TABLE OF CONTENTS
INTRODUCTION ......................................................................................................................... 1
RESPONSE TO DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS .......................... 2
ARGUMENT ................................................................................................................................. 7
I.
DEFENDANTS MISCHARACTERIZE THE STANDARD OF REVIEW THIS
COURT MUST EMPLOY. ............................................................................................... 7
II.
DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFFS’ RACIAL GERRYMANDERING CLAIMS ............................................. 9
A.
Defendants’ Arguments Do Not Directly Address The Issues Raised By
The Complaints And Provide No Grounds For Awarding Summary
Judgment To Defendants. .................................................................................... 11
B.
The Test for Determining Whether Districts are Unconstitutional Racial
Gerrymanders is Not Convoluted or Complex, Contrary to Defendants’
Suggestion. ........................................................................................................... 13
C.
There Is No Room to Doubt that Race was the Predominant Factor that
Determined the Boundaries of the Challenged Districts...................................... 14
1.
In Addition to the Defendants’ Own Admissions, Other Factors
Also Demonstrate that Race Predominated in the Drawing of the
Challenged Districts. ................................................................................ 19
2.
Race Was the Predominant Factor Determining the Boundaries of
Congressional Districts 1, 4 and 12. ........................................................ 20
3.
Defendants’ Arguments that Incumbency Protection and Partisan
Advantage Predominated are Counter-Factual and do Not Negate
that Race was the Predominant Factor. .................................................... 27
D.
Upon Proof That Race Was The Predominant Factor That Determined The
Boundaries Of A District, The Defendants Bear The Burden Of Proof That
The District Was Narrowly Tailored To Comply With A Comopelling
Governmental Interest. ......................................................................................... 29
1.
Proportionality is Never a Compelling Reason Sufficient to Justify
Race as the Predominate Factor in Drawing Districts. ............................ 29
2.
Defendants Cannot Carry Their Burden to Demonstrate that they
had a Strong Basis for Determining the Section 2 of the Voting
Rights Act Required them to Draw the Challenged Districts. ................. 31
3.
Plaintiffs Had No Basis In Evidence For Assuming That The Third
Gingles Precondition, Legally Significant Racially Polarized
Voting, Was Present In Each Of The Challenged Districts. .................... 33
4.
The Challenged Districts Fail The Gingles Test Because They Are
Not Compact. ........................................................................................... 36
E.
Defendants Cannot Carry Their Burden to Demonstrate that they had a
Strong Basis for Determining that Section 5 of the Voting Rights Act
required them to Draw the Challenged Districts.................................................. 38
i
Defendants’ Assertion That Section 2 And Section 5 Impose The
Same Standards On The States Is Patently False, And Contradicts
Clear Voting Rights Act Precedent. ......................................................... 38
2.
Section 5 Does Not Require The Maximum Number Of Majority
Minority Districts. .................................................................................... 41
Defendants Cannot Carry Their Burden to Demonstrate that the
Challenged Districts are Narrowly Tailored to Achieve Compliance with
either Section 2 or Section 5. ............................................................................... 44
1.
F.
III.
DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFFS’ SPLIT PRECINCT CLAIMS .................................................................. 45
A.
Dividing an Excessive Number of Precincts Creates Two Distinct
Constitutional Violations ..................................................................................... 45
B.
Splitting Precincts Violates The Right Of Plaintiffs To Vote On Equal
Terms With Voters In Whole Precincts. .............................................................. 46
C.
The Intentional Splitting Of Precincts On The Basis Of Race Violates The
Equal Protection Clauses Of The State And Federal Constitutions. .................... 50
D.
Alternative Plans Show Requiring Plans Of Less Than 10% Voting Age
Population Residing In A Split Precinct Is A Viable, Judicially
Manageable Standard. .......................................................................................... 52
IV.
DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON THE
PLAINTIFFS’ WHOLE COUNTY PROVISION CLAIMS .......................................... 54
V.
DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFFS’ COMPACTNESS CLAIMS .................................................................... 57
CONCLUSION ............................................................................................................................ 61
CERTIFICATE OF SERVICE .................................................................................................... 63
ii
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
MARGARET DICKSON, et al.,
Plaintiffs,
)
)
)
)
)
)
)
v.
ROBERT RUCHO, et al.,
Defendants.
NORTH CAROLINA STATE
CONFERENCE OF BRANCHES OF
THE NAACP et al.,
Plaintiffs,
v.
THE STATE OF NORTH CAROLINA,
et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
11 CVS 16896
11 CVS 16940
(Consolidated)
PLAINTIFFS’ JOINT MEMORANDUM IN OPPOSITION TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
NOW COME Plaintiffs in these consolidated actions pursuant to Rule 56(c) of the North
Carolina Rules of Civil Procedure and the Court’s Third Case Management Order herein dated
October 25, 2012, as revised by the Court’s Order of December 27, 2012, and submit this
Response to the Defendants’ Motion for Summary Judgment.
INTRODUCTION
On October 5, 2012 Plaintiffs moved for partial summary judgment detailing the
undisputed material facts on which their motion was based on a district-by-district, county-bycounty basis. Two months later, on December 10, 2012, Defendants filed a counter motion for
summary judgment. Long on rhetoric and broad pronouncements, Defendants’ motion bypasses
any examination or analysis of the individual districts challenged by Plaintiffs. In this Response,
Plaintiffs will correct the legal and factual flaws in Defendants’ arguments and then apply the
proper legal standards to the undisputed facts to reiterate why the Court should enter summary
judgment for the Plaintiffs.
In their October 5, 2012 motion Plaintiffs requested partial summary judgment on their
four main claims that

certain districts in the House, Senate and Congressional
redistricting plans finally enacted by the North Carolina
General Assembly in November, 2011 are unconstitutional
racial gerrymanders;

the excessive and unjustified number of split precincts (or
VTD’s) in the enacted plans violates state and federal equal
protection guarantees;

the House and Senate Plans violate the state constitution’s
Whole County Provisions and

certain House, Senate and Congressional Districts are so noncompact they violate the state constitution’s equal protection
guarantees and whole county provisions as interpreted by the
North Carolina Supreme Court in the Stephenson cases.
Defendants have agreed that there are no disputed issues of material fact and instead
moved for summary judgment on all of Plaintiffs’ claims. Thus, the legal issues in dispute are
now ripe for this Court’s determination in light of the undisputed facts developed by the parties
in discovery. Where there is no genuine issue as to the facts, the presence of important or
difficult questions of law is no barrier to the granting of summary judgment. Kessing v. Nat’l
Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971).
RESPONSE TO DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS
Defendants’ Motion for Summary Judgment includes a narrative “Statement of
Undisputed Facts” with various unreferenced facts relating to the legislative history of the
redistricting plans. Defendants’ Dec. 10, 2012 Memorandum of Law in Support of Their Motion
for Summary Judgment (hereinafter “Defs’ SJ Mem”) at 6-11. Plaintiffs do not dispute that the
2
redistricting chairs wrote letters to various parties “asking for advice on redistricting matters,”
Defs’ SJ Mem. at 7, and do not dispute that public hearings were held. Id. at 8. The fact that this
advice was sought and these hearings held, however, is not material to the resolution of the
constitutional issues raised in these cases. As demonstrated in Plaintiffs’ October 5 Summary
Judgment Motion at pp. 8-19, the districts challenged here were drawn independently of, and
without regard for, the advice of the public and African-American legislators.
Indeed, as
Defendants have admitted every African-American legislator voted against the plans enacted by
the Defendants. Defendants’ Answer to NAACP Complaint ¶; Defendants’ Answer to Dickson
Complaint ¶¶ 99, 103.
Other facts referenced in the Defendants’ Statement of Undisputed Facts also are not
material to the issues this Court must decide. In particular, the draft redistricting maps drawn by
members of the public who participated in the Alliance for Fair Redistricting and Minority
Voting Rights (“AFRAM”) have no relevance to the constitutional issues in this case.
Defendants’ fail in their Statement to acknowledge that this written submission included an
explanation of the amateur process through which the maps were developed and contained the
explicit and important caveat that AFRAM itself was not urging adoption of the plans or the
districts in the plans:
We held redistricting workshops where we invited members of the
public to come in and work directly with our demographer to
examine redistricting plan options for the State Senate and State
House districts. We then posted the draft maps on a website and
invited further public comment.
What I am submitting today are the district plans that resulted from
that process. To be clear, AFRAM is not advocating for the
adoption of these plans at this time. There may be better
configurations, additional input and further refinements to these
plans before AFRAM formally endorses a particular plan.
3
Written Comment of Anita Earls, Redistricting Public Hearing June 23, 2011 (copy attached as
Exhibit 1).
Significantly, the Defendants also fail to include in their Statement the important fact that
in June of 2011, well before the final plans were enacted, the Defendants were specifically and
unambiguously informed in written testimony that the VRA districts they were planning to adopt
were premised on a fundamental misunderstanding of constitutional and civil rights law. Here is
what Defendants were told:
Again, on behalf of AFRAM, we have the following comment on the Voting
Rights Act districts that the committee has made public.
It is impossible to analyze fully the impact of these districts on minority voters in
North Carolina in isolation. We cannot assess the impact of a partial plan. We
need to know the composition of all of the districts in the plan in order to
understand the implications of the interests of minority voters.
With that caveat, however, it does appear that these districts go beyond what the
Voting Rights Act requires both in terms of the number of majority-minority
districts and in terms of the Black population percentages in the Voting Rights
Act districts. These districts appear to be premised on at least three fundamental
legal errors.
First, the Committee states their central goal is to achieve proportional
representation for Black voters. However, Section 2 of the Voting Rights Act
explicitly states that it is not a guarantee of proportional representation. The Act
states: “nothing in this section establishes a right to have members of a protected
class elected in numbers equal to their proportion in the population.” 42 U.S.C. §
1973 (2010). Thus, achieving proportional representation for a protected racial
group is not required by the Voting Rights Act.
Second, the theory that the Voting Rights Act requires the drawing of a “max
black” plan that creates a majority black district where ever possible was
explicitly rejected by the U.S. Supreme Court in the Miller v. Johnson case, where
the court explained:
The Justice Department refused to preclear both of Georgia's first two
submitted redistricting plans. The District Court found that the Justice
Department had adopted a “black-maximization” policy under § 5, and that
it was clear from its objection letters that the Department would not grant
preclearance until the State … created a third majority-black district. 864
F. Supp., at 1366, 1380. It is, therefore, safe to say that the congressional
4
plan enacted in the end was required in order to obtain preclearance. It does
not follow, however, that the plan was required by the substantive
provisions of the Act.
Miller v. Johnson, 515 U.S. 900, 921 (1995).
The Supreme Court went on to explain why the Voting Rights Act does not
require “maximization” by stating:
Based on this historical understanding, we recognized in Beer that “the
purpose of § 5 has always been to insure that no voting-procedure changes
would be made that would lead to a retrogression in the position of racial
minorities with respect to their effective exercise of the electoral franchise.”
425 U. S., at 141. The Justice Department's maximization policy seems
quite far removed from this purpose. We are especially reluctant to conclude
that § 5 justifies that policy given the serious constitutional concerns it
raises.
Id., 515 U.S. at 926.
Indeed, by following a maximization policy, these districts threaten the very
principles that the Voting Rights Act exists to promote. The goal of the Act is to
ensure a fair opportunity to participate, not a guarantee of racial proportionality.
By drawing districts that go far beyond what the Voting Rights Act requires, the
General Assembly frustrates the purpose of the Act and creates a threat to its
constitutionality.
Third, the purported justification for these districts is based on a crucial legal
error: conflating the standards under Section 2 and Section 5 of the Voting Rights
Act. The Section 5 non-retrogression requirement prevents the drawing of
districts that, compared to the benchmark of existing districts, makes it harder for
Black voters to elect their candidates of choice. It does not mean that Section 5
districts must be 50% or greater in Black population. A district that has a Black
voting age population of 45% and has been electing the candidate of choice of
Black voters, need only be redrawn to meet the benchmark of 45%. Instead, this
plan appears to be based on the assumption that the Section 2 standards also apply
under Section 5. The Supreme Court explicitly rejected this proposition in the
Bossier Parish case, and has been very clear on numerous occasions since then
that the standards under these two sections of the Act are different. See Reno v.
Bossier Parish, 520 U.S. 471, 476-480 (1997). Most recently in Bartlett v.
Strickland the court explained:
Petitioners claim the majority-minority rule is inconsistent with §5, but we
rejected a similar argument in LULAC, 548 U. S. 399, 446 (2006) (opinion
of Kennedy, J.). The inquiries under §§2 and 5 are different. Section 2
concerns minority groups’ opportunity “to elect representatives of their
choice,” 42 U. S. C. §1973(b) (2000 ed.), while the more stringent §5 asks
5
whether a change has the purpose or effect of “denying or abridging the
right to vote,” § 1973c.
Bartlett v. Strickland, 129 S. Ct. 1231 (2009) (citing LULAC v. Perry, 548 U.S.
399, 446 (2006)).
By conflating the Section 2 and Section 5 standards, the plan exceeds what the
Voting Rights Act requires and, in particular, increases the percentage of Black
voters in Section 5 districts beyond what is required by the non-retrogression
standard.
Finally, this plan is not in the best interests of racial minority voters in North
Carolina because it concentrates their voting strength in a smaller number of
districts and does not balance the goals of minority representation with the goals
of reflecting important communities of interest.
Testimony of Anita Earls, Transcript of June 23, 2011 Redistricting Public Hearing p. 134-136
(copy attached as Exhibit 2); Written Comment of Anita Earls, Redistricting Public Hearing June
23, 2011 (Exhibit 1).
Thus, Defendants were on notice that the districts they were considering adopting were
terribly flawed, but they enacted plans containing those defective districts anyway. Indeed, the
transcripts of the three public hearings held after the VRA districts were released show that no
fewer than 37 people from Charlotte, to Rocky Mount, to Wilmington and points in between all
expressed the view that the VRA districts proposed by the Chairmen went too far by segregating
black voters more than is necessary. See Transcripts of Redistricting Public Hearings of June 23,
2011 (Exhibit 2); July 7, 2011 (copy attached as Exhibit 3); and July 18, 2011 (Exhibit 4).1
1
June 23, 2011 Redistricting Public Hearing Testimony (VRA Districts): Ben Griffin, p. 11-14;
C.Bradley Hunt p. 26-28; Nikki McDougald p. 40-43; Carl White p. 48-50; Sidney Dunston p. 53-55;
Porsche Rochelle p. 86-89; Florine Bell p. 98-99; Roberta Penn, p. 101-102; Koju Natumbia p. 120-124;
John May p. 157-158; Dawson Gage p. 178-179. July 7, 2011 Redistricting Public Hearing Testimony
(Congressional Districts): Lucia Messina p. 24-26; Rep. G.K. Butterfield, p. 64-68; Rev. William Barber
p. 79-84; Betty Rose p. 102-106; Curtis Greenwood p. 123-127; Koju Natumbia, p. 140-142; Gloriesrena
Stackhouse p. 142-145; Eva Clayton p. 148-149; Benny Taylor p. 158-160; p. 160-162 Yvonne Bradford;
James Buxton p. 162-163; Ksthleen Phelosi p. 168-170; Bill Davis p. 185-186; Jo Nicholas p. 198-202.
July 18, 2011 Redistricting Public Hearing Testimony (House, Senate, and Congressional Districts):
Charlotte Mizelle, p. 12-14; Tom Macon p.16-19; Lucia Messina p. 24-26; Zette McArn p. 36-38; Keith
6
The NAACP, Democracy North Carolina, the League of Women Voters of North
Carolina and other non-partisan organizations stated clearly at public hearings after the VRA
maps were released that while some areas of the state do continue to experience racially
polarized voting to a degree sufficient to require the creation of “Voting Rights Act” districts, the
excessive use of race in the proposed plans is an affront to the decades of progress made in this
state since the enactment of the Voting Rights Act in 1965. Id.
The remaining facts in Defendants’ Statement of the Undisputed Facts concern the
legislative history which is a matter of public record. In short, the Defendants have not rebutted
any of the material facts that support granting of summary judgment in Plaintiffs’ favor, and
have offered no undisputed material facts that support summary judgment for them.
ARGUMENT
I.
DEFENDANTS MISCHARACTERIZE THE STANDARD OF REVIEW THAT
THIS COURT MUST EMPLOY
Section I of Defendants’ Memorandum in Support of their Motion for Summary
Judgment suggests that this Court might somehow usurp the legislature’s role by passing upon
the constitutionality of the plans. (Defs’ SJ Mem. P. 13). But “[i]t is the state judiciary that has
the responsibility to protect the state constitutional rights of the citizens; this obligation to protect
the fundamental rights of individuals is as old as the State.” Corum v. University of North
Carolina, 330 N.C. 761, 783, 413 S.E.2d 276, 290 (1992). That is precisely Plaintiffs’ request in
these cases. They seek the Court’s assistance in protecting their individual rights to equal
protection of the law and their individual right to vote. Defendants’ insinuation that this Court
cannot or should not declare that the redistricting legislation challenged in these cases offends
Rivers p. 57-59; Irving Joyner p. 68-74; Patricia Fitch p. 117-119; Sidney Dunston p. 126-128; Gloria
Davis p. 166-168; Susan Cole p. 190-193; Andre Knight p. 213-17; Eva Clayton p. 217-218.
7
plaintiffs’ fundamental rights under the constitution to equal protection and to vote, is plainly
wrong.
Defendants make much of the presumption of constitutionality of legislative enactments.
But this is simply a starting point meaning that the initial burden of proof is on the plaintiffs. It
does not imply that the plans are in fact constitutional. That is for this Court to determine.
Though there exists a presumption “that acts of the General Assembly are constitutional, it is
nevertheless the duty of this Court, in some instances, to declare such acts unconstitutional.”
Stephenson v. Bartlett, 357 N.C. 301, 305, 582 S.E.2d 247, 249-50 (2003). “Indeed, within the
context of state redistricting and reapportionment disputes, it is well within the ‘power of the
judiciary of a State to require valid reapportionment or to formulate a valid redistricting plan.’”
Id.2
Moreover, the rule that acts by a legislative body are presumed constitutional is
substantially tempered in cases, such as these, where fundamental individual rights are at stake or
suspect classifications created. In those cases the state bears an exacting burden to justify its
actions. The court, therefore, must strictly scrutinize the challenged legislation to insure (1) that
the legislature has used a highly suspect tool, or infringed a fundamental right, only to achieve a
governmental interest that is compelling and (2) that the legislature has used the suspect tool, or
infringed the fundamental right, narrowly and only to the extent necessary to achieve that
compelling interest. Shaw v. Reno, 509 U.S. 630, 649, 658 (1993); Miller v. Johnson, 515 U.S.
900, 922 (1995) (“Where a State relies on the [Justice] Department's determination that race2
Judicial review of redistricting legislation has been unequivocally recognized and provided for by the
General Assembly itself. See N.C. Gen. Stat. § 1-267.1 (providing for a special three-judge panel
specifically to judge redistricting challenges); N.C. Gen. Stat. § 120-2.3 (requiring any court order
declaring redistricting plans unconstitutional to include specific findings of fact and conclusions of law);
and N.C. Gen. Stat. § 120-2.5 (allowing for direct appeal to the North Carolina Supreme Court for
redistricting litigation).
8
based districting is necessary to comply with the Voting Rights Act, the judiciary retains an
independent obligation in adjudicating consequent equal protection challenges to ensure that the
State's actions are narrowly tailored to achieve a compelling interest.”) Because Plaintiffs’
claims implicate the fundamental right to vote on equal terms and challenge the Legislature’s use
of race-based classifications, strict scrutiny is the appropriate standard to be applied in this case.
Stephenson v. Bartlett, 355 N.C. 354, 378-79, 562 S.E.2d 377, 393 (2002).
II.
DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFFS’ RACIAL GERRYMANDERING CLAIMS
Nearly twenty years ago the Supreme Court held that it was wrong to interpret the Voting
Rights Act to require maximization of the number of majority-black Congressional districts in
the State of Georgia. Miller, 515 U.S. at 927. Observing that “[i]t takes a shortsighted and
unauthorized view of the Voting Rights Act to invoke that statute, which has played a decisive
role in redressing some of our worst forms of discrimination, to demand the very racial
stereotyping the Fourteenth Amendment forbids,” the Court affirmed its long-held view that
while race-based remedies may be necessary for a time, the ultimate goal of eradicating
invidious racial discrimination from the electoral process is not well served by “carving
electorates into racial blocs.” Id. “If our society is to continue to progress as a multiracial
democracy, it must recognize that the automatic invocation of race stereotypes retards that
progress and causes continued hurt and injury.” Edmonson v. Leesville Concrete Co., 500 U.S.
614, 630-631 (1991).
As long ago as 1986, the Supreme Court held that sustained black electoral success in
Durham’s House District 23 foreclosed the possibility of proving vote dilution in that area of the
state, Thornburg v. Gingles, 478 U.S. 30, 77 (1986). Nevertheless, the Defendants now assert
that the Voting Rights Act requires them to ignore the progress the electorate has made towards
9
eliminating racial biases in the political process since then and create even more racially isolated
districts than ever before. Their strained interpretation of the law is fundamentally at odds with
the purpose of the Voting Rights Act. Seeking to meet a racial quota, the Defendants drew
majority-black districts almost everywhere they were possible, without carefully examining
whether they were necessary.
In Shaw, the Supreme Court cautioned that:
Racial classifications of any sort pose the risk of lasting harm to
our society. They reinforce the belief, held by too many for too
much of our history, that individuals should be judged by the color
of their skin. Racial 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—a goal that the Fourteenth and
Fifteenth Amendments embody, and to which the Nation continues
to aspire. It is for these reasons that race-based districting by our
state legislatures demands close judicial scrutiny.
Shaw, 509 U.S. at 657. Later, in Georgia v. Ashcroft, the Court stated equally clearly that “[t]he
purpose of the Voting Rights Act is to prevent discrimination in the exercise of the electoral
franchise and to foster our transformation to a society that is no longer fixated on race. … the
Voting Rights Act, as properly interpreted, should encourage the transition to a society where
race no longer matters: a society where integration and color-blindness are not just qualities to be
proud of, but are simple facts of life.” Georgia v. Ashcroft, 539 U.S. 461, 490 (2003) (citations
omitted).
Ultimately, the Defendants are not entitled to summary judgment on the racial
gerrymandering claims in this case because the Voting Rights Act does not compel—and the
Fourteenth Amendment does not allow—a much greater use of race in redistricting in North
Carolina than ever before.
10
A.
Defendants’ Arguments Do Not Directly Address The Issues Raised By The
Complaints And Provide No Grounds For Awarding Summary Judgment To
Defendants
The Plaintiffs do not claim that the legislative and congressional plans as a whole
constitute unconstitutional racial gerrymanders, but instead claim that specific districts within
each of these plans are unconstitutional. These districts are Senate Districts 4, 5, 14, 20, 21, 28,
32, 38 and 40 and House Districts 5, 7, 12, 21, 27, 29, 31, 32, 33, 38, 42, 48, 54, 57, 99, 102, 106
and 107. Plaintiffs’ SJ Mem. at 4. The characteristics of each of these challenged districts were
detailed at length in Plaintiffs’ Memorandum in Support of Summary Judgment at pp. 32 to 70.
Defendants, by contrast, never address the characteristics of the challenged districts
separately or specifically in their motion or supporting brief.
Indeed, the only challenged
districts even mentioned by Defendants in their Memo are Senate Districts 4, 20 and 21 and
House Districts 5, 12, 21, 23, 27, 32 and 118. Instead, Defendants focus their arguments on
characteristics of the redistricting plans generally, and as a whole.
The characteristics of a plan as a whole may support or undermine the constitutionality of
individual districts, but such generalized information is not dispositive of the constitutionality of
any particular district. The critical inquiry in cases like these is a district-by-district inquiry, and
the constitutionally of each district “must be considered on its own merits.” Wilkins v. West, 57
S.E.2d 100 at 113; see also id. at 117 (“We have already made clear that, in the absence of
specific evidence in a specific district, such pattern evidence alone cannot sustain the trial court’s
findings.”).
Because Defendants fail to address the districts challenged specifically and
separately, their arguments are of little value and by no means a basis for awarding them
summary judgment.
Defendants also fundamentally mischaracterize Plaintiffs’ racial gerrymander claims as
claims for “denial of political influence.” See Defs’ SJ Mem. at 113-118. Plaintiffs’ claim is
11
that race predominated in the drawing of specific legislative districts and that those particular
districts were not narrowly tailored to meet a compelling governmental interest. Plaintiffs’ SJ
Mem. at 28-32. The Supreme Court has made clear that racial gerrymandering claims are
analytically distinct from political gerrymandering claims. See Shaw v. Reno, 509 U.S. 630, 650
(1993) (in response to dissenters argument that “a racial gerrymander of the sort alleged here is
functionally equivalent to gerrymanders for nonracial purposes, such as political gerrymanders”
majority holds that use of race in redistricting is distinct and subject to strict scrutiny). Plaintiffs
are not claiming that the Constitution requires the creation of influence districts or that they are
being unconstitutionally denied political influence; rather, Plaintiffs’ claim is that the
Constitution forbids the excessive use of racial criteria to create max-black redistricting plans
based on explicit racial quotas without justification. That is a claim now well established in our
Constitutional jurisprudence.
Defendants
further
mischaracterize
Plaintiffs’
racial
gerrymander
claims
as
“constitutional claims for vote dilution.” See Defs’ SJ Mem. at 46-47 and 116. Again, the Shaw
court was clear that vote dilution is not an element of a racial gerrymander claim, explaining:
Classifying citizens by race, as we have said, threatens special
harms that are not present in our vote-dilution cases. It therefore
warrants different analysis. … Justice Souter apparently believes
that racial gerrymandering is harmless unless it dilutes a racial
group’s voting strength. See post, at 684 (dissenting opinion). As
we have explained, however, reapportionment legislation that
cannot be understood as anything other than an effort to classify
and separate voters by race injures voters in other ways. It
reinforces racial stereotypes and threatens to undermine our system
of representative democracy by signaling to elected officials that
they represent a particular racial group rather than their
constituency as a whole.
Shaw, 509 U.S. at 649-650. Plaintiffs’ descriptions of the harms they suffer from racially
gerrymandered districts should not be mischaracterized as the elements of the claim itself.
12
Plaintiffs are asserting a racial gerrymandering claim, and the elements of that claim have been
clearly stated. See Plaintiffs’ SJ Mem. at 28-29.
Defendants are not entitled to summary
judgment on fantasy claims that have not been asserted.
B.
The Test for Determining Whether Districts are Unconstitutional Racial
Gerrymanders is Not Convoluted or Complex, Contrary to Defendants’
Suggestion
Plaintiffs’ racial gerrymander claims are based on the Equal Protection Clauses of the
United States and North Carolina Constitutions. In Miller v. Johnson, 515 U.S. 900 (1995)
Justice Kennedy, writing for the Court, explained those basic principles in the context of a
challenge to Georgia’s redistricting plans:
The essence of the equal protection claim recognized in Shaw is
that the State has used race as a basis for separating voters into
districts.
Just as the State may not, absent extraordinary
justification, segregate citizens on the basis of race in its public
parks, buses, golf courses, beaches, and schools, so did we
recognize in Shaw that it may not separate its citizens into different
voting districts on the basis of race. The idea is a simple one: “At
the heart of the Constitution’s guarantee of equal protection lies the
simple command that the Government must treat citizens ‘as
individuals, not “as simply components of a racial, religious,
sexual or national class.”
Miller, 515 U.S. at 911 (internal citations omitted).
Thus, Defendants’ contention that no plan which increases the number of majority-black
districts can be racially discriminatory, see Defs’ SJ Mem. at 4, is directly contrary to wellestablished constitutional doctrine. Indeed, the Supreme Court rejected just such an argument in
its seminal decision in Shaw v. Reno, when, in response to Justice Stevens’ position that “racial
gerrymandering poses no constitutional difficulties when district lines are drawn to favor the
minority, rather than the majority,” the Court held that “equal protection analysis is not
dependent on the race of those burdened or benefited by a particular classification.” Shaw, 509
U.S. at 650-51 (citations omitted). Moreover, the Court also held that:
13
Indeed, the Voting Rights Act and our case law make clear that a
reapportionment plan that satisfies § 5 [of the Voting Right Act]
still may be enjoined as unconstitutional. See 42 U.S.C. § 1973c
(neither a declaratory judgment by the District Court for the
District of Columbia nor preclearance by the Attorney General
“shall bar a subsequent action to enjoin enforcement” of new
voting practice); Allen, 393 U.S. at 549-550 (after preclearance,
“private parties may enjoin the enforcement of the new enactment .
. . in traditional suits attacking its constitutionality”). Thus, we do
not read Beer or any of our other § 5 cases to give covered
jurisdictions carte blanche to engage in racial gerrymandering in
the name of nonretrogression. A reapportionment plan would not
be narrowly tailored to the goal of avoiding retrogression if the
State went beyond what was reasonably necessary to avoid
retrogression.
Shaw, 509 U.S. at 654-655. (emphasis added). In short, racial classifications are subject to strict
scrutiny whether benign or not. See also, Johnson v. California, 543 U.S. 499, 506 (2005)
(noting that strict scrutiny is applied “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”).
In the redistricting context, strict scrutiny is triggered by proof, “either through
circumstantial evidence of a district’s shape and demographics or more direct evidence going to
legislative purpose, that race was the predominant factor motivating the legislature’s decision to
place a significant number of voters within or without a particular district.” Miller, 515 U.S. at
916. We turn now to that proof in this case.
C.
There Is No Room to Doubt that Race was the Predominant Factor that
Determined the Boundaries of the Challenged Districts
In Miller v. Johnson, the Supreme Court analyzed Georgia’s arguments that race was not
the predominant factor used to determine the boundaries of its 11th Congressional District. After
a lengthy analysis, the Court concluded “we fail to see how the District Court could have reached
any conclusion other than that race was the predominant factor” in drawing that district. Miller,
14
515 U.S. at 918. The similarities between the evidence considered in Miller and the evidence
presented here will lead this Court to conclude, as the Supreme Court did in Miller, that race was
the predominant factor that determined the boundaries of the districts challenged here.
Georgia’s 11th District was drawn in response to a demand from the U.S. Department of
Justice to draw “majority-minority districts wherever possible.” Id., 515 U.S. at 925. To
accomplish this goal, Georgia drew “narrow land bridges” to join together “outlying
appendages” of land, some of which connected urban and rural areas “worlds apart in culture.”
In the process, a large number of counties (26) and precincts were split in the plan in order to
increase the Black population of the challenged district. Id. at 918.
Here, Senator Rucho and Representative Lewis told their chief architect to “draw a 50%
majority-minority district wherever in the state there is sufficiently compact black population to
do so”, Plaintiffs’ SJ Mem. at 19 (Material Fact 43), and “to provide African-American citizen
with a substantial proportional and equal opportunity to elect their candidates.” Plaintiffs’ SJ
Mem. at 20 (Material Fact 44). To accomplish this goal, land bridges were used to join together
outlying appendages, more counties were divided than necessary and an unprecedented number
of precincts were split.
The Defendants in Miller, like the Defendants here, argued that other considerations,
such as communities of interest, also explained the district at issue, but the Supreme Court
rejected those justifications noting “nor can the State’s districting legislation be rescued by mere
recitation of purported communities of interest” where, as here, the overriding goal was to draw
a majority-black district. Miller, 515 U.S. at 919-920. In so holding, the Supreme Court gave
particular weight to the contemporaneous statements of public officials that other redistricting
criteria were subordinated to the overriding goal of creating the 11th Congressional district as a
15
majority-black district. Id., 515 U.S. at 919. Having established a maximization policy, and
having publicly asserted when the VRA districts were released that they (1) were drawn to
encompass a population within their boundaries which was at least 50% Black, (2) were drawn in
order to comply with the Voting Rights Act, and (3) were drawn to increase the number of VRA
districts to a number proportional to the number of Black citizens, the Defendants cannot now
escape the logical and necessary conclusion that race predominated in the drawing of the
challenged districts.3
Defendants, of course, ignore Miller in their brief. Instead they cite Wilkins v. West, 264
Va. 447, 571 S.E.2d 100 (2002) as providing a “good road map” for analyzing racial
gerrymandering claims, but the better Virginia case to look to determine when race predominates
in the drawing of a district is Moon v. Meadows, 952 F. Supp. 1141 (E.D. Va. 1997), in which a
federal court struck down Virginia’s Third Congressional District as an unconstitutional racial
gerrymander. Id. at 1143.
The three-judge panel in Moon first described the Third Congressional District as “an
amalgamation principally of African-American citizens contained within the legislatively
determined boundaries for the obvious purpose of establishing a safe black district.” Id. at 1144.
In its analysis of whether race predominated in the drawing of the district, the federal court
concluded that the evidence was “overwhelming” that racial considerations were motivating and
3
Miller is also instructive because the Supreme Court further held that a bizarre shape is not a threshold
requirement to establish that a district is a racial gerrymander. Miller, 515 U.S. at 912 (“Our observation
in Shaw of the consequences of racial stereotyping was not meant to suggest that a district must be bizarre
on its face before there is a constitutional violation. Nor was our conclusion in Shaw that in certain
instances a district's appearance (or, to be more precise, its appearance in combination with certain
demographic evidence) can give rise to an equal protection claim, 509 U.S. at 649, a holding that
bizarreness was a threshold showing …”). Thus, even the more regularly shaped challenged districts
must be subjected to strict scrutiny if they were drawn with race as the predominate factor determining
the boundaries of the district.
16
second only to satisfying the equal population standard. Id. at 1145. They noted that the state
admitted that “establish[ing] a majority Black district” was the goal behind the drawing of the
district. Id. The Attorney General never proffered a racial neutral explanation for the shape of
the district, such as compactness or adherence to political subdivision boundaries. Id. On the
bizarre shape, the court noted that legislature “relied upon the classification of voters based upon
race at the census block level to divide precincts and apportion large numbers of voters based on
race into, and out of, the Third District.” Id. at 1147. They concluded that the odd and unwieldy
shape was explainable only on the basis of race. Thus, on the basis of explicitly stated legislative
goals of drawing a majority black district, the ignoring of traditional race-neutral criteria, and the
non-compact shape that conformed to racial characteristics of the census blocks carefully
included or excluded from the district, the Court applied strict scrutiny to the district. Id. at
1148-49.
Likewise, in the instant case, Defendants have admitted that drawing as many majorityblack districts as possible was the driving goal. Rucho Dep. Tr. Pp. 50-52, 130; Lewis Dep. Tr.
P. 216. They have disavowed the use of compactness as a redistricting criterion, so that race
neutral explanation obviously cannot save the challenged districts. Rucho Dep. Tr. P. 126;
Lewis Dep. Tr. P. 216 (Defendants’ only criteria was drawing VRA districts and following
Stephenson criteria); Defs’ SJ Mem. at 44 (mistakenly alleging the Stephenson criteria do not
require compactness or respect for communities of interest). And finally, like in Moon, districts
were drawn on a census block-by-census block basis, excluding or including blocks simply on
the basis of race. Plaintiffs’ SJ Mem. at 32-71 (maps). Thus, Moon is a highly instructive case
to examine.
17
Wilkins, on the other hand, is not useful because the facts in the case are significantly
different from those in the instant case. The Virginia Supreme Court in Wilkins reversed the trial
court which had found a number of districts to be unconstitutional racial gerrymanders, after first
concluding that race was a predominant factor in the drawing of those districts. 264 Va. at 480,
571 S.E.2d at 119. The Supreme Court disagreed with the trial court’s “predominant factor”
analysis—which it had applied mostly to the plan as a whole rather than to specific districts—
noting that the evidence before the trial court indicated that “the General Assembly implemented
a number of traditional principles of redistricting” in drawing the districts, id. at 472, 571 S.E.2d
at 114, and that Plaintiffs’ expert did not analyze the challenged districts for compactness or
communities of interest. Id. at 471, 571 S.E.2d at 114. The Court also noted that Defendants put
on substantial evidence of voting behavior correlating with race. Id. at 475, 571 S.E.2d at 116.
In contrast to the Plaintiffs in Wilkins, the Plaintiffs here have put forward direct evidence and
demographic evidence that with regard to the particular legislative districts challenged in this
case, race was the predominant factor determining the composition of the district and that other,
traditional redistricting principles were subordinated to the goal of achieving a particular racial
quota.
Thus, having started with the goal of drawing a particular number of majority-black
districts throughout the state, having introduced a partial map of VRA districts and asserted that
those districts are required by the Voting Rights Act, having admitted that the districts would be
different but for the need to comply with the VRA, having admitted that numerous split precincts
and other irregular shapes of those particular districts were necessary to get the population
concentration up to 50% black VAP, the evidence is overwhelming that racial considerations
predominated over all other redistricting criteria for the individual districts challenged here.
18
1.
In Addition to the Defendants’ Own Admissions, Other
Factors Also Demonstrate that Race Predominated in the
Drawing of the Challenged Districts
Here Plaintiffs have amply demonstrated, both through visual geographic evidence and
quantitative geometric evidence, that each of the individual challenged districts is bizarrely
shaped, and that the shapes correlate with race. Plaintiffs’ SJ Mem. at 130-152. The shapes
cannot correlate with political data because political data is not available on the sub-precinct
level, and the challenged state legislative districts split such a vast number of precincts.
Moreover, the use of traditional race-neutral criteria cannot save Defendants here as it did in
Wilkins, since Defendants have disavowed use of such criteria. Rucho Dep. Tr. p. 126; Lewis
Dep. Tr. p. 216; Defs’ SJ Mem. at 44.
Like most legislatures, the North Carolina General Assembly had no political data at the
sub-precinct level, only racial data.
(A. 00171.)
For that reason, courts have considered
evidence that precincts were split along racial lines to be “’substantial evidence that it was race
that led to the neglect of traditional districting criteria.’” Moon, 952 F. Supp. At 1147 n.6
(quoting Bush v. Vera, 517 U.S. 952, 963 (1996) (plurality op.)); see Bush, 517 U.S. at 971
(splitting of precincts on racial lines “suggests that racial criteria predominated over other
districting criteria in determining the district’s boundaries”); Miller v. Johnson, 515 U.S. 900,
918 (1995) (finding racial gerrymander in part because “[t]o the extent that precincts in the
Eleventh Congressional District are split, a substantial reason for their being split was the
objective of increasing the black population of the district”) (internal quotations omitted). And
what this especially important evidence showed here is that when the legislature chose to split a
precinct, it most often did so by dividing the heavily black portion from the heavily white
portion. (Arrington First Affidavit ¶ 43). In support of their Motion for Summary Judgment,
Defendants offer additional testimony by Dan Frey that the large number of divided precincts in
19
the enacted plans, as compared to alternative plans, “relates to” drawing majority-black districts.
Defs’ SJ Mem. at 124. This is even further evidence that race was the predominant factor in
drawing the specific districts challenged as racial gerrymanders in this case.
2.
Race Was the Predominant Factor Determining the
Boundaries of Congressional Districts 1, 4 and 12
Following the Shaw analysis, it is clear that race predominated in the drawing of districts
1, 4 and 12, without any compelling state interest to justify the race-based districts. In contrast to
Defendants’ assertion that Plaintiffs have not offered “one iota of evidence” to show how race
predominated in drawing Congressional Districts 1, 4 and 12, Plaintiffs have produced three key
forms of evidence: 1) explicit statements by the Redistricting Chairs; 2) compactness scores that
show the new district is less compact and 3) a visual comparison of the districts, which shows
that the enacted districts divide many more counties and communities of interest than the
benchmark versions.
Defendants have been clear since the introduction of the maps that race determined the
shape of CD 1 and CD 12. Defendants have admitted that CD 1 and CD 12 were intentionally
drawn over 50 percent under the guise of complying with the Voting Rights Act. Dep. Ex. 55:
Joint Statement by Redistricting Chairs, July 1, 2011, p. 3-4, despite the fact that the AfricanAmerican representatives from the respective districts were elected at comfortable margins. See
Tables 4 and 6 of the Fourth Affidavit of Christopher Ketchie, January 4, 2013 (copy filed
herewith). Beyond the admissions of the Defendants, analysis by Plaintiffs’ expert Tony Fairfax
shows that the new CD 1, CD 4 and CD 12 are significantly less compact than the benchmark
and any alternative district. Affidavit of Anthony E. Fairfax, January 5, 2012 at ¶18, Conclusion.
a.
Race Predominated in Shaping CD 1
20
Defendants argue that they followed the shape of the benchmark CD 1 yet they
repeatedly divided previously whole counties and grouped disparate communities together in
ways that bear no relation to the previous plan. The graphic below shows an overlay of the
enacted District 1 over the benchmark district. As seen in the following map, the extension into
Durham is unprecedented, combining the rural northeast with the urban population center of the
Triangle. In this and each of the following maps,
•
the blue shading shows areas previously in the district that are no longer in the
enacted district,
•
the yellow shading shows new areas in the enacted district that were not in the
previous district, and
•
the green shading shows the areas that were in the previous district and remain in the
newly enacted district.
Thus, the blue and green area together is the old district and the yellow and green area together is
the new district.
21
Additionally, the Defendants have drawn snaking lines through eight counties kept whole
in the benchmark plan. The northeastern communities in Gates, Pasquotank, Perquimans,
Chowan, are now divided between Districts 1 and 3. Edgecombe, Martin, Washington, and
Green are also newly divided under the Defendants desire to draw a majority black district.
Additionally, Defendants’ arguments that changes made to CD 1 are responsive to
requests of United States Representative G.K. Butterfield are completely disingenuous. Defs.’ SJ
Mem. at 137-138. In his July 22, 2011 letter, now part of the State’s DOJ submission, Rep.
Butterfield stated that he never asked for Wake or Durham to be added to District 1. On the
contrary, he stated that “[W]e now know that the numbers are such that District 1 can be
preserved to fully encompass its historic rural, Eastern North Carolina orientation.” See July 22,
2011 Correspondence from Rep. Butterfield (copy attached as Exhibit 5). The enacted District 1
completely disregards longstanding communities of interest in ways that the incumbent protested
before enactment.
By Defendants own admissions, the new CD 1 is less compact and divides more counties
in order to increase the BVAP by about five percent, from 47.76 to 52.65. Indeed, the drive to
pack the district above 50% BVAP better explains the shape of the district than does adjusting
the district’s population to accommodate one-person, one-vote concerns.
b. Race Predominated in Shaping CD 12
Defendants’ arguments that they are hamstrung by the previous shape of the districts
provide no explanation for why the new CD 12 is an uglier, less compact version of the
benchmark. As the image below shows, District 12 in its new incarnation is far narrower than the
benchmark, picking up more African-American voters by extending deeper into Guilford and
Mecklenburg counties. The decline in compactness and tortured shape of the district are a direct
22
result of Defendants’ stated goal to draw CD 12 as a majority-black district, increasing the
BVAP from 42.81 to 50.66.
c. Race Predominated in Shaping CD 4
A racial gerrymander does not require the district to be majority-black. Following Shaw,
it is sufficient to establish that race was the predominant factor in drawing the district, without a
compelling state interest, to establish a racial gerrymander. Shaw v. Reno, 509 U.S. at 649. As
discussed in Plaintiffs’ SJ Memo, CD 4 repeatedly extends awkward and spindly appendages
into far-apart and remarkably different communities, clearly only to pluck up the AfricanAmerican voters from far-flung parts of the state.
Pl. Memo. at p. 74.
resemblance to the benchmark as shown by the graphic below.
23
CD 4 bears no
The benchmark CD 4
encompassed Orange and Durham, and part of Wake and Chatham. Now it extends through
pieces of 7 counties.
d. The Shapes of Congressional Districts 1, 4 and 12 Demonstrate
that Race Predominated
The noncompactness of CD 1, 4, and 12 is extreme. All these districts appear on the top
ten list of least compact districts across all 50 states compiled by the organization Redistricting
the Nation. (Copy of Reports attached as Exhibit 6 and 7). In fact, CD 12 is currently ranked as
24
the least compact district in all 50 states, according to the independent organization. Id. CD 4 is
ranked the sixth least compact in all 50 states.
Redistricting the Nation compared all
Congressional districts in the country on four measures of compactness: 1) Area/ Convex Hull;
2) Reock; 3) Polsby-Popper and 4) Schwartsberg measures. Dr. Hofeller admitted previously that
these type of mathematical scores are a useful measure for determining compactness. Hofeller
Dep. Ex. 517, p.1176. A chart of the 2001 rankings compared to the 2012 rankings is shown
below. As the chart shows, CD 1, CD 4 and CD 12 all made multiple appearances on the top ten
least compact districts of the 2010 redistricting cycle. This data shows the enacted districts are
far more noncompact than the benchmark plans. Defendants’ argument that the benchmark
districts determined the shape of the enacted districts is undercut by the simple data showing that
Defendants purposefully decreased the compactness of the districts to draw majority-black
districts over fifty percent.
PLAN
POLSBYPOPPER
#2
REOCK
SCHWARTZBERG
2012 CD 12
AREA/CONVEX
HULL
#1
#2
#2
2012 CD 4
#6
#10
NA
#10
2012 CD 1
NA
#5
NA
#5
2001 CD 12
#5
#5
#7
#3
2001 CD 4
NA
NA
NA
NA
2001 CD 1
NA
NA
NA
NA
This examination of the extreme non-compactness of the challenged Congressional
districts is not an academic exercise—the visual examination of these districts, supported by the
quantitative geometric evidence before this court, is reliable and probative evidence that race
predominated in the drawing of the districts.
25
Inevitably, the subordination of traditional redistricting principles to race leads to
bizarrely-shaped districts such as CD 1, CD 4 and CD 12. Defendants may not use Cromartie to
entrench single-minded focus on race and complete neglect of traditional redistricting principles.
e. Dr. Peterson’s Analysis Demonstrates Race Predominated
Over Partisan Considerations in CD1 and 12
In this case, Dr. Peterson used the same methodology to conduct in his analysis as the
methodology he used in the Cromartie case. Peterson Deposition p. 41. This analysis was critical
to the Supreme Court’s finding that District 12 was based on political rather than racial
considerations. The Court found:
Peterson's testimony was designed to show that African-American
Democratic voters were more reliably Democratic and that District
12's boundaries were drawn to include reliable Democrats.
Specifically, Dr. Peterson compared precincts immediately within
District 12 and those immediately without to determine whether
the boundaries of the district corresponded better with race than
with politics. The principle underlying Dr. Peterson's analysis is
that if the district were drawn with race predominantly in mind,
one would expect the boundaries of the district to correlate with
race more than with politics.
Easley v. Cromartie, 532 U.S. 234, 251 (U.S. 2001)
In this case, Dr. Peterson’s analysis of the evidence indicted an opposite conclusion than
the evidence in Cromartie supported, finding that race “racial considerations better account for
the boundary definition of the 12th NC Congressional Voting District than do party affiliation
considerations.” Peterson First Affidavit, Conclusion. He reached the same conclusion for the
CD 1. Peterson Fourth Aff. ¶ 18. Peterson found the results in this case to be more conclusive
than the results of his line segment analysis in Cromartie.
Defendants make arguments about Dr. Peterson’s testimony that the U.S. Supreme Court
already squarely rejected. Defendants criticize Dr. Peterson for failing to account for the “core
makeup of the districts,” Defs’ SJ Mem. at 147, yet the Supreme Court in Cromartie already
26
found a districts “core makeup” to be immaterial to the analysis. “Nor do we see why “core”
makeup alone could help the court discern the relevant legislative motive. Nothing here suggests
that only “core” makeup could answer the “political/racial” question that this Court previously
found critical.” Cromartie II, 532 U.S. at 251. Dr. Peterson’s methodology has been accepted
by the United States Supreme Court, and Defendants provide no grounds on which it should be
discredited.
Defendants’ position that Plaintiffs fail to make their case if they do not offer an
alternative plan where non-packed districts are as safe for Republicans as the enacted version
they present is completely contrary to United States Supreme Court precedent. See Defs’ SJ
Mem. at 138-139. Neither Cromartie, nor any other United States Supreme Court precedent
stands for the proposition that racial gerrymandering is acceptable as a means to achieve political
ends. Rather, Cromartie reiterates that districts must comply with traditional redistricting
principles. Defendants read Cromartie to entitle the Legislature to create politically
advantageous districts without restraint. The standards for proving a racial gerrymander cannot
be interpreted to mean that Plaintiffs must provide a more racially balanced alternative with the
same political effect as the unconstitutional districts that utterly fail to comply with traditional
redistricting principles.
3.
Defendants’ Arguments that Incumbency Protection and
Partisan Advantage Predominated are Counter-Factual and
Do Not Negate that Race was the Predominant Factor
Defendants contend that race did not predominate in the drawing of the challenged
districts because other criteria they used in drawing the 2011 plans were incumbency protection
and partisan advantage. See Defs’ SJ Mem. at 83-86. Their first explanation is that “one of the
obvious criteria [sic] followed by the 2011 plans is that none of the minority incumbents were
‘double bunked’ with another incumbent.” Id. (no citation in original). The only obvious thing
27
about that statement is that it is race-based. A criterion that says black incumbents will be
protected is an explicit racial criterion.
For the Legislature to engage in such race-based
decision-making, they certainly need to justify it as narrowly tailored to a compelling
governmental interest.
The further explanation that since all the African-American incumbents who were
protected were Democratic incumbents, means that partisanship, not race, was the predominant
factor is equally disingenuous, particularly given the testimony by Dr. Hofeller that he had an
explicit racial quota for the number of black districts he sought to draw (Hofeller Dep. Tr. Vol. I,
pp.80-81) and the contemporaneous statements by legislative leaders that they drew the VRA
districts to comply with the Voting Rights Act. June 7 Joint Statement, p. 4.
Finally, the Defendants’ suggest that the Supreme Court’s opinion in Cromartie v.
Easley, 532 U.S. 234, 258 (2001) means that strict scrutiny only applies where alternative plans
introduced during the redistricting process would have achieved the same partisan outcomes
without drawing as many race-based districts. See Defs’ SJ Mem. at 84. This is not what the
Supreme Court held in that case. By the time the Court was considering the third version of
North Carolina’s 12th Congressional District, where there was no direct evidence that racial
criteria predominated over other redistricting criteria, and where the Legislature could prove that
partisan considerations better explained the shape and boundaries of the districts, then more was
needed from the Plaintiffs to establish that race predominated in drawing the district. However,
where, as here, there are explicit admissions from the very start of the redistricting process that
racial considerations will be paramount in the drawing of certain legislative districts, a racial
gerrymander has been demonstrated and the Court must examine whether the district meets strict
scrutiny.
28
Whatever the ultimate partisan impacts of the redistricting maps overall, the evidence in
this case demonstrates that racial considerations predominated in the drawing of the VRA
districts, and that not all of them survive strict scrutiny.
D.
Upon Proof that Race was the Predominant Factor that Determined the
Boundaries of a District, the Defendants Bear the Burden of Proof that the District
was Narrowly Tailored to Comply With a Compelling Governmental Interest
Proof that race was the predominant factor explaining the path of the boundaries chosen
by a legislature to separate citizens into districts is not determinative of the constitutionality of
the districts. The path chosen by a legislature remains constitutional if the “districting legislation
is narrowly tailored to achieve a compelling interest.” Miller, 515 U.S. at 920 (internal citations
omitted). The burden to make this showing is on the Defendants. Additionally, the North
Carolina Supreme Court has held that in a case like this where Plaintiffs challenge the
constitutionality of a race-based district that the State contends was drawn to comply with the
Voting Right Act, it is the Defendants, not the Plaintiffs, that must bear the burden “normally
borne by plaintiffs of establishing” that justification. Pender County v. Bartlett, 361 N. C. 491 at
494.
1.
Proportionality is Never a Compelling Reason Sufficient to
Justify Race as the Predominate Factor in Drawing Districts
In seeking to justify the VRA districts as compelled by the need to comply with the
Voting Rights Act, Defendants blatantly mischaracterize the requirements of Section 2 of the
Act, 42 U.S.C. § 1973. In Strickland, the United States Supreme Court yet again rejected the
claim that Section 2 requires maximization in the number of majority-black districts. 556 U.S. 1,
15. Previously, in Johnson v. DeGrandy, 512 U.S. 997 (1994) the Court had rejected “the rule of
thumb apparently adopted by the District Court, that anything short of the maximum number of
majority-minority districts consistent with the Gingles conditions would violate § 2.”
29
In
Strickland, the Court reaffirmed Johnson v. DeGrandy’s holding that vote dilution is not shown
by the failure to maximize the number of majority-minority districts. “[R]eading § 2 to define
dilution as any failure to maximize tends to obscure the very object of the statute and to run
counter to its textually stated purpose.4 One may suspect vote dilution from political famine, but
one is not entitled to suspect (much less infer) dilution from mere failure to guarantee a political
feast.” Bartlett v. Strickland, 556 U.S. 1, 16, 129 S. Ct. 1231, 1244 (quoting Johnson v.
DeGrandy, 512 U.S. at 1016-1017).
Strickland held that a majority minority district could not be justified under Section 2
unless minority citizens were 50% of the district. This requirement was imposed in order to limit
the mandatory interjection of race into redistricting.
The Court reasoned that mandating
coalition districts “would result in a substantial increase in the number of mandatory districts
drawn with race as “the predominant factor motivating the legislature's decision.” Strickland at
1247, (quoting Miller v. Johnson, 515 U.S. 900, 916 (1995)). Defendants’ assertion that a state
is required to draw majority-minority districts under Strickland was clearly rejected by the Court.
The Court explicitly stated: “Our holding also should not be interpreted to entrench majorityminority districts by statutory command, for that, too, could pose constitutional concerns.” 556
U.S. at 43 (citations omitted) (emphasis added).
The reasoning applied by Defendants to justify their districts produces the same effect
that Strickland warned against—an increase in the number of “mandatory” majority-minority
4
DeGrandy also established, in 1994, that proportionality is not a permissible ‘safe harbor’ as
Defendants now contend. “The Court also makes clear that proportionality is never dispositive. Lack of
proportionality can never by itself prove dilution, for courts must always carefully and searchingly review
the totality of the circumstances, including the extent to which minority groups have access to the
political process. Nor does the presence of proportionality prove the absence of dilution. Proportionality
is not a safe harbor for States; it does not immunize their election schemes from § 2 challenge.” Johnson
v. DeGrandy, 512 U.S. 997, 1026 (1994).
30
districts where race predominates over traditional redistricting principles. This is not the proper
application of Strickland. Rather, Strickland holds that unless the three Gingles preconditions
are satisfied the state cannot draw a race-based district. Thus, Defendants cannot claim a valid
Section 2 justification for the challenged race-based districts unless they can establish that they
had a strong basis in evidence supporting the conclusion that each of the three Gingles
preconditions were present in each of the challenged districts. In the absence of such proof,
those districts constitute unconstitutional racial classifications.
2.
Defendants Cannot Carry Their Burden to Demonstrate that
they had a Strong Basis for Determining the Section 2 of
the Voting Rights Act Required them to Draw the
Challenged Districts.
Because race predominated in the drawing of the challenged districts, the State must
demonstrate that the districts were narrowly tailored to serve a compelling state interest, as
explained in the Shaw line of cases. Despite Defendants’ persistent efforts to muddy clear and
well-established Supreme Court precedent, Plaintiffs’ racial gerrymandering claims in this case
can be resolved by answering one question: Did Section 2 or Section 5 of the Voting Rights Act
require the challenged districts to be drawn as majority-minority districts in which more than
50% of the population in the district was Black? The answer is no, based on the explicit, clear
language of the United States Supreme Court. “Compliance with federal antidiscrimination laws
cannot justify race-based districting where the challenged district was not reasonably necessary
under a constitutional reading and application of those laws. Miller v. Johnson, 515 U.S. at 921.
Without this justification, the challenged districts are not directed to a compelling state interest
and fail the strict scrutiny analysis. They simply constitute unconstitutional racial classifications
under the state and federal equal protection clauses.
31
Defendants have argued that the Pender County case, Pender County v. Bartlett, 361 N.C.
491 (2007), permits the General Assembly to create districts that are 50% plus one AfricanAmerican whenever they can. That case holds nothing of the kind. Pender County imposes
limitations on the General Assembly in creating VRA districts, not permission to ignore the
Fourteenth Amendment. Its specific holding is that the General Assembly cannot defend a
district on Section 2 grounds unless all three of the Gingles preconditions are present: “(1) a
minority population is ‘sufficiently large and geographically compact to constitute a majority in
a single district’; (2) the minority population is ‘politically cohesive’ and thus votes as a bloc;
and (3) the majority population ‘votes sufficiently as a bloc to enable it . . . usually to defeat the
minority’s preferred candidate.’” Pender County, 361 N.C. at 495-496, 649 S.E.2d at 367. The
Court in Pender County held that one of the preconditions was absent, the first precondition
which it held requires a geographically compact district with a minority population of 50% plus
one. It noted that in that case, the other two preconditions were stipulated to be present, but the
absence of the first precondition meant that the structure of the district was not required by the
Voting Rights Act and therefore illegally crossed county lines in violation of the WCP.
In ruling that the first Gingles precondition requires 50% black voting age population, the
Court was not thereby holding that a voting rights district could be created in the absence of the
other two preconditions. The Court noted the importance of the third precondition that the “the
majority population ‘votes sufficiently as a bloc to enable it . . . usually to defeat the minority’s
preferred candidate.” Pender County, 361 N.C. at 374, 649 S.E.2d at 506. It is the absence of
that precondition that is central to Plaintiffs’ cases.
32
3.
Plaintiffs Had No Basis In Evidence For Assuming That
The Third Gingles Precondition, Legally Significant
Racially Polarized Voting, Was Present In Each Of The
Challenged Districts.
In this case, Defendants must justify their “voting rights districts” by proving the
existence of the three Gingles preconditions. The Plaintiffs have shown that Defendants cannot
prove the third precondition, that majority votes sufficiently as a bloc to usually to defeat the
minority’s preferred candidate, nor can Defendants simply infer it. The North Carolina Supreme
Court in the Pender County case found:
Past 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.
361 N.C. at 367, 649 S.E.2d at 494-495. Given these findings, one certainly cannot assume
racially polarized voting in any particular district. The Defendant must prove it. See Shaw, 509
U.S. at 653 (racial bloc voting can never be assumed). Before the challenged plans were
enacted, Defendants knew that in many of the areas in which they were drawing VRA districts
African-American candidates had been regularly elected in districts where African-Americans
constituted fewer than 50% of the population. See Plaintiffs’ SJ Mem. at 24-26. However:
Majority-minority districts are only required if all three Gingles
factors are met and if § 2 applies based on a totality of the
circumstances. In areas with substantial crossover voting it is
unlikely that the plaintiffs would be able to establish the third
Gingles precondition—bloc voting by majority voters. In those
areas majority-minority districts would not be required in the first
place.
Bartlett v. Strickland, 556 U.S. 1, 24 (2009). Indeed, Defendants have admitted that racially
polarized voting does not exist in many of the challenged districts. Defendants acknowledged in
their answer that “[i]f minorities can elect their preferred candidates in a district that is less than
33
majority minority, then racially polarized voting does not exist as a matter of law,” Defs’ Answer
at 8. Likewise, in their Dec. 10, 2012, Summary Judgment Memorandum, they wrote that
“where the evidence shows that blacks are able to elect their preferred candidates in a district
with less than 50% TBVAP, racially polarized voting no longer exists … and the State is not
required and cannot be ordered to draw districts with any specific percentage of AfricanAmerican populations.”
Defs’ SJ Mem. at 33.
Defendants’ own words are fatal to their
pretextual defense that Section 2 compelled the drawing of numerous additional majority Black
districts across the state.
The undisputable lack of racially polarized voting in the challenged districts is
highlighted in Tables 4 and 6 of the Fourth Affidavit of Christopher Ketchie (copy filed
herewith). Tables 4 and 6 list the BVAP percentage in each of the challenged legislative
districts, both in the benchmark and enacted version, as well as the election results in the 2010
election, prior to redistricting. This demonstrates that the BVAP percentages were needlessly
increased to above 50% even where the black candidate of choice was amply winning in districts
under 50%. For example, Senate District 40 in the benchmark plan was only 35.43% in BVAP,
but the black candidate won the 2010 general election with 68.67% of the vote—meaning that
the black candidate garnered a substantial amount of white crossover voting. Despite this, the
district was redrawn to be 51.84% in BVAP, and the black candidate was then elected in the
2012 general election with 84.11%. This pattern is unmistakable and consistent among the
challenged districts in both the State House and State Senate plans. In the challenged districts—
districts in which the BVAP was needlessly and cynically manipulated to pack black voters—it
is clear that there was substantial white crossover voting that negated the existence of legally
significant racially polarized voting.
34
Defendants also argue that because the court’s order in Gingles had never been “reversed
or modified”, the General Assembly was bound to create majority-black districts as remedies in
counties in which the Gingles court had ruled that multi-member districts violated Section 2 of
the Voting Rights Act. Defs’ SJ Mem. at 87-88. Unpacked, this argument makes no sense.
Surely the General Assembly could not draw the exact same districts that were ordered in
Gingles, and, even more certainly, the General Assembly was bound to adhere to Gingles’
holdings, such as the holding that prior black electoral success in House District 23, and
elsewhere, prevents a showing of vote dilution. Thornburg v. Gingles, 478 U.S. at 77. Surely
the General Assembly is also bound by all subsequent Supreme Court decisions interpreting
Section 2 of the Voting Rights Act and setting out the interplay between racial gerrymandering
claims on the one hand and vote dilution claims on the other.
Moreover, the Gingles order could not be interpreted to compel more than what was
actually ordered in that case. The trial court’s judgment in Gingles, to the extent it was affirmed
by the Supreme Court, only required the creation of six new majority-black House districts and
one new majority-black Senate district. See Gingles v. Edmisten, 590 F. Supp. 345, 377 (E.D.
NC 1984). This is dramatically less than the twenty-four majority black House districts and nine
majority-black senate districts in the 2011 enacted plans. See Plaintiffs Facts number 47 and 48,
pg. 21 of Plaintiffs’ SJ Mem. The Gingles order could not, and did not, enjoin the state to create
majority-black districts in those areas of the state in perpetuity.5 There have been no subsequent
judicial findings of Section 2 liability in legislative or congressional districts anywhere in the
5
The actual text of the Order in relevant part states: “The legislative redistricting plan submitted by
defendants on March 12, 1984, for consideration by this court is APPROVED insofar as it redistricts
former House Districts 21, 23, 36 and 39 by Chap. 6, House Bill 1, Extra Session 1984; insofar as it
redistricts former Senate District 22 by Chap. 4, Senate Bill 2, Extra Session 1984; and insofar as it
provides for the holding of primary elections in the resulting districts by Chap. 2, House Bill 3, Extra
Session 1984.” Gingles v. Edmisten, 590 F. Supp. at 384.
35
state. Most importantly, in 2011 the legislature had evidence before it that legally significant
racially polarized voting did not exist in the areas where black candidates were being elected in
districts with less than 50% black voting age population.
(Plaintiffs’ SJ Mem. at 24-28)
(Material Facts 66-91). Thus, we are simply back to the question of whether Section 2 or
Section 5 justifies the challenged districts and the actual order entered in the Gingles case, based
on voting patterns in 1982, has little to contribute to resolving that question.
4.
The Challenged Districts Fail The Gingles Test Because
They Are Not Compact.
The analysis by the Supreme Court in Bush v. Vera, cited by the Defendants, provides an
excellent and additional explanation of why the challenged districts in this case are not
compelled by Section 2. In Vera, the Court accepted that avoiding Section 2 liability may be a
compelling state interest to justify a race-based district. However, the Court also emphatically
held that strict scrutiny applied to any proposed Section 2 district and “[s]trict scrutiny remains,
nonetheless, strict.” Bush v. Vera, 517 U.S. 952, 978-979 (U.S. 1996).
The Court in Vera went on to lay out the criteria by which the State's proposed Section 2
districts would be judged:
The State must have a “strong basis in evidence” for finding that
the threshold conditions for § 2 liability are present: “first, 'that
[the minority group] is sufficiently large and geographically
compact to constitute a majority in a single member district';
second, 'that it is politically cohesive'; and third, 'that the white
majority votes sufficiently as a bloc to enable it . . . usually to
defeat the minority's preferred candidate.’” Growe, supra, at 40
(emphasis added) (quoting Thornburg v. Gingles, 478 U.S. 30, 5051, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986).
Bush v. Vera, 517 U.S. at 978. Most importantly, the Court went on to state “the district drawn
in order to satisfy § 2 must not subordinate traditional districting principles to race substantially
36
more than is “reasonably necessary” to avoid § 2 liability.” Bush v. Vera, 517 U.S. 952, 978979.
In Vera, the Court assumed, without deciding, that the Texas’s proposed districts met the
second and third prong of Gingles. However, the districts failed strict scrutiny because they
were:
[B]izarrely shaped and far from compact, and that those
characteristics are pre-dominantly attributable to gerrymandering
that was racially motivated and/or achieved by the use of race as a
proxy … . These characteristics defeat any claim that the districts
are narrowly tailored to serve the State's interest in avoiding
liability under § 2, because § 2 does not require a State to create,
on predominantly racial lines, a district that is not “reasonably
compact.”
Id. A plain language reading of Vera requires that the Defendants prove that each potential
purported Section 2 district is reasonably compact and does not needlessly disregard traditional
districting principles. Cf. Shaw, 509 U.S. at 657 (“[R]ace-based districting, as a response to
racially polarized voting, is constitutionally permissible only when the State ‘employ[s] sound
districting principles,’ and only when the affected racial group's ‘residential patterns afford the
opportunity of creating districts in which they will be in the majority.’”) (internal citation
omitted). Yet, Defendants ignored compactness in the drawing their VRA districts and in effect
now claim that compactness is entirely a matter of legislative grace.
They state: “It was
reasonable for the General Assembly to conclude that the Constitution does not require
compliance with established criteria for communities of interest or compactness and that
application of these redistricting principles has been left by the North Carolina Supreme Court to
the political discretion of the General Assembly.” Defs’ SJ Mem. at 44-45. Defendants’ refusal
to honor compactness or demonstrate its presence in the challenged districts flies in the face of
binding precedent. As Justice Stevens wrote:
37
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 … . Without some requirement of compactness, the
boundaries of a district may twist and wind their way across the
map in fantastic fashion in order to absorb scattered pockets of
partisan support.
Karcher v. Daggett, 462 U.S. 725, 755-56 (internal citations omitted).
Vera is unambiguous: To defend a Section 2 district, Defendants must demonstrate that
each district drawn to comply with Section 2 is reasonably compact. If defendants fail to meet
that burden the district was not narrowly tailored to comply with the Voting Rights Act, and
fails strict scrutiny.
Each of the challenged districts is contorted and oddly shaped. The
Defendants present no evidence, let alone a “strong basis” in evidence, to show how these
districts are reasonably compact. Therefore, the Defendants fail to show that these districts were
narrowly tailored as potential Section 2 districts.
E.
Defendants Cannot Carry Their Burden to Demonstrate that they had a Strong
Basis for Determining that Section 5 of the Voting Rights Act required them to
Draw the Challenged Districts
1.
Defendants’ Assertion That Section 2 And Section 5
Impose The Same Standards On The States Is Patently
False, And Contradicts Clear Voting Rights Act Precedent
Defendants’ argument that the 2006 Amendments to Section 5 require a state to draw
majority-minority districts under both Section 2 and Section 5 defies Bartlett v. Strickland, the
plain language of the Voting Rights Act and prior Supreme Court precedent articulating the
separate purposes and applications of the VRA. Section 2 and Section 5 of the Voting Rights
Act protect the rights of minorities to vote, but operate in very different ways. Section 5 looks to
the past to determine if any change diminishes the ability of a minority group to elect its
candidate of choice. 42 U.S.C. § 1973(c). Section 2 looks to the future and is violated only upon
38
a showing that minority voters “have less opportunity than other members of the electorate
to…elect representatives of their choice.” 42 U.S.C. § 1973(b). The difference between the
measure of diminished, demonstrated ability to elect and the measure of prospective opportunity
to elect is a defining difference between Section 2 and Section 5. Section 2 “concerns itself with
the possibility of a minority group's present, but unrealized, opportunity to elect.” Texas v.
United States, 831 F. Supp. 2d 244, 261 (D.D.C. 2011).
In contrast, “[t]he question of
retrogressive effect under Section 5 looks at gains that have already been realized by minority
voters and protects them from future loss. A Section 5 claim requires a determination of how
and where minority citizens' ability to elect is currently present in a covered jurisdiction and how
it will manifest itself in a proposed plan.” Texas v. United States, 831 F. Supp. 2d at 262.
Defendants flagrantly conflate the standards governing what is compelled by Section 2 of
the Voting Rights Act and what is compelled by Section 5 of the Voting Rights Act.
Defendants’ assertion that compliance with Section 5 of the Voting Rights Act requires them to
draw districts with 50% BVAP that already elected the candidates of choice of Black voters at
lower BVAP percentages, is untenable and contradicted by case law and the public statements of
the U.S. Department of Justice.
First, in its 2011 Guidance Concerning Redistricting Under Section 5 of the Voting
Rights Act, 76 Fed. Reg. 7470 (Feb. 9, 2011) (copy attached as Exhibit 8), the Department of
Justice explicitly stated that “[i]n determining whether the ability to elect exists in the benchmark
plan and whether it continues in the proposed plan, the Attorney General does not rely on any
predetermined or fixed demographic percentages at any point in the assessment.” Id. at 7471.
Second, in Texas v. United States, the 2011 Texas redistricting preclearance action in the
D.C. District Court, both the U.S. Department of Justice and the D.C. District Court made crystal
39
clear that the standards governing the Section 5 analysis were significantly different than those
governing the Section 2 analysis. In its Memorandum of Points and Authorities in Support of its
Opposition to Plaintiff’s Motion for Summary Judgment, the United States noted that “[t]he
State, however, confuses “opportunity” district with “ability to elect” district, conflating Section
5 with Section 2 of the Voting Rights Act, which the Supreme Court has repeatedly advised
against.” ECF No. 79-2, p. 5, October 25, 2011 (copy attached as Exhibit 9). The Department
of Justice reiterated that it uses no fixed demographic percentage at which to assess compliance
with Section 5, and asserted that Texas had “no support for its arbitrary numerical standard” for
proclaiming compliance with Section 5. Id. at 5-6.
The D.C. District Court denied Texas’ Motion Summary Judgment, agreeing with and
expanding on what the U.S. Department of Justice had argued. The D.C. Court explained:
Texas perceives ‘ability’ and ‘opportunity’ as interchangeable, but
they represent different concepts that serve different purposes. In
its motion, Texas identifies minority ‘opportunity’ districts as
significant under Section 5.
An ‘opportunity’ to elect is
meaningful under Section 2 of the VRA, but not necessarily under
Section 5. Section 2 is violated upon a showing that minorities
‘have less opportunity than other members of the electorate
to…elect representatives of their choice.’ 42 U.S.C. §
1973(b)….That is, Section 2 concerns itself with the possibility of
a minority group’s present, but unrealized, opportunity to
elect…The question of retrogressive effect under Section 5 looks
at gains that have already been realized by minority voters and
protects them from future loss.
Mem. Op., ECF No. 115, p. 26-27, December 22, 2011. Thus, Defendants’ argument that “the
definition of a district that allows minorities ‘to elect their preferred candidates of choice’ under
§ 5 must be the same as the definition of a district that protects the right of minorities ‘to elect
their candidate of choice’ under § 2” is flatly wrong. Defs’ SJ Mem. at 51.
40
2.
Section 5 Does Not Require The Maximum Number Of
Majority Minority Districts
Under Section 5 of the Voting Rights Act, districts that elect the candidates of choice of
black voters at BVAP levels less than 50% (thus, coalition or crossover districts) are not
compelled to be packed up to 50% in order to receive preclearance. Addressing Strickland this
election cycle, the D.C. District Court in the Texas redistricting case emphasized the difference
between the two VRA sections when it held that Section 5 protects coalition districts, which are
necessarily under 50 percent majority-minority, even though they are unprotected by Section 2.
The State of Texas made arguments, similar to those of the Defendants here, that the 2006
Amendments and Strickland prevented the protection of coalition districts under Section 5. The
D.C. Court rejected this assertion, stating:
Texas contends that the 2006 Amendments that overruled Georgia
v. Ashcroft also rejected the idea that coalition politics should be
taken into account under Section 5. This argument has no support
in the text of the Amendments themselves and misreads the
legislative history. Congress only took issue with Georgia v.
Ashcroft to the extent that it held that states could trade “influence”
districts for prior “ability” districts without issue under
Section 5 … . Congress never found that coalition districts could
not provide minority citizens with the ability to elect.
Texas also cites Bartlett v. Strickland to argue that the Supreme
Court has rejected the notion that a Section 5 analysis can take
political coalitions into account, but Bartlett is not a Section 5 case
and does not deal with coalition districts. ..Like Section 2 cases
before it, a plurality of the Court in Bartlett held that a compact
minority group needs to have the potential (“opportunity”) to
constitute a majority in a district for there to be a Section 2
violation. …Thus, the Bartlett Court held that Section 2 does not
require states to create potential crossover districts to ensure equal
electoral opportunity for minority voters because nothing in
Section 2 grants special protection to minority citizens' right[] to
form political coalitions.. Yet, freedom from an obligation
to create a crossover district under Section 2 does not equate to
freedom to ignore the reality of an existing crossover district in
which minority citizens are able to elect their chosen candidates
under Section 5.
41
Texas v. United States, 831 F. Supp. 2d 244, 267 (emphasis added).
Texas is an example of a court, after the 2006 Voting Rights Act Amendments and the
Strickland decision, recognizing how Section 2 and Section 5’s different inquiries protect
different types of districts. The D.C. Court did not require Texas to draw only majority-minority
districts in order to demonstrate that the plans did not diminish the minority group’s ability to
elect their candidate of choice. Rather, it held that functioning crossover and coalition districts
must be preserved under Section 5. Section 5 requires neither maximization of the percentage of
black voters in a black ability-to-elect district nor a maximization of the number of majorityblack districts. Miller, 515 U.S. at 926.
Defendants’ claim that drawing the challenged districts up to 50% BVAP was required to
ensure preclearance under Section 5 of the Voting Rights Act is also belied by the plans
precleared in other states. For example, the Department of Justice precleared the South Carolina
State Senate Plan on November 14, 2011.6 On its website, the South Carolina Senate has posted
its entire 2011 Senate redistricting plan submission package that it sent to the Department of
Justice.7 One of the exhibits to that submission was a July 27, 2011, report by Dr. Richard
Engstrom analyzing the Senate plan for possible retrogression, and a copy of that report is
attached in its entirety to this response as Exhibit 10.8
In his report, Dr. Engstrom details the
6
Status of Statewide Redistricting Plans, United States Department of Justice,
http://www.justice.gov/crt/about/vot/sec_5/statewides.php (last accessed December 18, 2012).
7
Senate Preclearance Submission - S. 815, South Carolina Senate Judiciary Committee,
http://redistricting.scsenate.gov/PreclearanceSubmissionsS815.html (last accessed December 18, 2012).
8
Available at Exhibit – 14, Report by Richard Engstrom, Ph.D., South Carolina Senate Judiciary
Committee, http://redistricting.scsenate.gov/Exhibits/Exhibit%2014%20%20REPORT%20BY%20
RICHARD%20ENGSTROM,%20PHD/Exhibit%2014%20%20Report%20by%20Richard%20Engstrom
%20PhD.pdf (last accessed December 18, 2012).
42
demographic changes to the 12 districts that were electing the candidates of choice of AfricanAmerican voters, and those demographic changes are summarized below:
Senate District
7
10
19
21
29
30
32
36
39
40
42
45
Benchmark BVAP
46.1%
31.9%
62.4%
50.7%
45.8%
57.6%
55.9%
52.2%
57.0%
54.4%
53.6%
49.0%
2011 BVAP
43.3%
33.3%
63.8%
51.6%
46.1%
54.0%
55.0%
51.2%
52.9%
50.5%
51.0%
50.1%
Dr. Engstrom concluded that the enacted South Carolina Senate plan was not retrogressive for
black voters, and the Department of Justice obviously agreed because it precleared the plan. Dr.
Engstrom noted that, for instance, Senate District 7 provided black voters with the ability to elect
their candidate of choice, an African-American Senator named Ralph Anderson. Mr. Anderson
defeated two non-African-American candidates in the 2008 general election, winning with
70.1% of the vote. The benchmark district had a 46.1% BVAP, and the 2011 enacted plan had a
43.3% BVAP. Clearly, the candidate of choice of black voters was winning white votes in the
district, and that district did not need to be packed with black voters to satisfy Section 5 of the
Voting Rights Act.
Indeed, across the whole plan, in 3 out of the 4 districts that elected the candidate of
choice of black voters despite being under 50% BVAP in the benchmark plan, South Carolina
did not draw the district up to 50% BVAP. In fact, the one case in which they did involved only
a 1.1% increase in the BVAP. Moreover, the state actually lowered the BVAP percentage in 7
out of the 12 districts that elected the candidates of choice of black voters. The Department of
43
Justice still precleared the plan. Section 5 simply does not require that districts that elect the
candidates of choice of black voters at BVAP percentages under 50% be packed with black
voters so that the demographics reach an arbitrary cut-off, and the consistent past practices of the
Department of Justice amply demonstrate this fact.
F.
Defendants Cannot Carry Their Burden to Demonstrate that the Challenged
Districts are Narrowly Tailored to Achieve Compliance with either Section 2 or
Section 5
Even where a racial classification is designed with the purpose of satisfying a compelling
state interest, that classification will only be upheld if it is narrowly tailored to advancing that
interest. Vera, 517 U.S. at 976. “The State has the burden of producing evidence of narrow[]
tailoring to achieve its compelling state interest. Vera, 861 F. Supp. at 1342. The state failed
miserably in demonstrating that its race-based remedy was narrowly tailored to achieving that
compelling goal of Section 2 compliance. 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 ¶108. Now, in the 2011
enacted state house plan, 24 state house districts have black voting age populations over 50%.
Def. Answer to NAACP ¶107. Looking at those numbers, one would assume that race relations
in North Carolina had to be among the worst in the country, if such extreme racial remedies were
required. But that is simply not the case.
The challenged districts are not narrowly tailored because they blatantly disregard
traditional redistricting criteria and because they use race far beyond that which is demanded by
the Voting Rights Act. The challenged districts violate traditional districting principles and thus
are not narrowly tailored.
The challenged districts are enormously non-compact, which
44
according to the Supreme Court, means the so-called remedial solution is not sufficiently limited.
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 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.” 517 U.S. at 916,
918 (internal citations omitted). In the Texas racial gerrymandering case, that district court noted
that “a reapportionment plan would not be narrowly tailored to the goal of avoiding retrogression
if the State when beyond what was reasonably necessary to avoid retrogression.” Vera, 861 F.
Supp. at 1343 (internal citations omitted). As discussed in the section of this memorandum on
what constitutes retrogression, a jurisdiction is not required to dramatically increase the BVAP in
districts that enable black voters to elect their candidates of choice. Tables 4 and 6 of the Fourth
Affidavit of Christopher Ketchie further reinforces this—the black candidates were winning by
substantial margins, and thus the BVAP in the districts did not need to be increased in order to
protect the ability of black voters to elect their candidates of choice. But the North Carolina
General Assembly needlessly packed those districts, and thus did not narrowly tailor its racial
remedies. Accordingly, the challenged districts must be invalidated with the application of strict
scrutiny.
III.
DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFFS’ SPLIT PRECINCT CLAIMS
A.
Dividing an Excessive Number of Precincts Creates Two Distinct Constitutional
Violations
Plaintiffs’ claims related to split precincts arise out of the unprecedented magnitude of
precinct divisions in the redistricting plans. Although courts have not established a bright-line
test for a permissible number of divided precincts, the General Assembly cannot burden voters’
rights to the point of disenfranchisement. Defendants make the extreme claim that “there is
45
nothing in the Constitution prohibiting the General Assembly from dividing every VTD in the
State of North Carolina if it chose to do so.” Defs’ SJ Mem. at 121. In fact, the Equal Protection
Clauses of the federal and state constitutions limit the General Assembly’s power to split
precincts, and the State Defendants’ position would effectively deny the right to vote on equal
terms to millions of voters across the state. Northampton County Drainage Dist. v. Bailey, 326
N.C. 742, 747, 392 S.E.2d 352, 356 (1990). In contrast, Plaintiffs ask the court to uphold
Stephenson’s mandate that precincts, as political subdivisions, be preserved as required by the
state constitution. Cf. James v. Bartlett, 359 N.C. 260, 267, 607 S.E.2d 638, 642 (2005) (“The
precinct voting system is woven throughout the fabric of our election laws.”).
Plaintiffs bring two separate and distinct equal protection claims related to split precincts.
The first is that the excessive number of split precincts creates two classes of voters: one in
which a citizen’s right to vote is burdened the administrative confusion of the split precinct, and
one in which citizens vote in whole precincts without such confusion. The second claim alleges
that the burdens of split precincts disproportionately affect black voters without any compelling
state interest. The Defendants’ arguments on summary judgment addressed the second claim but
they do not address the first. See Defs’ SJ Mem. at 118-135. Both of these claims are discussed
below.
B.
Splitting Precincts Violates The Right Of Plaintiffs To Vote On Equal Terms
With Voters In Whole Precincts
Plaintiffs claim that split precincts burden one class of voters in violation of federal and
state equal protection laws, namely voters who live in divided precincts or in counties with many
divided precincts. The record in this case includes strong evidence that the excessive division of
precincts unconstitutionally infringes and burdens the right to vote. Defendants ignore two key
types of evidence that illustrate the disenfranchisement that results in plans with so many split
46
precincts. First, research by Plaintiffs’ witness Chris Ketchie showed that 2056 voters were
assigned the wrong district in the six counties he 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. The
Board of Elections records show that 222 of those voters actually voted for the wrong district
representative in the primary election because they were incorrectly assigned to the wrong
district by their local board of elections. Ketchie Third Aff. ¶¶ 12, 20. In the November general
election in the six counties that Ketchie reviewed, Board of Elections records show that across all
three plans there were 185 voters who were given the wrong ballot because they were assigned to
the wrong district. Ketchie Fourth Aff., ¶ 16 and Table 3. These voters were denied the right to
vote in the district in which they were legally entitled to vote.
This is complete
disenfranchisement.
The disenfranchisement that resulted in the May 2012 primary and the November general
election was a direct result of the needless and unjustified splitting of precincts. Ninety-seven
percent and 96% of those wrongly assigned voters live in split precincts. Chris Ketchie Third
Aff. ¶ 12. Fourth Aff. ¶ 8. This survey of only six of the state’s 100 counties shows that
hundreds of voters were effectively disenfranchised because the number of split precincts
overwhelmed the local boards of election.
Local boards of election lack the capacity to
effectively assign voters in plans with this number and complexity of splits imposed by the
General Assembly. Even if one were to accept the Defendants’ arguments that precincts are mere
administrative tools, this magnitude of precinct splits strips the precinct system of its
administrative utility. This is not a compelling interest. Without effective assignment, these
voters are disenfranchised and public confidence in the integrity of the elections process is
undermined. When subject to strict scrutiny, the State can offer no compelling justification for
47
this burden on the fundamental right to vote. Likewise, under the Burdick balancing test,
Defendants have offered no important regulatory interest that would outweigh the complete
disenfranchisement of hundreds of voters.
Second, in addition to affidavits from individual voters and testimony from Dr.
Arrington, Plaintiffs presented survey evidence developed by polling expert Thomas Jensen, that
voters living in split precincts experience more confusion in identifying their candidates than
voters living in whole precincts.
Jensen surveyed four North Carolina Senate districts the
weekend before May’s primary elections and found that voters living in split VTD’s and counties
divided between more than one district were more likely to wrongly identify their candidates
than voters living in whole VTD’s and whole counties. Jensen Aff. Ex. 2, p. 2. This further
documents that living in precincts and counties with multiple legislative districts and scores of
ballot styles create real confusion over who a voter may elect, and who represents them in the
General Assembly. This data also supports the testimony by Plaintiffs’ expert Dr. Arrington on
the importance of precincts in the election process in North Carolina Arington First Aff. ¶¶ 2021, as well as the data that local boards of elections must now administer many more ballot styles
than in previous elections. Plaintiffs’ SJ Mem. at 94.
The right to vote on equal terms is a fundamental right. Northampton County Drainage
Dist. v. Bailey, 326 N.C. 742, 747, 392 S.E.2d 352, 356 (1990). “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).
The state guarantee mirrors the equal right to vote under the federal equal protection clause.
Reynolds v. Sims, 377 U.S. 533, 555 (1964). In analyzing equal protection cases, North Carolina
state courts apply the same standard to equal protection claims under the North Carolina and
48
federal constitutions.
Clayton v. Branson, 170 N.C. App. 438, 613 S.E.2d 259 (2005).
Infringement on the fundamental right to vote requires a state statute to be subject to strict
scrutiny. Northampton County Drainage, 326 N.C. at 746. Because the excessive use of split
precincts infringes on this fundamental right, the redistricting plans are subject to strict scrutiny.
Alternatively, the burden on, and in some cases, actual denial of the right to vote also fail
the balancing test used by the United States Supreme Court in Burdick v. Takushi, 504 U.S. 428,
434 (1992) to determine the constitutionality of an election law. Burdick requires the Court to
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.
Given these burdens on the fundamental right to vote on equal terms, the excessive
division of split precincts fails strict scrutiny. For a statute to survive strict scrutiny, the
government must demonstrate that the classification created by the statute is necessary to
promote a compelling government interest; otherwise, the statute is invalid. White v. Pate, 308
N.C. 759, 766, 304 S.E.2d 199, 204 (1983). Here, the State has offered no compelling
governmental interest to justify this burden. Partisan political gains are not a compelling state
interest to justify the risk of disenfranchisement.
The evidence before the court overwhelmingly shows that this magnitude of split
precincts fails both the Burdick balancing test and strict scrutiny. It is fundamentally a denial of
the equal protection of the laws when the election system for the state legislature results in 27%
49
of the voters experiencing confusion and the risk of outright disenfranchisement while the
remaining electorate can more easily participate in the political process.
C.
The Intentional Splitting Of Precincts On The Basis Of Race Violates The Equal
Protection Clauses Of The State And Federal Constitutions
Plaintiffs also challenge the effect of the great magnitude of split precincts on AfricanAmerican voters. Over 400,000 African-American voters live in precincts divided by the House
plan, and almost 300,000 live in precincts divided under the Senate plan. The intentional
splitting of precincts based on race is subject to strict scrutiny under the federal and state
constitutions.
See Plaintiffs’ SJ Mem. at 98-99.
Defendants have admitted that they
intentionally split VTDs on the basis of race:
The majority of the additional divided VTDs found in the enacted
legislative plans, as compared to alternative plans, relates to
maintaining already-existing, majority-black districts, bringing
already-established districts with between 40% and 50% TBVAP
up to the Strickland 50% requirement, and creating a few new
majority-black districts, all done within the parameters of the
WCP’s requirements for one person, one vote and the combination
of counties.
Def. Memo. at p. 124. Thus, by Defendants’ admission, hundreds of precincts were divided on
the basis of race. As discussed above, the challenged majority-minority districts were not
compelled by Section 2 or Section 5 of the Voting Rights Act.
As a result, hundreds of
thousands more African-American voters are subject to the confusion and risk of
disenfranchisement shown to be with a result of split precincts. The intentional, race-based
splitting of precincts in the three plans thus has no compelling state interest and violates the state
and federal equal protection clauses.
Defendants’ contend that even if there is a disparate impact on black voters, Plaintiffs’
have no evidence of discriminatory intent. See Defs’ SJ Mem. at 135. However, the very
explanation that Defendants give for the huge number of divided precincts, namely that they are
50
required in order to draw the super-majority black districts that they drew, is itself an explicit
admission that the division of precincts in these redistricting plans was on the basis of race to
achieve an explicit and well-documented racial quota. (Dep. Ex. 436; Hofeller Dep. Tr. Vol. I,
pp. 80-81).
Defendants’ argument that this claim is foreclosed by the court’s holding in Pope v. Blue,
809 F. Supp. 392, 397 (E.D. N.C. 1992) is similarly without force because it completely ignores
that fact that the allegations in Pope related to partisan interests, and there was no allegation in
that case, as here, that precincts were split on the basis of race. Cf. Shaw v. Reno, 509 U.S. 630,
650 (1993) (in response to the argument that racial gerrymanders are functionally equivalent to
political gerrymanders and therefore not subject to strict scrutiny the Court holds that “our
Fourteenth Amendment jurisprudence, which always has reserved the strictest scrutiny for
discrimination on the basis of race, would seem to compel the opposite conclusion”).
Defendants’ argument that all the alternative plans disproportionately place AfricanAmericans in split precincts, and thus they are entitled to enact plans where hundreds of
thousands of black voters live in split precincts is undercut by the undisputed evidence in this
case in two significant ways. First, the Senate Fair & Legal plan places only 0.4% of the state’s
voting age population in split precincts, and only 0.2% of the black voting age population, see
Fourth Affidavit of Chris Ketchie, Table 8, demonstrating that it is in fact possible to comply
with the VRA without disproportionately affecting African-Americans. Second, Defendants
would have the Court ignore that the enacted plans place hundreds of thousands more AfricanAmerican voters in districts that divide precincts than any of the alternative plans.
The
magnitude of intentionally subjecting African-Americans to the burdens of split precincts is far
greater in the enacted plans than in any proposed alternative. Id.
51
D.
Alternative Plans Show Requiring Plans Of Less Than 10% Voting Age
Population Residing In A Split Precinct Is A Viable, Judicially Manageable
Standard
Defendants’ extreme position that the North Carolina Constitution would permit the
General Assembly to divide each and every precinct should it desire to do so simply ignores the
realities of election administration and the impact of such chaos on the rights of individual
voters.9 Looking at the alternative plans, it is clear that other redistricting plans are able to fully
comply with the Constitution and place less than 10 percent of the population in a divided
precinct, as shown by the chart below.
Split VTDs
Lewis-Dollar-Dockham 4
House Fair and Legal
Possible House Districts
SCSJ House
Session Law 2009-78*
Rucho Senate 2
Senate Fair and Legal
Possible Senate Districts
SCSJ Senate
2003 Senate Redistricting
Plan*
Count
395
129
212
201
198
257
6
10
70
55
Total VAP
1,414,567
466,182
762,528
650,978
593,382
998,957
28,648
45,130
260,743
% of
Statewide
Total VAP
19.50%
6.43%
10.51%
8.97%
9.75%
13.77%
0.39%
0.62%
3.59%
White
VAP
855,820
289,340
462,663
374,316
410,454
607,092
23,134
30,474
143,248
% of
Statewide
White VAP
16.60%
5.61%
8.97%
7.26%
9.07%
11.78%
0.45%
0.59%
2.78%
Any Part
Black
VAP
411,946
130,310
227,844
204,720
142,922
297,770
2,923
10,065
90,837
% of
Statewide Any
Part Black VAP
26.82%
8.48%
14.83%
13.33%
11.57%
19.38%
0.19%
0.66%
5.91%
150,704
2.48%
99,051
2.19%
40,939
3.32%
* Benchmark Plan Statistics Use Statewide 2000 Numerical and Geographic Precinct Data
9
Defendants suggest that the U.S. Supreme Court’s opinion in Perry v. Perez, 556 U.S. ___, 132 S. Ct.
934 (2012), where the Court held that in fashioning an interim remedial plan, a court should not ignore a
legislature’s decision to divide precincts, is applicable to North Carolina. See Defs’ SJ Mem. at 121.
This ignores the fact that the practices in Texas and North Carolina on this point are dramatically
different. When the legislature divides a precinct in a Texas redistricting plan, the local board then also
divides the precinct and administers each section independently. See Tex. Elec. Code Ann. § 42.032
(West 2010). In North Carolina, local election boards do not administer each precinct split separately. It
is absurd to suggest, as Defendants do, that requiring the legislature in North Carolina to minimize
precinct splits because of the impact on voters thereby turns redistricting over to local elections boards.
For at least the past 50 years if not longer, the General Assembly has exercised its discretion to draw
redistricting plans without splitting so many precincts that over a quarter of the state’s voters live in split
precincts.
52
Fourth Affidavit of Chris Ketchie, ¶¶ 68-76, Table 8.
If a numerical cut-off is desirable, the Court could regard the 10% rule as a judicially
manageable standard that adheres to Stephenson’s mandate to respect precincts as political
subdivisions while allowing states the flexibility to comply with other federal and state law. As
political subdivisions, precincts are an important check on the General Assembly’s ability to
dissect communities of interest to promote partisan interests. See Stephenson v. Bartlett, 355
N.C. 354, 371 (2002) (“The State Constitution's limitations upon redistricting and apportionment
uphold what the United States Supreme Court has termed “traditional districting
principles…These principles include factors such as “compactness, contiguity, and respect for
political subdivisions.”)
This standard is analogous to the 10% population deviation allowed by the Supreme
Court to comply with the federal “one person-one vote” requirement. Brown v. Thompson, 462
U.S. 835, 842-43 (1983). Deviations above 10% are allowed if necessary to comply with other
state or federal provisions population equality context. Brown, 462 U.S. at 843.” A plan with
larger disparities in population, however, creates a prima facie case of discrimination and
therefore must be justified by the State.” Id. Likewise, by following 10 percent voting age
population rule regarding split precincts, the court has a manageable alternative that preserves
the importance of respecting precincts as political subdivisions, and requires the State to give a
constitutional justification for why it must assign more of the population to districts that divide
precincts. With or without a bright-line rule, this Court must find that the General Assembly’s
use of split precincts in the enacted legislative plans, and particularly its decisions to split
precincts on the basis of race, create an unconstitutional denial of equal protection of the laws for
the affected voters. When considering the myriad of ballot styles, the overwhelming complexity
53
for local boards of elections, and the resulting confusion for voters, it is clear that the
Defendants’ position that all precincts can be divided places an impermissible burden on the
right to vote and ignores Stephenson’s holdings that political subdivisions must be respected.
IV.
DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON THE
PLAINTIFFS’ WHOLE COUNTY PROVISION CLAIMS
In Stephenson, this Court made clear that the Whole Counties Provision must be enforced
to the “maximum extent possible.” Stephenson I, 355 N.C. at 382, 562 S.E.2d at 397. The
Legislative Defendants have not addressed the Plaintiffs’ straightforward argument that
maximum enforcement of the WCP requires a minimal number of divided counties.
Instead, the Legislative Defendants argue that the proper measurement of compliance
with the Whole Counties Provision consists of the number and size of county groupings.
Specifically, the Legislative Defendants argue that Stephenson and Stephenson II require the
creation of “the maximum number of two-county groupings,” and then “within the framework of
remaining counties,” the “smallest three-county groupings, and then four-county groupings, etc.,
as possible.” Defs’ SJ Mem. at 41. For several reasons, that argument fails.
First, neither Stephenson nor Stephenson II expressly requires that county groupings be
drawn in such a manner. The Legislative Defendants focus almost exclusively on Stephenson
II’s quotation of the trial court’s statement that the “failure to create the maximum number of
two-county groupings in the May 2002 House Plan violates Stephenson I.”
Although 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 307, 582 S.E.2d at 250, 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.
54
Second, not only does the Legislative Defendants’ methodology result in a greater
number of divided counties, but those counties’ boundaries are traversed more times than in
competing plans.10
In Stephenson II, this Court was absolutely clear that compliance with the
Stephenson criteria requires a minimal number of traverses.11 Indeed, that proposition was
explained at even greater length by the Stephenson plaintiffs in the trial court, when they argued
as follows:
A comparison of the split unit report for both the 2002 Senate Plan
and plaintiffs’ Remedial Plan, modified to eliminate these districts
that are wholly within a particular county, shows that plaintiffs’
Remedial Plan traverses interior county lines to create singlemember districts twenty-three times, while the 2002 Senate Plan
traverses county lines twenty-eight times. As compared to
plaintiffs’ proposed Remedial Plan, the 2002 Senate Plan therefore
does not minimize the times county lines are traversed in creating
single-member districts; therefore, it fails to ‘strictly’ comply with
the Stephenson criteria, and must be rejected.
(Copy of May 21, 2002 Memorandum attached as Exhibit 11).
In this case, although the Senate Fair and Legal plan has two more county groupings than
the enacted Senate plan, the Senate Fair and Legal plan has eleven fewer traverses, as shown in
the table below:
Divided Counties
Traverses
County Groupings
Rucho Senate 2
19
27
26
Senate Fair and Legal
14
16
28
10
A county is either “whole” or “divided.” If the county is divided, then each time that the legislative
boundary cuts across the county line is referred to as a “traverse.” These concepts are explained in
greater detail in the attached Exhibit 2.
11
The Court affirmed the trial court’s finding that “[o]verall, within multi-county groupings, defendants'
revised House Plan cuts county lines 48 times, as compared to the 43 county line traverses in plaintiffs'
House Plan.” Stephenson II, 357 N.C. at 312, 582 S.E.2d at 253.
55
Even more notably, in the House comparison, both the Fair and Legal House plan and the
enacted House plan have thirty six county groupings, but the Fair and Legal plan has six fewer
traverses, as shown in the table below:
Divided Counties
Traverses
County Groupings
LDD4
49
50
36
House Fair and Legal
44
44
36
This supports the claim that establishing county groupings is only one step in the process of
compliance with WCP. Once county groupings are established, there are still decisions to be
made, and those decisions can affect the number of traverses and split counties.
Third, even if the Court were to focus only on the number of county groupings (as
opposed to the number of divided counties or the number of total traverses), it is clear that the
Legislative Defendants’ methodology results, on average, in a larger grouping size—not smaller.
In Rucho Senate 2, the average county-group size is 3.84 counties, compared to the average size
of 3.57 counties in the Senate Fair and Legal Plan. In the House, the average county group size
is the same in both plans (2.77 counties), but the enacted plan (Lewis-Dollar-Dockham 4)
includes a very large group of 20 counties, spanning from the suburbs of Raleigh to Cape
Hatteras.12 One of the architects of the plan, Thomas Hofeller, referred to that group as the
“Cluster Giga[n]ticus.”13
12
The sizes of the county groups in Lewis Dollar Dockham 4 have a larger standard deviation than in
House Fair and Legal. Moreover, the Legislative Defendants appear to used the 20-county group as a
mechanism for traversing county boundaries many more times than would have been feasible in a smaller
county group. The Legislative Defendants’ methodology totally defeats both the letter and the spirit of
the Stephenson criteria.
13
In May 2011, Mr. Hofeller produced in electronic format two Excel spreadsheets named “Eastern
House Cluster Gigaticus” in response to a subpoena duces tecum served by Plaintiffs’ counsel.
56
In summary, no matter which way the Court measures compliance with Stephenson, it is
clear that the Senate and House Fair and Legal Plans are superior for purposes of enforcing the
Whole Counties Provision to the “maximum extent possible,” as is shown in the table below:
Criterion
Analysis
Absolute Number of Counties Divided
The Senate and House Fair and Legal plans divide
fewer counties than Rucho Senate 2 and LDD4.
Absolute Number of Boundary Traverses
The Senate and House Fair and Legal plans
traverse county boundaries fewer times than
Rucho Senate 2 and LDD4.
Size of County Groupings
Senate: The Senate Fair and Legal Plan has a
smaller average county-grouping size than Rucho
Senate 2.
House: The average size of county group is the
same in both plans. However, Lewis-DollarDockham 4 includes a 20-county group.
For these reasons, the Legislative Defendants have failed to “strictly” comply with the
Stephenson criteria, and the Court should hold that Rucho Senate 2 and Lewis Dollar Dockham 4
are unconstitutional violations of the Whole Counties Provision.
V.
DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFFS’ COMPACTNESS CLAIMS
The Defendants argue that “the Constitution does not require compliance with established
criteria for communities of interest or compactness and that application of these redistricting
principles has been left by the North Carolina Supreme Court to the political discretion of the
General Assembly—provided the redistricting plans comply with the WCP criteria.” (Defs’ SJ
Mem. at 44-45). This argument is contrary to the position of Defendants’ counsel in Stephenson,
in which he wrote:
In Stephenson, the Supreme Court adopted ‘compactness’ as a
constitutionally required redistricting principle. […] Compactness,
like contiguity, is an anti-gerrymandering device which is
particularly helpful in restraining ‘deals’ among incumbents, which
effectively prevent competitive, marketplace politics.
57
(May 21, 2002 Memorandum) (Exhibit 11).
Moreover, Defendants’ argument is contradicted by the Stephenson decisions.
In
Stephenson II the Supreme Court reviewed the nine requirements outlined in Stephenson I and
described them as requirements “that must be present in any constitutionally valid redistricting
plan.” 357 N.C. at 305-07, 582 S.E.2d at 250-51. The seventh requirement listed is that
“communities of interest should be considered in the formation of compact and contiguous
districts.” Id. As the Court then explains the requirement of compact districts derives from
equal protection principles:
The 2002 House and Senate plans enacted by the General
Assembly contain districts that are not sufficiently compact to
meet the requirements of the equal protection clause in that the
requirements of keeping local governmental subdivisions or
geographically based communities of interest were not consistently
applied throughout the General Assembly's plan producing districts
which were a crazy quilt of districts unrelated to a legitimate
governmental interest.
357 N.C. at 308, 562 S.E.2d at 251 (emphasis added). Applying this principle, the Stephenson II
Court held that Senate Districts 6, 10, 11, 14, 16, 21, 21, 36, 44 were not compact, in violation of
the State Constitution, “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, 562
S.E.2d at 253. Additionally, the Court found “ House Districts 18, 41, 51, 52, 57, 58, 59, 60, 61,
62, 63, 64, 76, 77, 95, 96 and 118 [were] not compact and [failed] to strictly comply with
Stephenson.” Id. at 313. Thus, not only did the Stephenson II Court reaffirm that compactness
was a constitutional requirement, but it also applied that standard to specific districts and found
them constitutionally deficient.14 The application of the compactness standard was not relegated
14
Because compactness is an equal protection principle it limits the discretion of the General Assembly
in drawing both legislative and congressional districts. By contrast, the command in Article II, Sections 3
58
to the realm of legislative discretion unconstrained by constitutional limitations as the
Defendants would have this Court believe. This Court should exercise its duty to hold the
General Assembly accountable to the state constitutional commands that limit its redistricting
discretion. Indeed, “it is emphatically the province and duty of the judicial department to say
what the law is.” Stephenson I at 384 (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)).
Defendants’ assertion that compactness is somehow a standardless principle that usurps
the discretion of the General Assembly rejects the binding authority of Stephenson and
mischaracterizes the standard. To find districts non-compact, the Court repeatedly cited districts’
shape and disregard for communities of interest. Stephenson II, 357 at 309, 562 S.E.2d at 252.
The methodology used in Stephenson to determine compactness is similar to the approach used
in Bush v. Vera, 517 U.S. 952 (1996). In Vera, the Court struck down three Texas districts
largely because they were “bizarre” in shape and “far from compact.” Id. at 995. The court’s
visual examination of districts was supplemented by the trial court with various formulas that
evaluated compactness in “objective, numerical terms.” Id. at 960. Far from suggesting that
using compactness as a standard equates to a “beauty contest,” the United Supreme Court
embraced available, objective measures of whether a district was compact enough to comply
with the Equal Protection Clause. In Vera, the Court stated:
For example, the bizarre shaping of Districts 18 and 29, cutting across preexisting precinct lines and other natural or traditional divisions, is not merely
evidentially significant; it is part of the constitutional problem insofar as it
disrupts nonracial bases of political identity and thus intensifies the emphasis on
race.
Bush v. Vera, 517 U.S. at 980-981 (emphasis added).
and 5 of the Constitution that “no county be divided in the formation” of State House and Senate districts
only limits the General Assembly’s discretion in drawing legislative districts and not in drawing
congressional districts.
59
Aside from the United States Supreme Court’s use of a compactness analysis, the
experiences of other states demonstrates conclusively that state constitutional compactness
requirements do not create an unworkable judicial standard. At least twenty state constitutions
have had longstanding and judicially recognized compactness requirements.15 Just this year, the
Florida Supreme Court issued an expansive opinion on assessing compliance with the state
constitutional compactness requirement, which begins with a “visual examination of a district’s
geometric shape” and then also considers “quantitative geometric measures of compactness”
such as those commonly included in redistricting software. In re Senate Joint Resolution of
Legislative Apportionment 1176, 83 So. 3d 597, 635 (Fla. 2012). Thus, this court, similar to
many different state courts across the country, is amply equipped to assess compactness and
enforce compliance with the state constitution.
Compactness is a key equal-protection-based constitutional restraint on the General
Assembly’s self-serving assignment of voters to legislative and congressional districts. As a
requirement of the North Carolina Constitution, compactness ensures that all citizens will be able
to cast informed ballots on equal terms with all other citizens, and that no citizens will be
assigned to “ crazy quilt districts unrelated to a legitimate governmental interest.” Stephenson II,
357 N.C. at 308, 562 S.E.2d at 251.
15
States that constitutionally require compactness in redrawing statewide electoral districts include
Alaska, California, Colorado, Florida, 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; Fla. Const. Art. III, § 21(b); 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.
60
CONCLUSION
For the foregoing reasons, Plaintiffs’ respectfully request that this Court deny the
Defendants’ Motion for Summary Judgment in its entirety and grant Plaintiffs’ Motion for
Partial Summary Judgment.
61