House District 12 includes pieces of 34 precincts); 243 (House District 21 includes pieces of 25
precincts); 262 (House District 29 includes pieces of 14 precincts); 268 (House District 31
includes pieces of 13 precincts); 311 (House District 48 includes pieces of 24 precincts); 350
(House District 99 includes pieces of 7 precincts); 363 (House District 107 includes pieces of 9
precincts).
56.
When tested using 8 common measures of compactness and compared against the
2009 plan and House Fair and Legal Plan, the Lewis-Dollar-Dockham 4 House Plan had the least
compact score on all 8 of 8 measures. Fairfax Second Aff. ¶ 26.
57.
When tested using 8 common measures of compactness and compared against the
2003 and Senate Fair and Legal Plan, the Rucho Senate 2 Plan had the least compact scores on 7
of 8 measures. Fairfax Second Aff. ¶ 24.
58.
The divergent boundary segments of the 1st and 12th Congressional District are
best explained as driven by racial considerations. Peterson First Aff. ¶ 18.
3.
59.
Data Used By Mr. Hofeller In Designing His Maps
General Assembly staff helped construct a database to be used in redistricting that
included voter registration data by VTD and election results by VTD. Frey Dep. Tr. pp. 35, 41,
45, 48-49.
60.
They were assisted in that endeavor by Benjamin Friedman, an associate of Mr.
Hofeller’s. Frey Dep. Tr. p. 45-46.
61.
Mr. Hofeller made the decision to only include statewide elections in the
database. Frey Dep. Tr. p. 49-53; Frey Dep. Ex. 144.
62.
Mr. Hofeller did not consider elections for state legislative or congressional
offices when drawing districts allegedly compelled by the Voting Rights Act. Hofeller Dep. Tr.
Vol. I, p. 66.
23
63.
The election results and party registration data compiled by Mr. Friedman and the
General Assembly staff provides information that can be utilized in redistricting when using
whole VTDs in the redistricting process, but that data is useless below the VTD level. Frey Dep.
Tr. pp. 57-58; Hofeller Dep. Tr. Vol. II, pp. 218.
64.
Redistricting data provided to the states by the Census Bureau pursuant to P.L.
94-171 is the only data accurate and reliable at the census block level. Frey Dep. Tr. pp. 55, 57;
Hofeller Dep. Tr. Vol. II, p. 219.
4.
65.
Prior Election Of Candidates Of Choice Of Black Voters
Racially polarized voting exists only when minority voters need a majority of the
voting population in a single member district to elect their preferred candidate of choice. If
minorities can elect their preferred candidate in a district that is less than majority minority, then
racially polarized voting must not exist as a matter of law. Defs. Answer to NAACP Am.
Comp., Affirmative Defense No. 23, and Def. Answer to Dickson Am. Compl., Affirmative
Defense No. 23.
66.
Mr. Hofeller did not consider past election results, including the election of
candidates of choice of black voters in districts less than 50% African American, when drawing
majority black districts. Hofeller Dep. Tr. Vol. I, p. 66.
67.
The Dickson Complaint specifically alleges, and Defendants have admitted, that
African-American candidates have regularly been elected by wide margins for many years in
several legislative districts and two congressional districts which are less than 50% African
American. These districts are as follows:
68.
Senate District 14, which elected a Black candidate in 2004, 2006, 2008 and 2010
by a margin of at least 30 percent, but in which Blacks were only 41.62% of the voting age
population. Def. Answer to Dickson Am. Compl., ¶ 136.
24
69.
Senate District 20, which elected a Black candidate in 2004, 2006, 2008 and 2010
by a margin of 40 or more points, but in which Blacks were only 44.64% of the voting age
population. Id., ¶ 149.
70.
Senate District 21, which elected a Black candidate in 2004, 2006, 2008, and
2010 by a margin of 20 points or more, even though Blacks were only 44.93% of the voting age
population. Id., ¶ 157.
71.
Senate District 28 which elected a Black candidate in 2004, 2006, 2008, and 2010
even though Blacks were only 47.20% of the voting age population. Id., ¶ 173.
72.
Senate District 38, which elected a Black candidate in 2004, 2006, 2008, and
2010 by a margin in excess of 30 points, even though Black voting age population was only
46.57% of the voting age population. Id., ¶ 188.
73.
Senate District 40, which elected a Black candidate in 2004, 2006, 2008, and
2010 by a margin in excess of 20 points, even though the Black voting age population was only
46.97%. Id., ¶ 195.
74.
House District 12, which elected a Black candidate in 2004, 2006, 2008, and 2010
by margins in excess of 20 points, even though the Black voting age population was only
46.45%. Id., ¶ 240.
75.
House District 21, which elected a Black candidate in 2004, 2006, 2008, and 2010
by margins in excess of 35 points, even though the Black voting age population was only
46.25%. Id., ¶ 248.
76.
House District 29, which elected a Black candidate in 2004, 2006, 2008, and 2010
by margins in excess of 80 points, even though the Black voting age population was only
39.99%. Id., ¶ 265.
25
77.
House District 31, which elected a Black candidate in 2004, 2006, 2008, and 2010
by margins of 50 points, even though the Black voting age population was only 47.23%. Id.,
¶ 272.
78.
House District 48, which elected a Black candidate in 2004, 2006, 2008, and 2010
by margins in excess of 40 points even though the Black voting age population was only 45.56%.
Id. ¶ 316.
79.
House District 99 which elected a Black candidate in 2008, and 2010 by margins
in excess of 30 points, even though the Black voting age population was only 41.26%. Id.,
¶ 356.
80.
House District 107, which elected a Black candidate in 2004, 2006, 2008, and
2010 by margins in excess of 30 points, even though the Black voting age population was only
47.14%. Id., ¶ 366.
81.
Congressional District 1, which elected a Black candidate in 2002, 2004, 2006,
2008, and 2010 by margins in excess of 20 points, even though the Black voting age population
in that district was only 48.63%. Id., ¶ 383.
82.
Congressional District 12, which elected a Black candidate in 2002, 2004, 2006,
2008, and 2010 by margins in excess of 30 points even though the Black voting age population
in the district was only 43.77%. Id. ¶ 401.
5.
83.
Information Available To Senator Rucho And Representative Lewis
On Racially Polarized Voting In North Carolina
Representative Lewis and Senator Rucho, through the Ogletree law firm, hired
Dr. Thomas Brunell of the University of Texas at Dallas, to conduct a racially polarized voting
analysis for the state of North Carolina. Brunell Dep. Tr. pp. 46-47. Dr. Brunell’s report was
finished on June 14th, 2011. Brunell Dep. Tr. p. 47; Brunell Dep. Ex. 299 (report dated June 14).
26
84.
The VRA district maps were released to the public on June 17, only 3 days after
Dr. Brunell’s report was completed. Churchill Dep. Ex. 55, June 17 Joint Statement.
85.
Mr. Hofeller acknowledged that he began drawing the House and Senate plans in
March, after release of the census data. Hofeller Dep. Tr. Vol I, p. 78.
86.
Dr. Brunell examined three racially-contested statewide elections: the 2004 State
Auditor election, the 2008 Democratic Presidential Primary election, and the 2008 Presidential
General election. Dep. Ex. 299, pp. 5-13.
87.
Dr. Brunell’s analysis indicated that in the 2004 State Auditor’s election, in
precincts that were overwhelmingly white (over 90% white), the black candidate received on
average 39.3% of the vote. Dep. Ex. 299, p. 11.
88.
Dr. Brunell’s analysis indicated that in the 2008 Democratic Presidential primary,
in precincts that were overwhelmingly white (over 90% white), the black candidate received on
average 43.8% of the vote. Dep. Ex. 299, p. 5.
89.
Dr. Brunell’s analysis indicated that in the 2008 Presidential General election, in
precincts that were overwhelmingly white (over 90% white), the black candidate received on
average 39.7% of the vote. Dep. Ex. 299, p. 8.
90.
Dr. Brunell also examined the 2010 general election for Senate District 20 in
Durham County, which involved an African-American candidate (Senator Floyd McKissick)
versus a White candidate.
Dr. Brunell’s analysis indicated that in precincts that were
overwhelmingly white, the black candidate received an average of 40.1 percent of the vote. Dr.
Brunell also failed to acknowledge that the black candidate, Senator McKissick won that
election. Dep. Ex. 299, p. 15.
27
91.
Senator Rucho, Representative Lewis and Mr. Hofeller had access to information
regarding past elections of African-Americans and the levels of racially polarized voting when
designing, drawing and enacting Voting Rights Act districts in LDD4, Rucho Senate 2, and
Rucho-Lewis Congress 3, but never took it into account. Lewis Dep. Tr. pp. 174, 178.
B.
The Individual Legislative And Congressional Districts Challenged By
Plaintiffs Are Unconstitutional Racial Gerrymanders
The United States Supreme Court has recognized that a “reapportionment plan that
includes in one district individuals who belong to the same race, but who are otherwise widely
separated by geographical and political boundaries, and who may have little in common with one
another but the color of their skin, bears an uncomfortable resemblance to political apartheid.”
Shaw v. Reno, 509 U.S. 630, 647 (1993). Moreover, the Court noted “[r]acial classifications
with respect to voting carry particular dangers.
Racial gerrymandering, even for remedial
purposes, may balkanize us into competing racial factions; it threatens to carry us further from
the goal of a political system in which race no longer matters.” Id. at 657.
To prove a racial gerrymander claim, plaintiffs must first prove that race was the
dominant factor that determined the boundaries and composition of the challenged district. Shaw
v. Reno, 509 U.S. at 643. See also, Bush v. Vera, 517 U.S. 952, 959 (1996). Plaintiffs may show
that race predominated when the legislature drew a district “either through circumstantial
evidence of a district's shape and demographics or through more direct evidence going to
legislative purpose.” Shaw v. Hunt, 517 U.S. 899, 905 (1996) (citations omitted).
If the plaintiff carries that burden, the defendants must then satisfy strict scrutiny by
proving that (a) the district lines were drawn to meet some compelling governmental interest and
(b) the lines were narrowly drawn to meet that compelling interest. Shaw v. Reno, 509 U.S. at
643. In this case, as in Shaw v. Reno, the Defendants argue that the Voting Rights Act districts
28
they drew were designed to achieve racial proportionality and they contend that, in fact, the law
required them to do so. Compare Shaw v. Hunt, 517 U.S. at 905-06 (the irregular shape of North
Carolina’s congressional districts is evidence that race predominated), with supra Material Facts
34-41 (certain districts were drawn to provide proportionality). If the defendants cannot meet
their burden to establish that the challenged Voting Rights Act districts are narrowly tailored to
further a compelling governmental interest, those districts are an unconstitutional use of race in
violation of the equal protection clause of the United States Constitution.
1.
Race Predominated In Drawing The State Legislative Districts
Challenged By Plaintiffs
The challenged districts in the 2011 Congressional and state legislative redistricting plans
enacted by the North Carolina General Assembly violate the constitution because those district
lines are based predominantly on race and are not justified by a compelling governmental interest
nor narrowly tailored to meet any such interest.2
Direct evidence of race being used as a predominant motivator in the drawing of electoral
district lines triggers application of strict scrutiny of those district plans. Miller v. Johnson, 515
U.S. 900, 917-18 (1995). Direct evidence includes defendants’ concessions, such as statements
by lawmakers asserting or conceding that the design of the plan was driven by race. With such
evidence, a court may not need to use the inferential analysis of district shape employed by the
Supreme Court in Shaw. Johnson v. Miller, 864 F. Supp. 1354, 1374 (S.D. Ga. 1994). Indirect
evidence can include a district shape so contorted that it can only be explained by race or by a
disregard for traditional redistricting criteria. Id. at 1374. The availability and use of very
2
Plaintiffs challenge specific districts, not the plans as a whole. See NAACP First Amended Complaint:
1st Claim for Relief ¶¶ 416-417; 2nd Claim for Relief ¶¶ 428-429; 3rd Claim for Relief ¶ 440; 9th Claim for
Relief ¶¶ 467-468; 10th Claim for Relief ¶¶ 475-76; 11th Claim for Relief ¶ 483; Dickson First Amended
Complaint: 19th Claim for Relief ¶ 495; 20th Claim for Relief ¶ 499; 21st Claim for Relief ¶ 503; 22nd
Claim ¶ 507; 23rd Claim ¶ 512; 24th Claim ¶ 517.
29
detailed racial data by the map drawers when drawing the districts may also support the
conclusion that race was an overriding consideration. Vera, 517 U.S. at 962.
Senator Rucho and Representative Lewis have repeatedly and publicly admitted that race
predominated in their decision to draw certain House, Senate, and Congressional districts. See
supra Material Facts 34-41. Senator Rucho and Representative Lewis admitted in their Answers
that they intentionally drew as majority-minority districts those districts challenged by Plaintiffs.
Id.
In past racial gerrymandering cases, direct evidence has often been in the form of
concessions or public statements made by decision-makers in the state legislature responsible for
redistricting. The facts in this case are similar to those Miller v. Johnson, 515 U.S. 900 (1995)
(Georgia congressional redistricting challenge), and Vera, 517 U.S. 952 (Texas congressional
redistricting challenge). The congressional plans challenged in Miller v. Johnson and Bush v.
Vera contained an unprecedented number of majority-minority districts, were very non-compact,
and the state sought to justify the districts on the ground that they were compelled by the Voting
Rights Act—just like in the 2011 North Carolina redistricting plans. Miller, 515 U.S. at 907,
908, 910; Vera, 517 U.S. at 957, 960, 976. In those circumstances, the Court held that strict
scrutiny applies. See Miller, 515 U.S. at 920; Vera, 517 U.S. at 968.
The Georgia redistricting case, Johnson v. Miller, is illustrative of the types of relevant
factual evidence in determining if race was the overriding consideration in the creation of
challenged districts. Id., 864 F. Supp. at 1374-78. The state defendants in 1990s Georgia
redistricting litigation admitted that achieving proportional representation was a goal motivating
their decision to create additional majority-minority congressional districts. Id., 864 F. Supp. at
1378. Georgia enacted a plan with 3 majority-black districts—its previous plan contained only
one majority-black district. Id. at 1360-61. Georgia even indicated that it believed it had a
30
compelling interest in achieving proportionality apart from avoiding Section 2 vote dilution. Id.
at 1379. To that, the District Court in Johnson v. Miller replied that “[t]o erect the goal of
proportional representation is to erect an implicit quota for black voters. Far from a compelling
state interest, such an effort is unconstitutional.” Id. at 1379 (citing Regents of the Univ. of Cal.
v. Bakke, 438 U.S. 265, 307 (1978) (Powell, J.)) In the Texas case, again lawmakers indicated
that drawing additional majority-minority districts in a state in which minority voters were not
proportionally represented was one of the principle goals in that redistricting process. Johnson v.
Miller, at 1342 fn. 54. The District Court in the Texas correctly found that this single-minded
focus on drawing districts that were at least 50% minority voting age population indicated that
race predominated and strict scrutiny should apply. Vera, 517 U.S. at 962.
In this case, North Carolina has admitted to being motivated by the exact same
proportionality goal outlined in the Georgia and Texas cases—a direct statement of a race-based
intent that requires the district to be subjected to strict scrutiny. The single-minded focus on
drawing majority African-American districts in pursuit of substantial proportionality for black
voters must be carefully reviewed. Just as the district court in Johnson v. Miller, at 1381, noted
that “the VRA cannot justify all actions taken in its name,” neither here can this Court allow
flimsy pretextual voting rights justifications to result in the unconstitutional segregation of voters
in the state of North Carolina, based solely on the color of their skin.
2.
The Irregular Shapes Of The Legislative Districts Also Establishes
That The Challenged Districts Are Racial Gerrymanders
A plaintiff may prove that the legislature had a race-based motive in drawing a district
“through circumstantial evidence of a district’s shape and demographics.” Shaw v. Hunt, 517
U.S. at 905. In some cases, “a reapportionment plan may be so highly irregular that, on its face,
it rationally cannot be understood as anything other than an effort to ‘segregate . . . voters’ on the
31
basis of race. Shaw v. Reno, 509 U.S. at 646-647 (citations omitted). Because “reapportionment
is one area in which appearance do matter,” id. at 674, the geography of the districts challenged
in this case is further evidence that racial considerations predominated in the drawing of those
districts.
a.
House Districts 42 and 45
House Districts 42 and 45 are racial gerrymanders which unconstitutionally segregate
black voters into District 42, thus bleaching House District 45. The 2003-2009 version of
District 42 is currently represented by an African-American, Rep. Marcus Lucas. Def. Answer
to NAACP Am. Compl., ¶ 217. In the 2009 plan, the district was 47.94% BVAP, but the enacted
plan increased the BVAP to 52.56%. Id. To do this, the white voters and black voters in
Cumberland County had to be delicately carved apart and separated in Districts 42, 43, and 45.
House District 43 is in between House Districts 42 and 45—it was a majority black district in the
benchmark plan and is a majority black district in the enacted plan. See Mot. for Jud. Not.,
¶ 1(a)(i) (“Stat Pack” for NC House “Existing District Plan”), ¶ 1(a)(vii) (“Stat Pack” for
“Lewis-Dollar-Dockham 4”).
In packing black voters into District 42, 15 VTDs were split in House District 42, 15
VTDs were split in House District 43, and 10 VTDs were split in House District 45. See Mot.
for Jud. Not., ¶ 1(a)(vii) (“Split Voting Tabulation Districts (VTDs)” for “Lewis-DollarDockham 4”). The map below shows the highly irregular shape of the district line weaving
through Cumberland County, and the racial data visible to Mr. Hofeller on the Maptitude screen
as he was drawing that district line allowed him to precisely place that line, solely on the basis of
race. In the map below, the darker green census blocks are more heavily African-American,
while the lighter green indicates a lower black voting age population. The darker green census
32
blocks and VTDs are put in House District 42 and 43, the black districts, and the lighter green
blocks and VTDs get placed in white House District 45.
As this map makes clear, in order to unnecessarily pack black voters into House District 42,
House District 43 was forced to extend an awkward tentacle down into southern Cumberland
County for the sole purpose of pulling in black voters. This map illustrates how the irregular
shape correlates almost perfectly to the racial demographics of the area. Likewise, in House
District 43, the district lines in the northern part of the district perfectly correspond to racial
concentrations and capture black voters. Because the odd, highly non-compact shapes of House
Districts 42 and 45 are unexplainable on any other grounds than race, because the line separating
House Districts 42 and 45, when viewed with the data that was in front of Mr. Hofeller, clearly
33
separates white voters from black voters, and because the district lines do not respect VTD
political subdivisions, House Districts 42 and 45 are subject to strict scrutiny.
b.
House Districts 48 and 66
House Districts 48 and 66 are racial gerrymanders which unconstitutionally segregate
black voters into District 48, thus bleaching House District 66. House District 48 is currently
represented by an African-American, Rep. Garland Pierce.
Def. Answer to NAACP Am.
Compl., ¶ 162. In the benchmark plan, the district was 45.56% BVAP, but the enacted plan
increased the BVAP to 51.27%. Id. To do this, the white voters and black voters in Scotland,
Richmond and Hoke Counties had to be delicately carved apart and separated in Districts 48 and
66. In doing so, 31 VTDs were split in House District 48 and 24 VTDs were split in House
District 66. See Mot. for Jud. Not., ¶ 1(a)(vii) (“Split Voting Tabulation Districts (VTDs)” for
“Lewis-Dollar-Dockham 4”). The map below shows the highly irregular shape of the district
line weaving through out Scotland, Richmond, Hoke and Robeson Counties, and the racial data
visible to Mr. Hofeller on the Maptitude screen as he was drawing that district line allowed him
to precisely place that line, solely on the basis of race. As with the previous maps, the darker
green census blocks are more heavily African-American, while the lighter green indicates a
lower black voting age population. The darker green census blocks and VTDs are put in House
District 48, the black district, and the lighter green blocks and VTDs get placed in white House
District 66.
34
House District 48 consists of three parallel appendages, each of which extends into Richmond,
Scotland and Hoke, and Robeson Counties, respectively, to pull out the black population in those
counties. As a result, House District 66 awkwardly collects the remanding white population
from those districts, and cobbles them into a very sprawling, heavily white district. Because the
odd, highly non-compact shapes of House Districts 44 and 66 are unexplainable on any other
grounds than race, because the line separating House Districts 44 and 66, when viewed with the
data that was in front of Mr. Hofeller, clearly separates white voters from black voters, and
because the district lines do not respect VTD political subdivisions, House Districts 44 and 66
are subject to strict scrutiny.
35
c.
House District 7
House District 7 is a racial gerrymander whose district lines unconstitutionally are
directed solely on the basis of race. House District 7 includes pieces of 15 split VTDs in Nash
County and pieces of 7 split VTDs in Franklin County. Def. Answer to Dickson Am. Compl.,
¶ 223. The irregular shape of this district is extremely difficult to follow, and its district lines
correspond to the racial demographics of the area. The map below shows the highly irregular
shape of the district line weaving throughout Franklin and Nash Counties, and the racial data
visible to Mr. Hofeller on the Maptitude screen as he was drawing that district line allowed him
to precisely place that line, solely on the basis of race. Again, the darker green census blocks are
more heavily African-American, while the lighter green indicates a lower black voting age
population.
36
As this map shows, the lines of House District 7 weave and curve wildly to capture every little
pocket of black population in the two counties. Because the odd, highly non-compact shape of
House District 7 is unexplainable on any other grounds than race, because the line defining
House District 7, when viewed with the data that was in front of Mr. Hofeller, clearly separates
white voters from black voters, and because the district lines do not respect precinct or VTD
political subdivisions, House District 7 is subject to strict scrutiny.
d.
Senate Districts 20 and 22
Senate Districts 20 and 22 are racial gerrymanders which unconstitutionally segregate
black voters into District 20, thus bleaching Senate District 22. Senate District 20 is currently
represented by an African-American, Sen. Floyd McKissick. Def. Answer to NAACP Am.
37
Compl., ¶ 305. In the benchmark plan, the district was 44.64% BVAP, but the enacted plan
increased the BVAP to 51.04%. Id. To do this, the white voters and black voters in Durham
County had to be delicately carved apart and separated in Districts 20 and 22. In doing so, 35
VTDs were split between the two districts in Durham County. See Mot. for Jud. Not., ¶ 1(a)(xii)
(“Split Voting Tabulation Districts (VTDs)” for “Rucho Senate 2”). The map below shows the
highly irregular shape of the district line weaving through Durham County, and the racial data
visible to Mr. Hofeller on the Maptitude screen as he was drawing that district line allowed him
to precisely place that line, solely on the basis of race. Again, the darker green census blocks are
more heavily African-American, while the lighter green indicates a lower black voting age
population. The darker green census blocks and VTDs are put in Senate District 20, the black
district, and the lighter green blocks and VTDs get placed in white Senate District 22.
38
As the racial data shading above indicates, the very irregular district line meandering through
Durham County serves only one purpose—segregating the white voters in Durham County from
the black voters in Durham County. Because the odd, highly non-compact shapes of Senate
Districts 20 and 22 are unexplainable on any other grounds than race, because the line separating
Senate Districts 20 and 22, when viewed with the data that was in front of Mr. Hofeller, clearly
separates white voters from black voters, and because the district lines do not respect precinct or
VTD political subdivisions, Senate Districts 20 and 22 are subject to strict scrutiny.
e.
Senate Districts 19 and 21
Senate Districts 19 and 21 are racial gerrymanders which unconstitutionally segregate
black voters into District 21, thus bleaching Senate District 19. Senate District 21 is currently
39
represented by an African-American, Sen. Eric Mansfield.
Def. Answer to NAACP Am.
Compl., ¶ 317. In the benchmark plan, the district was 44.93% BVAP, but the enacted plan
increased the BVAP to 51.53%. Id. To do this, the white voters and black voters in Cumberland
County had to be delicately carved apart and separated in Districts 19 and 20. In doing so, 33
VTDS were split between the two districts in Cumberland County. See Mot. for Jud. Not.,
¶ 1(a)(xii) (“Split Voting Tabulation Districts (VTDs)” for “Rucho Senate 2”). The map below
shows the highly irregular shape of the district line weaving through Cumberland County, and
the racial data visible to Mr. Hofeller on the Maptitude screen as he was drawing that district line
allowed him to precisely place that line, solely on the basis of race. Again, the darker green
census blocks are more heavily African-American, while the lighter green indicates a lower
black voting age population. The darker green census blocks and VTDs are put in Senate
District 19, the black district, and the lighter green blocks and VTDs get placed in white Senate
District 21.
40
As illustrated above, Senate District 21 has at least 5 distinct tentacles reaching into Cumberland
County and grabbing black voters. The district line very carefully weaves around the white
populations in Fayetteville, avoiding those and leaving them for the bleached district 19.
Because the odd, highly non-compact shapes of Senate Districts 19 and 21 are unexplainable on
any other grounds than race, because the line separating Senate Districts 19 and 21, when viewed
with the data that was in front of Mr. Hofeller, clearly separates white voters from black voters,
and because the district lines do not respect precinct or VTD political subdivisions, Senate
Districts 19 and 21 are subject to strict scrutiny.
41
f.
Senate Districts 14 and 18
Senate Districts 14 and 18 are racial gerrymanders which unconstitutionally segregate
black voters into District 14, thus bleaching Senate District 18. Senate District 14 is currently
represented by an African-American, Sen. Dan Blue. Def. Answer to NAACP Am. Compl.,
¶ 362. In the benchmark plan, the district was 42.62% BVAP, but the enacted plan increased the
BVAP to 51.28%. Id. To achieve that dramatic increase in black voting age population, the
white voters and black voters in Wake County had to be carefully carved apart census block by
census block and separated between Districts 14 and 18. In doing so, 29 VTDs were split in
Senate District 14 and 22 VTDs were split in Senate District 18. See Mot. for Jud. Not.,
¶ 1(a)(xii) (“Split Voting Tabulation Districts (VTDs)” for “Rucho Senate 2”). The map below
shows the highly irregular shape of the district line weaving through Wake County, and the racial
data visible to Mr. Hofeller on the Maptitude screen as he was drawing that district line allowed
him to precisely place that line, solely on the basis of race. Again, the darker green census
blocks are more heavily African-American, while the lighter green indicates a lower black voting
age population. The darker green census blocks and VTDs were put in Senate District 14, the
black district, and the lighter green blocks and VTDs were placed in white Senate District 18.
42
As the map demonstrates, the irregular appendages of District 14, including the jointed, claw-like
extension in the northeastern part of Wake County, correspond perfectly with the census blocks
that are more heavily black. Because the odd, highly non-compact shapes of Senate Districts 14
and 18 are unexplainable on any other grounds than race, because the line separating Senate
Districts 14 and 18, when viewed with the data that was in front of Mr. Hofeller, clearly
separates white voters from black voters, and because the district lines do not respect precinct or
VTD political subdivisions, Senate Districts 14 and 18 are subject to strict scrutiny.
g.
House Districts 1 and 5
House Districts 1 and 5 are racial gerrymanders which unconstitutionally segregate black
voters into District 5, thus bleaching House District 1. House District 5 is currently represented
43
by an African-American, Rep. Annie Mobley. Def. Answer to NAACP Am. Compl., ¶ 140. In
the benchmark plan, the district was 48.87% BVAP, but the enacted plan increased the BVAP to
54.17%. Id. To do this, the white voters and black voters in Pasquotank County had to be
delicately carved apart and separated in Districts 1 and 5. In doing so, 6 VTDs were split. See
Mot. for Jud. Not., ¶ 1(a)(vii) (“Split Voting Tabulation Districts (VTDs)” for “Lewis-DollarDockham 4”). The map below shows the highly irregular shape of the district line cleaving
Pasquotank County, and the racial data available to Mr. Hofeller on the Maptitude screen as he
was drawing that district line allowed him to precisely place that line, solely on the basis of race.
The darker green VTDs and census blocks are the more heavily black VTDs and census blocks,
and they are very purposefully captured in House District 5, while neighboring pale green VTDs
and census blocks, the more heavily white ones, are awkwardly placed in House District 1.
44
In the map above, it is clear that the jagged section of Pasquotank County that is carved out by
House District 5 is predominantly black, and because the district line corresponds so perfectly to
race, it had to have been drawn that way because of race. Because the odd, non-compact shapes
of House Districts 1 and 5 are unexplainable on any other grounds than race, because the line
separating House Districts 1 and 5, when viewed with the data that was in front of Mr. Hofeller,
clearly separates white voters from black voters, and because House Districts 1 and 5 do not
respect traditional redistricting criteria, such as respect for political subdivisions, including
precincts/VTDs, House Districts 1 and 5 are subject to strict scrutiny.
45
h.
House Districts 2 and 32
House Districts 2 and 32 are racial gerrymanders which unconstitutionally segregate
black voters into House District 32, thus bleaching House District 2. House District 32 is a
district new to the area, and it is drawn to have a 50.45 % BVAP. Def. Answer to NAACP Am.
Compl., ¶ 129. In order to maximize the black population in House District 32, the black
population in Granville County had to be carefully pulled apart from the white population in the
county, with the black population going into House District 32 and the white population going
into House District 2. In doing this, 5 VTDs were split. See Mot. for Jud. Not., ¶ 1(a)(vii)
(“Split Voting Tabulation Districts (VTDs)” for “Lewis-Dollar-Dockham 4”). The map below
shows the highly irregular shape of the district line cleaving Granville County, and the racial data
visible to Mr. Hofeller on the Maptitude screen as he was drawing that district line allowed him
to precisely place that line, solely on the basis of race. As with the previous maps, the darker
green census blocks and VTDs are put in House District 32, the black district, and the white-tolight green census blocks and VTDs get placed in white House District 2.
46
The map above demonstrates the bizarre-shaped arm reaching down into Granville County,
pulling out a pocket of black voters. That arm pulls almost every single census block with a
substantial black population into District 32. Because the odd, highly non-compact shapes of
House Districts 2 and 32 are unexplainable on any other grounds than race, because the line
separating House Districts 2 and 32, when viewed with the data that was in front of Mr. Hofeller,
clearly separates white voters from black voters, and because the district lines do not respect
VTD political subdivisions, House Districts 2 and 32 are subject to strict scrutiny.
i.
House Districts 8 and 24
House Districts 8 and 24 are racial gerrymanders which unconstitutionally segregate
black voters into District 24, thus bleaching House District 8. House District 24 is currently
47
represented by an African-American, Rep. Jean Farmer-Butterfield. Def. Answer to NAACP
Am. Compl., ¶ 151. In the benchmark plan, the district was 50.23% BVAP, but the enacted plan
increased the BVAP to 57.33%. Id. To do this, the white voters and black voters in Wilson and
Pitt Counties had to be delicately carved apart and separated in Districts 8 and 24. In doing so, 9
VTDs were split in House District 8 and 12 VTDs were split in House District 24. See Mot. for
Jud. Not., ¶ 1(a)(vii) (“Split Voting Tabulation Districts (VTDs)” for “Lewis-Dollar-Dockham
4”). The map below shows the highly irregular shape of the district line cleaving Wilson and Pitt
Counties, and the racial data visible to Mr. Hofeller on the Maptitude screen as he was drawing
that district line allowed him to precisely place that line, solely on the basis of race. As with the
previous maps, the darker green census blocks and VTDs are put in House District 24, the black
district, and the lighter green census blocks and VTDs get placed in white House District 8.
48
As the map demonstrates, District 24 is now an odd, figure-8 shape, gathering the black
populations in Wilson and Pitt Counties.
District 8 curves around District 24, becoming
extremely irregularly shaped in the process of avoiding the black population in those two
counties.
Because the odd, highly non-compact shapes of House Districts 8 and 24 are
unexplainable on any other grounds than race, because the line separating House Districts 8 and
24, when viewed with the data that was in front of Mr. Hofeller, clearly separates white voters
from black voters, and because the district lines do not respect precinct or VTD political
subdivisions, House Districts 8 and 24 are subject to strict scrutiny.
49
j.
House Districts 4 and 21
House Districts 4 and 21 are racial gerrymanders which unconstitutionally segregate
black voters into District 21, thus bleaching House District 4. House District 21 is currently
represented by an African-American, Rep. Larry Bell. Def. Answer to NAACP Am. Compl.,
¶ 176. In the benchmark plan, the district was 46.25% BVAP, but the enacted plan increased the
BVAP to 51.9%. Id. To do this, the white voters and black voters in Sampson, Duplin and
Wayne Counties had to be delicately carved apart and separated in Districts 4 and 21. In doing
so, 25 VTDs were split in House District 21. See Mot. for Jud. Not., ¶ 1(a)(vii) (“Split Voting
Tabulation Districts (VTDs)” for “Lewis-Dollar-Dockham 4”). The map below shows the highly
irregular shape of the district line weaving through Sampson, Duplin and Wayne Counties, and
the racial data visible to Mr. Hofeller on the Maptitude screen as he was drawing that district line
allowed him to precisely place that line, solely on the basis of race. Again, the darker green
census blocks are more heavily African-American, while the lighter green indicates a lower
black voting age population. The darker green census blocks and VTDs are put in House District
21, the black district, and the lighter green blocks and VTDs get placed in white House
District 4.
50
As the map demonstrates, the narrow, irregular appendages of District 21, including the thin
arms reaching into small parts of Sampson and Wayne Counties, correspond perfectly with the
census blocks that are more heavily black. As a result, District 4 curves awkwardly around
Goldsboro. Because the odd, highly non-compact shapes of House Districts 21 and 4 are
unexplainable on any other grounds than race, because the line separating House Districts 21 and
4, when viewed with the data that was in front of Mr. Hofeller, clearly separates white voters
from black voters, and because the district lines do not respect precinct or VTD political
subdivisions, House Districts 21 and 4 are subject to strict scrutiny.
51
k.
House Districts 29 and 30
House Districts 29 and 30 are racial gerrymanders which unconstitutionally segregate
black voters into District 29, thus bleaching House District 30. House District 29 is currently
represented by an African-American, Rep. Larry Hall. Def. Answer to NAACP Am. Compl.,
¶ 189. In the benchmark plan, the district was 39.99% BVAP, but the enacted plan increased the
BVAP to 51.34%. Id. To do this, the white voters and black voters in Durham County had to be
delicately carved apart and separated in Districts 29 and 30. In doing so, 14 VTDs were split in
House District 29 and 12 precincts were split in House District 30. See Mot. for Jud. Not.,
¶ 1(a)(vii) (“Split Voting Tabulation Districts (VTDs)” for “Lewis-Dollar-Dockham 4”). The
map below shows the highly irregular shape of the district line weaving through Durham County,
and the racial data visible to Mr. Hofeller on the Maptitude screen as he was drawing that district
line allowed him to precisely place that line, solely on the basis of race. Again, the darker green
census blocks are more heavily African-American, while the lighter green indicates a lower
black voting age population. The darker green census blocks and VTDs are put in House District
29, the black district, and the lighter green blocks and VTDs get placed in white House
District 30.
52
As the map demonstrates, District 29 is a multi-lobed, amorphous blob spanning Durham County
and corresponding perfectly with the census blocks that are more heavily black. As a result,
District 30 awkwardly avoids any significant black population in the county. Because the odd,
highly non-compact shapes of House Districts 29 and 30 are unexplainable on any other grounds
than race, because the line separating House Districts 29 and 30, when viewed with the data that
was in front of Mr. Hofeller, clearly separates white voters from black voters, and because the
district lines do not respect precinct or VTD political subdivisions, House Districts 29 and 30 are
subject to strict scrutiny.
53
l.
House Districts 34, 38, and 49
House Districts 34, 38 and 49 are racial gerrymanders which unconstitutionally segregate
black voters into District 38, thus bleaching House Districts 34 and 49. In the benchmark plan,
the district was 27.96% BVAP, but the enacted plan increased the BVAP to 51.37%. Def.
Answer to NAACP Am. Compl., ¶ 203. To do this, the white voters and black voters in Wake
County had to be delicately carved apart and separated between District 38 and Districts 34 and
49. In doing so, 14 VTDs were split in House District 34, 13 VTDs were split in House District
38, and 4 VTDs were split in House District 49. Id. at ¶¶ 207-09. The map below shows the
highly irregular shape of the district lines weaving through Wake County, and the racial data
visible to Mr. Hofeller on the Maptitude screen as he was drawing that district line allowed him
to precisely place that line, solely on the basis of race. Again, the darker green census blocks are
more heavily African-American, while the lighter green indicates a lower black voting age
population. The darker green census blocks and VTDs are put in House District 38, the black
district, and the lighter green blocks and VTDs get placed in white House Districts 34 and 49.
54
As the map demonstrates, District 38 has numerous odd protuberances, almost all of which
correspond to picking up pockets of black population across Wake County. Because the odd,
highly non-compact shapes of House Districts 34, 38 and 39 are unexplainable on any other
grounds than race, because the line separating House Districts 34, 38 and 39, when viewed with
the data that was in front of Mr. Hofeller, clearly separates white voters from black voters, and
because the district lines do not respect precinct or VTD political subdivisions, House Districts
34, 38 and 39 are subject to strict scrutiny.
m.
House Districts 57 and 59
House Districts 57 and 59 are racial gerrymanders which unconstitutionally segregate
black voters into District 57, thus bleaching House District 59. In the benchmark plan, the
55
district was 29.93% BVAP, but the enacted plan increased the BVAP to 50.69%. Mot. for Jud.
Not., ¶ 1(a)(i) (“Stat Pack” for “NC House Existing District Plan”); Def. Answer to NAACP Am.
Compl., ¶ 231. To do this, the white voters and black voters in Guilford County had to be
delicately carved apart and separated in Districts 57 and 59. In doing so, 15 VTDs were split in
House District 57 and 11 precincts were split in House District 59. Id. at ¶¶ 236-37. The map
below shows the highly irregular shape of the district line weaving through Guilford County, and
the racial data visible to Mr. Hofeller on the Maptitude screen as he was drawing that district line
allowed him to precisely place that line, solely on the basis of race. Again, the darker green
census blocks are more heavily African-American, while the lighter green indicates a lower
black voting age population. The darker green census blocks and VTDs are put in House District
57, the black district, and the lighter green blocks and VTDs get placed in white House
District 59.
56
As the map demonstrates, District 57 is extremely non-compact, predominantly in central
Guilford County, but with a thin arm reaching out to grab the census blocks that are more heavily
black in the eastern parts of the county. As a result, District 59 awkwardly hugs the edge of the
county line, avoiding any significant black population in the process. Because the odd, highly
non-compact shapes of House Districts 57 and 59 are unexplainable on any other grounds than
race, because the line separating House Districts 57 and 59, when viewed with the data that was
in front of Mr. Hofeller, clearly separates white voters from black voters, and because the district
lines do not respect precinct or VTD political subdivisions, House Districts 57 and 59 are subject
to strict scrutiny.
57
n.
House Districts 99, 102, 103 106, and 107
Districts 99, 102, 103, 106 and 107 are racial gerrymanders which unconstitutionally
segregate black voters into Districts 99, 102, 106 and 107, thus bleaching House District 103. In
the benchmark plan, House District 99 was represented by an African-American, Representative
Rodney Moore, and was 41.26% BVAP, but the enacted plan increased the BVAP to 54.65%.
Def. Answer to NAACP Am. Compl., ¶ 247. House Districts 102 and 106 are new majority
black districts in the county. Id. at ¶ 251. House District 107 is a C-shaped district with a black
voting age population of 52.52%. Def. Answer to Dickson Am. Compl., ¶ 364. To do this, the
white voters and black voters in Mecklenburg County had to be delicately carved apart and
separated. In doing so, 9 VTDs were split in House District 107, 3 VTDs were split in House
District 106, 13 VTDs were split in House District 102, 12 VTDs were split in House District
103, and 7 VTDs were split in House District 99. Def. Answer to Dickson Am. Compl., ¶ 363;
Def. Answer to NAACP Am. Compl., ¶ 259-62. The map below shows the highly irregular
shape of the district lines weaving through Mecklenburg County, and the racial data visible to
Mr. Hofeller on the Maptitude screen as he was drawing that district line allowed him to
precisely place that line, solely on the basis of race. Again, the darker green census blocks are
more heavily African-American, while the lighter green indicates a lower black voting age
population.
58
As the map demonstrates, Mecklenburg County is a mess of incredibly non-compact House
districts. The districts which Defendants determined, unjustifiably so, must be at least 50%
black reach out and grab ever census block with a substantial black voting age population.
House District 99 literally carves out a block of black voters out of the center of House District
103. Because the odd, highly non-compact shapes of House Districts 99, 102, 103, 106 and 107
are unexplainable on any other grounds than race, because the line separating House Districts 99,
102, 103, 106 and 107, when viewed with the data that was in front of Mr. Hofeller, clearly
separates white voters from black voters, and because the district lines do not respect precinct or
VTD political subdivisions, House Districts 99, 102, 103, 106 and 107 are subject to strict
scrutiny.
59
o.
House District 51 and 54
House Districts 51 and 54 are racial gerrymanders which unconstitutionally segregate
black voters into District 54, thus bleaching House District 51. House District 54 is not majority
black—its BVAP is only 17.98%. Def. Answer to NAACP Am. Compl., ¶ 269. However, it is
clear by looking at the map below that the pocket of black voters in Lee County comprise a
significant chunk of all the black voters in District 54. The map below shows the highly
irregular shape of the district line weaving through Lee County, and the racial data visible to Mr.
Hofeller on the Maptitude screen as he was drawing that district line allowed him to precisely
place that line, solely on the basis of race. The darker green census blocks are more heavily
African-American, while the lighter green indicates a lower black voting age population. The
darker green census blocks and VTDs are put in House District 54, the more heavily black
district, and the lighter green blocks and VTDs get placed in white House District 51.
60
As the map demonstrates, the awkward arm that reaches down from Chatham County into Lee
County does so in a way that corresponds perfectly with race—it captures only census blocks
with significant black population.
Because the odd, highly non-compact shapes of House
Districts 54 and 51 are unexplainable on any other grounds than race, because the line separating
House Districts 54 and 51, when viewed with the data that was in front of Mr. Hofeller, clearly
separates white voters from black voters, and because the district lines do not respect precinct or
VTD political subdivisions, House Districts 54 and 51 are subject to strict scrutiny.
p.
Senate Districts 27 and 28
Senate Districts 27 and 28 are racial gerrymanders which unconstitutionally segregate
black voters into District 28, thus bleaching Senate District 27. Senate District 28 is currently
61
represented by an African-American, Sen. Gladys Robinson. Def. Answer to NAACP Am.
Compl., ¶ 328. In the benchmark plan, the district was 47.20% BVAP, but the enacted plan
increased the BVAP to 56.49%. Id. To do this, the white voters and black voters in Guilford
County had to be delicately carved apart and separated in Districts 27 and 28. In doing so, 14
VTDs were split in Senate District 27 and 15 VTDs were split in Senate District 28. See Mot.
for Jud. Not., ¶ 1(a)(xii) (“Split Voting Tabulation Districts (VTDs)” for “Rucho Senate 2”).
The map below shows the highly irregular shape of the district line weaving through Guilford
County, and the racial data visible to Mr. Hofeller on the Maptitude screen as he was drawing
that district line allowed him to precisely place that line, solely on the basis of race. The darker
green census blocks are more heavily African-American, while the lighter green indicates a
lower black voting age population. The darker green census blocks and VTDs are put in Senate
District 27, the black district, and the lighter green blocks and VTDs get placed in white Senate
District 28.
62
As the map demonstrates, District 28 has numerous appendages, reaching out to scoop up black
voters across Guilford County. These arms correspond perfectly with the census blocks that are
more heavily black. Because the odd, highly non-compact shapes of Senate Districts 27 and 28
are unexplainable on any other grounds than race, because the line separating Senate Districts 27
and 28, when viewed with the data that was in front of Mr. Hofeller, clearly separates white
voters from black voters, and because the district lines do not respect precinct or VTD political
subdivisions, Senate Districts 27 and 28 are subject to strict scrutiny.
q.
Senate Districts 31 and 32
Senate Districts 31 and 32 are racial gerrymanders which unconstitutionally segregate
black voters into District 32, thus bleaching Senate District 31. Senate District 32 is currently
63
represented by a white Democrat, Senator Linda Garrou, but she was drawn out of that district
and into District 31. Def. Answer to NAACP Am. Compl., ¶ 343. In the enacted plan, Senate
District 32 is 42.53% BVAP. Id. Based on visual examination of the map, it is clear that to
achieve that percentage, the white voters and black voters in Forsyth County had to be delicately
carved apart and separated in Districts 27 and 28. In doing so, 43 of the 101 VTDs in Forsyth
County were split.
See Mot. for Jud. Not., ¶ 1(a)(xii) (“Split Voting Tabulation Districts
(VTDs)” for “Rucho Senate 2”). The map below shows the highly irregular shape of the district
line weaving through Forsyth County, and the racial data visible to Mr. Hofeller on the
Maptitude screen as he was drawing that district line allowed him to precisely place that line,
solely on the basis of race. The darker green census blocks are more heavily African-American,
while the lighter green indicates a lower black voting age population. The darker green census
blocks and VTDs are put in Senate District 32, the black district, and the lighter green blocks and
VTDs get placed in white Senate District 31.
64
As the map demonstrates, District 32 is completely irregularly shaped—it reaches a sharp arm
out to the eastern part of the county to grab a small black population. As a result of avoiding the
black population in Forsyth County, Senate District 31 has a shotgun-like blast hole in the
middle of the district. Because the odd, highly non-compact shapes of Senate Districts 31 and 32
are unexplainable on any other grounds than race, because the line separating Senate Districts 31
and 32, when viewed with the data that was in front of Mr. Hofeller, clearly separates white
voters from black voters, and because the district lines do not respect precinct or VTD political
subdivisions, Senate Districts 31 and 32 are subject to strict scrutiny.
65
r.
Senate Districts 5 and 7
Senate Districts 5 and 7 are racial gerrymanders which unconstitutionally segregate black
voters into District 5, thus bleaching Senate District 7. In the benchmark plan, the district was
30.99% BVAP, but the enacted plan increased the BVAP to 51.97%. Def. Answer to NAACP
Am. Compl., ¶ 351. To do this, the white voters and black voters in Pitt, Lenoir, Wayne and
Greene Counties had to be delicately carved apart and separated in Senate Districts 5 and 7. In
doing so, Senate District 5 picks up portions of 16 split VTDs in Pitt County, portions of 16 split
VTDs in Wayne County, and portions of 8 split VTDs in Lenoir County. Def. Answer to
Dickson Am. Compl., ¶ 119. The map below shows the highly irregular shape of the district
lines weaving through Pitt, Greene, Lenoir and Wayne Counties, and the racial data visible to
Mr. Hofeller on the Maptitude screen as he was drawing that district line allowed him to
precisely place that line, solely on the basis of race. Again, the darker green census blocks are
more heavily African-American, while the lighter green indicates a lower black voting age
population. The darker green census blocks and VTDs are put in Senate District 5, the black
district, and the lighter green blocks and VTDs get placed in white Senate District 7.
66
As the map demonstrates, Senate District 5 has sprawling appendages reaching out into three
different counties, capturing pockets of concentrated black population in each county. As a
result, District Senate District 7 awkwardly reaches around those tentacles and is monstrously
non-compact. Because the odd, highly non-compact shapes of House Districts 5 and 7 are
unexplainable on any other grounds than race, because the line separating House Districts 5 and
7, when viewed with the data that was in front of Mr. Hofeller, clearly separates white voters
from black voters, and because the district lines do not respect precinct or VTD political
subdivisions, House Districts 5 and 7 are subject to strict scrutiny.
67
s.
Senate Districts 38, 40 and 41
Senate Districts 38, 40 and 41 are racial gerrymanders which unconstitutionally segregate
black voters into Districts 38 and 40, thus bleaching Senate District 41. In the benchmark plan,
Senate District 38 was 46.97% BVAP, but the enacted plan increased the BVAP to 52.52%.
Def. Answer to NAACP Am. Compl., ¶ 375. Likewise, the BVAP of Senate District 40 went
from 35.43% to 51.85%.
Id. at ¶ 376.
To do this, the white voters and black voters in
Mecklenburg County had to be delicately carved apart and separated between District 38 and
Districts 40, and District 41. In doing so, 8 VTDs were split in Senate District 38, 16 VTDs
were split in Senate District 40, and 16 VTDs were split in Senate District 41. Id. at ¶¶ 380-82.
The map below shows the highly irregular shape of the district lines weaving through Wake
County, and the racial data visible to Mr. Hofeller on the Maptitude screen as he was drawing
that district line allowed him to precisely place that line, solely on the basis of race. Again, the
darker green census blocks are more heavily African-American, while the lighter green indicates
a lower black voting age population. The darker green census blocks and VTDs are put in
Senate Districts 38 and 40, the black district, and the lighter green blocks and VTDs get placed
in white Senate Districts 41.
68
As the map demonstrates, it would be difficult for these three districts to be more bizarrely
shaped. District 41 hugs the border of approximately half the county, avoiding black populations
in the central part of Mecklenburg County. The odd shapes of District 40 and District 38 are
visually explained by the capture of darker green shaded areas—black population—within their
district boundaries. Because the odd, highly non-compact shapes of Senate Districts 38, 40 and
41 are unexplainable on any other grounds than race, because the line separating Senate Districts
38, 40 and 41, when viewed with the data that was in front of Mr. Hofeller, clearly separates
white voters from black voters, and because the district lines do not respect precinct or VTD
political subdivisions, Senate Districts 38, 40 and 41 are subject to strict scrutiny.
69
t.
Senate District 4
Senate District 4 is a racial gerrymander which unconstitutionally pulls black voters into
the district, based solely on the color of their skin. The district is 52.75% BVAP. Def. Answer
to Dickson Am. Compl., ¶ 114. To do this, the district, based in counties on the Virginia border,
had to reach long distances to find black populations sufficient to get the BVAP percentage that
high. In doing so, Senate District 4 splits the cities of Dortches, Red Oak, Rocky Mount,
Sharpsburg, Whitakers and Wilson. Def. Answer to Dickson Am. Compl., ¶ 112. The map
below shows the highly irregular shape of the district lines weaving through Wilson and Nash
Counties, and the racial data visible to Mr. Hofeller on the Maptitude screen as he was drawing
that district line allowed him to precisely place that line, solely on the basis of race. Again, the
darker green census blocks are more heavily African-American, while the lighter green indicates
a lower black voting age population. The darker green census blocks and VTDs are put in
Senate District 4, the black district.
70
As the map demonstrates, Senate District 4 reaches a long, narrow arm down through two
counties in order to reach a concentrated black population in Wilson County. Because the odd,
highly non-compact shape of Senate Districts 4 is unexplainable on any other grounds than race,
because the line delineating Senate District 4, when viewed with the data that was in front of Mr.
Hofeller, clearly separates white voters from black voters, and because the district lines do not
respect political subdivisions, Senate District 4 is subject to strict scrutiny.
3.
Race Predominated In Drawing Congressional Districts 1, 4 And 12
Representative Lewis and Senator Rucho admit that Congressional Districts 1 and 12
were drawn intentionally as majority African-American districts, and that District 4 “was drawn
on the same principles used by prior General Assemblies to draw Congressional District 12.”
71
Def. Answer to Dickson Am. Compl., ¶ 384. There is no dispute that race predominated in the
drawing of the First Congressional District. Senator Rucho stated: “The State is now obligated
to draw majority black districts with true majority black voting age population. Under the 2010
Census, the current version of the district does not contain a majority black voting age
population.” Dep. Ex. 55: Joint Statement by Redistricting Chairs, July 1, 2011, p. 3; See also
55: Joint Statement by Redistricting Chair, July 19, 2011, p. 2.
Moreover, using the same analysis given great weight by the United States Supreme
Court in Easley v. Cromartie, 532 U.S. 234 (2001), Dr. David Peterson performed a boundary
segment analysis of Congressional Districts 1 and 12. He concluded that race, not partisan
considerations, best explained the way the district lines were drawn. Peterson Second Aff. ¶ 3,
Fourth Aff. ¶ 18; Fourth Aff. ¶ 3. Dr. Peterson performed the same analysis in the instant case as
he did in the Cromartie litigation. However, in the Cromartie litigation, the data indicated that it
was impossible to determine whether race or partisan considerations better explained the way
that district lines were drawn. Peterson Third Aff. ¶ 17. But Dr. Peterson’s boundary segment
analysis this time indicated that the race hypothesis much better explained the way the lines of
Congressional District 1 and 12 were drawn. Peterson First Aff. ¶ 18, Peterson Fourth Aff. ¶ 3.
Like with the state legislative plans, Mr. Hofeller, Senator Rucho and Representative
Lewis remained committed to their erroneous understanding of Section 2—that they must draw
minority districts up to 50% BVAP, even when those districts had been electing the candidates of
choice at BVAP percentages much lower than that. In the public statement accompanying the
release of the Congressional map, Rucho and Lewis admit as much.
Statement by Redistricting Chairs, July 1, 2011, p. 3-4
72
Dep. Ex. 55: Joint
Uncontested evidence of the highly irregular shapes of these districts and the way in
which precincts were frequently divided in the plans also illustrates that race predominated in the
drawing of the districts. See supra Material Facts 42-44. The methodology of splitting precincts
shows that race predominated in assigning voters within a precinct to a district. The mapdrawer,
Mr. Hofeller, had access to the racial composition of the pieces of the split precincts, the census
blocks, that he moved from one district to another, but did not have access to reliable or accurate
data of the partisan affiliation of the voters in the pieces that were moved. See supra Material
Facts 63-64. Race thus predominated in the decisions about where and how to split precincts in
all three plans. This is directly analogous to the grounds for the Supreme Court’s finding that
race predominated in Vera, 517 U.S. at 966.
There is additional uncontroverted evidence that race predominated in drawing
Congressional Districts 1, 4 and 12. The districts are less compact than their predecessors.
Fairfax Aff. ¶ 18.
They are also less compact than any versions of the districts in other
alternative plans submitted during the redistricting process.
Fairfax Aff. Conclusion. The
districts show a marked increase in the percentage of black population in the district. Lichtman
First Aff. ¶ 13. In the 2001 plan, Congressional District 1, which elected a black candidate, was
only 47.76% BVAP, but the state drew the 2011 version to be 52.65% BVAP. Mot. for Jud.
Not., ¶ 1(a)(xiv) (“Stat Pack” for Congressional “Existing District Plan”); ¶ 1(a)(xviii) (“Stat
Pack” for “Rucho-Lewis Congress 3”). In the 2001 plan, Congressional District 12, which
elected a black candidate, was only 43.77% BVAP, but the state drew the 2011 version to be
50.66% BVAP. Id. And the drawing of both districts was facilitated by mapping data and
software that allowed black voters to be carved apart from their white neighbors and friends, on a
block-by-block basis. Hofeller Dep. Tr. p. 50 lines 10-16.
73
A visual examination of Congressional District 4 with the BVAP shaded clearly shows
that Mr. Hofeller intentionally grabbed all available African-American voters. Ketchie Third
Aff. Map 4. District 4, once a compact two-county district, now extends tentacles through part
of seven counties: Alamance, Orange, Chatham, Durham, Wake, Harnett, and Cumberland. Id.
It brings in Alamance to pick up a pocket of 81% to 100% BVAP. Id. It then spikes through
Orange County, gathering pieces of the county that have 41% to 60% BVAP, and 81% to 100%
BVAP. Id. Tentacles in Chatham, Cumberland, Lee and Harnett and Wake show contortions by
the map drawers designed to pick up precincts with 40% to 100 BVAP. Id. District 4 is similar
to the district found unconstitutional in Miller v. Johnson:
[I]t was “exceedingly obvious” from the shape of the Eleventh District, together
with the relevant racial demographics, that the drawing of narrow land bridges to
incorporate within the District outlying appendages containing nearly 80% of the
district's total black population was a deliberate attempt to bring black populations
into the district.
Miller v. Johnson, 515 U.S. at 917. Here, the map of Congressional 4’s BVAP shows the
same—unconstitutional gerrymandering.
Congressional Districts 1, 4, and 12 in the 2011 redistricting plan, like the challenged
districts in the state legislative plans, demonstrate utter disregard for the race-neutral redistricting
criteria long seen in past North Carolina Congressional redistricting plans. These districts are
less compact than districts in the prior plans and less compact than the other districts in the 2011
plan. Fairfax Aff. ¶ 18, Appendix B. Just as with the state legislative plans, ample indirect
evidence exists to make clear that race was an overriding factor in the drawing of these districts,
and strict scrutiny must be used to review them.
The direct and indirect evidence available to this Court proves that race was the
predominant factor driving the drawing of the challenged Congressional and state legislative
electoral district lines. As in Bush v. Vera, where “the State substantially neglected traditional
74
districting criteria such as compactness, … was committed from the outset to creating majorityminority districts, and … manipulated district lines to exploit unprecedentedly detailed racial
data—together weigh in favor of the application of strict scrutiny.” Vera, 517 U.S. at 962. Each
of those factors is also true of the challenged districts in North Carolina’s recent redistricting and
strict scrutiny must be applied here.
4.
Senator Rucho And Representative Lewis’ Admissions Establish That
They Had No Basis In Law To Draw Senate Districts 4, 5, 14, 20, 21,
28, 32, 38 And 40; House Districts 1, 5, 7, 12, 21, 24, 29, 31, 32, 33, 38,
42, 48, 57, 99, 102, 106 And 107; And Congressional Districts 1 And
12 As Voting Rights Act Districts
Upon a showing that race predominated in drawing a district, Senator Rucho and
Representative Lewis must prove that the racial classification is “narrowly tailored” to “further a
compelling governmental interest.” Strict scrutiny applies even if the state actor claims that it
had a “benign” purpose for its actions, as the United States Supreme Court recently explained:
We have held that “all racial classifications imposed by government must be
analyzed by a reviewing court under strict scrutiny.” Under strict scrutiny, the
government has the burden of proving that racial classifications “are narrowly
tailored measures that further compelling governmental interests.” We have
insisted on strict scrutiny in every context, even for so-called “benign” racial
classifications, such as race-conscious university admissions policies, race-based
preferences in government contracts, and race-based districting intended to
improve minority representation, see Shaw v. Reno, 509 U.S. at 650.
The reasons for strict scrutiny are familiar. Racial classifications raise special
fears that they are motivated by an invidious purpose. Thus, we have admonished
time and again that, “absent searching judicial inquiry into the justification for
such race-based measures, there is simply no way of determining . . . what
classifications are in fact motivated by illegitimate notions of racial inferiority or
simple racial politics.” We therefore apply strict scrutiny to all racial
classifications to “‘smoke out’ illegitimate uses of race by assuring that
government is pursuing a goal important enough to warrant use of a highly
suspect tool.”
Johnson v. California, 543 U.S. 499, 505-06 (2005) (certain internal citations, brackets, and
ellipses omitted). See also, City of Richmond v. J. A. Croson Co., 488 U.S. 469, 494 (1989)
75
(plurality opinion) (race-conscious government decision-making—even if federal law demands
it—triggers strict scrutiny).
In this case, Senator Rucho and Representative Lewis identified Section 2 of the Voting
Rights Act as the “compelling governmental interest” justifying the racial classification, and the
State bears the burden of proving that defense. See Bartlett v. Strickland, 556 U.S. at 8. To
prove that Section 2 required each of the Voting Rights Act districts in their plans, Senator
Rucho and Representative Lewis must prove that minority voters “have less opportunity than
other members of the electorate to…elect representatives of their choice,” 42 U.S.C. § 1973(b),
in the area of the state where each district is located. Shaw v. Hunt, 517 U.S. at 917.
To establish a Section 2 violation, a plaintiff must prove three threshold factors: 1) that
the minority group in question is “sufficiently large and geographically compact to constitute a
majority in a single-member district;” 2) that the minority group is “politically cohesive;” and
3) that the majority votes “sufficiently as a bloc to enable it…usually to defeat the minority’s
preferred candidate.” Gingles, 478 U.S. at 50-51. These are necessary preconditions, and the
absence of any one element is fatal to a Section 2 claim, even if other conditions have been met.
Pender County v. Bartlett, 361 N.C. 491, 499 (2007) aff'd sub nom. Bartlett v. Strickland.
Further, in a suit alleging a racial gerrymander without a compelling government interest, the
burden of proving these preconditions falls on the defendants. Pender County v. Bartlett, 361
N.C. at 496.
But the analysis of potential Section 2 liability does not end there—after establishing all
three preconditions, Senator Rucho and Representative Lewis must also demonstrate that a
violation has occurred based on the totality of the circumstances. Gingles, 478 U.S. at 79. One
76
of the totality of the circumstances factors is the record of election of minority candidates to
public office. Id. at 75-76.
As Representative Lewis and Senator Rucho have themselves admitted, if it is clear that
minorities can elect a candidate of choice in the area in which the district is drawn, then Section
2 did not require the district to be drawn. Specifically, Defendants’ answers to both complaints
contain the following statement:
As a matter of law, racially polarized voting exists only when minority voters
need a majority of the voting population in a single member district to elect their
preferred candidate of choice. If minorities can elect their preferred candidate in a
district that is less than majority minority, then racially polarized voters must not
exist as a matter of law.
Defs. Answer to NAACP Am. Comp., Affirmative Defense No. 23, and Def. Answer to Dickson
Am. Compl., Affirmative Defense No. 23. This statement of the law is key. Where black voters
can elect their candidates of choice in districts less than 50% black, there is no federal law
requirement that those districts be increased to over 50% black. The ability to elect candidates of
choice in districts that are less that 50% black means that white voters do not vote sufficiently as
a bloc usually to defeat the minority’s preferred candidate and the third Gingles precondition
cannot be met. Moreover, it means that in the totality of circumstances black voters do not have
less opportunity than white voters to elect candidates of their choice.
As is shown above, for defendants to justify any majority black district as being required
by Section 2, they must satisfy the third prong of Gingles by establishing that white voters in that
district - not somewhere else or in the state at large - vote “sufficiently as a bloc to enable
[them]…usually to defeat the minority’s preferred candidate.” Gingles, 478 U.S. at 50-51; see
also, Shaw v. Hunt, 517 U.S. at 917, (“if a § 2 violation is proved for a particular area,… [t]he
vote-dilution injuries suffered by these persons are not remedied by creating a safe majorityblack district somewhere else in the State.”).
77
Defendants did not even try to satisfy third prong of Gingles by justifying any particular
majority black district. Representative Lewis, Senator Rucho and their architect Mr. Hofeller
ignored entirely the most important evidence regarding the presence or absence of racially
polarized voting for legislative districts: the compilation of legislative election results involving
African American candidates who had been opposed by white candidates. See supra Material
Facts 66-82. Indeed, the Defendants’ hired expert, Dr. Brunell, only looked at three legislative
races – one of which the black candidate won. See supra Material Fact 90; see also, Brunell
Dep. Ex. 299, pp. 15-24. Dr. Brunell also analyzed three state-wide elections, one in 2004 and
two in 2008. In the two most recent elections, in 2008, the preferred candidate of the African
community prevailed over a white candidate. See supra Material Facts 88-89; see also Brunell
Dep. Ex. 299, pp. 5, 8. Altogether this is hardly evidence that whites in North Carolina vote
“sufficiently as a bloc to enable [them]…usually to defeat the minority’s preferred candidate,”
Gingles, 478 U.S. at 50-51, let alone evidence justifying a contention that there is racially
polarized voting in any particular majority black district.
While Mr. Hofeller did not pay any attention to where in the state candidates of choice of
black voters were being elected in districts less than 50% black, see Hofeller Dep. Tr. Vol. I,
p. 66, the General Assembly staff spent significant time compiling that data for Senator Rucho
and Representative Lewis. Churchill Dep. Tr. p.130-34. Legislators responsible for drawing
North Carolina’s redistricting plans not only knew this information from their personal
knowledge of politics in the state, they also had in front of them extensive compilations of the
election returns by race for every state house and state senate election with minority candidates
from 2006 to 2010, Churchill Dep. Ex. 82, 83; for statewide elections involving minority
candidates from 2000 to 2010, Churchill Dep. Ex. 94; and for congressional elections from 1992-
78
2010, Churchill Dep. Ex. 81. Representative Lewis admitted that the redistricting committees
had that information in hand when they were developing the 2011 enacted plans. Lewis Dep. Tr.
p. 173 line 14 – p. 174 line 16. In public hearings once the proposed Voting Rights Act districts
were made public and in debates in the General Assembly, the fact that black voters were
successful in electing their candidates of choice without majority-black districts was brought to
the attention of legislators. June 23rd Public Hearing Tr. p. 134-137.
Indeed, Representative Lewis and Senator Rucho have admitted that under the
benchmark plan, 18 African-Americans were elected to the State House of Representatives, even
though only 9 of those districts were majority black. Churchill Dep. Ex. 55, June 17 Joint
Statement, p. 3. Defendants further admitted that seven African-American State Senators were
elected from eight of the prior Senate districts with black voting age percentages between
42.52% and 49.70% in the past four election cycles. Def. Answer to NAACP Am. Compl.,
¶ 290; Def. Answer to Dickson Am. Compl., ¶¶ 136, 149, 157, 173, 188, 195. Similarly, there is
no dispute that Congressional Districts 1 and 12 previously were less than 50% black in voting
age population and that both districts elected candidates of choice of black voters. Def. Answer
to NAACP Am. Compl., ¶ 391; Churchill Dep. Ex. 81; Lichtman Second Aff. Table 4.
Dr. Allan Lichtman’s expert report in this case confirms what was already apparent from
information compiled by the General Assembly Legislative staff, and from testimony at public
hearings, and what the Defendants admit: significant white cross-over voting in many parts of
the state means that candidates of choice of black voters are elected in districts that are less than
50% black. Lichtman Second Aff. ¶¶ 17-22.
Dr. Thomas Brunell’s racially polarized voting analysis, received by the Chairs of the
redistricting committee at the end of the redistricting process, further demonstrates that white
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voters are widely supporting black candidates in North Carolina. Dep. Ex. 299, p. 9 His
findings do not justify the drawing of new Voting Rights Act districts all over the state to meet a
substantial proportionality requirement. In his report, Dr. Brunell noted: “[t]here are some
counties, like Wake, Durham, Jackson, Mecklenburg, in which there is a considerable amount of
white cross-over voting.” Id. He found that the percentage of white voters voting for the black
candidate in the 2008 presidential election was at least 40% in each county, and was 59.4% in
Durham County. Id. And yet, Senator Rucho and Representative Lewis affirmatively drew new
majority black districts in most of those counties listed by Dr. Brunell. In fact, in Wake,
Durham, and Mecklenburg Counties alone—counties identified by Dr. Brunell as counties with
substantial white crossover voting, the following new majority black districts were drawn: House
Districts 29, 31, 38, 48, 99, 102, 106, and 107; Senate Districts14, 20, 38 and 40. Mot. for Jud.
Not., ¶ 1(a)(i) (“Stat Pack” for NC House “Existing District Plan”); ¶ 1(a)(vii) (“Stat Pack” for
“Lewis-Dollar-Dockham 4”).
Dr. Brunell’s report regarding crossover voting by whites is consistent with the North
Carolina Supreme Court’s findings in 2007 that “[p]ast election results in North Carolina
demonstrate that a legislative voting district with a total African-American population of at least
41.54 percent, or an African-American voting age population of at least 38.37 percent, creates an
opportunity to elect African-American candidates.” Pender County v. Bartlett, 361 N.C. at 494,
649 S.E.2d at 367.
The District Court in the Georgia racial gerrymandering case held that where crossover
voting ranged from 22% to 38%, the third Gingles precondition was not satisfied. Johnson v.
Miller, 864 F. Supp., aff’d sub nom Miller v. Johnson, 515 U.S. 900. The findings by the North
Carolina Supreme Court in the Pender County case and the analysis of Senator Rucho’s own
80
expert confirms that there is substantial white crossover voting in many areas in the state, far in
excess of 22% to 38%, and thus Section 2 does not require the drawing of new majority-black
districts wherever they are possible in the state.
Indeed, even in Bartlett v. Strickland, a case relied upon so heavily by the State in
defense of Voting Rights Act districts above 50% black voting age population, the Supreme
Court made clear that Section 2 did not compel majority-minority districts everywhere. The
Court wrote:
Our holding should not be interpreted to entrench majority-minority districts by
statutory command, for that, too, could pose constitutional concerns. States that
wish to draw crossover districts are free to do so where no other prohibition
exists. Majority-minority districts are only required if all three Gingles factors are
met and if § 2 applies based on a totality of the circumstances. In areas with
substantial crossover voting it is unlikely that plaintiffs would be able to
establish the third Gingles precondition—bloc voting by majority voters. In
those areas majority-minority districts would not be required in the first
place; and in the exercise of lawful discretion States could draw crossover
districts as they deemed appropriate.”
556 U.S. at 23-24 (emphasis added).3 The rule is clear – where white crossover voting is
sufficient to allow black voters an opportunity to elect their candidates of choice, Voting Rights
Act districts are not required by federal law.
Thus, Defendants cannot sustain their burden in this case to demonstrate a compelling
governmental interest because there is no prima facie evidence that Section 2 litigation was a
potential liability or necessary remedy. See Clarke v. City of Cincinnati, 40 F.3d 807, 813 (6th
Cir. 1994) (noting the success of black-preferred black candidates implied a lack of white bloc
voting, thus leading the court to conclude that “this success rate gives us no reason to find that
blacks' preferred black candidates have ‘usually’ been defeated.”); Clay v. Board of Education of
3
This very passage from Bartlett v. Strickland was pointed out to the Committee Chairs by Justice Robert
Orr in his June 3, 2011 submission to the Chairs, in support of his explanation that majority-minority
districts are not always necessary.
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City of St. Louis, 90 F.3d 1357, 1362 (8th Cir. 1996) (finding that Plaintiffs did not prove the
third Gingles precondition of white bloc voting when black voters elected their preferred
candidates to the Board 57.9 percent of the time). Black voters in the challenged districts were
not excluded from the political process, and thus there was no compelling reason for the state to
engage in segregating voters on the basis of race. Representative Lewis and Senator Rucho are
not able to carry the significant burden to demonstrate that they had a strong basis in evidence to
justify its racial gerrymandering.
a.
Defendants’ Substantial Proportionality Requirement Directly
Conflicts with United States Supreme Court Precedent
Interpreting the Voting Rights Act to require drawing majority-minority districts in
numbers proportionate to the minority group’s percentage of the overall population clearly runs
afoul of both the text of the Voting Rights Act and the Supreme Court’s decisions on the
constitutionality of race-based remedies. Indeed, Justice Kennedy warned:
[o]perating under the constraints of a statutory regime in which proportionality
has some relevance, States might consider it lawful and proper to act with the
explicit goal of creating a proportional number of majority-minority districts in an
effort to avoid Section 2 litigation. Likewise, a court finding a Section 2 violation
might believe that the only appropriate remedy is to order the offending State to
engage in race-based districting and create a minimum number of districts in
which minorities constitute a voting majority. The Department of Justice might
require (in effect) the same as a condition of granting preclearance [under Section
5]. Those governmental actions, in my view, tend to entrench the very
practices and stereotypes the Equal Protection Clause is set against.
Johnson v. DeGrandy, 512 U.S. 997, 1012 (1994) (Kennedy, J., concurring) (internal citations
omitted) (emphasis added).
Representative Lewis and Senator Rucho were made aware of this very basic legal tenet
during the redistricting process, by staff attorneys in the General Assembly. In a memorandum
to the chairs of the redistricting committees, under the heading, “Maximization Not Required;
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Proportionality Not a Safe Harbor—Johnson v. DeGrandy,” staff attorneys at the General
Assembly explained that
In Johnson v. DeGrandy, the Supreme Court focused on the ‘totality of the
circumstances’ as articulated in Gingles. The Supreme Court rejected a rule that
would require a state to maximize majority-minority districts. The Supreme
Court also rejected an absolute rule that would bar Section 2 claims if the number
of majority-minority districts is proportionate to the minority group’s share of the
relevant voting age population. The Court rejected this rule, feeling that a “safe
harbor” might lead to other misuses.
Dep. Ex. 58, June 13 Memorandum from O. Walker Regan, Attorney in the General Assembly
Research Division, to Senator Bob Rucho and Representative David Lewis, p. 2-3. Defendants
ignored very clear precedent that directed them to limit racial remedies in redistricting to the few
cases in which a strong basis in evidence indicated that the state had to remedy a Section 2
violation. The General Assembly had no evidence before it of Section 2 violations. As such, the
Voting Rights Act did not offer the Defendants free license to engage in racial gerrymandering.
b.
The Challenged Districts were not Justified by Section 5 of the
Voting Rights Act
Compliance with Section 5 of the Voting Rights Act does not justify dramatically
increasing either the number of majority-black districts nor increasing the black voting age
population in Section 5 covered districts. Miller v. Johnson, 515 U.S. at 926-927. In Miller v.
Johnson, the district court concluded that “[h]aving created more majority black voting districts
than necessary to avoid retrogression, the State of Georgia enacted a congressional districting
plan that was not narrowly tailored to the compelling state interest of complying with the VRA.”
Johnson v. Miller, 864 F. Supp. at 1385.
It further noted that the plan “overstepped the
requirements for section 5 compliance because it was designed to secure proportional
representation for black voters in Georgia, not adhere to the VRA.” Id. The Supreme Court
affirmed the conclusions of the District Court, noting that whenever “interpretation of the
83
[Voting Rights Act] compels race-based redistricting, it by definition raises serious constitutional
questions.” Miller v. Johnson, 515 U.S. at 923.
North Carolina did not need to increase the number of majority black districts to comply
with Section 5—even though that is precisely what the redistricting committee leadership
mistakenly asserted. In a joint statement, Senator Rucho and Representative Lewis claimed,
“[i]ncreasing the number of majority African-American districts will ensure non-retrogressive
legislative plans. Thus, adopting plans that increase the number of majority black will expedite
the preclearance of each plan pursuant to Section 5 of the Voting Rights Act.” June 17 Joint
Statement, p. 4. This is a fundamental misunderstanding of voting rights law and precedent. A
substantial proportionality or maximization agenda is not required for preclearance under Section
5.
c.
The Defendants Failed to Employ Narrowly Tailored Means in
Creating the Challenged Congressional, State House, and State
Senate Districts
Even assuming the Voting Rights Act required the drawing of an unprecedented number
of majority-minority districts in the state of North Carolina, which it clearly did not, the
Defendants cannot demonstrate that their Voting Rights Act districts were narrowly tailored. See
Shaw v. Hunt, 517 U.S. at 915; LULAC v. Perry, 548 U.S. 399, 519 (1994) (Scalia, J., concurring
and dissenting) (“[A] State cannot use racial considerations to achieve results beyond those that
are required to comply with the [VRA]”). Each of the three 2011 plans contains significantly
more majority black districts than is necessary to avoid vote dilution or retrogression, given that
in many areas there was no demonstrable vote dilution to begin with. In 2009, only 10 state
house districts had a black voting age population over 50%. Eleven districts had black voting
age percentages between 39.99% and 50%. Def. Answer to NAACP Am. Compl., ¶ 108. Now,
in the 2011 enacted state house plan, 24 state house districts have black voting age populations
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over 50%. id. at ¶ 107. In 2009, no state senate districts had a black voting age population over
50%. Id. at ¶ 290. Now, in the 2011 enacted state house plan, 9 state senate districts have a
black voting age population over 50%. Id. at ¶ 289.
The Defendants increased the TBVAP in each of the Voting Rights Act districts far more
than would be required for a “narrowly tailored” remedy. The TBVAP in each of the foregoing
districts was increased by a minimum of five percentage points, and sometimes substantially
more, as set forth in the following chart reflecting the percentage of TBVAP in the foregoing
districts before 2011, and after the 2011 Plans were enacted:
District
SD14
SD20
SD21
SD28
SD38
SD40
HD5
HD24
HD29
HD48
HD99
HD102
HD107
Pre-2011
42%
45%
45%
47%
47%
35%
49%
50%
40%
46%
41%
43%
47%
2011
51%
51%
51%
56%
53%
52%
54%
57%
51%
51%
55%
54%
53%
The Defendants increased the TBVAP in their Voting Rights Act districts far more than could be
considered necessary as a matter of law.
In addition the challenged districts are not narrowly tailored because they violate
traditional districting principles. Vera, 517 U.S. at 977-78. The challenged districts are not
geographically compact and therefore not narrowly tailored. When the Supreme Court looked at
North Carolina Congressional District 12 in the 1990s, it noted that “[n]o one looking at District
12 could reasonably suggest that the district contains a “geographically compact” population of
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any race,” and thus, “District 12 is not narrowly tailored to the State’s asserted interest in
complying with § 2 of the Voting Rights Act.” Shaw v. Hunt, 517 U.S. at 916, 918 (internal
citations omitted).
“The State has the burden of producing evidence of narrow[] tailoring to achieve its
compelling state interest.” Vera v. Richards, 861 F. Supp. 1304, 1342 (1994). Broadly asserting
that racially polarized voting exists in North Carolina does not suffice—each of the challenged
districts must be justified by specific evidence of need for a remedy and how that remedy is the
most limited remedy available. Because North Carolina ignored traditional redistricting criteria
and engaged in a blatant maximization agenda across the state, there is no reasonable argument
that the 2011 enacted redistricting plans are narrowly tailored to remedying Section 2 violations.
V.
SPLIT PRECINCTS IN THIS PLAN ARE UNCONSTITUTIONAL
A.
Undisputed Material Facts Relating To The Split Precinct Claims
92.
Beginning in July 1995, North Carolina has been required by state statute to
participate in the Federal Census Redistricting Data Program so that the State will receive federal
census data “by voting precinct and be able to revise districts at all levels without splitting
precincts and in compliance with the United States and North Carolina Constitutions and the
Voting Rights Act of 1965, as amended.” 1995 SL 423 § 2, amended by 2006 SL 264, § 75.5(a).
(emphasis added).
93.
Representative Lewis was not aware of this statute in performing his duties as
Chair of the House Redistricting Committee and did not instruct Mr. Hofeller to keep precincts
and VTDs whole in drafting the House plan. Lewis Dep. Tr. pp. 19, 85. From the perspective of
the architects of the districts, “very low priority” was given to keeping precincts and VTDs
whole in drawing the House and Senate maps. Raupe Dep. Tr. p. 109.
86
94.
Preservation of precincts and VTDs is not one of the criteria mentioned in the
public statements issued by Senator Rucho and Representative Lewis on June 17, June 22 and
July 12 incorporating the oral criteria they gave Mr. Hofeller for designing and constructing
House and Senate districts. Dep. Ex. 55.
95.
Preservation of counties and precincts is specifically listed as criterion that was
considered in designing and constructing congressional districts. Dep. Ex. 55, July 1, 2011
statement, p 7.
96.
The following chart shows the number of split precincts in the enacted plans
compared to other plans introduced during the legislative process and compared to prior
redistricting plans in North Carolina:
Plan
Split VTDs
Number of People
in Split VTDs
2003 Senate
55
384,211
Fair and Legal Senate
6
37,101
Rucho Senate 2
257
1,326,244
2009 House
198
1,358,602
Fair and Legal House
129
621,891
Lewis-Dollar-Dockham 4
395
1,878,626
Def. Answer to NAACP Am. Compl., ¶ 78; Mot. for Jud. Not., ¶ 1(a): (i), (vii), (viii), (ix), (xii),
(xiii) (“Stat Packs” and “Split Voting Tabulation Districts” for “NC House Existing District
Plan,” “Lewis-Dollar-Dockham 4,” “House Fair and Legal,” “NC Senate Existing District Plan,”
“Rucho Senate 2,” and “Senate Fair and Legal.”)
97.
Overall, 563 of the state’s 2,692 precincts (or VTDs) were split into more than
1,400 pieces in the three plans.
More than one-fourth (27.2%) of the state’s voting-age
population lives in these split precincts. Hall Aff. ¶ 16.
87
98.
The integrity of elections and the elections process depends on correctly assigning
voters to the districts to which they have been assigned by redistricting legislation. Bartlett Dep.
Tr. p. 104 lines 14-15. For example, if the number of voters incorrectly assigned to a district for
a primary or general election exceeds the margin of victory in an election in that district, the
loser may be declared the victor and a new election required. Dana King Aff., January 5, 2012,
¶¶ 6-11.
99.
When the General Assembly splits precincts and VTDs between or among
districts in redistricting legislation, the risk that voters will be incorrectly assigned increases.
The more voters assigned to split precincts the greater the risk that voters will be incorrectly
assigned to districts. Bartlett Dep. Tr. p. 105 lines 8-11.
100.
This risk is not hypothetical. An examination of the geocodes in six of the State’s
100 counties (Durham, Robeson, Wilson, Richmond, Wayne and Wake) showed 2056 voters
were assigned to the wrong districts in the May, 2012 primary across the House, Senate, and
Congressional plans. Ketchie Third Aff. ¶ 12.
101.
Ninety-seven percent of those 2056 wrongly assigned voters live in split
precincts. Ketchie Third Aff. ¶ 12.
102.
Of the voters wrongly assigned in the May, 2012 primary in these six counties,
715 actually voted. Ketchie Third Aff. ¶ 16.
103.
Of the voters assigned to the wrong district in these six counties who actually cast
a ballot in the May, 2012 primary, 222 received the wrong ballot. Ketchie Third Aff. ¶ 20.
104.
In the Democratic Party primary for Senate District 22, a poll taken prior to the
May 12, 2012 primary found that 33% of voters in split VTD’s in Durham erroneously thought
their candidates were Ralph McKinney and Floyd McKissick. Only 26% of voters in whole
88
VTD’s in Durham County made that mistake. Caswell and Person Counties are both kept whole
in Senate District 22. Only 9% of voters in Caswell and 7% in Person misidentified their
candidates. Jensen Aff. Exhibit 2.
105.
In the Republican Party Primary for Senate District 12, a poll taken prior to the
May 12, 2012 primary found that 14% of voters living in split VTD’s in Johnston Co.
erroneously thought their candidates were Brent Jackson & Mike Osborne. 7% of voters in
Harnett Co., with no split VTD’s made the same mistake. Jensen Aff. Exhibit 2.
106.
Mr. Hofeller stated in affidavit that “splitting VTD lines is often necessary in
order to create TBVAP districts.” Hofeller Dep. Ex. 513, ¶ 9.
107.
Mr. Hofeller further admitted that he split precincts for the purpose of increasing
the black population in a district, in order to achieve Senator Rucho’s goal of drawing districts
with 50% plus one BVAP. Hofeller Dep. Tr. Vol. II, p. 299, lines 4-8 (Senate District 32),
p. 295-96 (Senate District 20).
108.
During deposition, Mr. Hofeller demonstrated what his computer screen would
have looked like when he was splitting a precinct in Senate District 14, and the racial data
available to him on the screen that time makes clear that precinct was split in order to pull the
black voters in the VTD into Senate District 14, and to exclude from the district the white voters
in that VTD. Hofeller Dep. Tr. Vol. II, pp. 218-19; Hofeller Dep. Ex. 508.
109.
In some cases, district lines divide single family homes and apartment complexes
into different districts. Doss Dep. Tr. p. 25 line 5 - P. 26 line 23; Fedrowitz Dep. Tr. p. 65 line 8p. 67 line 9.
110.
A detailed map showing the dividing line between House Districts 100 and 103 in
Mecklenburg County shows how a piece of Precinct 094 that was in the range of 20 to 40%
89
black in voting age population was carved out to be put in majority-white district District 103,
and a piece of Precinct 235 that was in the range of 40 to 60% black in majority-black District
100, separating black and white voters in the same precincts into racially defined election
districts. Ketchie Third Aff., ¶ 38 (Map 7).
111.
Dan Frey, a GIS analyst at the General Assembly confirmed that 26.8% of the
state’s any part black VAP lives in a split VTD in the enacted House plan, while only 16.6% of
the state’s white VAP lives in a split VTD in the enacted House plan. Frey Aff. Ex. 9.
112.
Frey also confirmed that Lewis-Dollar-Dockham 4 contained a higher percentage
of black voters residing in a split VTD than any other House plan proposed in the legislative
process. Id.
113.
Frey confirmed that 19.4% of the state’s any part black VAP lives in a split VTD
in the enacted Senate plan, while only 11.8% of the state’s white VAP lives in a split VTD in the
enacted Senate plan. Id.
114.
Frey also confirmed that Rucho Senate 2 contained a higher percentage of black
voters residing in a split VTD than any other Senate plan proposed in the legislative process. Id.
115.
Frey confirmed that 3.9% of the state’s any part black VAP lives in a split VTD in
the enacted Congressional plan, while only 2.6% of the state’s white VAP lives in a split VTD in
the enacted Congressional plan. Id.
116.
Frey also confirmed that Rucho-Lewis Congress 3 contained a higher percentage
of black voters residing in a split VTD than any other Congressional plan proposed in the
legislative process. Id.
90
B.
Excessive And Unjustified Split Precincts Violate The State And Federal
Constitutions
The right to vote on equal terms is a fundamental right. James v. Bartlett, 359 N.C. 260,
269, 607 S.E.2d 638 (2005). This lawsuit involves two separate claims of how the excessive
splitting of precincts infringes on voters’ right to vote on equal terms. First, the division of an
unprecedented number of precincts by the plans developed by the Defendants deprives North
Carolinians of the fundamental right to vote on equal terms by creating two classes of voters, a
class that is burdened by the problems of split precincts, and a class that is not. Second, the way
in which the precincts were divided to achieve a race-based goal violates the equal protection
rights of African-American voters in the state.
Excessive splitting of precincts creates two classes of voters who are unable to vote on
equal terms. In plans where 27 percent of the voting age population lives in a split precinct,
voters no longer are able to vote on equal terms as guaranteed by the North Carolina and federal
constitutions. Undisputed evidence in this case establishes that voters who reside in divided
precincts or in counties with many divided precincts have their right to vote burdened by the
increased risk that they will receive the wrong ballots, and have increased difficulties identifying
their candidates and elected representatives.
Voters who vote in counties where a majority of precincts are kept whole do not face
these burdens on their fundamental right to vote. This creation of two classes of voters violates
both the state equal protection clause and the federal equal protection clause of the Fourteenth
Amendment.
Because the Defendants have admitted the number of split precincts in the
redistricting plans, and the evidence regarding voters receiving the wrong ballots and voter
confusion is uncontested, there is no issue of material fact and only questions of law remain.
91
1.
Burdening The Right To Vote On Equal Terms Fails Strict Scrutiny
Analysis Under The North Carolina Constitution’s Article 1, § 19
Under the Equal Protection Clause of the North Carolina State Constitution, no person
shall “be denied the equal protection of the laws; nor … be subjected to discrimination by the
State because of race, color, religion, or national origin.” N.C. Const. Art. I, § 19. “Article I,
§ 19 of the Constitution of North Carolina guarantees the ‘equal right to vote’ guaranteed by the
Constitution of the United States”. White v. Pate, 308 N.C. 759, 769, 304 S.E.2d 199 (1983).
“Stated simply, once the legal right to vote has been established, equal protection requires that
the right be administered equally.” Blankenship v. Bartlett, 363 N.C. 518, 525, 618 S.E. 2d 759,
765 (2009).
Under North Carolina’s Equal Protection Clause, when a “classification impermissibly
interferes with the exercise of a fundamental right a strict scrutiny must be given the
classification.” Northampton County Drainage Dist. Number One v. Bailey, 326 N.C. 742, 746,
392 S.E.2d 352, 355 (1990). As the right to vote on equal terms is a fundamental right,
infringement on the right to vote thus requires strict scrutiny. Id.
Dividing an unprecedented number of precincts undermines voters’ confidence in the
election system by turning the system’s most basic unit into an administrative labyrinth of
district lines, multiple ballot styles and segmented neighborhoods. Where there are multiple
points of confusion leading up to the ballot box, a voter cannot have confidence that his ballot
will be cast fairly and counted fairly along with the votes of voters in whole precincts. As the
North Carolina Court of Appeals has observed:
Every voter is entitled to place confidence in the election system. Every voter is
entitled to assume that every other vote is cast legally. He is entitled to have his
vote counted honestly and fairly along with the other votes, which have been cast
honestly and counted honestly and fairly. Anything less is a threat to the
democratic system which is wholly dependent upon elections conducted fairly and
honestly.
92
In re Judicial Review by Republican Candidates for Election in Clay County, 45 N.C. App. 556,
573, 264 S.E.2d 338, 347 (1980).
Moreover, “[t]o permit unlawful votes to be counted along with lawful ballots in
contested elections effectively “disenfranchises” those voters who cast legal ballots, at least
where the counting of unlawful votes determines an election's outcome.” James v. Bartlett, 359
N.C. at 270, 607 S.E.2d at 644. Each time a voter casts a ballot in the wrong district, that voter is
denied the right to vote in the district where she should be voting, and cancels out a vote of
another voter in the district where she was incorrectly assigned. Needlessly splitting precincts
creates an enormous risk to the legitimacy of North Carolina elections, and demonstrably
interferes with the ability of North Carolinians living in split precincts to vote.
Because
Defendants could offer no real benefit, let alone any compelling state interest, to split so many
precincts, this infringement upon the fundamental right to vote, foundational to our democracy,
is a violation of the Equal Protection Clause of the North Carolina Constitution.
2.
Excessive Split Precincts Violate The Fourteenth Amendment’s Equal
Protection Clause
Given the severity of the burdens created by split precincts, including the greatly
increased risk of total disenfranchisement, the excessive splitting of precincts should be subject
to a strict scrutiny analysis under the Fourteenth Amendment of the United States’ Constitution.
The disparate treatment of voters, precinct by precinct and county by county, violates the federal
constitution’s Equal Protection Clause:
The right to vote is protected in more than the initial allocation of the franchise.
Equal protection applies as well to the manner of its exercise. Having once
granted the right to vote on equal terms, the State may not, by later arbitrary and
disparate treatment, value one person's vote over that of another.”
Bush v. Gore, 531 U.S. 98, 104-105 (2000) (internal citations omitted).
93
Because voters given the wrong ballot are effectively disenfranchised, strict scrutiny is
the correct standard to apply in light of the severe burden on the fundamental right to vote on
equal terms.
However, even under the more flexible standard adopted by the United States Supreme
Court in Burdick v. Takushi, 504 U.S. 428, 434 (1992), Defendants cannot show any “important
regulatory interest” that justifies the splitting of a total of 563 precincts across the three plans. In
Burdick, the court held that a court considering a challenge to a state election law must weigh
“the character and magnitude of the asserted injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put
forward by the State as justifications for the burden imposed by its rule,” taking into
consideration “the extent to which those interests make it necessary to burden the plaintiff's
rights.” Id. Applying the Burdick test, there is ample, uncontradicted evidence that splitting
precincts burdens the voter by casting doubt on the validity and effectiveness of his ballot and
placing byzantine administrative hurdles in the once linear path to casting a vote in a precinct.
The State has no legitimate regulatory interests which justify the excessive splitting of
precincts. Splitting over 500 precincts is not required to fulfill “one-person, one-vote” or the
Voting Rights Act as demonstrated by alternative, constitutional plans that split far fewer
precincts. Thus, when weighed against no demonstrable benefit to the state derived from the
massive splitting of precincts, the huge burdens on voters, discussed in detail below, warrant a
finding by this Court that the splitting of precincts unconstitutionally burden the right to vote of
North Carolina citizens.
The following sections detail the harms incurred by voters in split precincts and in
counties with many split precincts, and demonstrates that there is no benefit to justify this
94
widespread disenfranchisement. When the Court weighs these burdens against the complete lack
of benefits presented by the state, it is clear that this excessive splitting of precincts violates both
the state and federal equal protection clauses under both Burdick and strict scrutiny analyses.
3.
Excessive Split Precincts Disenfranchise Some Voters And Cause
Greater Confusion
“The precinct voting system is woven throughout the fabric of our election laws.” James
v. Bartlett, 359 N.C. at 267, 607 S.E.2d at 642. In James v. Bartlett, the Court observed:
The advantages of the precinct system are significant and numerous: it caps the
number of voters attempting to vote in the same place on election day; it allows
each precinct ballot to list all of the votes a citizen may cast for all pertinent
federal, state, and local elections, referenda, initiatives, and levies; it allows each
precinct ballot to list only those votes a citizen may cast, making ballots less
confusing; it makes it easier for election officials to monitor votes and prevent
election fraud; and it generally puts polling places in closer proximity to voter
residences.
Id. at 271, 607 S.E.2d at 644-45 (quoting Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d
565, 569 (6th Cir. 2004) (per curiam)). Far from mere administrative conveniences, precincts are
a focal point for disseminating information, rallying voters and troubleshooting voting concerns.
They are a political subdivision used by voters, organizers, and candidates as well as elections
officials. According to elections expert and former Director of the Mecklenburg County Board
of Elections, Dr. Theodore Arrington, “[v]oting precincts represent a distinct type of political
communities. . . central to political organization.” Arrington First Aff. ¶¶ 20-21. Drawn to
encompass recognized neighborhoods, precincts allow voters a defined area in which to organize
around their shared political concerns.
2011 House and Senate Plans divide hundreds more precincts than any other plan
submitted during the redistricting process. Def. Answer to NAACP Am. Compl., ¶ 78. There
are 2,692 precincts in the state, and 563 of them are divided by one or more of the three
legislative plans. In total, precincts were divided into more than 1,400 sections by the three
95
plans. Def. Answer to NAACP Am. Compl., ¶ 78. The enacted plans are more than twice as
extensive as the previous plan in the number of precincts divided, number of sections created by
division, total number of cases of split precincts in the three plans, and percent of affected
population in the divided precincts. Hall Aff. ¶ 16. Over a quarter of the state’s voting age
population (27.2%) now lives in a precinct split by at least one of the legislative plans.
The increased risks of the burdens of split precincts have translated into real harms to the
franchise of voters during the May 2012 primary. For example: 2056 voters were assigned the
wrong district in six counties audited and would have received a ballot for a district in which
they did not live had they voted in the May primary for a contested race. 222 of those voters
actually voted for the wrong district representative based on an incorrectly assigned geocode.
Ketchie Third Aff. ¶¶ 12, 20. These errors represent significant problems that burden the right to
vote in counties with many split precincts. Almost all the voters assigned to the wrong districts
lived in split precincts. See supra, Material Fact 101.
The impact at the local level is significant. In Robeson County, 4 House districts divide
20 different precincts. 860 voters were assigned to the wrong district in the 4 House districts. In
stark contrast, the Senate and Congressional districts each have no split precincts. There were no
wrongly assigned voters in the Senate districts and twenty-four wrongly assigned voters in the
Congressional districts. In Robeson County, 98.3 percent of voters wrongly assigned in the
House districts lived in a split precinct. Ketchie Third Aff. Table 1. Similarly, in Wayne County
85 voters remained wrongly assigned as of the May primary. Ketchie Third Aff. Table 1. In
Wayne, 80.8% of voters in the wrong House district live in a split precinct. 100% of voters in
the wrong Senate district live in a split precinct. Id. In Wake County there were 178 wrongly
assigned voters in the Senate districts, 116 voters wrongly assigned in House districts and 65
96
voters wrongly assigned in the Congressional districts. All of the voters incorrectly assigned in
Wake County live in split precincts. Ketchie Third Aff. Table 1.
The number of splits in the legislative plans has generated an unprecedented number of
ballot styles. For instance, in the May primary, Wake had 40 different ballot styles, Durham, 41,
Robeson, 56, and Wayne 141 ballot styles.4 In contrast, in the May 2010 primary, Wake had 13
different ballot styles, Durham, 23, Robeson, 38 and Wayne, 5.5 As early voting sites and
precincts must administer more ballot styles than ever before, the risk of receiving the wrong
ballot is also greater than ever. See Kellie Harris Hopkins Aff., January 5, 2012, ¶¶ 10-13.
Additionally, the number of split precincts increases the confusion voters experience
when attempting to identify candidates and make informed decisions at the polls. The confusion
experienced by voters was quantified in a May 2012 survey by Tom Jensen of Public Policy
Polling. A survey of 4 North Carolina Senate districts the weekend before May’s primary
elections found that voters living in split VTD’s were more likely to have erroneous conceptions
about who their candidates were than voters living in whole VTD’s. Jensen Aff. Ex. 2, p. 2.
Overall 80% of voters correctly identified their candidates, while 20% were incorrect. There was
also a significant disparity in voters’ ability to identify their candidates based on whether they
lived in a whole or split VTD. 86% of voters in whole VTD’s were correct about who their
candidates were, with only 14% misidentifying them. But in split VTD’s just 73% of voters
were correct in identifying the candidates on their ballot, while 27% were incorrect. Id.
“Once the franchise is granted to the electorate, lines may not be drawn which are
inconsistent with the Equal Protection Clause of the Fourteenth Amendment.”
Harper v.
Virginia Bd. of Elections, 383 U.S. 663, 665 (1966). Here, the General Assembly drew lines
4
http://www.ncsbe.gov/downloads/SampleBallots/2012-05-08/
5
http://www.ncsbe.gov/downloads/SampleBallots/2010-05-04/
97
through the basic unit of political participation, the precinct, unconstitutionally burdening the
rights of voters in these divided precincts. The Defendants had no justification for increasing
confusion and diminishing voters’ confidence that their votes will be cast and counted honestly
and fairly.
4.
The Intentional Splitting Of Precincts On The Basis Of Race Violates
The Equal Protection Clauses Of The State And Federal Constitutions
In addition to creating two classes of voters through the splitting of precincts, the General
Assembly intentionally discriminated against African-Americans by dividing precincts solely on
the basis of race without compelling justification. To determine if a regulation violates either of
the federal or state equal protection clauses, North Carolina courts apply the same test. Dept. of
Transp. v. Rowe, 353 N.C. 671, 675, 549 S.E.2d 203 (2001). The court must first determine
which of tier of scrutiny should be applied. Id. Then it must determine whether the regulation
meets the relevant standard of review. Id. The Fourteenth Amendment of the United States
subjects all distinctions based on race to strict scrutiny, even those “intended to improve minority
representation.” Johnson v. California, 543 U.S. at 505 (citing Shaw v. Reno, 509 U.S. at 650).
The North Carolina Supreme Court also applies strict scrutiny to distinctions involving a
suspect class or those involving a fundamental right. Texfi Indus., Inc. v. Fayetteville, 301 N.C.
1, 11, 269 S.E.2d 142, 149 (1980). The Court defined a suspect class as one that has been
subjected to “purposeful unequal treatment, or relegated to such a position of political
powerlessness as to command particular consideration from the judiciary.” Id. Race is a suspect
class under the North Carolina Constitution. State ex rel. Utilities Comm'n v. Carolina Util.
Customers Ass'n, 336 N.C. 657, 681 n.5, 446 S.E.2d 332, 346 n.5 (1994). “If a regulation
receives strict scrutiny, then the state must prove that the classification is necessary to advance a
compelling government interest; otherwise, the statute is invalid.” Rowe, 353 N.C. at 675, 549
98
S.E.2d at 207. Similarly, as noted above, voting is a fundamental right. Thus, if the Defendants’
decisions about how and where to split precincts are motivated by racial considerations, they are
subject to strict scrutiny. As claims under both the state and federal constitution require strict
scrutiny in these circumstances, the facts and legal analysis is the same for both.
To prove an equal protection violation in the context of a reapportionment statute that
classifies tracts of land, not people, plaintiffs must demonstrate first that the government has
created a race-based classification. Shaw v. Reno, 509 U.S. at 646. Where it has, the burden
shifts to the state to prove that it has a compelling governmental interest and that its use of race is
narrowly tailored to meet that interest. Id. at 653; see also Johnson v. California, 543 U.S. at
515.
At this stage of the proceedings, Plaintiffs’ uncontested evidence that precincts in the
redistricting plans were split along racial lines for a race-based reason is straightforward. First,
the Defendants admit that they split precincts in order to create majority black districts. Material
Facts 53, 55, 106-107. Second, the precinct splits follow racial demographics. Material Facts
108-110. Indeed, Mr. Hofeller only had racial race data available to him to decide where to split
a precinct, because reliable partisan data is not available at that level of geography. Material
Facts 63-64; see also Hofeller Dep. Tr. Vol. I, p. 50, lines 10-16. Finally, African-Americans are
more likely than white voters to live in a split precinct in all three plans, Material Facts 111-116,
a result that could not have happened by chance. Material Fact 54.
In the face of this evidence of intentional racial motivation for dividing precincts,
Defendants offer no compelling governmental interest other than compliance with the Voting
Rights Act. The Voting Rights Act does not require racial quotas in redistricting and the districts
that were drawn were not drawn with any evidence of the need for majority-black districts in the
99
areas of the state where those districts were drawn. Even if justified by the VRA, the districts
were not narrowly tailored. The Defendants simply have no legitimate reason, let alone a
compelling interest, for breaking apart North Carolina’s most integrated neighborhoods along
color lines in an unprecedented number of areas of the state.
VI.
PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR CLAIM
THAT LDD4 AND RUCHO SENATE 2 VIOLATE THE WHOLE COUNTY
PROVISIONS OF ARTICLE II, SECTIONS 3 AND 5 OF THE CONSTITUTION
A.
Undisputed Material Facts Relating to the Whole County Claims
117.
As noted above, the public statements issued by Senator Rucho and
Representative Lewis on June 17, June 23 and July 12 reflect the oral instructions they gave
Hofeller regarding the design and construction of the House and Senate redistricting maps. The
only section of these after-the-fact public statements discussing compliance with state
constitutional requirements simply states:
Our Senate and house plans have been drawn in compliance with the State
constitutional requirements stated in Stephenson I and II, along with the decision
of the North Carolina Supreme Court in Strickland v Bartlett, 361 N.C. 491
(2007), affirmed, Bartlett v Strickland, 109 S. Ct. 1231 (2009). These decisions
establish a hierarchy of constitutional rules for drawing districts within a whole
county or combinations of counties. We encourage interested members of the
public to consult these decisions as well as the Legislator’s Guide to North
Carolina Legislative and Congressional Redistricting published on the General
Assembly’s website.
Dep. Ex. 55, Joint Statement by Senator Bob Rucho and Representative Lewis, July 12, 2011,
p. 5.
118.
Senator Rucho and Representative Lewis’s oral instructions to Hofeller were as
vague and non-specific as their public statements. They simply directed Hofeller to draw the
House and Senate maps to comply with the Stephenson decisions, Rucho Dep. Tr. pp. 33, 45, 49,
and left it to him as to how to comply with those decisions. Lewis Dep. Tr. p. 41, Rucho Dep.
Tr. p. 174. Legal advice regarding the Stephenson requests and the method for measuring
100
compliance with Stephenson requirements was provided to Senator Rucho, Representative Lewis
and Mr. Hofeller by Mr. Oldham. Lewis Dep. Tr. p. 45.
119.
Based on advice from Oldham, Mr. Hofeller drew the House and Senate maps
applying the rule that compliance with Stephenson is determined by the number of clusters or
groups of counties contained in a plan and not by the number of counties kept whole by the plan.
Oldham Dep. Tr. pp. 79-80. Mr. Oldham explained this rule in the context of the House map:
The maximum number of twos anybody was going to be able to come up with
was going to be 15, and if we could draw our minority districts and still produce
15, that map was going to be—I don’t want to—they say the Titanic was
invincible—it was going to be extremely hard for someone to find a map that was
better than that under the Stephenson criteria. Id. at p. 80.
120.
Based on this determination, Hofeller and Oldham did not keep track of the
number of counties being divided as they drew maps or the total number of clusters. Oldham
Dep. Tr. p. 85.
Similarly, when Representative Lewis was reviewing plans proposed by
Hofeller, he “specifically looked at county groupings.” He “did not pay as close of attention to
the way in which the lines were drawn or districts created within those groups.” Lewis Dep. Tr.
p. 75. When competing House and Senate plans were introduced by Representative Grier Martin
and Senator Martin Nesbitt in late July, Hofeller did not review those plans with regard to the
number of counties kept whole but only with regard to the number of two-county groupings.
Hofeller Dep. Tr. Vol. I, pp. 175-176.
121.
Senator Rucho Testified that these two county groupings once established were
“sacrosanct.” Rucho Dep. Tr. p. 70. Representative Lewis testified that LDD4 better complied
with the Constitution than House Fair and Legal because LDD4 had more two county groupings
than House Fair and Legal even though LDD4 divided more counties. Lewis Dep. Tr. p.163.
101
1.
122.
Comparison Of Divided Counties In Rucho Senate 2 And In Other
Plans
Twelve counties were divided in the 2003 Senate Plan that was used in the 2004,
2006, 2008 and 2010 elections. These counties were: Buncombe, Haywood, Iredell, Gaston,
Mecklenburg, Forsyth, Guilford, Durham, Wake, Cumberland, Wayne and Pitt. See 2003 Senate
Redistricting Plan Map.
123.
By contrast, Senate Rucho 2 divides 19 counties or seven more than were divided
by the 2003 Senate plan enacted following Stephenson I. The 19 counties divided in Rucho
Senate 2 are Buncombe, Cumberland, Durham, Forsyth, Gaston, Guilford, Iredell, Johnston,
Lenoir, Mecklenburg, Nash, New Hanover, Pitt, Randolph, Rowan, Union, Wake, Wayne, and
Wilson. (Dickson Am. Compl. and Def. Answer to Dickson Am. Compl., ¶¶ 107-08).
124.
An alternative plan entitled “Senate Fair and Legal” introduced by Senator Martin
Nesbitt on July 25, 2011 would have divided 5 fewer counties than Rucho Senate 2. The 14
counties that would have been divided by Senate Fair and Legal were Buncombe, Catawba,
Cumberland, Davidson, Durham, Forsyth, Gaston, Guilford, Harnett, Johnston, Mecklenburg,
New Hanover, Union, and Wake. See Senate Fair and Legal Map.
125.
Eight (8) counties divided in Rucho Senate 2 would not have been divided in
Senate Fair and Legal. They are Iredell, Lenoir, Nash, Pitt, Randolph, Rowan, Wayne and
Wilson. Compare Senate Fair and Legal Map with Rucho Senate 2 Map.
126.
Three (3) counties that would have been divided in Senate Fair and Legal are not
divided in Rucho Senate 2. They are Catawba, Davidson and Harnett. Compare Senate Fair and
Legal Map with Rucho Senate 2 Map.
102
2.
127.
Comparison Of County Clusters In Rucho Senate 2 And In Other
Plans
The following chart compares the size of the county clusters in Rucho Senate 2
and Senate Fair and Legal.
Counties in Clusters
Rucho Senate 2
Senate Fair and Legal
1
1
1
2
11
11
3
4
3
4
3
7
5
1
1
6
1
2
7
1
2
8
2
0
9
1
1
10
1
0
Total
26
28
Frey Aff., Ex. 2.
128.
Senate Fair and Legal and Rucho Senate 2 have the same number (11) of two-
county clusters, but Senate Fair and Legal has more total clusters (28) than Rucho Senate 2 (26).
Senate Fair and Legal also divides 5 fewer counties than Rucho Senate 2.
3.
129.
Comparison Of Divided Counties In LDD4 And In Other Plans
Forty-six counties were divided by the 2003 House Plan used for the 2004, 2006,
and 2008 elections. Forty-five counties were divided by the House plan used for the 2010
elections. See 2003 House Redistricting Plan Map.
130.
By contrast, 49 counties are divided by LDD4 or four more than were divided by
the 2003 plan enacted following Stephenson I. The counties divided by LDD4 are: Alamance,
Beaufort, Bladen, Brunswick, Buncombe, Burke, Cabarrus, Catawba, Cleveland, Craven,
Cumberland, Davidson, Duplin, Durham, Forsyth, Franklin, Gaston, Granville, Greene, Guilford,
Harnett, Haywood, Henderson, Hoke, Iredell, Johnston, Lee, Lenoir, Mecklenburg,
Montgomery, Moore, Nash, New Hanover, Onslow, Orange, Pasquotank, Randolph, Richmond,
Robeson, Rockingham, Rowan, Sampson, Scotland, Union, Wake, Wayne, Wilkes, and Wilson.
(Dickson Am. Compl. and Def. Answer to Dickson Am. Compl., ¶¶ 212-13).
131.
Representative Grier Martin introduced a plan on July 25, 2011 entitled “House
Fair and Legal,” which would have divided 5 fewer counties than LDD4. The 44 counties
103
divided in House Fair and Legal are: Alamance, Brunswick, Buncombe, Burke, Cabarrus,
Catawba, Cleveland, Craven, Cumberland, Davidson, Davie, Durham, Edgecombe, Forsyth,
Gaston, Granville, Guilford, Harnett, Haywood, Henderson, Hoke, Iredell, Johnston, Lenoir,
Mecklenburg, Montgomery, Moore, Nash, New Hanover, Onslow, Orange, Pender, Pitt,
Randolph, Robeson, Rockingham, Rowan, Sampson, Scotland, Union, Wake, Wayne, Wilkes,
and Wilson. See House Fair and Legal Map.
132.
Eight (8) counties are divided by LDD4 and would not have been divided by
House Fair and Legal. They are Beaufort, Bladen, Duplin, Franklin, Greene, Lee, Pasquotank
and Richmond. Compare House Fair and Legal Map with LDD4 Map.
133.
Three (3) counties that would have been divided by House Fair and Legal are not
divided by LDD4. They are Davidson, Edgecombe and Pender. Compare Martin House Fair
and Legal Map with LDD4 Map.
4.
134.
Comparison Of County Clusters In LDD4 And In Other Plans
The following chart compares the sizes of the county clusters in LDD4 with 3
other plans.
Counties in Cluster
Lewis Dollar Dockham 4
House Fair and Legal
1
11
11
2
15
9
3
4
6
4
2
5
5
2
3
6
0
1
7
0
1
8
0
0
9
1
1
10
0
0
11
0
0
20
1
0
Total
36
36
Frey Aff., Ex. 2.
135.
LDD4 and House Fair and Legal both have 36 total clusters. While LDD4 has
more two-county clusters than House Fair and Legal, LDD4 has a 20 county cluster.
Nevertheless, House Fair and Legal divides 5 fewer counties than LDD4.
136.
The 20 county cluster in LDD4 largely accounts for the fact that LDD4 divided
more counties than House Fair and Legal. The 20-county cluster in LDD4 stretches across half
the state, beginning in Dare County and running westward to Stanly County. The counties in this
104
cluster, from east to west, are Dare, Hyde, Washington, Pamlico, Beaufort, Craven, Lenoir,
Greene, Duplin, Wayne, Johnston, Sampson, Bladen, Columbus, Robeson, Hoke, Scotland,
Richmond, Montgomery and Stanley. This cluster encompasses 12 Districts: 3, 4, 6, 10, 12, 21,
22, 46, 47, 48, 66, and 67. Of its 20 counties, 14 are divided: Beaufort, Craven (3 ways),
Lenoir, Greene, Wayne (3 ways), Duplin, Sampson, Johnston (3 ways), Bladen, Robeson (3
ways), Hoke, Scotland, Richmond, and Montgomery. Six (6) counties divided in the LDD4 20
county cluster would not have been divided in House Fair and Legal: Beaufort, Greene, Duplin,
Bladen, Richmond, and Stanley.
Compare House Fair and Legal With County Grouping
Overlay with LDD4 With County Grouping Overlay.
137.
Smaller groupings, other than the 20 county grouping in LDD4, are available and
result in fewer divided counties. For example, the largest cluster in House Fair and Legal is a
nine (9) county cluster. See House Fair and Legal With County Grouping Overlay.
5.
138.
Focusing On Clusters Does Not Keep Counties Whole
John Morgan, a demographer who assisted Mr. Hofeller in drawing maps for
Senator Rucho and Representative Lewis, concluded several years ago that clustering does not
lead to the preservation of whole counties or minimize the number of divided counties. In a draft
affidavit Mr. Morgan prepared for use in the 2003 redistricting litigation in North Carolina, Mr.
Morgan stated:
It may seem counter intuitive that the proper application of the Stephenson criteria
may result in more split counties that an improper applications of the Stephenson
criteria.
Morgan Dep. Tr. p. 91. Mr. Hofeller agrees with Mr. Morgan. Hofeller Dep. Tr. Vol. II, p. 321.
139.
The absence of any direct relationship between clustering and the preservation of
county boundaries is illustrated by analyzing the clusters and divided counties in Rucho Senate 2
and LDD4 and by comparing those plans with other plans.
105
140.
LDD4 and House Fair and Legal both contain 36 total clusters but House Fair and
Legal divides 5 fewer counties than LDD4.
141.
LDD4 creates 15 two-county clusters, and House Fair and Legal only creates 9
two-county clusters, but House Fair and legal Divides 5 fewer counties than LDD4.
142.
The 15 two-county clusters in LDD4 are Cleveland/Gaston, Watauga/Avery,
Rowan/Cabarrus, Union/Anson, Orange/Durham, New Hanover/Brunswick, Pender/Onslow,
Carteret/Jones,
Wilson/Pitt,
Franklin/Nash,
Edgecombe/Martin,
Forsyth/Davie, Rutherford/Burke, and Randolph/Moore.
Northampton/Halifax,
See LDD4 with County Grouping
Overlay.
143.
Of the 30 counties in the 15 two-county clusters in LDD4, more are divided (18)
than are kept whole (12), and in 7 instances, both counties in a two-county cluster are divided.
144.
The 9 two county clusters in House Fair and Legal are Cleveland/Gaston,
Caswell/Orange,
Warren/Franklin,
Ashe/Watauga,
Rutherford/Burke,
Union/Anson,
Carteret/Onslow, Northampton/Halifax, and Columbus/Brunswick. See Martin House Fair and
Legal with County Grouping Overlay.
145.
Of the 18 counties in the 9 two county clusters in House Fair and Legal, more are
whole (11) than are divided (7), and in only one instance are both counties in a cluster divided.
146.
Rucho Senate 2 and Senate Fair and Legal have the same number of two county
clusters, but Senate Fair and Legal divides 5 fewer counties than Senate Rucho 2.
147.
In Rucho Senate 2, eleven (11) two county clusters are created: Burke/Cleveland,
Alexander/Catawba, Yadkin/Forsyth, Rockingham/Guilford, Hoke/Cumberland, Jones/Onslow,
Robeson/Columbus,
Orange/Chatham,
Davidson/Montgomery,
Wake/Franklin. See Rucho Senate 2 with County Grouping Overlay.
106
Union/
Cabarrus
and
148.
Of the 22 counties in the 11 two county clusters in LDD4, 17 are kept whole and
5 are divided.
149.
Senate Fair and Legal also creates 11 two county clusters: Burke/Cleveland,
Alexander/Iredell,
Rowan/Stanley,
Cabarrus/Union,
Stokes/Forsyth,
Orange/Chatham,
Durham/Wake, Pitt/Greene, Jones/Onslow, Robeson/Columbus, and Wayne/Lenoir.
150.
Of the 22 counties in the 11 two-county clusters in Senate Fair and Legal, 18 are
kept whole and only 4 are divided. See Senate Fair and Legal with County Grouping Overlay.
B.
The Requirements of the Whole County Provisions of the State Constitution
Defendants do not dispute that Rucho Senate 2 and LDD4 divide more counties than
Senate Fair and Legal or House Fair and Legal. Nor is it disputable that in Stephenson I and II,
the Supreme Court plainly and repeatedly held that redistricting legislation “shall depart from
strict compliance with the legal requirements” in Stephenson I “only to the extent necessary to
comply with federal law.” Stephenson II, 357 N.C. at 307, 582 S.E.2d at 250-51 (quoting
Stephenson I, 355 N.C. at 384, 562 S.E.2d at 396-98). Instead, Defendants defend their plans on
two grounds: (1) that compliance with the constitutional provisions that “no county shall be
divided in the formation” of a House or Senate district is not the measure of compliance with the
Constitution; and (2) that they divided counties only to the extent necessary to comply with
federal law. Neither defense has any merit.
1.
The Constitutional Provisions And The Context Of The Stephenson
Decisions
Article II, Section 3(5) of the Constitution as adopted in 1971 provides: “No county shall
be divided in the formation of a senate district.” Article II, Section 5(5), likewise adopted in
1971, provides: “No county shall be divided in the formation of a representative district.”
107
The history of these provisions of the Constitution, and the manner in which their
predecessor constitutional provisions
have
been applied by the General Assembly, was
reviewed by the Supreme Court in Stephenson I.
“There is a long standing tradition of
respecting county lines during the redistricting process.” Stephenson I, 355 N.C. at 366, 562
S.E.2d at 386. That tradition dates to the 1776 Constitution, which based representation in both
chambers of the General Assembly on counties. This tradition was carried forward in the 1868
and 1971 Constitutions. Id. Consistent with this tradition, the first redistricting legislation
enacted after the adoption of the 1971 Constitution “did not divide any counties into separate
legislative districts.” Id., 532 S.E.2d at 387.
However, in 1982, as the result of the refusal of the United States Department of Justice
to approve the General Assembly’s 1981 redistricting efforts, the General Assembly enacted an
amended House plan that divided 24 counties and an amended Senate plan that divided 8
counties. Id. In 1983, a three-judge federal court determined that Article II, Sections 3 and 5 of
the 1971 Constitution were unenforceable in the 40 North Carolina counties covered by Section
5 of the 1965 Voting Rights Act because it was inconsistent with federal law, and further
declared, as a matter of state law, that those constitutional provisions were void in the remaining
60 counties because the state’s citizens would not have approved those provisions in 1971 had
they known that they could not be enforced in all counties. Cavanagh v. Brock, 577 F. Supp.
176 (E.D.N.C. 1983). Assuming that as a consequence of Cavanagh that it was no longer
constrained by Article II, Sections 3 and 5 of the Constitution, the General Assembly enacted
House and Senate plans in 1992 that divided 58 and 43 counties, respectively. These plans were
not challenged in court. In 2001, the General Assembly enacted a House plan that would have
108
divided 70 counties and enacted a Senate plan that would have divided 51 counties. The
constitutionality of these plans was challenged.
In Stephenson I, the Supreme Court (1) rejected the federal court’s analysis in Cavanagh
that Article II, Sections 3 and 5 were not enforceable parts of the Constitution and held that those
constitutional provisions remain “valid and binding upon the General Assembly during the
redistricting and reapportionment process … except to the extent superseded by federal law;”
(2) declared that the use of multi-member districts violated equal protection principles “unless it
is established that inclusion of multi-member district advances a compelling state interest”; and
(3) directed the trial court, during “the remedial stage” of the litigation, to apply the methodology
prescribed by the Court to any alternative plans adopted by the General Assembly or drawn by
the trial court. Id. at 371-72, 381, 383, 562 S.E.2d at 390, 395, 396.
In Stephenson II, 357 N.C. 301, 582 S.E.2d 247 (2003), the Court reviewed and affirmed
the May 31, 2002 order of the trial judge declaring that the remedial plans enacted by the
General Assembly in 2002 failed to adhere to Stephenson I. Reciting the rule that findings of
fact supported by the evidence are conclusive on appeal, the Supreme Court affirmed a series of
mixed findings of fact and conclusions of law entered by the trial judge. Stephenson II at 309,
582 S.E.2d at 252. The constitutional deficiencies affirmed on this ground in the Senate plan
were (a) excessive “cuts across interior county boundaries,” (b) clustering “portions of counties,”
and (c) lack of “compactness” in Senate Districts 6, 10, 11, 14, 16, 21, 26, 36 and 44. Id. at 31011, 582 S.E.2d at 252-53. The deficiencies affirmed on this ground in the House plan included
(a) the excessive cutting of county lines, (b) the arbitrary separation of communities in House
Districts 52, 95 and 96, and (c) lack of compactness in House Districts 14, 18, 41, 51, 52, 57, 58,
59, 60, 61, 62, 63, 64, 76, 77, 95, 96, 110 and 118. Id. at 311-13, 582 S.E.2d at 253-54.
109
The Supreme Court did list the trial court’s finding that the challenged plans failed “to
create the maximum number of two-county groupings” in its recitation of the trial court’s
findings, Stephenson II, 357 N.C. at 308, 582 S.E.2d at 251, but that finding is not listed among
the trial court’s findings affirmed. Id., 357 N.C. at 309-313, 582 S.E.2d at 251-54. By contrast,
the Court did list the trial judge’s finding that some House districts “divided the county boundary
in multiple locations” among the findings it affirmed. Id., 357 N.C. at 311, 582 S.E.2d at 253.
2.
Defendants’ Argument Has No Basis In The Words Of The
Constitution Or In Logic
Defendants’ argument that compliance with Article II, Sections 3 and 5 of the
Constitution is measured by the number of groups of counties contained in a legislative
redistricting plan and not the number of counties kept whole has no basis in the Constitution and
mistakes a means for constitutional compliance with the end of compliance.
The words of the Constitution are “no county shall be divided in the formation” of a
House or Senate district. The Constitution does not state: House and Senate districts “shall be
formed from the maximum number of groups of counties” or that “the maximum number of twocounty groups shall be used to form House and Senate districts.” Substituting those words for
the actual words of the Constitution (which is essentially the Defendants’ position in this case)
would constitute an amendment to the Constitution. Defendants’ position is not tenable. The
Courts have no power under the guise of interpretation to amend the Constitution. See Elliott v.
State Board of Equalization, 203 N.C. 749, 756, 166 S.E. 918, 922 (1932) (“However liberally
we may be inclined to interpret the fundamental law, we should offend every canon of
construction and transgress the limitations of our jurisdiction to review decisions upon matters of
law or legal inference if we undertook to extend the function of the Court to a judicial
amendment of the Constitution.”); Andrews v. Clay County, 200 N.C. 280, 282, 156 S.E. 855,
110
856-57 (1931) (stating that a court may not construe the North Carolina Constitution in a manner
that “would in effect result in its amendment by the courts and not by the people”).
Logically, the Stephenson clustering requirements were not intended by the Court as the
measurement of compliance with the Whole County provisions but rather as an important step in
the process of achieving compliance. In truth, the county grouping requirement is simply one
stop on the road to compliance with the constitutional direction that “no county be divided.”
Once county groupings are formed, districts still have to be formed within the groupings, and the
formation of those districts within those groups presents the greatest temptation for the General
Assembly to place politics or other interests in front of the Constitution.
For example,
Defendants’ House Plan contains one county grouping that includes 20 counties stretching from
Dare County to Stanly County. Within this 20 county grouping, the Defendants formed 14
districts, and in the process of forming those 14 districts, they split 16 of the 20 counties
contained in the grouping. Measuring compliance with the requirement that “no county be
divided” by counting county groupings is like declaring the winner of a mile-long run at the onehalf mile mark.
Moreover, Stephenson cited with approval two cases from Tennessee and Kentucky, both
of which held that whole county provisions in those states’ constitutions required that the
legislature divide the fewest number of counties possible. Stephenson I, 355 N.C. at 372, n.3.,
562 S.E.2d at 390, n.3. In State ex rel. Lockert v. Crowell, 631 S.W.2d 702, 715 (Tenn. 1982),
the Supreme Court of Tennessee stated that:
The provisions of the Tennessee Constitution, although of secondary import to
equal protection requirements, are nonetheless valid and must be enforced insofar
as is possible. If the State is correct in its insistence that there is no way to
comply with the mandates of the federal and state constitutions without crossing
county lines, then we hold that the plan adopted must cross as few county lines as
is necessary to comply with the federal constitutional requirements.
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Shortly thereafter, the Supreme Court of Kentucky, citing Lockert, reached a substantially
similar conclusion:
Population equality under [the Constitution of Kentucky] may be satisfied by a
variation which does not exceed -5% to +5% from an ideal legislative district.
[…] Using these parameters, the General Assembly can formulate a plan which
reduces to the minimum the number of counties which must be divided between
legislative districts. One such plan was placed in evidence and there may be
others which are equal or superior to it. The mandate of Section 33 is to make full
use of the maximum constitutional population variation as set forth herein and
divide the fewest possible number of counties.
Fischer v. State Board of Elections, 879 S.W.2d 475, 479 (Ky. 1994).
This Court should again declare, as it did in Stephenson I and II, that the North Carolina
Constitution requires the Defendants not to split any counties except as required to comply with
federal law.
3.
The Stephenson Decision In Fact Made It Clear That The Measure Of
Compliance With The Whole County Provision Is The Number Of
Counties Kept Whole
The requirements established in Stephenson must be understood in the context of the
dilemma facing the Court. On the one hand, the Court determined that it had no power to
consign to the dustbin of history a constitutional provision adopted by the people and not
repealed by them. “[W]e are not permitted to construe the WCP mandate as now being in some
fashion unmanageable, or to limit its application to a handful of counties.” Stephenson I, 355
N.C. at 382, 562 S.E.2d at 396. On the other hand, federal one person, one vote and Voting
Rights Act requirements made the full application of the whole county provisions impossible.
“Prior to the imposition of one-person, one-vote and VRA requirements, implimentation of the
provision was simple and straightforward.” Id., 355 N.C. at 383, 562 S.E.2d at 396.
The Court determined that in this circumstance its duty was “to follow a reasonable,
workable, and effective interpretation that maintains the people’s express wishes to contain
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legislative district boundaries within county lines whenever possible.” Id. at 382, 562 S.E.2d at
396. As the Supreme Court’s express words in Stephenson I make clear, the duty to “contain
legislative districts within county lines,” does not end with the formation of clusters containing 2
or more counties:
Within any such contiguous multi-county grouping, compact districts shall be
formed, consistent with the at or within plus or minus five percent standard,
whose boundary lines do not cross or traverse the “exterior” line of the multicounty grouping; provided, however, that the resulting interior county lines
created by any such groupings may be crossed or traversed in the creation of
districts within said multi-county grouping but only to the extent necessary to
comply with the at or within plus or minus five percent one-person, one-vote
standard. The intent underlying the WCP must be enforced to the maximum
extent possible; thus, only the smallest number of counties necessary to comply
with the at or within plus or minus five percent one-person, one-vote standard
shall be combined combined, and communities of interest should be considered in
the formation of compact and contiguous electoral districts.
Id. at 384, 562 S.E.2d at 397 (emphasis added). Nothing in Stephenson II changes these words.
It is true, as noted above, that the trial court in Stephenson II did find that the 2002 House plan
failed to create “the maximum number of two county groupings,” but that finding is
conspicuously absent from the list of the trial court’s findings affirmed by the Supreme Court.
4.
The Supreme Court’s Decision In Pender County v. Bartlett Confirms
That Keeping Counties Whole Is The Measure Of Compliance With
The Whole County Provision Of The Constitution
In Pender County v. Bartlett, the Supreme Court considered the validity of the General
Assembly’s decision not to keep Pender County whole but rather to divide it into 2 districts, one
of which (HD 18) had a BVAP of 42%. The General Assembly’s purpose in creating that district
was to comply with the perceived requirements of the Voting Rights Act. In Pender County, the
Court addressed two issues: (1) whether the VRA required the creation of the district containing
42% BVAP; and (2) if not, whether dividing Pender County between two districts when it would
have been kept whole violated the WCP.
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After determining that the VRA did not require the creation of House District 18, the
Court addressed the WCP question. It held:
As we noted at the beginning of this opinion, the formation of legislative districts
must comport with the requirements of our State Constitution, unless federal law
supersedes those provisions. Accordingly, because current House District 18 is
not required by Section 2, it must comply with the redistricting principles
enunciated by this Court in Stephenson I. The WCP forbids the division of a
county in the formation of a legislative district, N.C. Const. art. II, §§ 3(3), 5(3),
except to the extent the WCP conflicts with the VRA and “one-person, one-vote:
principles, Stephenson I, 355 N.C. at 381, 562 S.E.2d at 396. The importance of
counties in the redistricting process was discussed at length in Stephenson I, id. at
364-68, 562 S.E.2d at 385-88, in which we noted the “long-standing tradition of
respecting county lines during the redistricting process in this State,” id. at 366,
562 S.E.2d at 386. The U.S. Supreme Court acknowledges the importance of
“traditional districting principles such as maintaining communities of interest and
traditional boundaries: in redistricting. Abrams v. Johnson, 521 U.S. 74, 92, 138
L. Ed. 2d 285, 303 (1997); see also Stephenson I, 355 N.C. at 381, 562 S.E.2d at
396 (“[O]peration of federal law does not preclude states from recognizing
traditional political subdivisions when drawing their legislative districts.”). Thus,
the General Assembly must comply with the WCP to the “maximum extent
possible,” consistent with federal law. Stephenson I, 355 N.C. at 374, 562 S.E.2d
at 391.
Pender County, at 507, 649 S.E.2d at374-75 (emphasis added and certain internal citations
omitted).
But for the General Assembly’s perceived need to create House District 18 to comply
with the VRA, Pender County could have been kept whole and a district meeting one-person,
one-vote principles drawn by adding to Pender County a portion of the population of neighboring
New Hanover County. The failure to draw House District 11 in this manner violated the
Stephenson request that the boundary of a county located in a cluster of counties may not be
crossed for any reason except to meet one-person, one-vote requirements. Pender County, 649
S.E.2d at 509, 649 S.E.2d at 376 (“Therefore, to comply with the fifth Stephenson I requirement,
a voting district that includes Pender County must add population across a county line, but ‘only
114
to the extent necessary to comply with the at or within plus or minus five percent 'one-person,
one-vote' standard.”).
The cure for the defective House District 18 was not to regroup Pender County. It was
either to keep Pender County whole and form a complete district by adding the necessary
population from New Hanover or to draw a district encompassing a minority population in
excess of 50% assuming that was feasible and required by the VRA. The General Assembly
chose the former cure and kept Pender whole.
C.
VIOLATIONS OF THE WHOLE COUNTY PROVISIONS IN LDD4 AND
RUCHO SENATE 2
1.
There Is No VRA Or One-Person, One-Vote Justification For
Splitting Beaufort County And Lee County In LDD4
Under Stephenson, a county must be kept whole unless constitutional one-person, onevote principles or the compliance with the federal Voting Rights Act requires the county to be
divided. Defendants have in effect conceded that there is no plausible one-person, one-vote or
VRA justification for dividing Beaufort and Lee Counties in LDD4.
a.
Beaufort County
Beaufort County was not divided in the 1992, 2002, 2003 or 2009 enacted House plans or
in Judge Jenkins 2002 Interim Plan, and would not have been divided by House Fair and Legal.
See 1992 House Base Plan 5 Map, 2002 Proposed House Plan – Sutton 5 Map, 2003 House
Redistricting Plan Map, 2009 HB 1621 Map, 2002 Jenkins Interim House Redistricting Plan
Map and House Fair and Legal Map.
LDD1 and LDD2 as drawn by Mr. Hofeller and presented by Representative Lewis
likewise would have kept Beaufort whole. See LDD1 Map and LDD2 Map. Beaufort was first
divided in LDD3 and that division was carried forward in the enacted plan, LDD4. See LDD3
Map. There is no valid VRA or one-person, one-vote ground for dividing Beaufort County. At
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his deposition, Representative Lewis testified that he directed that Beaufort be split for political
reasons.
Q.
There’s another change, Representative Lewis, that Beaufort county is
divided in Lewis-Dollar-Dockham 3 but not divided in Lewis-DollarDockham 2?
A.
Yes, sir. This was—This was a change that was made at the request of
one of our members, Representative Sanderson. Sometimes when you’re
in the political world and you’ve got to get enough votes to pass a plan,
sometimes you have to make some hard calls. Representative Cook was
opposed to this call, but ultimately it was—it was my choice to make.
Q.
So Beaufort county which was not earlier divided was then divided?
A.
That’s correct, sir.
Lewis Dep. Tr. p. 145.
b.
Lee County
Lee County was not divided in the 1992, 2001, 2002, 2003 or 2009 enacted House plans
and would not have been divided in House Fair and Legal. See 1992 House Base Plan 5 Map;
2001 Sutton House Plan 3 Map; 2002 Proposed House Plan – Sutton 5 Map; 2003 House
Redistricting Plan Map; 2009 HB 1621 Map; and House Fair and Legal Map.
In LDD4, Lee is joined with Chatham and Harnett to form a three-county cluster in which
Chatham County is kept whole but both Lee and Harnett are divided. Representative Lewis
agreed that this district is not a VRA district. Lewis Dep. Tr. p. 157. Comparing House Fair and
Legal to LDD4 plainly demonstrates that there is no one-person, one-vote justification for
splitting Lee County. House Fair and Legal, like LDD4, joins Lee with Chatham and Harnett to
form a three county cluster. Unlike LDD4, however, House Fair and Legal keeps both Lee and
Chatham whole, dividing only Harnett. Compare House Fair and Legal Map with LDD4 Map.
116
2.
There Is No VRA Or One-Person, One Vote Basis For Splitting An
Extra County In The Piedmont In Rucho Senate 2
Senate Rucho 2 divides three counties in the Piedmont in areas where the federal Voting
Rights Act does not require the drawing of a majority-minority district: Iredell, Rowan and
Randolph. Senate Fair and Legal by contrast would have divided only two counties in the
Piedmont: Catawba and Davidson. Of these 5 divided counties (Iredell, Rowan, Randolph,
Catawba and Davidson), only Catawba was divided in the enacted 2002 Senate plan, only Rowan
and Catawba were divided in Judge Jenkins 2002 Interim Plan and only Iredell was divided in
the enacted 2003 and 2009 Senate plans, thus plainly illustrating that one-person, one-vote
principles do not require dividing those counties in the Piedmont.
3.
Defendants Have The Burden Of Proving That A Section 2 Violation
Would Have Occurred In Each District Constructed Using Parts Of
One Or More Counties And Drawn For The Purpose Of Preempting
A Section 2 Lawsuit
The Court in Pender County established the burden of proof the Defendant must bear in
defending the formation of House and Senate districts from parts of counties in order to preempt
Section 2 lawsuits. It held:
Here, defendants drew House District 18 as a preemptive measure against the
possibility that a lawsuit might be filed challenging the absence of a Section 2
district in southeastern North Carolina. Plaintiffs claim that the current
configuration of House District 18 was not required by Section 2 and that the
District violates the WCP, thus placing defendants in the unusual position of
having to defend a legislative district by proving that a Section 2 violation would
have occurred if current House District 18 had not been created. Accordingly,
defendants here must bear the burden, normally borne by plaintiffs, of
establishing the Gingles preconditions. If they succeed, defendants can
demonstrate that the drawing of House District 18 was required by Section 2,
obviating the need to comply with the WCP.
Pender County, at 496, 649 S.E.2d at 496. Defendants cannot sustain that burden for either
LDD4 or Rucho Senate 2.
117
4.
There Is No Valid VRA Basis For Splitting Pasquotank, Richmond,
Greene, Bladen Or Duplin Counties In LDD4
Pasquotank, Richmond, Greene, Bladen, and Duplin counties are all divided in LDD4
ostensibly for the purpose of preempting any liability under the federal Voting Rights Act. The
following analysis of these counties, and the districts within which Representative Lewis and Mr.
Hofeller placed these pieces of counties, is based entirely on Defendants’ own documents and
data. It demonstrates that these counties were not divided by Representative Lewis and Mr.
Hofeller to comply with the Voting Rights Act but in furtherance of their goal of proportionality.
As established in this memorandum, proportionality is not required by the Voting Rights Act and
under Stephenson and Pender County, a county may be divided only to the extent required by the
Voting Rights Act. As the Supreme Court explained in Stephenson II:
In Stephenson I, this Court harmonized the provisions of Article I, Sections 2, 3
and 5, and the WCP of Article II, Sections 3(3) and 5(3) of the State Constitution
and mandated that in creating legislative districts, counties shall not be divided
except to the extent necessary to comply with federal law, including the “oneperson, one-vote” principle and the VRA. Stephenson I, 355 N.C. at 363-64, 562
S.E.2d at 384-85. Consistent with this premise and as the underlying redistricting
standard set forth in Stephenson I, this Court stipulated: “Finally, we direct that
any new redistricting plans, including any proposed on remand in this case, shall
depart from strict compliance with the legal requirements set forth herein only to
the extent necessary to comply with federal law.” Id. at 384, 562 S.E.2d at 397.
Stephenson II at 309, 582 S.E.2d at 251-52.
a.
Pasquotank County
Pasquotank has historically been kept whole and not used to construct a VRA district. It
was not divided in the House plans enacted in 1991, 2001, 2002, 2003 or 2009 or in Judge
Jenkins 2002 Interim Plan. See 1992 House Base Plan 5 Map, 2001 Sutton House Plan 3 Map,
2002 Proposed House Plan – Sutton 5 Map, 2003 House Redistricting Plan Map, 2009 HB 1621
Map, and 2002 Jenkins Interim House Redistricting Plan Map. The BVAP in the districts in
which Pasquotank was included in those plans in those years did not exceed 28%.
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See
Combined House Voting Age Population Tables for 1992, 2001, 2002, 2003, 2009, and 2002
Interim Plans. Pasquotank also would not have been divided in House Fair and Legal. See
House Fair and Legal Map. Under that plan, Pasquotank would have been joined with Camden,
Currituck and Tyrell—which would also have been kept whole—to form a district around the
rim of the Albemarle Sound. The BVAP in that district would have been 25.35%. See House
Fair and Legal District 1 Statistics.
In LDD4 Representative Lewis and Mr. Hofeller joined part of Pasquotank with Bertie,
Hertford and Gates to form House District 5 with a BVAP of 53.54% and joined the remainder
of Pasquotank with Currituck, Camden, Perquimans and Chowan to form House District 1 with a
BVAP of 18.62%. See LDD4 District 5 Statistics and LDD4 District 1 Statistics. Representative
Lewis testified that Pasquotank was divided “to get a sufficient number of populations to create
one of our VRA seats.” Lewis Dep. p. 156. By dividing out the African American population in
Elizabeth City from the rest of Pasquotank and adding those citizens to neighboring districts,
Representative Lewis and Mr. Hofeller were able to increase the number of VRA districts in
northeastern N.C and better achieve their goal of proportionality. House districts 7, 23, 24, and
27 are all located in the northeastern part of the State in LDD4 and have BVAPs of 50.02%,
51.43%, 56.61%, and 53.25%, respectively. See LDD4 District 7 Statistics, LDD4 District 23
Statistics, LDD4 District 24 Statistics, and LDD4 District 27 Statistics.
b.
Richmond County
Like Pasquotank, Richmond County has historically been kept whole and not used to
construct a VRA district. It was not divided in the House plans enacted in 1992, 2001, 2002,
2003 or 2009 or in Judge Jenkins 2002 Interim plan. See 1992 House Base Plan 5 Map, 2001
Sutton House Plan 3 Map, 2002 Proposed House Plan – Sutton 5 Map, 2003 House Redistricting
Plan Map, 2009 HB 1621 Map, and 2002 Jenkins Interim House Redistricting Plan Map. The
119
BVAP in the districts in which Richmond was included during these years did not exceed 28%.
See Combined House Voting Age Population Tables for 1992, 2001, 2002, 2003, 2009, and 2002
Interim Plans. Richmond would also have been kept whole in House Fair and Legal, and would
have been joined with parts of Scotland and Moore to form a district in which the BVAP was
26.37%. See House Fair and Legal Map and House Fair and Legal District 51 Statistics.
In LDD4, Richmond is part of the 20 county cluster that stretches from Dare County to
Montgomery County. See LDD4 Map. It is divided in jigsaw puzzle fashion between HD 48
which also includes parts of Scotland, Hoke and Robeson Counties and HD 66 which also
divides the citizens of Richmond County and neighboring Scotland equally between Districts 48
and 66. It assigns 19,048 Richmond County citizens to District 48 and the remaining 27,591
Richmond citizens to District 66, and it assigns 13,455 Scotland citizens to District 48 and the
remaining 22,703 Scotland citizens to District 66. Had 19,408 Richmond citizens been swapped
with 19,408 Scotland citizens, Richmond County could have been kept whole. Representative
Lewis, however, never asked Mr. Hofeller to investigate whether Richmond could be kept
whole. Lewis Dep. p. 159.
c.
Greene County
Greene County was not divided in the 2003 or 2009 enacted House plans. See 2003
House Redistricting Plan Map and 2009 HB 1621 Map. It also would have been kept whole in
House Fair and Legal and joined with parts of Lenoir and Craven to form House District 12 as a
VRA district in which the BVAP was 45.88% . See House Fair and Legal Map and House Fair
and Legal District 12 Statistics.
In LDD4 Greene is part of the 20 county cluster running from Dare to Montgomery. See
LDD4 Map. It is divided between HD 12 which also includes parts of Lenoir and Craven
counties and HD 10 which also includes parts of Wayne, Greene, Lenoir and Craven counties.
120
In LDD4 only 6,297 Greene County citizens are assigned to District 10. Had those 6,297 Greene
County citizens been swapped with 6,297 citizens of Wayne County—which has a population of
122,623—or Lenoir County—which has a population of 59,495—Greene County could have
been kept whole.
d.
Bladen County
Bladen County has historically been kept whole and not used to construct a VRA district.
It was kept whole in the House plans enacted in 1992, 2001, 2002, 2003, 2009 and in Judge
Jenkins 2002 Interim Plan. See 1992 House Base Plan 5 Map, 2001 Sutton House Plan 3 Map,
2002 Proposed House Plan – Sutton 5 Map, 2003 House Redistricting Plan Map, 2009 HB 1621
Map, and 2002 Jenkins Interim House Redistricting Plan Map. The BVAP in the districts in
which Bladen was included during these years did not exceed 28%. Bladen also would have
been kept whole by House Fair and Legal and joined with parts of Robeson and Cumberland to
form House District 50 in which the BVAP would have been 29.05%. See House Fair and Legal
Map and House Fair and Legal District 50 Statistics.
In LDD4, Bladen is part of House District 22 which also includes part of Sampson and
Johnston Counties and HD 46 which includes all of Columbus County and part of Robeson
County. See LDD4 Map. Only 5,724 Bladen citizens are assigned to District 46 by LDD4. Had
these 5,724 Bladen citizens simply been swapped for 5,724 citizens from either Robeson—which
has a population of 101,469—or Sampson—which has a population of 50,495—Bladen County
could have been kept whole.
e.
Duplin County
Duplin County was not divided in the 2003 or 2009 enacted House plans. See 2003
House Redistricting Plan Map and 2009 HB 1621 Map. It also would have been kept whole by
House Fair and Legal and joined with part of Pender to form House District 15 in which the
121
BVAP is 27.33%. See House Fair and Legal Map and House Fair and Legal District 15
Statistics.
In LDD4 Duplin is part of the 20 county cluster running more than halfway across the
state. See LDD4 Map. It is divided between House District 4 which also includes part of Wayne
and House District 21 which also includes part of Sampson and part of Wayne. The part of the
population of Duplin assigned to District 21 in LDD4 is 21,145. The population of Wayne
County is 122,623. Simply by switching the 21,145 Duplin citizens with 21,145 of the 122,623
citizens in Wayne County, Duplin County could have been kept whole.
5.
There Is No Valid VRA Basis For Splitting Wilson Or Lenoir
Counties In Rucho Senate 2
One means by which Senator Rucho and Mr. Hofeller achieved their goal of
proportionality in Senate Rucho 2 was through drawing an additional majority-minority district
in the northeast so that that area of the State would include for the first time three districts with
an African-American population greater than 50%. Hofeller Dep. Tr. Vol. I, p.128. Wilson and
Lenoir counties were both divided in pursuit of that goal.
The following analysis of these counties, and the districts within which Senator Rucho
and Mr. Hofeller placed these pieces of counties, is based entirely on Defendants’ own
documents and data. It demonstrates that these counties were not divided by Senator Rucho and
Mr. Hofeller in furtherance of their goal of proportionality. Proportionality is not required by the
Voting Rights Act and under Stephenson a county may be divided only to the extent required by
the Voting Rights Act.
a.
Wilson County
Wilson County was kept whole in the 2002 and 2003 enacted Senate plans and in Judge
Jenkins 2002 Interim Senate plan. See 2002 Proposed Senate Plan – Fewer Divided Counties
122
Map, 2003 Senate Redistricting Plan Map, and 2002 Jenkins Interim Senate Redistricting Plan
Map. The districts within which Wilson was included in these plans during these years had a
BVAP that did not exceed 34%. See Combined Senate Voting Age Population Tables for 2002,
2003, and 2002 Interim Plans. Wilson would also have been kept whole in Senate Fair and
Legal and joined with three other whole counties (Edgecombe, Martin and Bertie) to form Senate
District 3 which would have had a BVAP of 46.53%. See Senate Fair and Legal Map and Senate
Fair and Legal District 3 Statistics.
Wilson County is included in District 4 in Rucho Senate 2. See Rucho Senate 2 Map.
Senate District 4 is a VRA district created by Senator Rucho and Mr. Hofeller by joining
together all of Vance, Warren and Halifax counties with an appendage extending southward from
Halifax County through part of Nash County and then into part of Wilson County. In effect,
Rucho Senate 2 uses the northern and eastern parts of Nash County as a path to get into part of
Wilson County. District 11 adjoins District 4 and includes the parts of Wilson County not
included in District 4 as well as part of Johnston County. There are 190,991 citizens assigned to
District 4, of whom 29,190 live in Wilson County. The population of the part of Nash County
assigned to District 11 is 55,124. Simply by switching the 29,190 Wilson County citizens
assigned to District 4 for 29,190 of the 55,124 Nash County citizens assigned to District 11,
Wilson County could have been kept whole.
b.
Lenoir County
Lenoir County was kept whole in the 2002 and 2003 enacted Senate plans and in Judge
Jenkins’ 2002 Interim Senate plan. See 2002 Proposed Senate Plan – Fewer Divided Counties
Map, 2003 Senate Redistricting Plan Map, and 2002 Jenkins Interim Senate Redistricting Plan
Map. The districts within which Lenoir was included in these plans in these years did not have a
BVAP that exceeded 39%. See Combined Senate Voting Age Population Tables for 2002, 2003,
123
and 2002 Interim Plans. Lenoir would also have been kept whole in Senate Fair and Legal and
joined with Wayne County, which was also kept whole, to form Senate District 12 in which the
BVAP was 33.41%. See Senate Fair and Legal Map and Senate Fair and Legal District 12
Statistics.
Lenoir is included in District 5 in Rucho Senate 2. See Rucho Senate 2 Map. District 5
is a VRA district created by Senator Rucho and Mr. Hofeller by joining all of Green County with
parts of Wayne, Lenoir and Pitt. In effect, District 5 was created by extending appendages from
the core of the district into Lenoir and Wayne counties. There are 181,547 citizens assigned to
District 5 of whom 28,640 live in Lenoir County. District 7 adjoins District 5 and includes the
parts of Wayne, Lenoir and Pitt counties not included in District 5. The part of the population of
Wayne County assigned to District 7 is 76,371. Simply by substituting the 28,640 Lenoir
County citizens assigned to District 5 for 28,640 of the 76,371 Wayne County citizens assigned
to District 5, Lenoir County would have been kept whole.
VII.
PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR
CLAIMS THAT LDD4 AND RUCHO SENATE 2 VIOLATE THE
COMPACTNESS REQUIREMENT ESTABLISHED IN THE STEPHENSON
DECISION
A.
Undisputed, Material Facts Relating To The Compactness Requirement.
151.
Senator Rucho and Representative Lewis understood that the North Carolina
Constitution prohibited the General Assembly from drawing non-compact districts, but they did
not give Mr. Hofeller any instructions as to how to achieve compactness or about how to
measure compactness. Lewis Dep. Tr. pp. 62, 92; Hofeller Dep. Tr. Vol. I, p. 75; Vol. II, p. 282.
In Representative Lewis’s view, no such instructions were needed because “complying with the
county grouping requirement was really the only discernible measure of whether or not a district
was compact.” Lewis Dep. Tr. pp. 92-93. Senator Rucho’s views and actions were identical to
124
Representative Lewis’s views and actions. See Rucho Dep. Tr. pp. 53-54 (“We believed that by
following the Stephenson criteria . . . that would have constituted compact districts as the final
result.”)
152.
In drawing districts Mr. Hofeller considered compactness “to some degree.”
Hofeller Dep. Tr. Vol. I, pp. 72-73. To the extent Hofeller considered compactness at all, he
evaluated the compactness of specific districts “by sight,” based on “what has shown up before
in North Carolina in terms of districts.” Id. at 73; Hofeller Dep. Tr. Vol. II, p. 282, and not
through the numerous mathematical measures of compactness which he had used in drawing
plans in North Carolina and other states before. Hofeller Dep. Tr. Vol. II, p. 282. Mr. Hofeller’s
actions regarding compactness were not based on any specific instruction from Senator Rucho
and Representative Lewis but rather reflected his “judgment as to what they were concerned
with.” Hofeller Dep. Tr. Vol. I, p. 75.
153.
Mr. Oldham acknowledged that the county grouping requirement does nothing to
assure the compactness of districts located entirely within a single county. Oldham Dep. Tr.
p. 83.
154.
Mr. Hofeller similarly acknowledged that adherence to the county grouping
requirement, as he understood it, caused him to draw districts in some instances that were less
compact than he otherwise would have drawn. Hofeller Dep. Tr. Vol. II, pp. 321-322.
155.
Expert Anthony Fairfax analyzed the compactness of each of the districts being
challenged, as well as the compactness of districts in the prior plan and districts in the Fair and
Legal House, Senate and Congressional plans submitted during the redistricting process using
data available on the General Assembly’s Redistricting website. Fairfax Aff. ¶¶ 8-9. He found
the following:
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a.
All three 2011 enacted redistricting plans scored overall less compact than
prior redistricting plans and less compact than other redistricting plans
introduced during the 2011 redistricting process. (Fairfax Aff. Conclusion).
b.
Nine of the thirteen districts in the 2011 enacted congressional redistricting
plan are less compact than the districts in the prior plan and eleven of the
thirteen districts in the enacted plan were less compact than the Congressional
Fair and Legal plan introduced during the redistricting process. Fairfax Aff.
¶ 18.
c.
41 of the 50 districts in the enacted Senate Plan are less compact than the
previous plan. Fairfax Aff. ¶ 24. Compared to the Senate Fair and Legal
Plan, 25 out of the 50 enacted districts were less compact. Id.
d.
91 of the 120 districts in the enacted House Plan were less compact than the
previous plan. Fairfax Aff. ¶ 30. Compared to the House Fair and Legal Plan,
78 out of the 120 districts were less compact.
156.
Senator Rucho and Representative Lewis’s expert, Mr. Hofeller, agrees that
mathematical standards of compactness can be a meaningful tool for measuring compactness. In
what he previously referred to as his “seminal study of measures of compactness,” Mr. Hofeller
argued that “quantitative scores should be used to make comparisons. The fact that compactness
is a relative measure does not render it meaningless.” Hofeller Dep. Ex. 517, p.1176. His study
went on to conclude that when “multiple measures coalescence in support of a single plan, the
evidence in its favor is very strong.” Id. at 1177. In his Mississippi affidavit, Mr. Hofeller
measured districts using the Reock measure used by Plaintiffs’ expert, Anthony Fairfax.
Hofeller Dep. Ex. 429, p. 3.
126
157.
Despite Mr. Hofeller’s endorsement of the validity of mathematical compactness
measures, he admitted that he did not use Maptitude to “output any of the compactness score.”
Hofeller Dep. Tr. Vol. II, p. 276, lines 6-16. Rather, “all that there was the shape of the districts
and you looked at them.” Id., lines 15-16. Even this visual eyeball test was seldom employed
when Mr. Hofeller drew individual “VRA” districts, as evidenced during his deposition:
Q:
In drawing your districts, to the extent you considered compactness, did
you apply a different compactness standard in drawing a district—a VRA
district than in drawing other districts?
MR. FARR: Objection to form.
THE WITNESS: You know, I don't really think we applied—
BY MR. SPEAS:
Q.
Any standard?
A.
Compactness standards.
Hofeller Dep. Tr. Vol. II, pp. 282-83.
B.
The Compactness Requirement Under Stephenson
The failure to apply compactness standards flies in the face of the analysis of
compactness that was central to the North Carolina Supreme Court’s evaluation of the
constitutionality of districts in Stephenson. In Stephenson I, the North Carolina Supreme Court
held that the state Constitution requires that “[s]uch non-VRA districts shall be compact.”
Stephenson I, 355 N.C. at 383, 562 S.E.2d at 397.
Further, the constitution requires that
“communities of interest should be considered in the formation of compact and contiguous
districts.” Id., 355 N.C. at 384, 562 S.E.2d 397. In addition to the language of Stephenson I,
Stephenson II explicitly numbered the “requirements of the WCP”, of which compact and
contiguous districts are the seventh requirement. Id. at 306, 582 S.E.2d 250. The Supreme Court
in Stephenson II relied on compactness as an equal protection principle in order to provide a
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safeguard against districts drawn as partisan or racial gerrymanders in violation of state equal
protection principles.
The United States Supreme Court has repeatedly affirmed the use of compactness as a
legitimate redistricting requirement. In Miller v. Johnson, 515 U.S. 900, 916, the Court listed
compactness as one of the “traditional-race-neutral districting principles.” See also Vera, 517
U.S. at 962 (the “State substantially neglected traditional districting criteria such as
compactness”); Shaw v. Reno, 509 U.S. at 647 (citing “traditional districting principles such as
compactness, contiguity, and respect for political subdivisions”).
North Carolina is one of many states that require districts to be compact in order to be
constitutional. In a 2012 decision, the Supreme Court of Florida found that the Senate plans
violated Florida’s state constitutional requirement for compactness. In its decision, the Court
rejected the plan proponents’ argument that compactness is an unworkable standard. In re
Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d 597, 631-632 (Fla. 2012).
Instead, the court cited that compactness as standard for redistricting has been incorporated into
at least twenty state constitutions and six state statutes. Id. at 561.6 Further, the court cited
Stephenson I for the proposition that it is the court’s responsibility to interpret how the
constitutional requirements, like compactness, should be applied. Id. at 631-32. The court found
6
The Florida Supreme Court observed the following: States that constitutionally require compactness during
reapportionment include Alaska, California, Colorado, Hawaii, Illinois, Maine, Maryland, Missouri, Montana,
Nebraska, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, South Dakota, Vermont, Washington, West
Virginia, and Wisconsin. See Alaska Const. art VI, § 6; Ariz. Const. art. IV, pt. 2, § 1(14); Cal. Const. art. XXI,
§§ 2(d), (e)); Colo. Const. art. V, § 47; Haw. Const. art. IV, § 6(4); Ill. Const. art. IV, § 3(a); Me. Const. art. IV, pt.
1, § 2; Md. Const. art. III, § 4; Mo. Const. art. III, § 2; Mont. Const. art. V, § 14(1); Neb. Const. art. III, § 5; N.J.
Const. art. IV, § 2; N.Y. Const. art. III, § 4; Ohio Const. art. XI, § 9; Pa. Const. art. II, § 16; R.I. Const. art. VII, § 1;
art. VIII, § 1; S.D. Const. art. III, § 5; Vt. Const. ch. II, §§ 13, 18; Va. Const. art. II, § 6; Wash. Const. art. II,
§ 43(5); W.V. Const. art. VI, § 4; Wis. Const. art. IV, § 4. Thirty-one states that codify a compactness requirement
by statute include Idaho, Michigan, Minnesota, Mississippi, New Mexico, and North Dakota. See Idaho Code Ann.
§ 72-1506; Iowa Code § 42.4(4); Mich. Comp. Laws § 4.261; Minn. Stat. § 2.91(2); Miss. Code Ann. § 5-3-101);
N.M. Stat. §§ 2-8D-2, 2-7C-3; N.D. Cent. Code Ann. § 54-03-01.5. The District of Columbia also statutorily
requires compactness in redistricting. See D.C. Code § 1-1011.01.
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that compactness could be evaluated both visually and through standard mathematical
measurements.
Id. at 636.
The Court criticized the Florida Senate plan’s “‘finger-like
extensions,’ ‘narrowly and bizarrely-shaped tentacles,’ and ‘hook-like shapes’ which are
constitutionally suspect and often indicative of racial and partisan gerrymandering.” Id. at 638.
Compactness and other state constitutional requirements must be harmonized with the
requirements of federal law.
Stephenson I, 355 N.C. at 384, 562 S.E.2d at 397.
Thus,
compliance with the Voting Rights Act can only supersede state constitutional requirements to
the extent mandated by federal law. In a 2012 decision, the Alaska Supreme Court rejected the
proposed Congressional plan because it violated state constitutional redistricting principles. In
re 2011 Redistricting Cases, 274 P.3d 466 (Ala. 2012). The Court found:
We cautioned that while compliance with the Voting Rights Act takes precedence
over compliance with the Alaska Constitution, “[t]he Voting Rights Act need not
be elevated in stature so that the requirements of the Alaska Constitution are
unnecessarily compromised.” We then described the process the Board must
follow to ensure that our constitutional redistricting principles are adhered to as
closely as possible. After receiving the decennial census data, “[t]he Board must
first design a reapportionment plan based on the requirements of the Alaska
Constitution.” That plan then must be tested against the Voting Rights Act. A
reapportionment plan may minimize article VI, section 6 requirements when
minimization is the only means available to satisfy Voting Rights Act
requirements.
Id. at 467.
The facts before the Court now are analogous to the cases in Florida and Alaska. Senator
Rucho and Representative Lewis claim that the Voting Rights Act compelled the General
Assembly to transform once compact districts into districts with fingers, hooks, and all the
traditional indicia of a gerrymander. Plaintiffs have shown that more compact alternatives that
complied with the Voting Rights Act were presented to the General Assembly. As shown in
Florida, the existence of more compact, compliant alternatives shows that the General
Assembly’s plan
was not compact: “an alternative plan that achieves all of Florida's
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constitutional criteria without subordinating one standard to another demonstrates that it was not
necessary for the Legislature to subordinate a standard in its plan. In re Senate JR 1176, 83 So.
3d at 641.
As in Florida and Alaska, here the General Assembly has enacted a plan that subverts
state constitutional redistricting principles without justification. By accepting plans less compact
than other, constitutional alternatives, the General Assembly failed to comply with Stephenson
I’s directive that “any new redistricting plans…shall depart from strict compliance with the legal
requirements set forth herein only to the extent necessary to comply with federal law.
Stephenson I, 355 N.C. at 384, 562 S.E.2d at 397.
C.
Numerous Districts In Senator Rucho And Representative Lewis’s Senate,
House, And Congressional Plans Violate The Requirement Of Compactness
In the House, Senate, and Congressional plans, numerous districts are blatantly
noncompact, both by visual standards and mathematical measures. According to Defendants’
expert, Thomas Hofeller, the most important standard for analyzing the issue of compactness is
essentially an “interocular test,” see Hofeller Dep., Ex. 515, meaning that the Court should
visually compare the compactness of the enacted plans with other proposed plans, to determine if
the legislative districts could have been drawn in a more compact shape.7
Below, Plaintiffs have set forth the maps struck down in Stephenson II, and compared
those maps to the Defendants’ maps in this case. The Court will easily see that the districts
drawn by the Defendants are just as non-compact than the legislative districts previously struck
down by the Supreme Court.
7
As Mr. Hofeller further noted, “It is extremely unlikely that a Court will ever judicially adopt its own mathematical
measure of compactness,” and an “interocular” test is therefore the most useful. (Hofeller Dep., Exhibit 515). In
further support of this proposition, Mr. Hofeller cited Shaw, in which the Supreme Court stated: “One need not use
Justice Stewart's classic definition of obscenity—‘I know it when I see it’—as an ultimate standard for judging the
constitutionality of a gerrymander to recognize that dramatically irregular shapes may have sufficient probative
force to call for an explanation.” Shaw v. Reno, 509 U.S. at 647.
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1.
Non-Compact Senate Districts
The North Carolina Supreme Court held in Stephenson II that at least eight (8) Senate
Districts in the 2002 redistricting plan were not compact, namely Senate Districts 6, 10, 11, 14,
21, 26, 36, and 44.8 In reaching that conclusion, the Supreme Court focused on three illustrative
examples, which are discussed below.
First, the Supreme Court affirmed the trial court’s finding that Senate Districts 10 and 11
were non-compact. A copy of the map depicting the 2002 version of Senate Districts 10 and 11
is shown below:
With respect to Senate District 11, the Supreme Court stated:
District 11 is not compact. Its eastern boundary has been drawn in such a manner
that it runs southward, then swings to the northwest, then curves around a portion
of Nash County to District 10, before continuing to the south and cutting through
8
The trial court and the Supreme Court also referenced a ninth district, namely Senate District 16. That may have
been a typographical error, because that district consisted only of the whole counties of Orange County and Person
County, which were not otherwise referenced in the opinion.
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Johnston County and severing communities of interest in that area. This design
also results in there being a point, interior to District 11, where Johnston and
Franklin counties meet.
Stephenson II, 357 N.C. at 310, 582 S.E.2d at 252. The Supreme Court therefore held that
Senate Districts 10 and 11 in Johnston and Nash Counties “are not compact, particularly as
compared to the way in which they might have been drawn as demonstrated by plaintiffs'
proposed Senate Plan.”
Second, the Supreme Court affirmed the trial court’s finding that Senate Districts 21 and
26 were non-compact. A copy of the map depicting the 2002 version of Senate Districts 10 and
11 is shown below:
With respect to Senate Districts 21 and 26, the Supreme Court held:
Neither District 21 nor District 26 is compact. District 21 stretches from the
western boundary of Montgomery County then moves east across the boundary of
Moore County in a jagged line that moves first east, then north, then east again,
turns south, makes a right turn west, then again south, before moving north to
close the district where Moore meets Chatham and Randolph Counties. The
complementary effect of this district's boundary is that it results in adjacent
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District 26 having a southward arm and an appendage, thereby failing to be
compact.
Stephenson II, 357 N.C. at 310-11, 582 S.E.2d 252-53.
Third, the Supreme Court held that all of the Senate Districts in Wake County, and
specifically Senate District 14, were not compact. The Supreme Court held:
District 14 in Wake County is not compact. It is distinguished by 4 major
appendages. Beginning in the northern tip, it moves southeast with jutting points
that end in a downward facing cul-de-sac that embraces a portion of this plan's
District 36. The boundary of District 14 then meanders toward the northeast,
turns to the southeast and extends a curved “arm” that carves out a “bay” in the
side of District 6.”
Stephenson II, 357 N.C. at 310, 582 S.E.2d at 252. The Supreme Court therefore struck down
Senate District 14 and all of the remaining districts in Wake County (namely Senate Districts 6,
36, and 44), stating that such districts were “overall” not compact, “particularly as compared to
the way in which they might have been drawn as demonstrated by plaintiffs’ proposed Senate
Plan.” Stephenson II, 357 N.C. at 311, 582 S.E.2d 253.
Senate Districts 14 and 18
The problems of non-compactness identified by the Supreme Court with respect to Wake
County are nearly identical to the current version of Senate District 14 challenged in this
litigation. The maps below show that the current version of Senate District 14 is even less
compact than the 2002 version of Senate District 14 struck down by the Supreme Court:
133
1. Map Held Unconstitutional in
Stephenson II:
2. General Assembly’s Response to
Stephenson II:
3. Current Map (Rucho Senate 2, Enacted
2011):
4. Senate Fair and Legal (Not Enacted):
The current version of Senate District 14 is very similar to (but even less compact than)
the unconstitutional 2002 version. The perimeter or “shape” of the unconstitutional 2002 of
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Senate District 14 simply appears to have been moved to the east and rotated slightly, with a
much longer “arm” and “bay.” There is no significant difference between the oddly-shaped new
version of Senate District 14 and the 2002 version that was declared unconstitutional by the
North Carolina Supreme Court. One measure of the non-compact and irrational shape of District
14 is the length of its perimeter. Based on the State’s own calculations, the length of the
perimeter of District 14 is 133.62 miles, or approximately the distance from Raleigh to
Chesapeake, Virginia. Moreover, Senate District 14 creates a bizarrely-shaped hole in the
adjacent district, Senate District 18, making Senate District 18 significantly non-compact as well.
Several other Senate Districts challenged by the Plaintiffs exhibit even more severe
problems than the “illustrative examples” cited by the Supreme Court in Stephenson II with
respect to the issue of non-compactness. Those Senate Districts are discussed below.
Senate Districts 19 and 21
Districts 19 and 21 in Rucho Senate 2 are non-compact and irrationally shaped districts
drawn without regard for communities of interest. A copy of the Defendants’ map depicting
Senate Districts 19 and 21 is shown below.
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The length of each district’s perimeter exceeds 350 miles, or approximately the distance from
Fayetteville to Atlanta.
Senate Districts 20 and 22
Districts 20 and 22 in Rucho Senate 2 are non-compact and irrationally shaped districts
drawn without regard for communities of interest. A copy of the Defendants’ map depicting
Senate Districts 20 and 22 is shown below.
136
One measure of District 20’s non-compact and irrational shape is the length of its perimeter,
which is 235.52 miles, or approximately the distance from Durham to Washington, D.C.
Senate Districts 31 and 32
Districts 31 and 32 in Rucho Senate 2 are non-compact and irrationally shaped districts
drawn without regard for communities of interest. A copy of the Defendants’ map depicting
Senate Districts 31 and 32 is shown below.
137
One measure of District 32’s non-compact and irrational shape is the length of its perimeter,
which is 149.05 miles, or approximately the distance from Winston-Salem to Bristol, Virginia.
Senate District 41
District 41 in Rucho Senate 2 is a non-compact and irrationally shaped district drawn
without regard for communities of interest. It is located in part of Mecklenburg County. A true
and accurate copy of the Defendants’ map depicting Senate District 41 is shown below.
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One measure of District 41’s non-compact and irrational shape is the length of its perimeter,
which is 141.39 miles in length, or approximately the distance from Charlotte to Augusta,
Georgia.
2.
Non-Compact House Districts
The North Carolina Supreme Court held in Stephenson II that at least twenty-seven (27)
House Districts in the 2002 redistricting plan were not compact, namely House Districts 14, 18,
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34, 35, 36, 37, 38, 41, 51, 52, 57, 58, 59, 60, 61, 62, 63, 64, 70, 74, 75, 76, 77, 95, 96, 110, and
118.9 Stephenson II, 357 N.C. at 313, 582 S.E.2d at 254.
First, the Supreme Court affirmed the trial court’s finding that House District 14 was not
compact, stating: “The shape of District 14 contained a narrow ‘arm’ that protruded north, and
other protrusions to the south and south-southeast, leaving the district without compactness.”
Stephenson II, at 311, 582 S.E.2d at 253. A copy of a map depicting the 2002 version of that
House District is shown below:
Second, the Supreme Court affirmed the trial court’s finding that House District 33 was
not compact, stating: “The court’s examination of District 33 in Wake County also revealed that
its shape lacked compactness. Specifically, a narrow ‘arm’ extended to the north, northeast and a
pair of ‘arms’ meandered south and southeast in a horseshoe manner around a portion of District
9
With respect to House Districts 74 and 75, the Supreme Court referred to the entirety of Cabarrus County but did
not specify the numbers of those two districts. The Court also referenced the City of High Point, which is not
discussed in detail in this Memorandum.
140
34.” Stephenson II, at 311, 582 S.E.2d at 253. A copy of a map depicting the 2002 version of
those House Districts is shown below:
The Supreme Court also held that several other House districts in Wake County were noncompact, stating: “Districts 34, 35, 36, 37 and 38 are all non-VRA districts, but have irregular
shapes with ‘fingers’ sticking out into other districts. It is possible to establish two, rather than
just one VRA district in Wake County, and make the adjoining non-VRA districts more compact,
as demonstrated by the configuration of districts in Wake County in plaintiffs’ House Plan.”
Stephenson II, 357 N.C. at 313, 582 S.E.2d at 254.
The Supreme Court then proceeded to list numerous other House districts that were not
compact.
Maps of those non-compact House districts are set forth below, along with the
Supreme Court’s description of such districts:
141

“District 63 features an ‘arm’ that . . . cuts the county in an east-west
direction that almost bisects District 64.” Stephenson II, 357 N.C. at 312,
582 S.E.2d at 253.

“District 110 runs from the northwest but makes a sharp turn to the south,
resulting in an appendage pointing toward South Carolina.” Id.
142

“The common boundary between Districts 76 and 77 has a sharply
irregular shape.” Id.

“The general shape of District 70 has the look of a lobster claw.” Id.
143

“District 118 extends an ‘arm’ from the eastern edge of Haywood County
and meanders from the northeast to southeast in a manner that divides that
county.” Id. at 313, 582 S.E.2d 253.
Next, the Supreme Court affirmed the trial court’s finding that certain additional House
districts were “not compact and do not respect communities of interest.” Id. Those additional
districts are listed below.

“Districts 95 and 96, which both split the town of Mooresville in southern
Iredell, and Statesville in northern Iredell, could easily be drawn so that
the community of Statesville is intact in a northern district, and the
community of Mooresville is intact in a southern district.” Id.
144

“District 52 is shaped like a ‘C’ rather than being compact, and leaves out
the county seat, Carthage.” Id. In a different paragraph of the opinion,
the Court also stated that District 51 was non-compact, without further
discussion. Id.

“Cabarrus County is divided into two districts which lack compactness, on
a ragged line splitting the communities of Concord and Kannapolis within
the county.” Id.
145
Finally, in a separate paragraph of the opinion, the Supreme Court listed numerous
counties that were non-compact (most of which have been discussed above), but a few of which
the Court did not discuss in detail. Those are as follows:

House District 18. Stephenson II, 357 N.C. at 313, 582 S.E.2d at 254.

House District 41. Id.
146

And all of the House Districts in Guilford County, House Districts 57, 58,
59, 60, 61, and 62. Id.
In this case, several House Districts challenged by the Plaintiffs exhibit even more severe
problems than the districts discussed by the Supreme Court in Stephenson II, with respect to the
issue of non-compactness. Those House Districts are discussed below.
House Districts 7 and 25
House District 7 is a non-compact and irrationally shaped district drawn without regard
for communities of interest. The district stretches across the northern borders of Franklin and
Nash Counties, but it also makes a deep, meandering detour through Nash County. A copy of
the Defendants’ map depicting House Districts 7 and 25 is shown below.
147
One measure of the non-compact and irrational shape of District 7 is the length of its perimeter.
Based on Defendants’ calculations, the length of the perimeter of House District 7 is 366.43
miles, or approximately the distance from Rocky Mount to Clemson, South Carolina. As a result
of the convoluted boundaries of House District 7, House District 25 is equally irrational. Driving
along Highway 64 in Nash County will take you in and out of House District 25 five times.
House Districts 10 and 12
House Districts 10 and 12 in LDD4 are non-compact and irrationally shaped districts
drawn without regard for communities of interest. The districts stretch across Wayne, Greene,
Lenoir, and Craven Counties, and they defy any easy attempt to describe their shapes, other than
as “meandering blobs” or “splatter patterns.” A copy of the Defendants’ map depicting House
Districts 10 and 12 is shown below.
148
One measure of the non-compact and irrational shape of House Districts 10 and 12 is the length
of their respective perimeters. Based on calculations performed by Defendants, the length of the
perimeter of the House District 10 is 471.47 miles, or approximately the distance from New Bern
to Philadelphia, Pennsylvania. The length of the perimeter of House District 12 is 400.97 miles,
or approximately the distance from New Bern to Cullowhee.
House Districts 21 and 4
House District 21 in Lewis-Dollar-Dockham 4 is a non-compact and irrationally shaped
district drawn without regard for communities of interest. It stretches across Wayne, Sampson,
and Duplin Counties, and somewhat resembles a giraffe with scoliosis. A true and accurate copy
of the Defendants’ map depicting House District 21 is shown below.
149
One measure of the non-compact and irrational shape of District 21 is the length of its perimeter.
Based on Defendants’ calculations, the length of the perimeter of District 21 is 301.16 miles, or
approximately the distance from Goldsboro to Asheville. As a result of the irrational boundaries
of District 21, District 4 is a fishhook district, with a jagged line in Duplin County and various
nooks and crannies through Wayne County.
150
House Districts 48 and 66
House Districts 48 and 66 are non-compact, irrationally shaped districts drawn without
regard for communities of interest.
House District 66 (the green district below) has an
appearance not entirely dissimilar to the Great Lakes, whereas House District 48 meanders
across Richmond, Scotland, and Robeson Counties, with no immediately-apparent guiding
principle whatsoever. A copy of the Defendants’ map depicting House Districts 48 and 66 is
shown below.
One measure of the non-compact and irrational shape of House Districts 48 and 66 is the length
of their respective perimeters. Based on Defendants’ calculations, the length of the perimeter of
House District 48 is 407.84 miles, or approximately the distance from Lumberton to Charleston,
West Virginia.
The length of the perimeter of House District 66 is 428.08 miles, or
approximately the distance from Rockingham to Jacksonville, Florida.
151
3.
Non-Compact Congressional District
Congressional District 4 is a non-compact and irrationally shaped district beginning in the
northeast corner of Alamance County and extending eastward into part of Orange County. From
Orange County, one branch of the district continues eastward into a part of the southern part of
Durham County, and then continues further east, gobbling up a vaguely sea-horse shaped part of
central Wake County. The other branch of the district extends southward from Orange County
into Chatham County, exiting Chatham into Harnett County at a point contiguous only in some
abstract mathematical sense. From this point the district extends further south, dividing Harnett
County into two (2) parts, finally ending in the middle of Cumberland County. It is drawn
without regard for communities of interest.
A copy of the Defendants’ map depicting
Congressional District 4 is shown below.
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4.
Conclusion
There is no meaningful distinction between the bizarre, contorted shapes of the legislative
districts that the Supreme Court held to be non-compact in Stephenson II, compared to the shapes
of the legislative districts set forth above, namely: Senate Districts 14, 18, 19, 21, 20, 22, 31, 32,
and 41; House Districts 4, 7, 10, 12, 21, 25, 48, and 66; and Congressional District 4. The Court
should hold that the foregoing districts violate the principle of compactness mandated by
Stephenson I and Stephenson II and strike down such districts as unconstitutional.
CONCLUSION
In light of the voluminous undisputed facts related to racial gerrymandering, split
precincts, the Whole County Provision, and the compactness standards contained in the North
Carolina state constitution, the Dickson and NAACP Plaintiffs respectfully move this Court to
resolve the key questions of law and grant summary judgment on the matters presented in this
brief.
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