- 1032 -
STATE OF NORTH CAROLINA
COUNTY OF WAKE
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
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
11 CVS 16896
11 CVS 16940
(Consolidated)
__________________________________________________________
PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
__________________________________________________________
- 1033 -
TABLE OF CONTENTS
PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ................ 1
INTRODUCTION .......................................................................................................................... 2
I.
GENERAL FINDINGS OF FACT AS TO ISSUE NO. 1.................................................. 3
A.
An Overview of the Redistricting Process and the Roles Played by Senator
Rucho and Representative Lewis .............................................................................3
B.
The Role Played by Thomas Hofeller, the Architect of the Challenged
Districts ....................................................................................................................6
C.
Senator Rucho and Representative Lewis Knew or Should Have Known
that Section 2 of the Voting Rights Act Did Not Require the Challenged
Districts ....................................................................................................................9
D.
The Grounds on which the Defendants Drew the Challenged Districts are
Very Weak or Do Not Exist ...................................................................................18
a. The Gingles Decision Does Not Support Defendants' Assertions ...................19
b. The History of the Creation Of VRA Districts By the General
Assembly Since Gingles Does Not Support Defendants' Assertions ..............20
c. The Flaws and Limitations in the Brunell and Block Reports .........................25
II.
E.
Information Reasonably Available to Defendants, but Not Sought or
Obtained – Lichtman analysis ................................................................................29
F.
The African-American Members of the General Assembly Were United in
their Opposition to the Challenged Plans and Districts .........................................31
District-Specific Findings as to Issue I ............................................................................. 32
House District 5 ...............................................................................................32
House District 7 ...............................................................................................33
House District 12 .............................................................................................34
House District 21 .............................................................................................35
House District 24 .............................................................................................38
Durham County Districts Generally ................................................................39
House District 29 .............................................................................................40
House District 31 .............................................................................................42
House District 32 .............................................................................................45
Wake County Districts Generally ....................................................................46
House District 33 .............................................................................................49
House District 38 .............................................................................................51
House District 42 .............................................................................................52
House District 48 .............................................................................................53
i
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House District 57 .............................................................................................56
Mecklenburg County Districts Generally ........................................................57
House District 99 .............................................................................................59
House District 102 ...........................................................................................60
House District 106 ...........................................................................................61
House District 107 ...........................................................................................62
Senate District 4 ...............................................................................................63
Senate District 5 ...............................................................................................65
Senate District 14 .............................................................................................66
Senate District 20 .............................................................................................68
Senate District 21 .............................................................................................71
Senate District 28 .............................................................................................75
Senate District 38 .............................................................................................77
Senate District 40 .............................................................................................78
Congressional District 1 ...................................................................................80
III.
FINDINGS OF FACT ON ISSUE #2 ............................................................................... 84
Senate Districts 31 and 32................................................................................84
House Districts 51 and 54 ................................................................................88
Congressional Districts 4 .................................................................................90
Congressional District 12 .................................................................................92
IV.
CONCLUSIONS OF LAW AS TO ISSUE I ................................................................... 96
Issue 1: Standard of Review: Defendants Bear the Burden of Production to
Demonstrate that Each District was Narrowly Tailored ................................................96
a.
Narrow Tailoring Required for a Section 5 Defense .............................................99
b.
Narrow tailoring for Section 2 liability................................................................100
i. Legally significant racially polarized voting only exists, and Gingles' third
prong is only satisfied, when the white bloc voting routinely defeats the
minority candidate of choice ................................................................................102
ii. Relevance of Expert Reports on Racially Polarized Voting ................................102
iii.Relevance of Defendants’ Proportionality Policy ...............................................104
c.
House Districts .....................................................................................................104
House District 5 .............................................................................................104
House District 7 .............................................................................................105
House District 12 ...........................................................................................106
House District 21 ...........................................................................................107
ii
- 1035 -
House District 24 ...........................................................................................108
House Districts 29 and 31 ..............................................................................108
House District 32 ...........................................................................................109
House Districts 33 and 38 ..............................................................................110
House District 42 ...........................................................................................111
House District 48 ...........................................................................................112
House District 57 ...........................................................................................112
House Districts 99, 102, 106, 107 ..................................................................115
b.
Senate Districts ....................................................................................................114
Senate District 4 .............................................................................................114
Senate District 55 ...........................................................................................115
Senate District 14 ...........................................................................................116
Senate District 20 ...........................................................................................117
Senate District 21 ...........................................................................................117
Senate District 28 ...........................................................................................118
Senate Districts 38 and 40..............................................................................119
c.
V.
Congressional District 1 .......................................................................................120
Conclusions of Law as to Issue No. 2: Standard of Review ........................................... 121
Senate Districts 32 and 31..............................................................................121
House Districts 54 and 51 ..............................................................................123
Congressional District 4 .................................................................................124
Congressional District 12 ...............................................................................126
CERTIFICATE OF SERVICE ................................................................................................... 129
iii
- 1036 -
STATE OF NORTH CAROLINA
COUNTY OF WAKE
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
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
11 CVS 16896
11 CVS 16940
(Consolidated)
__________________________________________________________
PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
__________________________________________________________
NOW COME the Dickson Plaintiffs and the NC NAACP Plaintiffs in the above-captioned
consolidated proceeding and hereby submit to the Court their proposed Findings of Fact and
Conclusions of Law, which are set forth hereinafter.
- 1037 -
INTRODUCTION
1.
On June 4 and 5, 2013, a three-judge panel of this Court conducted a trial in the
above-captioned consolidated proceeding for the purpose of receiving evidence relating to the
following two issues:
i.
Assuming application of a strict scrutiny standard and, in considering whether
the challenged districts were narrowly tailored, did Defendants have a strong
basis in the record for drawing those districts in places where a remedy or
potential remedy for racially polarized voting was reasonable for purposes of
preclearance or protection of the State from vote dilution claims under the
Constitution or under § 2 of the VRA?
ii.
For six specific districts (Senate Districts 31 and 32, House Districts 51 and
54 and Congressional Districts 4 and 12—none of which is identified as a
VRA district), what was the predominant factor in the drawing of those
districts?
2.
With regard to Issue One, in summary, the Court finds and concludes that the
following districts do not survive strict scrutiny as protections for the State for preclearance
under Section 5 of the Voting Rights Act or from claims of vote dilution under the United States
Constitution or under Section 2 of the Voting Rights Act: House Districts 5, 7, 12, 24, 29, 31,
32, 33, 38, 42, 48, 57, 99, 102, 106, and 107; Senate Districts 4, 5, 14, 20, 21, 28, 38, and 40; and
Congressional District 1.
3.
With regard to Issue Two, in summary, the Court finds and concludes that race
was the predominant factor or motivation when the North Carolina General Assembly drew and
enacted new redistricting maps for Senate Districts 31 and 32, House Districts 51 and 54 and
Congressional Districts 4 and 12.
2
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4.
Pursuant to N.C. Gen. Stat. § 120-2.3, all facts and conclusions supporting this
declaration are set forth separately and with specificity.
5.
The findings of fact and conclusions of law concerning these two issues are set
forth hereinafter. To the extent that any of the findings of fact set forth herein are more properly
denominated conclusions of law, or mixed findings of law and fact, or conclusions of law are
more properly denominated findings of fact, or mixed findings of law and fact, they should be
deemed as such.
I.
GENERAL FINDINGS OF FACT AS TO ISSUE NO. 1
A. An Overview of the Redistricting Process and the Roles Played by Senator
Rucho and Representative Lewis
6.
Senator Rucho and Representative Lewis were appointed Chairs of the Senate and
House Redistricting Committees, respectively, on January 27 and February 15, 2011. Def.
Answer to Dickson Am. Compl., ¶¶ 72-73.
7.
Senator Rucho was responsible for developing a proposed Senate map.
Representative Lewis was responsible for developing a proposed House map. Lewis Dep. Tr.
pp. 29-33. Jointly, Senator Rucho and Representative Lewis were responsible for developing a
proposed Congressional map. Rucho Dep. Tr. p. 24 lines 2-11; Def. Answer to Dickson Am.
Compl., ¶ 74.
8.
From January 27, 2011 until the first public presentation of a proposed map for
Senate Voting Rights Act (hereinafter “VRA”) districts on June 17, 2011, Senator Rucho was
responsible for, and determined, (a) the persons who would design and build the proposed Senate
map; and (b) the criteria that those persons would use in drawing the proposed map. Rucho Dep.
Tr. p. 23.
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9.
The Senate and House Redistricting Committees met jointly on March 30, 2011
and June 15, 2011, but no criteria for House, Senate or Congressional districts were discussed or
proposed at these meetings, no report given with regard to the persons already hired to design
and construct the redistricting maps, and no maps presented for review or comment. Stipulation
(filed February 25, 2013) ¶¶ 3(a), 3(c); Att. A, Att. C (official transcripts of the March 30, 2011
and June 15, 2011, joint redistricting committee meetings); Lewis Dep. Tr. p. 32; Rucho Dep. Tr.
p. 24-26.
10.
The Senate Redistricting Committee never met separately prior to the public
release of the Senate VRA districts on June 17, 2011. Rucho Dep. Tr. p. 25, lines 19-24.
11.
The House Redistricting Committee met separately on April 7, 2011. No criteria
for districts were discussed or proposed at this meeting, no report given with regard to the
persons already hired to design and construct the maps and no maps presented for review or
comment. Stipulation (filed February 25, 2013) ¶ 3(b); Att. B (official transcript of the April 7,
2011 House Redistricting Committee meeting).
12.
From February 15, 2011 until the first public presentation of a proposed map for
House VRA districts on June 17, 2011, Representative Lewis was responsible for, and
determined, (a) the persons who would draw the proposed House map; and (b) the criteria that
those persons would use in drawing the proposed map. Lewis Dep. Tr. pp. 29-33.
13.
From February until the first public presentation of a proposed map for
Congressional districts on July 1, 2011, Senator Rucho and Representative Lewis were jointly
responsible for, and determined, (a) the persons who would develop the proposed Congressional
map; and (b) the criteria that those persons would use in drawing the proposed map. Lewis Dep.
Tr. pp. 29, 33.
4
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14.
From the outset, Senator Rucho and Representative Lewis directed that the
number of majority-black districts be drawn proportional to the African-American population in
the state and did so with the purported goal of protecting the state from lawsuits. Lewis Dep. Tr.
p. 126, lines 20-25, p. 127, lines 1-25, p. 128, lines 1-25, p. 129, lines 1-6.
15.
Representative Lewis stated that they drew 23 majority-black districts in the
House plan to “obtain substantial proportionality” to “reflect the total African American
population in the state, which in round figures is about 21.5 percent.” July 21, 2011 House
Testimony (Rep. Lewis) p. 12, lines 2-10; p. 13, lines 1-8.
16.
Senator Rucho and Representative Lewis told Hofeller, the principal map-drawer,
to draw majority black districts where possible, but did not explain to Hofeller the meaning of
the phrase “where possible.” Lewis Dep. Tr. p. 125, lines 7-25, p. 126, lines 1-10.
17.
On the floor of the House, Representative Lewis refused to acknowledge whether
there were findings of racially polarized voting for each of the areas in which a majority-black
district was placed, stating only “we chose simply to use the definition that a majority-minority
district needs to be one in which is drawn to have a majority of minorities in there.” July 27,
2011, House Testimony, (Rep. Moore, Rep. Lewis) p. 24, lines 10-25, pp. 25-27, p. 28, lines 112.
18.
Representative Lewis further stated, “[t]he state is now obligated to draw majority
black districts with true majority black voting age population. We have done so in all areas of
the state because we believe it was necessary to do so to foreclose possible litigation against the
state under Section 2.” July 25, House Testimony (Rep. Lewis) p. 52, lines 5-13.
5
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19.
In a public hearing after the proposed VRA districts were made public, the
success of black voters in electing their candidates of choice without majority-black districts was
brought to the attention of legislators. June 23rd Public Hearing Tr., pp. 134-137.
20.
Senator Rucho understood the standard for racially polarized voting to be whether
it existed, not the level or location of such racially polarized voting. Rucho Dep. Tr. p. 166, lines
13-25, p. 167, lines 1-15. Senator Rucho professed ignorance as to whether racially polarized
voting levels varied across the state, claiming instead that what mattered is that it existed. Rucho
Dep. Tr. p. 167, lines 17-25, p. 168, lines 1-6.
21.
At trial, Defendants did not call Senator Rucho or Representative Lewis to testify
in support of their plans, except that Senator Rucho briefly testified about CD 12.
B. The Role Played by Thomas Hofeller, the Architect of the Challenged Districts
22.
Dr. Thomas Brooks Hofeller was engaged by Senator Rucho and Representative
Lewis to design and draw the House, Senate and Congressional maps. Senator Rucho described
Hofeller as the “chief architect” of the plans and Hofeller described himself the same way.
Rucho Dep. Tr. p. 31; Hofeller Dep. Tr. Vol. I, p. 30.
23.
Hofeller served as Redistricting Coordinator for the Republican National
Committee (hereinafter “RNC”) for the 1990, 2000 and 2010 redistricting cycles. He began
working for Senator Rucho and Representative Lewis in December, 2010.
24.
Senator Rucho and Representative Lewis were the sole source of instructions to
Hofeller regarding the design and construction of the House and Senate maps.
These
instructions were all oral. Rucho Dep. Tr. pp. 41-42, 147-148; Lewis Dep. Tr. p. 71; Hofeller
Dep. Tr. Vol. I, pp. 565-7. After the House and Senate VRA districts were released to the
public, Representative Lewis and Senator Rucho jointly released statements describing, among
other things, the criteria they instructed Hofeller to follow in drawing the maps. These public
6
- 1042 -
statements for the House and Senate plans were released on June 17 (announcing public hearing
for June 23 on the House and Senate VRA districts), on June 22 (responding to criticism from
Senator Blue and others about the proposed House and Senate VRA districts), and on July 12
(announcing the release of full House and Senate plans, LDD 1 and Rucho Senate 1). Churchill
Dep. Ex. 55.
25.
Senator Rucho and Representative Lewis also were the sole source of instructions
for Hofeller regarding the design and construction of congressional maps. Hofeller Dep. Tr. Vol.
I, p. 56. These instructions were also oral. On July 1 and 12, Senator Rucho and Representative
Lewis jointly released public statements describing, among other things, the criteria they
instructed Hofeller to follow in drawing that plan. Lewis Dep. Tr. pp. 105, 114; Dep. Ex. 55.
26.
Hofeller prepared a proportionality chart in March 2011. Hofeller Dep. Tr. Vol. I,
p. 80, lines 4-25, p. 81, line 1; Hofeller Dep. Ex. 436.
27.
Hofeller began drawing the House and Senate plans in March, after release of the
census data. Hofeller Dep. Tr. Vol. I, p. 78, lines 3-10.
28.
The process Hofeller used for drawing the House and Senate districts was
identical. Hofeller Dep. Tr. Vol. I, p. 128, lines 23-25, p. 129, lines 1-5.
29.
Hofeller explained that his first task in map drawing was to see what minority
districts could be drawn in the state. Hofeller Dep. Tr. Vol. I, p. 79, lines 5-10; Oldham Dep. Tr.
p. 63, lines 11-17. He identified where there were concentrations of black population sufficient
in his judgment to support a majority black district. Hofeller Dep. Tr. Vol. I, p. 86, lines 18-23.
30.
Individuals involved in drawing the new state redistricting maps shared the
understanding that all VRA districts were to be drawn at greater than 50% BVAP. Morgan Dep.
Tr. p. 117, lines 16-22; Raupe Dep. Tr. p. 76, lines 8-21.
7
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31.
Hofeller was never shown the documents compiled by legislative staff that
demonstrated the sustained success of black candidates in districts that were not majority black.
Trial Tr. June 5, 2013 (Hofeller), p. 87, lines 12-22.
32.
Hofeller testified that he had “assumptions” about racially polarized voting in
North Carolina, based on decades-old experience in North Carolina redistricting and based on
districts that were drawn decades ago in North Carolina. Trial Tr. June 5, 2013 (Hofeller), p. 8,
line 20 – p. 9, line 20.
33.
Hofeller described it as his role to “queue up the facts” Senator Rucho and
Representative Lewis needed to draw the maps, but when asked if Senator Rucho and
Representative Lewis would have needed to know the degree to which African-American
candidates had been elected from districts, he stated “that’s really not my job to make that
determination.” Trial Tr. June 5, 2013 (Hofeller), p. 97, lines 8-12.
34.
In sworn testimony during the 1993 North Carolina case Shaw v. Hunt, Hofeller
testified that he believed racially polarized voting varied from area to area in North Carolina, and
that he had read that there was a very low level of racially polarized voting in the RaleighDurham area. Trial Tr. June 5, 2013 (Hofeller), p. 99, lines 5-8, p. 100, 1-23.
35.
In a 2011 expert report submitted in a redistricting case in federal court in New
York, Hofeller opined that “[s]ome minority districts perform for the minority when minority
voting strength is considerably under 50% (although this may raise questions as to whether the
racial polarization is still legally significant), others require percentages well over 50%.” Trial
Tr. June 5, 2013 (Hofeller), p. 102, lines 19-23 (quoting from Hofeller Deposition Exhibit 518).
8
- 1044 -
C. Senator Rucho and Representative Lewis Knew or Should Have Known that
Section 2 of the Voting Rights Act Did Not Require the Challenged Districts
36.
The Legislative Guide published by the General Assembly in March 2011 and
used to develop House, Senate and Congressional plans, listed the three factual conditions that
must be present before any redistricting plan may be declared in violation of Section 2. Using
the words of Defendants’ Legislative Guide, these three preconditions for potential liability are:
(1) “The existence of a politically cohesive minority group;
(2) that is sufficiently large and geographically compact to constitute a majority in a
single-member district; and
(3) whose preferred candidate is usually defeated by the white majority voting as a
bloc.” (Exhibit 46, p. 5)
37.
In a memorandum dated June 3, 2011, former Supreme Court Justice Robert Orr,
quoting from Bartlett v. Strickland, 129 S.Ct. at 1249, advised Senator Rucho and Representative
Lewis that “[i]n areas with substantial crossover voting it is unlikely that the plaintiffs would be
able to establish the third Gingles precondition.” Exhibit 57 ¶ 10.
38.
Senator Rucho, Representative Lewis and Hofeller had access to information
regarding past elections of African-Americans that established that the third Gingles prong was
not present in the areas in which they were drawing majority-minority districts. That, however,
did not deter them from their goal of proportionality. Lewis Dep. Tr. p. 173, line 14 – p. 174, line
16; p. 178 line 7; p. 179 line 9.
39.
Early in the redistricting process, at the request of Senator Rucho, legislative staff
at the General Assembly compiled a list of every racially contested election in the state of North
Carolina from the years 2006 through 2010 and for every racially contested Congressional
election from 1992-2010. Churchill Dep. Tr. p. 130, lines 1-12. Churchill Dep. Exs. 80-84.
9
- 1045 -
40.
The data compiled by legislative staff included the race of all candidates, the
district number, the winner and loser of the election, the margin of victory, and the racial
demographics of the district in which the election was conducted. Churchill Dep. Exs. 81-83.
41.
This data established:
a. that seven African-American State Senators were elected from eight of the prior
Senate districts with black voting percentages between 42.52% and 49.70% in the
past four election cycles. Def. Answer to NAACP Am. Compl., ¶ 290; Def.
Answer to Dickson Am. Compl., ¶¶ 136, 149, 157, 173, 188, 195;
b. that in the 40%+ black voting age population Senate districts relevant to this
litigation, African-American candidates or the candidates of choice of AfricanAmerican voters prevailed in all elections in 7 of 8 districts in the 2008 and 2010
primary and general elections, for a win rate of 88 percent. First Affidavit of
Allan Lichtman ¶ 10;
c. that in the 40%+ black voting age population State House Districts relevant to this
litigation, black candidates or a white candidate of choice of black voters
prevailed in 19 out of 21 districts in the 2008 and 2010 primary and general
elections, for a win rate of 90 percent. First Affidavit of Allan Lichtman ¶ 9;
d. that in the State House districts that were above 40% black voting age population
but below 50% black voting age population, the candidate of choice of black
voters prevailed in all elections in 10 of the 11 districts, and prevailed in 3 out of
4 of the elections in the 11th district, for a win rate of 91%. Second Affidavit of
Allan Lichtman ¶ 7;
10
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e. that in the State House districts that were above 50% black voting age population,
the candidate of choice of black voters prevailed in 8 of the 10 majority black
districts, for a win rate of 80%, which is lower than the win rate in districts
between 40% and 50% black voting age population. Second Affidavit of Allan
Lichtman ¶ 11;
f. that Congressional Districts 1 and 12 previously were less than 50% black in
voting age population and that both districts elected candidates of choice of black
voters in the 2008 and 2010 primary and general elections. Def. Answer to
NAACP Am. Compl., ¶ 391; Churchill Dep. Ex. 81; Lichtman Second Aff. Table
4; and
g. that in all districts, state legislative and Congressional, the candidate of choice of
black voters prevailed in 28 of 31 districts with 40%+ black voting age
population, for a win rate of 90%. First Affidavit of Allan Lichtman ¶ 12. This
win rate is no different than the win rate for African-American candidates and
white candidates of choice of African-American voters in districts that are 50%+
in black voting age populations. Second Affidavit of Allan Lichtman, p. 4, lines
1-3.
42.
Defendants had in the record before them during the legislative process evidence
of the sustained electoral success of African-American candidates in districts that were not
majority black and districts that were in every region in the state where Defendants enacted new
majority-black districts. Results of these elections are compiled below:
11
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Recent Elections of African-American Officials from Non-Majority Black Districts
Year District Representative
Race
2008
HD 5
Annie Mobley
Black
Racially
District Winner %
Contested BVAP% of Vote
Election?
N
48.76%
-
2010
HD 5
Annie Mobley
Black
Y
48.76%
58.99%
2006
HD 12
William
Wainwright
Black
Y
47.09%
66.28%
2008
HD 12
William
Wainwright
Black
Y
47.09%
69.14%
2010
HD 12
William
Wainwright
Black
Y
47.09%
60.21%
2006
HD 18
Thomas Wright
Black
Y (prim)
39.09%
67.84%
2008
HD 18
Sandra Hughes
Black
Y
39.09%
67.18%
2006
HD 21
Larry Bell
Black
N
47.94%
-
2008
HD 21
Larry Bell
Black
N
47.94%
-
2006
HD 29
Larry Hall
Black
Y (prim)
44.12%
55.47%
2008
HD 29
Larry Hall
Black
Y
44.12%
90.73%
2010
HD 29
Larry Hall
Black
N
44.12%
-
2006
HD 31
Mickey
Michaux
Black
N
44.20%
-
12
Record
Citation
Churchill
Dep. Ex. 83,
p. 22
Churchill
Dep. Ex. 83,
p. 43
Churchill
Dep. Ex. 83,
p. 5
Churchill
Dep. Ex. 83,
p. 25
Churchill
Dep. Ex. 83,
p. 47
Churchill
Dep. Ex. 83,
p. 6
Churchill
Dep. Ex. 83,
p. 26
Churchill
Dep. Ex. 83,
p. 7
Churchill
Dep. Ex. 83,
p. 27
Churchill
Dep. Ex. 83,
p. 10
Churchill
Dep. Ex. 83,
p. 29
Churchill
Dep. Ex. 83,
p. 49
Churchill
Dep. Ex. 83,
p. 11
- 1048 -
2008
HD 31
Mickey
Michaux
Black
N
44.20%
-
2010
HD 31
Mickey
Michaux
Black
Y
44.20%
75.50%
2006
HD 33
Bernard Allen
Black
N
49.19%
-
2008
HD 33
Dan Blue
Black
Y
49.19%
81.85%
2010
HD 33
Rosa Gill
Black
Y
49.19%
77.79%
2006
HD 39
Linda Coleman
Black
Y
26.70%
58.73%
2008
HD 39
Linda Coleman
Black
Y
26.70%
64.24%
2006
HD 41
Ty Harrell
Black
Y
8.30%
51.64%
2008
HD 41
Ty Harrell
Black
Y
8.30%
53.77%
2006
HD 42
Marvin Lucas
Black
N
43.94%
-
2008
HD 42
Marvin Lucas
Black
N
43.94%
-
2010
HD 42
Marvin Lucas
Black
N
43.94%
-
2006
HD 43
Mary
McAllister
Black
N
47.75%
-
2008
HD 43
Elmer Floyd
Black
N
47.75%
93.31%
2006
HD 48
Garland Pierce
Black
N
45.24%
-
13
Churchill
Dep. Ex. 83,
p. 30
Churchill
Dep. Ex. 83,
p. 50
Churchill
Dep. Ex. 83,
p. 12
Churchill
Dep. Ex. 83,
p. 31
Churchill
Dep. Ex. 83,
p. 51
Churchill
Dep. Ex. 83,
p. 66
Churchill
Dep. Ex. 83,
p. 68
Churchill
Dep. Ex. 83,
p. 79
Churchill
Dep. Ex. 83,
p. 81
Churchill
Dep. Ex. 83,
p. 13
Churchill
Dep. Ex. 83,
p. 32
Churchill
Dep. Ex. 83,
p. 53
Churchill
Dep. Ex. 83,
p. 15
Churchill
Dep. Ex. 83,
p. 33
Churchill
Dep. Ex. 83,
p. 16
- 1049 -
2008
HD 48
Garland Pierce
Black
N
45.24%
-
2010
HD 48
Garland Pierce
Black
Y
45.24%
74.80%
2006
HD 72
Earline Parmon
Black
N
42.93%
-
2008
HD 72
Earline Parmon
Black
N
42.93%
-
2010
HD 72
Earline Parmon
Black
Y
42.93%
69.48%
2008
HD 99
Nick Mackey
Black
Y (prim)
27.74%
65.32%
2010
HD 99
Rodney Moore
Black
Y
27.74%
72.01%
2006
SD 4
Robert
Holloman
Black
Y
49.14%
69.67%
2008
SD 4
Edward Jones
Black
N
49.14%
-
2008
SD 5
Don Davis
Black
Y
30.14%
52.90%
2008
SD 14
Vernon Malone
Black
Y
41.01%
69.45%
2010
SD 14
Dan Blue
Black
Y
41.01%
65.92%
2006
SD 20
Jeanne Lucas
Black
N
44.58%
-
2008
SD 20
Floyd
McKissick
Black
Y
44.58%
73.58%
2010
SD 20
Floyd
McKissick
Black
Y
44.58%
73.11%
14
Churchill
Dep. Ex. 83,
p. 36
Churchill
Dep. Ex. 83,
p. 55
Churchill
Dep. Ex. 83,
p. 20
Churchill
Dep. Ex. 83,
p. 40
Churchill
Dep. Ex. 83,
p. 59
Churchill
Dep. Ex. 83,
p. 70
Churchill
Dep. Ex. 83,
p. 74
Churchill
Dep. Ex. 82,
p. 4
Churchill
Dep. Ex. 82,
p. 11
Churchill
Dep. Ex. 82,
p. 29
Churchill
Dep. Ex. 82,
p. 13
Churchill
Dep. Ex. 82,
p. 21
Churchill
Dep. Ex. 82,
p. 6
Churchill
Dep. Ex. 82,
p. 14
Churchill
Dep. Ex. 82,
p. 22
- 1050 -
2008
SD 21
Larry Shaw
Black
N
41.00%
-
2010
SD 21
Eric Mansfield
Black
Y
41.00%
67.61%
2006
SD 24
Tony Foriest
Black
Y (prim)
20.79%
70.06%
2008
SD 24
Tony Foriest
Black
Y
20.79%
52.51%
2006
SD 28
Katie Dorsett
Black
N
44.18%
-
2008
SD 28
Katie Dorsett
Black
N
44.18%
-
2010
SD 28
Gladys
Robinson
Black
Y
44.18%
2006
SD 38
Charlie
Dannelly
Black
N
47.69%
47.38%
[black (I)
candidate
received
13.47%]
-
2008
SD 38
Charlie
Dannelly
Black
Y
47.69%
73.33%
2010
SD 38
Charlie
Dannelly
Black
N
47.69%
-
2006
SD 40
Malcolm
Graham
Black
Y
31.11%
61.48%
2008
SD 40
Malcolm
Graham
Black
Y
31.11%
66.96%
2010
SD 40
Malcolm
Graham
Black
Y
31.11%
58.16%
1998
CD 1
Eva Clayton
Black
Y
46.54%
62.24%
15
Churchill
Dep. Ex. 82,
p. 15
Churchill
Dep. Ex. 82,
p. 23
Churchill
Dep. Ex. 82,
p. 36
Churchill
Dep. Ex. 82,
p. 39
Churchill
Dep. Ex. 82,
p. 8
Churchill
Dep. Ex. 82,
p. 16
Churchill
Dep. Ex. 82,
p. 24
Churchill
Dep. Ex. 82,
p. 9
Churchill
Dep. Ex. 82,
p. 17
Churchill
Dep. Ex. 82,
p. 26
Churchill
Dep. Ex. 82,
p. 28
Churchill
Dep. Ex. 82,
p. 31
Churchill
Dep. Ex. 82,
p. 34
Churchill
Dep. Ex. 81,
p. 10
- 1051 -
2000
CD 1
Eva Clayton
Black
Y
46.54%
66%
2002
CD 1
Frank Ballance
Black
Y
47.76%
63.73%
2004
CD 1
G.K.
Butterfield
Black
Y
47.76%
63.97%
2006
CD 1
G.K.
Butterfield
Black
N
47.76%
-
2008
CD 1
G.K.
Butterfield
Black
Y
47.76%
70.28%
2010
CD 1
G.K.
Butterfield
Black
Y
47.76%
59.31%
1998
CD 12
Mel Watt
Black
Y
32.56%
55.95%
2000
CD 12
Mel Watt
Black
Y
43.36%
65%
2002
CD 12
Mel Watt
Black
Y
42.31%
65.34%
2004
CD 12
Mel Watt
Black
Y (prim)
42.31%
66.82%
2006
CD 12
Mel Watt
Black
N
42.31%
-
2008
CD 12
Mel Watt
Black
Y
42.31%
71.55%
2010
CD 12
Mel Watt
Black
Y
42.31%
63.88%
43.
Churchill
Dep. Ex. 81,
p. 12
Churchill
Dep. Ex. 81,
p. 15
Churchill
Dep. Ex. 81,
p. 17
Churchill
Dep. Ex. 81,
p. 20
Churchill
Dep. Ex. 81,
p. 24
Churchill
Dep. Ex. 81,
p. 26
Churchill
Dep. Ex. 81,
p. 11
Churchill
Dep. Ex. 81,
p. 14
Churchill
Dep. Ex. 81,
p. 16
Churchill
Dep. Ex. 81,
p. 19
Churchill
Dep. Ex. 81,
p. 22
Churchill
Dep. Ex. 81,
p. 25
Churchill
Dep. Ex. 81,
p. 29
Defendants had in the record before them during the legislative process evidence
of the sustained electoral success of African-American candidates in districts that were majority
16
- 1052 -
white—districts that were located many of the regions in the state where Defendants enacted new
majority-black districts. Results of these elections are compiled below:
Recent Elections of African-American Officials From Majority White Districts
Year
District Representative
Race
District
WVAP%
Record Citation
Black
Racially
Contested
Election?
Y (prim)
2006
HD 18
Thomas Wright
57.73%
Sandra Hughes
Black
Y
57.73%
HD 39
Linda Coleman
Black
Y
67.68%
2008
HD 39
Linda Coleman
Black
Y
67.68%
2006
HD 41
Ty Harrell
Black
Y
82.85%
2008
HD 41
Ty Harrell
Black
Y
82.85%
2006
HD 72
Earline Parmon
Black
N
51.33%
2008
HD 72
Earline Parmon
Black
N
51.33%
2010
HD 72
Earline Parmon
Black
Y
51.33%
2008
HD 99
Nick Mackey
Black
Y (prim)
62.20%
2010
HD 99
Rodney Moore
Black
Y
62.20%
2008
SD 14
Vernon Malone
Black
Y
51.84%
2010
SD 14
Dan Blue
Black
Y
51.84%
2006
SD 24
Tony Foriest
Black
Y (prim)
75.17%
2008
SD 24
Tony Foriest
Black
Y
75.17%
2006
SD 40
Black
Y
59.89%
2008
SD 40
Black
Y
59.89%
2010
SD 40
Malcolm
Graham
Malcolm
Graham
Malcolm
Graham
Black
Y
59.89%
Churchill Dep. Ex.
83, p. 6
Churchill Dep. Ex.
83, p. 26
Churchill Dep. Ex.
83, p. 66
Churchill Dep. Ex.
83, p. 68
Churchill Dep. Ex.
83, p. 79
Churchill Dep. Ex.
83, p. 81
Churchill Dep. Ex.
83, p. 20
Churchill Dep. Ex.
83, p. 40
Churchill Dep. Ex.
83, p. 59
Churchill Dep. Ex.
83, p. 70
Churchill Dep. Ex.
83, p. 74
Churchill Dep. Ex.
82, p. 13
Churchill Dep. Ex.
82, p. 21
Churchill Dep. Ex.
82, p. 36
Churchill Dep. Ex.
82, p. 39
Churchill Dep. Ex.
82, p. 28
Churchill Dep. Ex.
82, p. 31
Churchill Dep. Ex.
82, p. 34
2008
HD 18
2006
17
- 1053 -
2008
SD 5
Don Davis
Black
Y
65.13%
2006
SD 28
Katie Dorsett
Black
N
50.74%
2008
SD 28
Katie Dorsett
Black
N
50.74%
2010
SD 28
Gladys Robinson Black
Y
50.74%
1998
CD 1
Eva Clayton
Black
Y
52.42%
2000
CD 1
Eva Clayton
Black
Y
52.42%
1998
CD 12
Mel Watt
Black
Y
65.85%
2000
CD 12
Mel Watt
Black
Y
55.05%
2002
CD 12
Mel Watt
Black
Y
50.57%
2004
CD 12
Mel Watt
Black
Y (prim)
50.57%
2006
CD 12
Mel Watt
Black
N
50.57%
2008
CD 12
Mel Watt
Black
Y
50.57%
2010
CD 12
Mel Watt
Black
Y
50.57%
Churchill Dep. Ex.
82, p. 29
Churchill Dep. Ex.
82, p. 8
Churchill Dep. Ex.
82, p. 16
Churchill Dep. Ex.
82, p. 24
Churchill Dep. Ex.
81, p. 10
Churchill Dep. Ex.
81, p. 12
Churchill Dep. Ex.
81, p. 11
Churchill Dep. Ex.
81, p. 14
Churchill Dep. Ex.
81, p. 16
Churchill Dep. Ex.
81, p. 19
Churchill Dep. Ex.
81, p. 22
Churchill Dep. Ex.
81, p. 25
Churchill Dep. Ex.
81, p. 29
D. The Grounds on Which the Defendants Drew the Challenged Districts are Very
Weak or Do Not Exist
44.
The issue before this Court for decision is whether the record before the General
Assembly provided a strong basis for concluding that it was reasonably necessary for the General
Assembly to construct the challenged districts to insulate itself from potential Section 2 liability.
A record is strong if it has the following characteristics:
(a) It is carefully and systematically developed before districts are drawn;
(b) It is reasonably complete;
(c) It is accurate; and
(d) It focuses on the proper legal issues.
45.
In their June 17, 2011 public statement, Defendants Rucho and Lewis asserted:
18
- 1054 -
The chairs believe that there is a strong basis in the record to
conclude that North Carolina remains obligated to create majority
African-American districts.
(June 17, 2011 Public Statement page 2).
46.
Three grounds for these assertions were identified by the Chairs. Those grounds
were: (1) the “history surrounding the creation of VRA districts … as ordered by the federal
courts”; (2) the “history surrounding the creation of VRA districts … as adopted by the
Legislature, from 1986 through the present”; and (3) “evidence and testimony submitted to the
Joint Redistricting Committee or received at public hearings.” (Churchill Dep. Exhibit 55, p. 2).
47.
The foregoing history of the election of African-American candidates from
majority-white districts and non-majority black districts was ignored by the Chairs in making
these assertions.
48.
None of the grounds identified by Defendants in their June 17, 2011 public
statement as constituting a strong basis in the record for drawing the challenged districts is in fact
supported by the record before the General Assembly.
a. The Gingles Decision Does Not Support Defendants’ Assertions
49.
The factual findings in the Gingles case were based on election results and voting
patterns for 1982 and earlier years. The injunction issued by the trial court on January 27, 1984
was dissolved on April 20, 1984. The legal principles announced in Gingles have continuing
force but the factual findings in Gingles have little or no probative value in light of the 14
election cycles occurring between the Gingles trial court decision and the June 2013 trial in this
matter. The last successful Section 2 challenge to statewide redistricting plans was filed in 1982
in the Gingles case, and no statewide Section 2 lawsuit has even been filed since that case. Trial
Tr. June 4, 2013 (Blue), p. 26, lines 11-16, p. 27, lines 1-16.
19
- 1055 -
50.
Prior to enacting the challenged districts, Senator Rucho and Representative
Lewis were advised that Gingles data could not be relied on for 2011 redistricting decisions. By
memorandum to Defendants’ dated May 27, 2011, Michael Crowell and Bob Joyce at the UNC
School of Government stated:
“In considering whether Section 2 requires the drawing of
majority African American legislative districts today it should be kept in mind that the Gingles
decision was based on demographics as they existed in 1982 and an election history primarily
from the 1960s and 1970s; likewise, the Section 2 litigation involving local governments mostly
was concluded by the early 1990s.
North Carolina has changed significantly since then,
especially in the piedmont urban areas, so that more recent analysis of voting patterns and the
other Section 2 elements would be necessary to assert with any confidence that a Section 2
violation might be found in a particular part of the state today.” Churchill Dep. Exhibit 57, p. 5.
b. The History Of the Creation Of VRA Districts by the General Assembly
Since Gingles Does Not Support Defendants’ Assertions
51.
The following chart lists each county in which a Senate district containing > 50%
TBVAP were located (a) under the legislative plan used for the 1992-2000 election; (b) under the
Court drawn plan used for the 2002 election; (c) under the legislative plan used for the 20042010 elections; and (d) under the challenged 2011 plan.
20
- 1056 -
County
Bertie
Gates
Halifax
Hertford
Northhampton
Vance
Warren
Edgecombe
Martin
Pitt
Washington
Wilson
Mecklenburg
Tyrell
Chowan
Nash
Greene
Lenoir
Wayne
Wake
Durham
Granville
Cumberland
Hoke
Guilford
52.
1992
1
1
1
1
1
1
1
1
1
1
1
1
1
0
0
0
0
0
0
0
0
0
0
0
0
2002
1
1
1
1
1
1
1
1
1
1
1
0
1
1
0
0
0
0
0
0
0
0
0
0
0
2003
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
2011
1
0
1
1
1
1
1
1
1
1
1
1
2
1
1
1
1
1
1
1
1
1
1
1
1
Notably, the 2011 plan doubles the number of > 50% BVAP Senate districts in
Mecklenburg County and adds a > 50% BVAP district in 11 counties for the first time, including
Wake, Durham, Guilford and Cumberland counties.
53.
The following chart lists each county in which a House district containing > 50%
BVAP was located (a) under the legislative plans used for the 1992-2000 elections; (b) under the
Court drawn plan used for the 2002 election; (c) under the legislative plan used for the 20042008 elections; (d) under the legislative plan used for the 2010 election; and (e) under the
challenged 2011 plan.
21
- 1057 -
County
Bertie
Gates
Hertford
Northhampton
Edgecombe
Greene
Martin
Pitt
Halifax
Nash
Guilford
Forsyth
Mecklenburg
Wake
Cumberland
Granville
Vance
Warren
Craven
Jones
Lenoir
Pamlico
Brunswick
Columbus
New Hanover
Pender
Wilson
Pasquotank
Franklin
Duplin
Sampson
Wayne
Durham
Hoke
Richmond
Robeson
Scotland
1992
1
1
1
1
3
1
2
1
1
2
2
1
2
1
0
1
1
1
1
1
1
1
1
1
1
1
1
0
0
0
0
0
0
0
0
0
0
2002
1
0
1
1
1
1
1
1
1
1
2
1
1
0
0
1
1
1
0
0
0
0
0
0
0
0
1
0
0
0
0
0
0
0
0
0
0
22
2003
0
0
0
1
1
0
1
1
1
1
2
1
2
0
0
0
1
1
0
0
0
0
0
0
0
0
1
0
0
0
0
0
0
0
0
0
0
2009
0
0
0
1
1
0
1
1
1
1
2
1
2
0
0
0
1
1
0
0
0
0
0
0
0
0
1
0
0
0
0
0
0
0
0
0
0
2011
1
1
1
1
1
1
1
1
1
1
3
0
5
2
2
1
1
1
1
0
1
0
0
0
0
0
1
1
1
1
1
1
2
1
1
1
1
- 1058 -
54.
Notably, the 2011 plan increases the number of > 50% BVAP districts in
Mecklenburg from 2 to 5, in Guilford from 2 to 3, in Wake from 1 to 2, in Cumberland from 0 to
2 and in Durham from 0 to 2. It also creates a > 50% BVAP House district for the first time in 9
counties.
55.
The following chart compares the number of Senate districts pre-cleared by the
USDOJ that contained BVAP 50% or greater and the number of pre-cleared districts that
contained BVAP between 40 and 50% under the plans used for the 1992-2000 elections, the
2002 election, the 2006-2010 elections and under the 2011 challenged plan.
State Senate Plan
1992 Senate ('92-'00)
2002 Court Plan ('02)
2003 Senate ('04-'10)
2011 Plan (Current)
56.
# Senate Districts
Where TBVAP
≥50%
3
3
0
9
# Senate Districts Where
TBVAP ≥40% but <50%
2
6
8
1
The following chart compares the number of House districts pre-cleared by
USDOJ that contained BVAP 50% or greater and the number of pre-cleared districts that
contained BVAP from 40-50% under the plans used for the 1992-2000 elections, the 2002
election, the 2004-2008 election, the 2010 election and under the 2011 challenged plan.
State House Plan
# House Districts
Where TBVAP ≥50%
1992 House ('92-'00)
2002 Court Plan ('02)
2003 Plan ('04-'08)
2009 Plan ('10)
2011 Plan (Current)
13
9
10
10
23
23
# House Districts Where
TBVAP ≥40% but
<50%
4
13
11
11
2
- 1059 -
57.
The largest decrease during this period in the number of Senate and House
districts with BVAP 50% or greater was made in the plans drawn by the North Carolina Courts
and used for the 2002 election.
58.
Compared to the benchmark House plan (2009 plan), Senate benchmark plan
(2003 plan) and Congressional benchmark plan (2001 plan) the House, Senate and Congressional
plans challenged in these lawsuits increased the number of House seats with BVAP 50% or
greater from 10 districts to 23 districts; increased the number of Senate seats with BVAP 50% or
greater from 0 to 9, and increased the number of Congressional seats with BVAP 50% or greater
from 0 to 2.
59.
Compared to the benchmark House plan (2009 plan), Senate benchmark plan
(2003 plan) and Congressional benchmark plan (2001 plan), the House, Senate and
Congressional plans challenged in these lawsuits decreased the number of House districts with
BVAP 40 to 50% from 11 districts to 2 districts; decreased the number of Senate districts with
BVAP 40 to 50% from 8 districts to 1 districts; and decreased the number of Congressional
districts with BVAP 40 to 50% from 2 to 0.
60.
The number and location of > 50% BVAP districts and 40-50% BVAP districts in
each of the competing plans introduced during the 2011 Session of the General Assembly, but
rejected by Defendants, is much closer to the precleared 1990s and 2000s plans than the 2011
challenged plans, as the following chart illustrates:
24
- 1060 -
# > 50%
BVAP
Districts
0
1
# 40-50%
BVAP
Districts
8
7
Senate Possible Districts
(Sen. McKissick)
2
6
2011 Challenged Senate Plan
2009 House Benchmark Plan
House Fair & Legal Plan
(Rep. Martin)
9
10
9
1
11
12
Possible House Districts
(Rep. Alexander)
10
12
2011 Challenged House Plan
23
2
Plan
2003 Benchmark Senate Plan
Senate Fair & Legal Plan
(Sen. Nesbitt)
61.
The General Assembly dramatically increased the number of House, Senate and
Congressional districts that contained BVAP greater than 50% in order to insulate itself from
Section 2 liability, despite the fact that no statewide Section 2 lawsuit has been filed since the
Gingles case in the early 1980s.
c. The Flaws and Limitations in the Brunell and Block Reports
62.
Representative Lewis and Senator Rucho, through the Ogletree law firm, hired
Dr. Thomas Brunell of the University of Texas at Dallas, to conduct a racially polarized voting
analysis for the State of North Carolina. Brunell Dep. Tr. p. 68 line 17-19, p. 69 lines 16-22;
Brunell Dep. Ex. 300.
63.
Dr. Brunell’s report addresses the extent to which white citizens vote for white
candidates and black citizens vote for black candidates at a higher rate than would occur simply
by chance. That report is not relevant to the issue before the Court, since it did not address the
third prong of Gingles; was not provided to Hofeller when he was drawing the challenged
districts; and is severely flawed.
25
- 1061 -
64.
Dr. Brunell was first contacted to create a report in this case on May 12, 2011.
Brunell Dep. Tr. p. 69 line 19-p. 70 line 2. Dr. Brunell noted that he was only first contacted 32
days before he produced his final report, so his analysis was conducted quickly. Brunell Dep. Tr.
p. 175, lines 16-18.
65.
As of May 25, 2011, Dr. Brunell had still not received the data necessary to
conduct his racially polarized voting analysis. Brunell Dep. Tr. p. 76, lines 5-7, 18-19, p. 77,
lines 6-19; Brunell Dep. Ex. 301.
66.
On June 9, Dr. Brunell was notified that the data set he had been provided was
flawed, sometimes indicating more votes cast than registered voters. Brunell Dep. Tr. p. 78,
lines 11-17; Brunell Dep. Ex. 302.
67.
Dr. Brunell’s report was not finished on June 14, 2011. Brunell Dep. Tr. p. 101,
line 17-19; Brunell Dep. Ex. 299 (report dated June 14).
68.
The racially polarized voting study performed by Dr. Ray Block was submitted on
May 9, 2013. First Rucho Affidavit, January 19, 2012, ¶ 11.
69.
Senator Rucho claimed that Dr. Brunell “validated” Dr. Block’s report, but Dr.
Brunell said he never conducted any independent analysis of Dr. Block’s study. Rucho Dep. Tr.
p. 167, lines 3-4; Brunell Dep. Tr. p. 173, lines 21-24.
70.
The VRA district maps were released to the public on June 17, only 3 days after
Dr. Brunell’s report was completed. Churchill Dep. Ex. 55, June 17 Joint Statement.
71.
Hofeller did not make any judgments about what the Voting Rights Act required
when he was drawing the “VRA” districts. Hofeller Dep. Tr. Vol. I, p. 67, lines 18-25, p. 68,
lines 1-8.
26
- 1062 -
72.
Hofeller did not consider past election results, including the election of candidates
of choice of black voters in districts less than 50% African-American, when drawing majority
black districts. Hofeller Dep. Tr. Vol. I, p. 66, lines 1-13. Instead, he was instructed to draw
majority black districts wherever it was possible. Hofeller Dep. Tr. Vol. I, p. 67, lines 1-16.
73.
Dr. Brunell admitted in a December 10, 2012 affidavit that his June 2011 report
contained large, substantive errors, affecting three separate tables of the report. Brunell Affidavit
¶¶ 3-4. In his Affidavit, Dr. Brunell admitted that he incorrectly calculated the amount of support
that black candidates in the elections he analyzed received from black voters. Brunell Affidavit
¶¶ 3-4.
74.
Dr. Brunell admitted during his deposition that some data on black cohesion was
“obviously” wrong. He further acknowledged the estimates produced by his analysis were not
accurate. Brunell Dep. Tr. p. 125, lines 20-21, p. 113, lines 7-8.
75.
Dr. Brunell’s report had many weaknesses beyond the ones he acknowledged in
his December 10, 2012 Affidavit. Dr. Brunell acknowledged that a white candidate could be the
candidate of choice of black voters, but he purposefully only analyzed elections in which a black
candidate ran against a white candidate, not elections where a white candidate ran against a white
candidate. Brunell Dep. Tr. p. 42, lines 3-7, p. 59, lines 5-8.
76.
Dr. Brunell did not analyze the racially contested 2010 Democratic primary in
Senate District 32, where the white candidate, Linda Garrou, received 81.34 percent of the black
vote. He had no opinion as to whether she was the candidate of choice of black voters. Brunell
Dep. Tr. p. 150, lines 1-11.
77.
Dr. Brunell discussed statistically significant racially polarized voting in his
report and deposition but did not opine on legally significant racially polarized voting. Brunell
27
- 1063 -
Dep. Tr. 64, lines 1-7, p. 65, lines 23-25, p. 66, lines 1-7. Indeed, he asserted that even where
white voters tending to vote for white candidates did not result in the defeat of the candidate of
choice of black voters, he would still conclude there was racially polarized voting so long as
50% of white voters voted for the white candidate. Brunell Dep. Tr. p. 67, lines 20-25, p. 68,
lines 1-8.
78.
Dr. Brunell testified that when the area of interest for examining racially polarized
voting is not statewide, it is important to examine elections from the area of interest. Brunell
Dep. Tr. p. 60, lines 22-25. Despite this assertion, Dr. Brunell only examined county elections in
four counties, and only examined elections from 3 state legislative districts. Brunell Dep. Tr. p.
88, lines 1-11; Brunell Dep. Ex. 299, p. 14-23.
79.
Instead of focusing on local elections, Dr. Brunell primarily examined three
racially-contested statewide elections: the 2004 State Auditor election, the 2008 Democratic
Presidential Primary election, and the 2008 Presidential General election. Dep. Ex. 299, pp. 5-13.
80.
He examined these elections in 51 counties—the 40 counties in North Carolina
covered by Section 5 of the Voting Rights Act, and 11 other counties selected by Mr. Farr. Dr.
Brunell could not explain the justification for the 11 additional counties selected by Mr. Farr, but
thought that they were selected because they were areas in the state in which it was possible to
draw majority black districts. Brunell Dep. Tr. p. 70, lines 6-10, p. 100, lines 22-25.
81.
Of the 3 statewide elections analyzed, Dr. Brunell’s homogenous precinct analysis
indicated that in the 2004 State Auditor’s election, in precincts from a select number of counties
that were overwhelmingly white (over 90% white), the black candidate received on average
39.3% of the vote. Dep. Ex. 299, p. 11.
28
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82.
Dr. Brunell’s homogenous precinct analysis indicated that in the 2008 Democratic
Presidential primary, in precincts that were overwhelmingly white (over 90% white) in 51
counties, the black candidate received on average 43.8% of the vote. Dep. Ex. 299, p. 5. Dr.
Brunell did not feel compelled to note that this level of white crossover voting enabled Barack
Obama to win the primary statewide, as he viewed that information as publicly available
information. Brunell Dep. Tr. p. 122, lines 6-17.
83.
Dr. Brunell’s homogenous precinct analysis indicated that in the 2008 Presidential
General election, in precincts that were overwhelmingly white (over 90% white) in 47 counties,
the black candidate received on average 39.7% of the vote. Dep. Ex. 299, p. 8. Again, Dr.
Brunell did not feel compelled to note that this level of white crossover voting enabled Barack
Obama to win the 2008 Presidential General election in North Carolina with 49.70% of the vote.
Brunell Dep. Tr. p. 122, lines 6-17.
84.
Dr. Brunell was provided a copy of the Ray Block report on racially polarized
voting, but he did not receive the data upon which Mr. Block’s report was based and did not
conduct any independent analysis of that report. Brunell Dep. Tr. p. 173, lines 13-25.
E. Information Reasonably Available to Defendants, but Not Sought or Obtained –
Lichtman analysis
85.
The racially polarized voting report prepared by Dr. Brunell is only the first step
necessary in an analysis to determine whether black voters lack a reasonable opportunity to elect
their candidates of choice. Defendants failed to seek or obtain the rest of the analysis, which
would determine whether the third prong of Gingles was satisfied and compelled the drawing of
majority black districts.
86.
First, the Defendants did not need to retain any expert to perform the simplest
analysis relevant to Section 2 liability: were black voters unable to elect the candidates of choice
29
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in districts that were under 50% TBVAP? The data necessary to answer that question were
squarely before the General Assembly, and clearly indicate that the answer is “no.” Churchill
Dep. Ex. 81-83. While Dr. Lichtman’s first step in this case was to review that data and
calculate that the candidates of choice of black voter had a success rate of 88-90% of the time in
districts that were 40-50% TBVAP, this is an elementary analysis for which no expertise is
required. First Affidavit of Allan Lichtman, ¶¶ 9, 10, 12; Second Affidavit of Allan Lichtman,
¶¶ 7, 11. Nevertheless, Defendants failed to consider that information.
87.
Further, using Dr. Brunell’s data, Dr. Allan Lichtman calculated the expected
percentage of the total vote the preferred candidate of black voters likely would receive for the
challenged districts if those districts had been drawn at 40% BVAP rather than 50% BVAP or
higher. 1
88.
Consistent with past election results, Dr. Lichtman’s analysis, as set forth below,
reveals that in all counties in which challenged districts are located, except for Beaufort County,
the preferred candidates of black voters would be expected to win the elections by a comfortable
margin had those districts been drawn at 40% BVAP rather than 50% or higher BVAP.
1
The arithmetic applied by Dr. Lichtman in this analysis is straightforward: Dr. Lichtman relied on Dr. Brunell’s
county percentage of black voters would vote for the black candidate (black cohesion) and the county percentage of
white voters who would vote for the black candidate (white cohesion), assumed equal turnout, and applied those
percentages to a district in those counties that would be 40% BVAP.
30
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County
Bea ufort
Bertie
Ca ba rrus
Chowa n
Cra ven
Cumberl a nd
Da vi ds on
Dupl i n
Durha m
Edgecombe
Fors yth
Fra nkl i n
Ga tes
Gra nvi l l e
Greene
Gui l ford
Ha l i fa x
Hertford
Hoke
Lenoi r
Ma rtin
Meckl enburg
Na s h
Northa mpton
Pa s quotank
Perqui ma ns
Pi tt
Ri chmond
Robes on
Rowa n
Sa mps on
Scotla nd
Va nce
Wa ke
Wa rren
Wa s hi ngton
Wa yne
Wi l s on
Di s tri cts
CD1
CD1, HD5
***
CD1
CD1, HD12
SD21, HD42
***
***
CD1, SD20, HD28, HD31
CD1
CD12
CD1
CD1, HD5
CD1, SD20, HD32
CD1, HD12
CD12, SD28, HD57
CD1, SD4, HD7
CD1, HD5
SD21, HD48
CD1, SD5, HD12
CD1
CD12, SD38, SD39, SD40, HD99, HD102, HD106,
HD107
CD1, SD4, HD7
CD1
CD1, HD5
CD1
CD1, SD5, HD24
***
HD48
***
***
HD48
CD1, SD4, HD32
SD14, HD33, HD38
***
CD1
CD1, SD5, HD21
CD1, SD4, HD24
75.35
100
***
100
100
98.2
***
***
100
100
99.75
100
90.1
100
100
100
100
99.5
100
100
100
Mi ni mum % of Whi te Voters
for Ca ndi da te of Choi ce of
Bl a ck Voters
17.3
22.6
***
28.6
27.0
28.8
***
***
54.7
26.0
35.1
31.0
38.1
30.4
18.3
36.1
30.8
28.6
27.8
21.4
28.1
Projected Vote for Bl a ck
Ca ndi da te of Choi ce i n 40%
Bl a ck VAP Di s tri ct***
40.49
53.53
***
57.13
56.17
56.53
***
***
72.82
55.57
60.96
58.57
58.9
58.21
50.98
61.63
58.48
56.96
56.68
52.81
56.86
100
36.8
62.05
100
99.95
100
97.3
99.45
***
95.8
***
***
100
100
99.9
***
100
100
100
22.3
32.8
33.3
27.0
33.6
***
49.8
***
***
34.9
30.6
43.1
***
21.9
22.0
26.0
53.38
59.63
59.95
55.12
59.91
***
68.17
***
***
60.91
58.33
65.79
***
53.14
53.17
55.6
% of Bl a ck Voters for
Ca ndi da te of Choi ce
***Equa l Turnout Between Bl a ck a nd Whi te Voters
F. The African-American Members of the General Assembly Were United in their
Opposition to the Challenged Plans and Districts
89.
African-American legislators asked Senator Rucho and Representative Lewis in
public debate to identify which newly majority-black districts they contended were required by
the Voting Rights Act, but neither Senator Rucho nor Representative Lewis would ever identify
those specific districts. Trial Tr. June 4, 2013 (Blue), p. 32, lines 1-13.
90.
Numerous African-American legislators spoke out against the enacted plans in
debates in the House and Senate. Trial Tr. June 4, 2013 (Hall), p. 114, lines 12-21.
31
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91.
No African-American Senator or Representative voted in favor of the redistricting
plans. Trial Tr. June 4, 2013 (Blue), p. 30, lines 17-19; Trial Tr. June 4, 2013 (Hall), p. 114,
lines 8-11.
II.
DISTRICT-SPECIFIC FINDINGS AS TO ISSUE I
House District 5
92.
House District 5 is comprised of Gates, Hertford, Bertie and a piece of
Pasquotank County. Lewis Dep. Ex. 189.
93.
Defendants increased the TBVAP for House District 5 from 48.87% in 2010 to
54.17% under the 2011 plan. Second Stipulation (February 25, 2013) (hereinafter, “Stip.”)
1(a)(vii); Ketchie Fourth Affidavit, Table 4.
94.
The candidate of choice of black voters won with 58.99% of the vote in 2010,
when the district had 48.87% TBVAP. Ketchie Fourth Affidavit, Table 4.
95.
The candidate of choice of black voters also won in 2008. Churchill Dep. Ex. 83,
“House Legislative Races with Minority Candidates,” p. 22.
96.
After the unnecessary increase in TBVAP, the candidate of choice of black votes,
African-American state representative Annie Mobley, won an uncontested general election in
2012. Ketchie Fourth Affidavit, Table 4.
97.
Dr. Brunell’s report did not analyze any of the legislative races in the prior
version of House District 5. Brunell Dep. Ex. 299, p. 2.
98.
Dr. Brunell’s analysis shows that in the four counties that are included in House
District 5, in the 2004 State Auditor contest, the candidate of choice of black voters received
34.8%, 54.3%; 39.2% and 42.1% of the white vote. Brunell Dep. Ex. 299, p. 12-13, Table 3. In
the 2004 State Auditor election, this amount of white crossover voting enabled the candidate of
32
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choice of black voters to win in each of the counties included in House District 5. Mot. Jud. Not.
(Granted June 4, 2013), Attachment 1, p. 1-2.
99.
Dr. Brunell did not analyze any state legislative contests in these counties, even
though they were among the “counties of interest” for his analysis. Brunell Dep. Ex. 299, p. 2-3.
100.
Using Brunell's analysis of the level of RPV the counties that make up HD 5, Dr.
Lichtman's analysis demonstrates that, had that District been drawn at 40% BVAP, the preferred
candidate of African-American voters would receive 53.53% of the vote in Bertie County and
58.96% of the vote in Hertford County. Pl. Trial Ex. 33.
101.
During the public hearings, an African-American resident of Pasquotank County
described increasing districts above 50% BVAP as “undermining civil rights and rooting your
decisions in the politics of yesterday.” July 18, 2011, Redistricting Public Hearing Testimony
(Keith Rivers), p. 58, lines 1-22. An African-American resident from Hertford County expressed
concern that the General Assembly’s 50% VAP policy would hurt rather than help black voters.
July 23, 2011, Redistricting Public Hearing Testimony Carl White), p. 48, line 8 – p. 51, line 2.
House District 7
102.
House District 7 is comprised of pieces of Halifax and Nash counties. Lewis Dep.
Ex. 189.
103.
Defendants increased the TBVAP for House District 7 from 48.87% in 2010 to
51.67% under the 2011 plan. Stip. 1(a)(vii); Ketchie Fourth Affidavit, Table 4.
104.
The candidate of choice of black voters won in 2010 in an uncontested race, when
the district had 48.87% TBVAP. Ketchie Fourth Affidavit, Table 4.
105.
The candidate of choice of black voters also won in 2006 and 2008. Churchill
Dep. Ex. 83, p. 3, 23.
33
- 1069 -
106.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American state representative Angela Bryant, won an uncontested general election in
2012. Ketchie Fourth Affidavit, Table 4.
107.
Dr. Brunell’s analysis shows that in the two counties that are included in House
District 7, in the 2004 State Auditor contest, the candidate of choice of black voters received
40.6% and 28.8% of the white vote. Brunell Dep. Ex. 299, p. 12-13, Table 3. This amount of
white crossover voting enabled the candidate of choice of black voters to win in both Halifax and
Nash Counties. Mot. Jud. Not. (Granted June 4, 2013), Attachment 1, p. 1-2.
108.
Dr. Brunell’s report did not analyze any of the legislative races in the prior
version of House District 7 even though they were “counties of interest” for his analysis. Brunell
Dep. Ex. 299, p. 2-3.
109.
Using Dr. Brunell's analysis of the level of RPV in the counties that make up HD
7, Dr. Lichtman's analysis demonstrates that, had that District been drawn at 40% BVAP, the
preferred candidate of African-American voters would receive between 53.28% and 58.48% of
the vote. Pl. Trial Ex. 33.
House District 12
110.
House District 12 is comprised of pieces of Greene, Lenoir, and Craven counties.
Lewis Dep. Ex. 189.
111.
Defendants increased the TBVAP for House District 12 from 46.45% in 2010 to
50.6% under the 2011 plan. Stip. 1(a)(vii); Ketchie Fourth Affidavit, Table 4.
112.
The candidate of choice of black voters, African-American state representative
William Wainwright, won in 2010 with 60.21% of the vote when the district had 46.45 TBVAP.
Ketchie Fourth Affidavit, Table 4.
34
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113.
Representative Wainwright prevailed in the 2004, 2006, and 2008 general
elections, respectively, by 64.49% to 35.50%, 66.27% to 33.72%, and 69.13% to 30.86%. Def.
Answer to Dickson Am. Compl., ¶ 240; Churchill Dep. Ex. 83, p. 5, 25.
114.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American state representative George Graham, won by 65.85% in 2012. Ketchie Fourth
Affidavit, Table 4.
115.
Dr. Brunell’s analysis shows that in the three counties that are included in House
District 12, in the 2004 State Auditor contest, the candidate of choice of black voters received
23.8%, 28.2%, and 27.8% of the white vote. Brunell Dep. Ex. 299, p. 12-13, Table 3. This
amount of white crossover vote enabled the candidate of choice of black voters to win in Greene
and Lenoir Counties. Mot. Jud. Not. (Granted June 4, 2013), Attachment 1, p. 1-2.
116.
Dr. Brunell’s report did not analyze any of the legislative races in the prior
version of House District 12 even though that district included “counties of interest” for his
analysis. Brunell Dep. Ex. 299.
117.
Using Dr. Brunell's analysis of the level of RPV in the counties that make up HD
12, Dr. Lichtman's analysis demonstrates that, had that District been drawn at 40% BVAP, the
preferred candidate of African-American voters would receive 50.98% of the vote in Greene
County, 52.81% of the vote in Lenoir County, and 56.17% of the vote in Craven County. Pl.
Trial Ex. 33.
House District 21
118.
House District 21 is comprised of pieces of Sampson, Duplin, and Wayne
counties. Lewis Dep. Ex. 189.
119.
Defendants increased the TBVAP for House District 21 from 46.25% in 2010 to
51.9% under the 2011 plan. Stip. 1(a)(vii); Ketchie Fourth Affidavit, Table 4.
35
- 1071 -
120.
The candidate of choice of black voters won in 2010 with 65.59% of the vote
when the district had 46.25% TBVAP. Ketchie Fourth Affidavit, Table 4.
121.
The candidate of choice of black voters also won in 2006 and 2008. Churchill
Dep. Ex. 83, p. 7, 27.
122.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American state representative Larry Bell, won an uncontested general election in 2012.
Ketchie Fourth Affidavit, Table 4.
123.
Representative Larry Bell has received strong support from white voters, both as a
state house representative and when he previously served as county commissioner. Trial Tr.
June 4, 2013 (Kirby), p. 77, lines 19-23.
124.
In floor debates, Representative Bell stated that he found the removal of white and
Native American voters from his district offensive and unnecessary, because he knew those
populations in his district supported him. July 25, 2011 House Testimony (Rep. Bell) p. 152, line
23 – p. 155, line 9.
125.
Dr. Brunell’s analysis showed that in one of the three counties (Wayne) that are
included in House District 21, in the 2004 State Auditor contest, the candidate of choice of black
voters received 29.3% of the white vote. Brunell Dep. Ex. 299, p. 12-13, Table 3.
126.
Dr. Brunell did not examine the racial voting patterns in Sampson or Duplin
counties in this election. Brunell Dep. Ex. 299, p. 12-13, Table 3.
127.
However, the candidate of choice of black voters in the 2004 State Auditor race
did win in both Sampson and Duplin Counties.
Attachment 1, p. 1-2.
36
Mot. Jud. Not. (Granted June 4, 2013),
- 1072 -
128.
House District 21 was drawn into a large portion of Duplin County to increase the
black voting age population above 50%. July 21, 2011 House Testimony (Rep. Lewis) p.31,
lines 10 -17.
129.
Dr. Brunell’s report did not analyze any of the legislative races in the prior
version of House District 21 even though that district included “counties of interest” for his
analysis. Brunell Dep. Ex. 299, p. 2-3.
130.
Using Dr. Brunell's analysis of the level of RPV, Dr. Lichtman's analysis
demonstrates that, had that District been drawn at 40% BVAP, the preferred candidate of
African-American voters would receive 53.17% of the vote in Wayne County. Pl. Trial Ex. 33.
Dr. Brunell did not analyze Sampson County or Duplin County, the other two counties that make
up HD 21. Id.
131.
Candidates of choice of black voters can win and have won elections in Sampson
County without being in majority-black districts. Trial Tr. June 4, 2013 (Kirby), p. 75, lines 1220, p.77, lines 10-24.
132.
The firm of Ogletree Deakins and John Morgan, both involved in the statewide
redistricting process, were involved in redistricting the Sampson County Board of County
Commissioners. Trial Tr. June 4, 2013 (Kirby), p. 76, lines 7-21.
133.
The mapdrawers in the Sampson County Board of County Commissioners
redistricting process did the same thing to Commission District 5—represented by AfricanAmerican Albert Kirby—as they did to House District 21: took a district that was approximately
45% African American voting age population and was electing an African American
representative, and increased the black voting age population to over 50%. Trial Tr. June 4,
2013 (Kirby), p. 75, lines 12-25, p. 76, lines 1-6.
37
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House District 24
134.
House District 24 is comprised of pieces of Wilson and Pitt counties. Lewis Dep.
Ex. 189.
135.
Defendants increased the TBVAP for House District 24 from 56.07% in 2010 to
57.33% under the 2011 plan. Stip. 1(a)(vii); Ketchie Fourth Affidavit, Table 4.
136.
The candidate of choice of black voters won in 2010 with 64.84% of the vote
when the district had 56.07% TBVAP. Ketchie Fourth Affidavit, Table 4.
137.
The candidate of choice of black voters also won in 2006 and 2008. Churchill
Dep. Ex. 83, p. 8, 23.
138.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American state representative Jean Farmer-Butterfield, won an uncontested general
election in 2012. Ketchie Fourth Affidavit, Table 4.
139.
Dr. Brunell’s analysis showed that in the two counties that are included in House
District 24, in the 2004 State Auditor contest, the candidate of choice of black voters received
32.4% and 36.2% of the white vote. Brunell Dep. Ex. 299, p. 12-13, Table 3. This level of
white crossover voting enabled the candidate of choice of black voters to win the 2004 State
Auditor contest in both of the counties included in House District 24. Mot. Jud. Not. (Granted
June 4, 2013), Attachment 1, p. 2-3.
140.
In the 2008 Presidential General Election, the white crossover vote for the
candidate of choice of black voters was 19.6% and 30.9% in each of the two counties in HD 24.
Brunell Dep. Ex. 299, p. 10-11, Table 2. This level of white crossover voting enabled the
candidate of choice of black voters to win the 2008 Presidential Election in both of the counties
included in House District 24. Mot. Jud. Not. (Granted June 4, 2013), Attachment 3, p. 2-3.
38
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141.
Dr. Brunell’s report did not analyze any of the legislative races in the prior
version of House District 24 even though that district included “counties of interest” for his
analysis. Brunell Dep. Ex. 299, p. 2-3.
142.
Using Dr. Brunell's analysis of the level of RPV the counties that make up HD 24,
Dr. Lichtman's analysis demonstrates that, had that District been drawn at 40% BVAP, the
preferred candidate of African-American voters would receive 55.6% of the vote in Wilson
County and 59.91% of the vote in Pitt County. Pl. Trial Ex. 33.
143.
In floor debates, Representative Farmer-Butterfield stated that grouping Wilson
and Pitt together violated the longstanding communities of interests reflected in the traditional
pairings of Wilson and Edgecombe and Pitt and Martin Counties. July 25 House Testimony:
(Rep. Farmer-Butterfield) p.188, line 3 – p. 120, line 16.
Durham County Districts Generally
144.
The demographics of Durham County are such that coalitional politics and multi-
racial campaigns are necessary to win elections in the county. Trial Tr. June 4, 2013 (Hall), p.
93, lines 3-17.
145.
The Durham County Board of County Commissioners all run at large. Three out
of the five members of the commission are African-American, and there has been an AfricanAmerican majority on the commission for 12 years. Trial Tr. June 4, 2013 (Hall), p 93, lines 2024; 176; July 25, 2011 Senate Testimony, (Sen. McKissick) p. 168, lines 20-25, p. 169, lines 115.
146.
The Durham District Attorney elected on a county-wide basis was an African-
American female. Trial Tr. June 4, 2013 (Hall), p 94, lines 4-6.
147.
Four or five judges elected countywide in Durham are African American. Trial
Tr. June 4, 2013 (Hall), p 93, lines 6-8.
39
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148.
White voters also frequently support African-American candidates in statewide
elections, with the African-American candidates winning Durham County in the most recent
Lieutenant Governor and U.S. Senate Democratic primaries, even though those candidates
ultimately lost statewide. Trial Tr. June 4, 2013 (Hall), p 95, lines 6-25.
149.
Using Dr. Brunell's analysis of the level of RPV in Durham County, Dr.
Lichtman's analysis demonstrates that, had district located wholly within Durham County been
drawn at 40% BVAP, the preferred candidate of African-American voters would receive 72.82%
of the vote. Pl. Trial Ex. 33.
150.
Sen. Rucho testified that the Chairs had “serious concerns” about Section 2
liability in Durham. July 25, 2011 Senate Testimony (Sen. Rucho) p. 149, line 23 – p. 150, line
25.
House District 29
151.
House District 29 is located wholly within Durham County. Lewis Dep. Ex. 189.
152.
Defendants increased the TBVAP for House District 29 from 46.25% in 2010 to
51.34% under the 2011 plan. Stip. 1(a)(vii); Ketchie Fourth Affidavit, Table 4.
153.
Rep. Hall won in an uncontested general election in 2010 when the district had
46.25% TBVAP. Ketchie Fourth Affidavit, Table 4
154.
Rep. Hall first won in the district in 2006, when he ran against two other African-
American candidates and two white candidates in the primary elections. Trial Tr. June 4, 2013
(Hall), p. 85, lines 17-20.
155.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American state representative Larry Hall won an uncontested general election in 2012.
Ketchie Fourth Affidavit, Table 4.
40
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156.
The representative who preceded Representative Hall in serving in House District
29 was another African-American state representative, Paul Miller, who was elected and served
three terms. Trial Tr. June 4, 2013 (Hall), p. 85, lines 4-6, 14-16.
157.
In 2008, Representative Hall defeated his opponent 90.73% to 9.27%. Def.
Answer to Dickson Am. Compl., ¶ 265; Churchill Dep. Ex. 83, p. 10, 29.
158.
In his first election to the State House of Representatives, Rep. Hall had the
endorsements of groups such as the People’s Alliance and the Police Benevolent Association—
organizations with predominantly white memberships. Trial Tr. June 4, 2013 (Hall), p. 96, lines
15-25, p. 97, lines 1-6, p. 98, lines 1-4.
159.
Dr. Brunell’s report showed that 59.2% of white voters in Durham County voted
for President Obama, the candidate of choice of black voters in the 2008 presidential primary.
Brunell Dep. Ex. 299, p. 7, Table 1. In the 2008 General Election, 59.4% of white voters in
Durham County voted for President Obama. In his report and deposition, Dr. Brunell classified
this as “a considerable amount of white crossover voting” and “lots of white crossover voting.”
Brunell Dep. Ex. 299, p. 9-10, Table 2; Brunell Dep. Tr. p. 113, lines 15-16.
He also
acknowledged that this number indicated that there was not racially polarized voting in that
election. Brunell Dep. Tr. p. 113, lines 22-25, p. 114, line 1. That pattern held for both the
primary and general election in Durham County in 2008. Brunell Dep. Tr. p. 115, lines 5-16.
160.
Dr. Brunell’s report showed a “good deal of white crossover voting” in Durham
during the 2004 State Auditor election, where 50.0% of white voters voted for the black
candidate. Brunell Dep. Ex. 299, p. 12; id. at Table 3. This level of white crossover voting
enabled the candidate of choice of black voters to win the 2004 State Auditor contest in Durham
County. Mot. Jud. Not. (Granted June 4, 2013), Attachment 1, p. 1.
41
- 1077 -
161.
The levels of white crossover voting in the 2008 Presidential General Election
(59.4% of white voters voted for Barack Obama, cited above) enabled the candidate of choice of
black voters to win the 2008 Presidential Election in Durham County. Mot. Jud. Not. (Granted
June 4, 2013), Attachment 1, p. 1.
162.
Dr. Brunell also looked at a State Senate race in Durham County—the Senate
District 20 General Election. Brunell Dep. Ex. 299, p. 15. Dr. Brunell’s report showed that in
precincts over 90% white, the black candidate, Sen. McKissick, received 40.1% of the vote in
2010 in the previous Senate District 20, located wholly within Durham County. Brunell Dep. Ex.
299. p. 16. That high level of white crossover voting contributed to the candidate of choice of
black voters, Sen. McKissick, being elected by a huge margin in 2010 with 73.1% of the total
vote. Sen. McKissick also prevailed with 73.6% of the vote in the 2008 general election.
Lichtman Second Aff. p. 16.
163.
Dr. Brunell’s report did not analyze any endogenous,2 state house races in the
prior version of House District 29 even though that district was wholly contained in one of the
“counties of interest” for his analysis. Brunell Dep. Ex. 299, p. 2-3.
164.
Based on his longtime experience, Representative Hall testified that there was no
reasonable basis for concluding that the black population in House District 29 needed to be
raised from 33.99% to 51.34% in order for black voters to have a reasonable opportunity to elect
their candidate of choice. Trial Tr. June 4, 2013 (Hall), p. 99, lines 9-22.
House District 31
165.
House District 31 is located wholly within Durham County. Lewis Dep. Ex. 189.
2
An endogenous election is an election for the district in question. For example, when reviewing racially polarized
voting as it might affect House District 29 elections, an endogenous election would be an election for the
representative from House District 29. By contrast, an exogenous election is an election for another office. For
example, the 2008 Presidential General Election in Durham County or the election for Durham County Sheriff
would be exogenous elections to the House District 29 election.
42
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166.
Defendants increased the TBVAP for House District 31 from 47.23% in 2010 to
51.84% under the 2011 plan. Stip. 1(a)(vii); Ketchie Fourth Affidavit, Table 4.
167.
Rep. Michaux won in 2010 with 75.5% of the vote when the district had 47.23%
TBVAP. Ketchie Fourth Affidavit, Table 4.
168.
At the 2006 and 2008 general elections, Rep. Michaux did not have an opponent.
At the 2004 general election, Rep. Michaux defeated his opponent by 85.97% to 14.02%. Def.
Answer to Dickson Am. Compl., ¶ 272; Churchill Dep. Ex. 83, p. 11, 30.
169.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American state representative Mickey Michaux, won an uncontested general election in
2012. Ketchie Fourth Affidavit, Table 4.
170.
The voters in House District 31 have elected an African-American representative,
Rep. Michaux, to 17 consecutive terms in office. Trial Tr. June 4, 2013 (Hall), p. 100, line 19-p.
101, line 2.
171.
Dr. Brunell’s report showed that 59.2% of white voters in Durham County voted
for President Obama, the candidate of choice of black voters in the 2008 presidential primary.
Brunell Dep. Ex. 299, p. 7, Table 1. In the 2008 General Election, 59.4% of white voters in
Durham County voted for President Obama. In his report and deposition, Dr. Brunell classified
this as “a considerable amount of white crossover voting” and “lots of white crossover voting.”
Brunell Dep. Ex. 299, p. 9-10, Table 2; Brunell Dep. Tr. p. 113, lines 15-16.
He also
acknowledged that this number indicated that there was not racially polarized voting in that
election. Brunell Dep. Tr. p. 113, lines 22-25, p. 114, line 1. That pattern held for both the
primary and general election in Durham County in 2008. Brunell Dep. Tr. p. 115, lines 5-16.
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172.
Dr. Brunell’s report showed a “good deal of white crossover voting” in Durham
during the 2004 State Auditor election, where 50.0% of white voters voted for the black
candidate. Brunell Dep. Ex. 299, p. 12; id. at Table 3. This level of white crossover voting
enabled the candidate of choice of black voters to win the 2004 State Auditor contest in Durham
County. Mot. Jud. Not. (Granted June 4, 2013), Attachment 1, p. 1.
173.
The levels of white crossover voting in the 2008 Presidential General Election
(59.4% of white voters voted for Barack Obama, cited above) enabled the candidate of choice of
black voters to win the 2008 Presidential Election in Durham County. Mot. Jud. Not. (Granted
June 4, 2013), Attachment 3, p. 1.
174.
Dr. Brunell also looked at a State Senate race in Durham County—the Senate
District 20 General Election. Brunell Dep. Ex. 299, p. 15. Dr. Brunell’s report showed that in
precincts over 90% white, the black candidate, Sen. McKissick, received 40.1% of the vote in
2010 in the previous Senate District 20, located wholly within Durham County. Brunell Dep. Ex.
299. p. 16. That high level of white crossover voting contributed to the candidate of choice of
black voters, Sen. McKissick, being elected by a huge margin in 2010 with 73.1% of the total
vote. Sen. McKissick also prevailed with 73.6% of the vote in the 2008 general election.
Lichtman Second Aff. p. 16.
175.
Dr. Brunell’s report did not analyze any endogenous, state house races in the prior
version of House District 29 even though that district was wholly contained in one of the
“counties of interest” for his analysis. Brunell Dep. Ex. 299, p. 2-3.
176.
Based on his longtime experience, Representative Hall testified that there was no
reasonable basis for concluding that the black population in House District 31 needed to be
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raised from 47.23% to 51.81% in order for black voters to have a reasonable opportunity to elect
their candidate of choice. Trial Tr. June 4, 2013 (Hall), p. 101, lines 4-25.
House District 32
177.
House District 32 is comprised of Warren, Vance, and Granville Counties. Lewis
Dep. Ex. 189.
178.
Defendants increased the TBVAP in House District 32 from 35.88% in 2010 to
50.45% under the 2011 plan. Lewis Dep. Ex. 189; Stip. 1(a)(vii); Ketchie Fourth Affidavit, Table
4.
179.
counties.
The prior version of House District 32 was located only in Granville and Vance
Stip. 1(a)(i).
The candidate of choice of black voters, African-American state
representative Nathan Baskerville, won in that district with 70.78% of the vote in the 2012
general election. Ketchie Fourth Affidavit, Table 4.
180.
Dr. Brunell’s analysis showed that in two of the three counties (Granville and
Vance) that are included in House District 32, in the 2004 State Auditor contest, the candidate of
choice of black voters received 34.2% and 41.2% of the white vote. Mot. Jud. Not. (Granted
June 4, 2013), Attachment 1, p. 1-2.
181.
Dr. Brunell did not examine the racial voting patterns in Warren County in this
election. Brunell Dep. Ex. 299, p. 12-13, Table 3.
182.
However, this level of white crossover voting enabled the candidate of choice of
black voters in the 2004 State Auditor race to win in Vance and Granville Counties. The
candidate of choice of black voters also won in Warren County in this race. Mot. Jud. Not.
(Granted June 4, 2013), Attachment 1, p. 1-3.
45
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183.
In the 2008 Presidential General Election, Dr. Brunell’s data indicated that the
white crossover vote for the candidate of choice of black voters in Granville and Vance Counties
was 26.5% and 19.9%. Brunell Dep. Ex. 299, p. 10-11, Table 2.
184.
Dr. Brunell again did not examine the racial voting patterns in Warren County in
this election. Brunell Dep. Ex. 299, p. 10-11, Table 2.
185.
This level of white crossover voting enabled the candidate of choice of black
voters in the 2008 Presidential General Election to win in Vance and Granville Counties. The
candidate of choice of black voters, President Obama, also won in Warren County. Mot. Jud.
Not. (Granted June 4, 2013), Attachment 3, p. 1-3.
186.
Using Dr. Brunell's analysis of the level of RPV in Vance and Granville counties
that make up HD 32, Dr. Lichtman's analysis demonstrates that, had that District been drawn at
40% BVAP, the preferred candidate of African-American voters would receive 58.21% of the
vote in Vance County and 58.33% of the vote in Granville County. Dr. Brunell did not analyze
Warren County, which is also included in HD 32. Pl. Trial Ex. 33.
Wake County Districts Generally
187.
Wake County has a long history of electing black candidates to state legislative
and county-wide office, despite the county not being majority black. Trial Tr. June 4, 2013
(Blue), p. 15, lines 10-12, p. 16, lines 16-25.
188.
Dan Blue, a Senator representing Senate District 14 in Wake County, was elected
to the North Carolina House of Representatives first in 1980—even before the Gingles case was
decided—and was elected continuously to that office until 2002. Trial Tr. June 4, 2013 (Blue),
p. 14, lines 6-15.
189.
He left the House of Representatives for four years, and then was elected again to
represent House District 33 in 2006 and 2008. Trial Tr. June 4, 2013 (Blue), p. 14, lines 16-19.
46
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190.
Dan Blue was then appointed to represent Senate District 14, and won election in
that district twice. Trial Tr. June 4, 2013 (Blue), p. 14, lines 19-21.
191.
In all, Dan Blue has been elected 15 times in Wake County. Trial Tr. June 4,
2013 (Blue), p. 15, lines 2-3.
192.
Dan Blue was elected to the House several times in county-wide elections before
Wake County went to single-member House Districts in the 1980s. Trial Tr. June 4, 2013
(Blue), p. 15, lines 10-12.
193.
After the 2000 round of redistricting, only one of the nine State House districts in
Wake County was a majority-black district. Trial Tr. June 4, 2013 (Blue), p. 20, lines 9-12.
194.
In the 2000s, Linda Coleman, an African American, was twice elected to the State
House from an Eastern Wake County district—a more conservative part of the county. Trial Tr.
June 4, 2013 (Blue), p. 20, lines 20-25. She won the district handily, even with a strong
challenger. Trial Tr. June 4, 2013 (Blue), p. 21, lines 6-11. The district from which she was
elected was only approximately 30% African American in total population. Trial Tr. June 4,
2013 (Blue), p. 21, lines 14-15.
195.
Also in the 2000s, Ty Harrell, an African American, was twice elected to the State
House in a Northwestern Wake County district—a district that has less than 10% black voting
age population. Trial Tr. June 4, 2013 (Blue), p. 21, lines 16-21. He unseated an incumbent
when first elected to that seat and beat well-funded challengers when re-elected. Trial Tr. June
4, 2013 (Blue), p. 21, lines 22-25.
196.
Since the 1970s, African Americans have been continuously elected to county
offices in county-wide elections, including at-large county commission seats and at-large school
47
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board seats (before the school board went to districts). Trial Tr. June 4, 2013 (Blue), p. 16, lines
16-25; 87; July 25, 2011 Senate Testimony (Sen. Blue) p. 105, lines 9-13.
197.
District court judges in Wake County are elected county-wide, and since the
1970s there have consistently been multiple African Americans elected as district court judges in
Wake County. Trial Tr. June 4, 2013 (Blue), p. 17, lines 1-5; July 25, 2011 Senate Testimony
(Sen. Blue) p. 105, lines 14-22
198.
In statewide elections, African-American candidates have frequently won a
majority of the votes in Wake County. Trial Tr. June 4, 2013 (Blue), p. 17, lines 5-19.
199.
In many cases, not only have black candidates running in Wake County received
enough white crossover vote to propel them to victory, but they have garnered a majority of the
white vote itself. Trial Tr. June 4, 2013 (Blue), p. 18, lines 17-22.
200.
Racially polarized voting patterns in Wake County were changing even back
when the Gingles case was tried, and they have changed even more since then. Trial Tr. June 4,
2013 (Blue), p. 29, lines 1-5; July 25, 2011 Senate Testimony (Sen. Blue) p. 102, line 14 – p.
103, line 11.
201.
Housing patterns in Wake County are much more integrated in Wake County than
they are in other parts of North Carolina, which has contributed to extensive coalition building
across racial and even party lines. Trial Tr. June 4, 2013 (Blue), p. 29, lines 18-23.
202.
The population in Wake County has grown so dramatically in the last decade that
even if incumbency played a special role in enabling the election of black candidates,
incumbency did not ensure that voters were familiar with the black incumbents representing
Wake County in the state legislature. Trial Tr. June 4, 2013 (Blue), p. 40, lines 10-22.
48
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203.
Wake County’s political institutions and activities, such as political clubs,
fundraisers and political campaigns are very racially integrated. Affidavit of James O. Williams,
June 18, 2012, pages 2-3; paragraphs 4-8.
204.
An African-American voter from Wake County expressed concern at the public
hearings that districts were being drawn unnecessarily over 50% BVAP in a way that harms
African-American voters. June 23, 2011, Redistricting Public Hearing Testimony (Portia
Rochelle), p. 86-89
205.
Using Brunell's analysis of the level of RPV in Wake County, Dr. Lichtman's
analysis demonstrates that, had districts located entirely within Wake County been drawn at 40%
BVAP, the preferred candidate of African-American voters would receive between 65.79% of
the vote. Pl. Trial Ex. 33.
206.
Sen. Rucho testified that the Chairs had “serious concerns” about Section 2
liability in Wake County. July 27, 2011 Senate Testimony (Sen. Rucho) p. 149, line 23 – p. 150,
line 25.
House District 33
207.
House District 33 is located wholly within Wake County. Lewis Dep. Ex. 189.
208.
House District 33 was drawn at 51.42% TBVAP. Stip. 1(a)(vii).
209.
The candidate of choice of black voters won in 2010 with 77.79% of the vote
when the district had 51.74% TBVAP. Ketchie Fourth Affidavit, Table 4.
210.
The candidate of choice of black voters, then-state representative Dan Blue, also
won in 2006 and 2008. Churchill Dep. Ex. 83, p. 12, 31.
211.
In 2012, the candidate of choice of black voters, African-American state
representative Rosa Gill, won House District 33 in an uncontested general election. Ketchie
Fourth Affidavit, Table 4.
49
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212.
Dan Blue was elected to represent House District 33 starting in 1980. Trial Tr.
June 4, 2013 (Blue), p. 14, lines 6-8.
213.
Representative Blue had substantial support from white voters thirty years ago.
Trial Tr. June 4, 2013 (Blue), p. 19, lines 1-14.
214.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
elections in the prior House District 33. Brunell Dep. Ex. 299.
215.
Dr. Brunell’s report showed that 50.6% of white voters in Wake County voted for
President Obama, the black candidate in the 2008 presidential primary. Brunell Dep. Ex. 299 p.
7, Table 1. In the 2008 Presidential General Election, 45.8% of white voters voted for President
Obama. Dr. Brunell classified this as “a considerable amount of white crossover voting” in Wake
County. Brunell Dep. Ex. 299, p. 9-10, Table 2.
216.
Dr. Brunell’s analysis showed that in the 2004 State Auditor election, 40.3% of
white voters voted for the black candidate. Brunell Dep. Ex. 299, p. 12, Table 3. This level of
white crossover voting enabled the candidate of choice of black voters in the 2004 State Auditor
race to win in Wake County. Mot. Jud. Not. (Granted June 4, 2013), Attachment 1, p. 2
217.
The level of white crossover voting in the 2008 Presidential General Election
enabled the candidate of choice of black voters, President Obama, to win in Wake County. Mot.
Jud. Not. (Granted June 4, 2013), Attachment 3, p. 2.
218.
Dr. Brunell examined two 2010 races for seats on Wake County Board of County
Commissioners.
Dr. Brunell’s report showed that in precincts over 90% white, the black
candidate for the Wake County Board of Commissioners District 1 received 39.5% of the vote in
2010. The black candidate for the Board of Commissioners District 2 received 43.0% of the vote
in precincts over 90% white. Brunell Dep. Ex. 299, p. 16-18.
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219.
In deposition, Dr. Brunell also noted that “Wake clearly is a county where there
are plenty of white voters who are willing to support a Democrat, black Democrat.” Brunell
Dep. Tr. p. 118, lines 19-22.
House District 38
220.
House District 38 is located wholly within Wake County. Lewis Dep. Ex. 189.
221.
Defendants increased the TBVAP for House District 38 from 27.96% in 2010 to
51.37% under the 2011 plan. Stip. 1(a)(vii); Ketchie Fourth Affidavit, Table 4.
222.
The candidate of choice of black voters won the general election in 2010 with
65.63% of the vote when the district had 27.96% TBVAP. Ketchie Fourth Affidavit, Table 4
223.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American state representative Yvonne Holley, won the general election in 2012 with
87.68% of the vote. Ketchie Fourth Affidavit, Table 4.
224.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
elections in the prior House District 38. Brunell Dep. Ex. 299.
225.
Dr. Brunell’s report showed that 50.6% of white voters in Wake County voted for
President Obama, the black candidate in the 2008 presidential primary. Brunell Dep. Ex. 299 p.
7, Table 1. In the 2008 Presidential General Election, 45.8% of white voters voted for President
Obama. Dr. Brunell classified this as “a considerable amount of white crossover voting” in Wake
County. Brunell Dep. Ex. 299, p. 9-10, Table 2.
226.
Dr. Brunell’s analysis showed that in the 2004 State Auditor election, 40.3% of
white voters voted for the black candidate. Brunell Dep. Ex. 299, p. 12, Table 3. This level of
white crossover voting enabled the candidate of choice of black voters in the 2004 State Auditor
race to win in Wake County. Mot. Jud. Not. (Granted June 4, 2013), Attachment 1, p. 2.
51
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227.
The level of white crossover voting in the 2008 Presidential General Election
enabled the candidate of choice of black voters, President Obama, to win in Wake County. Mot.
Jud. Not. (Granted June 4, 2013), Attachment 3, p. 2.
228.
Dr. Brunell examined two 2010 races for seats on Wake County Board of County
Commissioners.
Dr. Brunell’s report showed that in precincts over 90% white, the black
candidate for the Wake County Board of Commissioners District 1 received 39.5% of the vote in
2010. The black candidate for the Board of Commissioners District 2 received 43.0% of the vote
in precincts over 90% white. Brunell Dep. Ex. 299, p. 16-18.
229.
In deposition, Dr. Brunell also noted that “Wake clearly is a county where there
are plenty of white voters who are willing to support a Democrat, black Democrat.” Brunell
Dep. Tr. p. 118, lines 19-22.
House District 42
230.
House District 42 is located wholly within Cumberland County. Lewis Dep. Ex.
231.
Defendants increased the TBVAP for House District 42 from 47.94% in 2010 to
189.
52.56% under the 2011 plan. Stip. 1(a)(vii); Ketchie Fourth Affidavit, Table 4.
232.
The candidate of choice of black voters won the uncontested general election in
2010 when the district had 47.94% TBVAP. Ketchie Fourth Affidavit, Table 4
233.
The candidate of choice of black voters also won in 2006 and 2008. Churchill
Dep. Ex. 83, p. 13, 32.
234.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American state representative Marvin Lucas, won the general election in 2012 with
77.45% of the vote. Ketchie Fourth Affidavit, Table 4
52
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235.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
endogenous elections in the prior House District 42. Brunell Dep. Ex. 299.
236.
Dr. Brunell’s analysis shows that in Cumberland County, in the 2004 State
Auditor contest, the candidate of choice of black voters received 33.5% of the white vote.
Brunell Dep. Ex. 299, p. 12-13, Table 3. This amount of white crossover voting enabled the
candidate of choice of black voters to win in Cumberland County. Mot. Jud. Not. (Granted June
4, 2013), Attachment 1, p. 1.
237.
In the 2008 Presidential General Election, the white crossover vote for the
candidate of choice of black voters was 24.0%. Brunell Dep. Ex. 299, p. 10, Table 2. This
amount of white crossover voting enabled the candidate of choice of black voters, President
Obama, to win in Cumberland County. Mot. Jud. Not. (Granted June 4, 2013), Attachment 1, p.
1.
238.
Using Dr. Brunell's analysis of the level of RPV in Cumberland County, Dr.
Lichtman's analysis demonstrates that, had District 42 been drawn at 40% BVAP, the preferred
candidate of African-American voters would receive 56.53% of the vote. Pl. Trial Ex. 33.
House District 48
239.
House District 48 is comprised of pieces of Richmond, Scotland, Hoke, and
Robeson counties. Lewis Dep. Ex. 189.
240.
Defendants increased the TBVAP for House District 48 from 45.56% in 2010 to
51.27% under the 2011 plan. Stip. 1(a)(vii); Ketchie Fourth Affidavit, Table 4.
241.
Rep. Pierce won the general election in 2010 with 74.80% of the vote when the
district had 45.56% TBVAP. Ketchie Fourth Affidavit, Table 4
242.
In the 2004, 2006, and 2008 general elections, Rep. Pierce did not have an
opponent. Def. Answer to Dickson Am. Compl.,¶ 316.
53
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243.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American state representative Garland Pierce, won an uncontested general election in
2012. Ketchie Fourth Affidavit, Table 4.
244.
African-American candidates have had success in countywide elections in
Scotland County. Voters in the county have elected African-American majorities to both the
county commission and to the school board. The Sheriff in Scotland County is also African
American. Trial Tr. June 4, 2013 (Rogers), p. 117, lines 8-22, 24-25.
245.
African-American candidates have had success in countywide elections in Hoke
County. Voters in the county have elected an African-American clerk of court, sheriff, and
register of deeds. Trial Tr. June 4, 2013 (Rogers), p. 117, lines 23-25, p. 118, lines 4-5.
246.
The elected sheriff in Richmond County is also African American. Trial Tr. June
4, 2013 (Rogers), p. 118, lines 2-4.
247.
An African-American district court judge is elected from the judicial district that
is comprised of Scotland and Hoke Counties. Trial Tr. June 4, 2013 (Rogers), p. 117, lines 1719.
248.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
endogenous elections in the prior House District 48. Brunell Dep. Ex. 299.
249.
Dr. Brunell’s analysis shows that in Scotland, Hoke and Robeson Counties, in the
2004 State Auditor contest, the candidate of choice of black voters received 43.0%, 30.5%, and
61.7% of the white vote. Brunell Dep. Ex. 299, p. 12-13, Table 3.
250.
Dr. Brunell did not examine the racial voting patterns in Richmond County in this
election. Id.
54
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251.
Dr. Brunell characterized Robeson County has having a “good deal of crossover
voting.” Brunell Dep. Ex. 299, p. 12. This amount of white crossover voting enabled the
candidate of choice of black voters to win the 2004 State Auditor race in each of the three
counties that Dr. Brunell examined. The African-American candidate also won in Richmond
County, which Dr. Brunell did not examine. Mot. Jud. Not. (Granted June 4, 2013), Attachment
1, p. 2.
252.
In the 2008 Presidential General Election, the white crossover vote for the
candidate of choice of black voters in Scotland, Hoke and Robeson Counties was 26.7%, 25.1%,
and 37.8%. Brunell Dep. Ex. 299, p. 10, Table 2.
253.
Again, Dr. Brunell did not examine the racial voting patterns in Richmond County
in this election. Id.
254.
This amount of white crossover voting enabled the candidate of choice of black
voters, President Obama, to win in each of the three counties that Dr. Brunell examined.
President Obama also won in Richmond County, which Dr. Brunell did not examine. Mot. Jud.
Not. (Granted June 4, 2013), Attachment 3, p. 2.
255.
Using Dr. Brunell's analysis of the level of RPV in Scotland, Hoke, and Robeson,
three of the counties that make up HD 48, Dr. Lichtman's analysis demonstrates that, had that
District been drawn at 40% BVAP, the preferred candidate of African-American voters would
receive between 50.98% and 52.81% of the vote. Pl. Trial Ex. 33. Dr. Brunell did not analyze
Richmond County. Id.
256.
Based on his longtime experience, Walter Rogers testified that there was no
reasonable basis for concluding that the black population in House District 48 needed to be
55
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raised from 45.56% to 51.27% in order for black voters to have a reasonable opportunity to elect
their candidate of choice. Trial Tr. June 4, 2013 (Rogers), p. 119, lines 6-24.
House District 57
257.
House District 57 is located wholly within Guilford County. Lewis Dep. Ex. 189.
258.
Defendants increased the BVAP for House District 57 from 29.93% in 2010 to
50.69% under the 2011 plan. Stip. 1(a)(vii); Ketchie Fourth Affidavit, Table 4.
259.
The candidate of choice of black voters won in 2010 with 55.69% of the vote
when the district had 29.93% TBVAP. Ketchie Fourth Affidavit, Table 4.
260.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
white state representative Pricey Harrison, won an uncontested general election in 2012. Ketchie
Fourth Affidavit, Table 4.
261.
In Guilford County, black voters have offered strong support to white
candidates—candidates who are, in fact, the candidates of choice of black voters. Trial Tr. June
4, 2012 (Wells), p. 141, lines 21 – p. 143, lines 1-8.
262.
The Simkins PAC, a Greensboro organization focused on promoting political
candidates who will be responsive to the needs of African-American voters, has endorsed white
candidates, including Pricey Harrison. Trial Tr. June 4, 2012 (Wells), p. 141, lines 1-22.
263.
White Representative Pricey Harrison was very responsive to the interests of the
African-American voters in her district. Trial Tr. June 4, 2012 (Wells), p. 135, lines 13-19.
264.
Even when her district was drawn up to 50.69% BVAP, Pricey Harrison had no
challenger in the Democratic primary. Trial Tr. June 4, 2012 (Wells), p. 136, lines 4-6.
265.
African-American Representative Marcus Brandon from Greensboro protested
increasing the black population in his district and testified that he had support from many white
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voters in Guilford County. July 25, 2011 House Testimony (Rep. Brandon) p. 144, line 6 – 146,
line 17.
266.
A resident of Guilford County testified at the public hearings that he was
concerned that elevating the percentage of African-American voters would harm rather than help
black voters. June 23, 2011, Redistricting Public Hearing Testimony (C. Bradley Hunt), p. 27-28
267.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
endogenous elections in the prior House District 57. Brunell Dep. Ex. 299, p. 2-3.
268.
Dr. Brunell’s analysis shows that in Guilford County, in the 2004 State Auditor
contest, the candidate of choice of black voters received 34.8% of the white vote. Brunell Dep.
Ex. 299, p. 12-13, Table 3. This amount of white crossover voting enabled the candidate of
choice of black voters to win in Guilford County. Mot. Jud. Not. (Granted June 4, 2013),
Attachment 1, p. 1.
269.
In the 2008 Presidential General Election, the white crossover vote for the
candidate of choice of black voters was 37.3%. Brunell Dep. Ex. 299, p. 10, Table 2. This
amount of white crossover voting enabled the candidate of choice of black voters, President
Obama, to win in Guilford County. Mot. Jud. Not. (Granted June 4, 2013), Attachment 3, p. 1.
270.
Using Dr. Brunell's analysis of the level of RPV in Guilford County, where HD
57 is drawn, Dr. Lichtman's analysis demonstrates that, had that District been drawn at 40%
BVAP, the preferred candidate of African-American voters would receive 61.63% of the vote.
Pl. Trial Ex. 33.
Mecklenburg County Districts Generally
271.
Senator Rucho was not aware of any successful Section 2 lawsuit being filed in
Mecklenburg County since the Gingles case was decided in 1986. Rucho Dep. Tr. p. 159, lines
14-20.
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272.
Despite this fact, Senator Rucho professed a belief that the Gingles decision
required VRA districts in Mecklenburg County. This conclusion was not based on any advice
given to him by Hofeller, Mr. Morgan, Mr. Oldham, or Mr. Raupe. Rucho Dep. Tr. p. 111, lines
15-19; p. 112, lines 1-10.
273.
The city of Charlotte has a long history of electing black candidates citywide,
despite not being majority black. The city has elected African-American Harvey Gantt to be
mayor and to an at-large seat on the city council, and it has twice elected African-American
Anthony Foxx to be mayor. Trial Tr. June 4, 2013 (Watt), p. 164, lines 1-7; Sen. Clodfelter) p.
181, lines 10-19; June 23, 2011, Redistricting Public Hearing (McCorkle), p. 23, line 21 –p. 24,
line 6.
274.
Mecklenburg County also has elected African Americans in countywide elections,
including the current chair of the School Board and two at-large members of the county
commission. Trial Tr. June 4, 2013 (Watt), p. 164, lines 10-25.
275.
In Mecklenburg County, there are a number of examples of black candidates
being elected from State House and Senate districts that are not majority black. For example,
Nick Mackey, an African American, won 65% of the vote in a House district that was
approximately 28% African American. Rodney Moore, an African American, won 72% of the
vote in a House district was approximately 27% or 28% African American. Trial Tr. June 4,
2013 (Watt), p. 165, lines 1-23. Malcolm Graham, an African American, has won 61% of the
vote in a district that is only 31% African American. Representative Mel Watt has handily won
numerous times in a district not majority black. Trial Tr. June 4, 2013 (Watt), p. 166, lines 1-9.
276.
In 1998, when Congressional District 12, a large part of which is in Mecklenburg
County, was only at 32% black voting age population, African-American candidate Mel Watt
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was still able to get re-elected, despite being challenged by an opponent who spent over a million
dollars in that race. Trial Tr. June 4, 2013 (Watt), p. 169, lines 7-21.
277.
In Mecklenburg County, black, white and Hispanic voters work together on wide
variety of issues such as education, housing and preventing crime. Affidavit of Samuel D. Love,
June 28, 2012, pages 1-2, 4; paragraphs 1-4, 6, 11.
278.
Racially-diverse groups of voters have supported the same candidates in local
elections, such as George Dunlap in his campaign for sheriff. Affidavit of Mary Bonaparte, July
13, 2012, p. 1-2, paragraphs 1-2, 4, 6-7, 10-11.
279.
In Charlotte, the African-American candidate for mayor, Anthony Foxx, defeated
white candidate John Lassiter. There are twenty majority-white precincts in Charlotte where
Foxx won a majority of the vote. June 23, 2011, Redistricting Public Hearing Testimony (Dan
McCorkle), p. 23, lines 21-25, p. 24, lines 1-6. County Commissioner Harold Cogdell, an
African-American, has won twice consecutively in Mecklenburg County Commission at-large
races. Id. at p. 24, lines 20-22.
280.
Using Dr. Brunell's analysis of the level of RPV in Mecklenburg County, Dr.
Lichtman's analysis demonstrates that, had the districts located wholly within Mecklenburg been
drawn at 40% BVAP, the preferred candidate of African-American voters would about 62.05%
of the vote. Pl. Trial Ex. 33.
House District 99
281.
House District 99 is located entirely within Mecklenburg County. Lewis Dep. Ex.
282.
Defendants increased the TBVAP for House District 99 from 41.26% in 2010 to
189.
54.65% under the 2011 plan. Stip. 1(a)(vii); Ketchie Fourth Affidavit, Table 4.
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283.
The candidate of choice of black voters won in 2010 with 72.01% of the vote,
when the district had 41.26% TBVAP. Ketchie Fourth Affidavit, Table 4.
284.
The candidate of choice of black voters also won in 2006 and 2008. Def. Answer
to Dickson Am. Compl., ¶ 354; Churchill Dep. Ex. 83, p. 70.
285.
After the unnecessary increase in TBVAP, the candidate of choice of black voters
won an uncontested general election in 2012. Ketchie Fourth Affidavit, Table 4.
286.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
endogenous elections in the prior House District 99. Brunell Dep. Ex. 299.
287.
Dr. Brunell’s analysis shows that in Mecklenburg County, in the 2004 State
Auditor contest, the candidate of choice of black voters received 31.6% of the white vote.
Brunell Dep. Ex. 299, p. 12-13, Table 3. This amount of white crossover voting enabled the
candidate of choice of black voters to win in Mecklenburg County. Mot. Jud. Not. (Granted June
4, 2013), Attachment 1, p. 2.
288.
In the 2008 Presidential General Election, the white crossover vote for the
candidate of choice of black voters was 41.9%. Brunell Dep. Ex. 299, p. 10, Table 2. This
amount of white crossover voting enabled the candidate of choice of black voters, President
Obama, to win in Mecklenburg County. Mot. Jud. Not. (Granted June 4, 2013), Attachment 3, p.
2.
Dr. Brunell characterized this election as marked by “a considerable amount of white
crossover voting” in Mecklenburg County. Brunell Dep. Ex. 299, p. 9.
House District 102
289.
House District 102 is located entirely within Mecklenburg County. Lewis Dep.
Ex. 189.
290.
House District 102 was drawn at 53.53% TBVAP. Stip. 1(a)(vii).
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291.
Dr. Brunell’s analysis shows that in Mecklenburg County, in the 2004 State
Auditor contest, the candidate of choice of black voters received 31.6% of the white vote.
Brunell Dep. Ex. 299, p. 12-13, Table 3. This amount of white crossover voting enabled the
candidate of choice of black voters to win in Mecklenburg County. Mot. Jud. Not. (Granted June
4, 2013), Attachment 1, p. 2.
292.
In the 2008 Presidential General Election, the white crossover vote for the
candidate of choice of black voters was 41.9%. Brunell Dep. Ex. 299, p. 10, Table 2. This
amount of white crossover voting enabled the candidate of choice of black voters, President
Obama, to win in Mecklenburg County. Mot. Jud. Not. (Granted June 4, 2013), Attachment 3, p.
2.
Dr. Brunell characterized this election as marked by “a considerable amount of white
crossover voting” in Mecklenburg County. Brunell Dep. Ex. 299, p. 9.
293.
Dr. Brunell’s results show that the 2010 primary was a barely polarized election
with very low African-American cohesion. According to Dr. Brunell’s ecological regression
results, only 53.6 percent of African-American voters voted for the African-American candidate.
Lichtman Second Aff. ¶ 33. Ecological regression analysis also discloses that this was also a
very low turnout election in which less than 5 percent of whites or blacks of voting age
participated. Lichtman Second Aff. ¶ 10.
House District 106
294.
House District 106 is located entirely within Mecklenburg County. Lewis Dep.
Ex. 189.
295.
Defendants increased the TBVAP for House District 106 from 28.16% in 2010 to
51.12% under the 2011 plan. Stip. 1(a)(vii); Ketchie Fourth Affidavit, Table 4.
296.
The candidate of choice of black voters won in 2010 with 59.50% of the vote,
when the district had 28.16% TBVAP. Ketchie Fourth Affidavit, Table 4.
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297.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American state representative Carla Cunningham, won an uncontested general election
in 2012. Ketchie Fourth Affidavit, Table 4.
298.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
endogenous elections in the prior House District 99. Brunell Dep. Ex. 299.
299.
Dr. Brunell’s analysis shows that in Mecklenburg County, in the 2004 State
Auditor contest, the candidate of choice of black voters received 31.6% of the white vote.
Brunell Dep. Ex. 299, p. 12-13, Table 3. This amount of white crossover voting enabled the
candidate of choice of black voters to win in Mecklenburg County. Mot. Jud. Not. (Granted June
4, 2013), Attachment 1, p. 2.
300.
In the 2008 Presidential General Election, the white crossover vote for the
candidate of choice of black voters was 41.9%. Brunell Dep. Ex. 299, p. 10, Table 2. This
amount of white crossover voting enabled the candidate of choice of black voters, President
Obama, to win in Mecklenburg County. Mot. Jud. Not. (Granted June 4, 2013), Attachment 3, p.
2.
Dr. Brunell characterized this election as marked by “a considerable amount of white
crossover voting” in Mecklenburg County. Brunell Dep. Ex. 299, p. 9.
House District 107
301.
House District 107 is located entirely within Mecklenburg County. Lewis Dep.
Ex. 189
302.
Defendants increased the TBVAP in House District 107 from 47.14% in 2010 to
52.52% under the 2011 plan. Stip. 1(a)(vii); Ketchie Fourth Affidavit, Table 4.
303.
In the 2004 general election, the Black candidate, Pete Cunningham, defeated his
opponent 68.2% to 31.8%. In the 2006 general election, Representative Cunningham did not
have an opponent. In the 2008 and 2010 elections, the Black candidate, Kelly Alexander,
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defeated his opponent 75.26% to 24.74% and 67.26% to 32.74%. Def. Answer to Dickson Am.
Compl., ¶ 366.
304.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American state representative Kelly Alexander, won an uncontested general election in
2012. Ketchie Fourth Affidavit, Table 4.
305.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
endogenous elections in the prior House District 99. Brunell Dep. Ex. 299.
306.
Dr. Brunell’s analysis shows that in Mecklenburg County, in the 2004 State
Auditor contest, the candidate of choice of black voters received 31.6% of the white vote.
Brunell Dep. Ex. 299, p. 12-13, Table 3. This amount of white crossover voting enabled the
candidate of choice of black voters to win in Mecklenburg County. Mot. Jud. Not. (Granted June
4, 2013), Attachment 1, p. 2
307.
In the 2008 Presidential General Election, the white crossover vote for the
candidate of choice of black voters was 41.9%. Brunell Dep. Ex. 299, p. 10, Table 2. This
amount of white crossover voting enabled the candidate of choice of black voters, President
Obama, to win in Mecklenburg County. Mot. Jud. Not. (Granted June 4, 2013), Attachment 3, p.
2.
Dr. Brunell characterized this election as marked by “a considerable amount of white
crossover voting” in Mecklenburg County. Brunell Dep. Ex. 299, p. 9.
Senate District 4
308.
Senate District 4 is comprised of Vance, Warren and Halifax counties, and pieces
of Nash and Wilson counties. Rucho Dep. Ex. 199.
309.
Defendants increased the TBVAP for Senate District 4 from 49.70% in 2010 to
52.75% under the 2011 plan. Stip. 1(a)(xii); Ketchie Fourth Affidavit, Table 6.
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310.
The candidate of choice of black voters won the general election in 2010 with
62.55% of the vote, when the district had 49.70% TBVAP. Ketchie Fourth Affidavit, Table 6.
311.
The candidate of choice of black voters also won the general election in 2006 and
2008. Churchill Dep. Ex. 82, p. 4, 11.
312.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American Senator Ed Jones, won the general election in 2012 with 72.32% of the vote.
Ketchie Fourth Affidavit, Table 6.
313.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
endogenous elections in the prior Senate District 4. Brunell Dep. Ex. 299, p. 2-3.
314.
Dr. Brunell’s analysis shows that in Vance, Halifax, Nash and Wilson Counties,
in the 2004 State Auditor contest, the candidate of choice of black voters received 41.2%, 40.6%,
28.8%, and 32.4% of the white vote. Brunell Dep. Ex. 299, p. 12-13, Table 3.
315.
Dr. Brunell did not examine racial voting patterns in Warren County. Id.
316.
This amount of white crossover voting enabled the candidate of choice of black
voters to win the 2004 State Auditor race in each of the four counties that Dr. Brunell examined.
Mot. Jud. Not. (Granted June 4, 2013), Attachment 1, p. 1-3. The candidate of choice of black
voters also won in Warren County, which Dr. Brunell did not examine. Id.
317.
Using Dr. Brunell's analysis of the level of RPV of Vance, Halifax, Nash and
Wilson, counties that make up SD 4, Dr. Lichtman's analysis demonstrates that, had that District
been drawn at 40% BVAP, the preferred candidate of African-American voters would receive
between 53.38% and 58.48% of the vote. Pl. Trial Ex. 33. Dr. Brunell did not analyze Warren
County. Id.
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Senate District 5
318.
Senate District 5 is comprised of Greene County and pieces of Wayne, Lenoir and
Pitt counties. Rucho Dep. Ex. 199.
319.
Defendants increased the TBVAP for Senate District 5 from 31% in 2010 to
51.97% under the 2011 plan. Stip. 1(a)(xii); Ketchie Fourth Affidavit, Table 6.
320.
The candidate of choice of black voters won the election in 2008 when the district
had only 31% TBVAP. Lichtman Second Aff. ¶ 17.
321.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American Senator Don Davis, won the uncontested general election in 2012. Ketchie
Fourth Affidavit, Table 6.
322.
Dr. Brunell’s analysis shows that in Greene, Wayne, Lenoir and Pitt Counties, in
the 2004 State Auditor contest, the candidate of choice of black voters received 23.8%, 29.3%,
28.2%, and 36.2% of the white vote. Brunell Dep. Ex. 299, p. 12-13, Table 3. This amount of
white crossover voting enabled the candidate of choice of black voters to win the 2004 State
Auditor race in Greene, Lenoir, and Pitt Counties—three of the four counties that Dr. Brunell
examined. Mot. Jud. Not. (Granted June 4, 2013), Attachment 1, p. 1-3.
323.
In the 2008 Presidential General Election, in Lenoir and Pitt Counties, the white
crossover vote for the candidate of choice of black voters was 14.5%, and 30.9%. Brunell Dep.
Ex. 299, p. 10-11, Table 2. This amount of white crossover voting enabled the candidate of
choice of black voters, President Obama, to win in Lenoir and Pitt Counties. Mot. Jud. Not.
(Granted June 4, 2013), Attachment 3, p. 1-3.
324.
Using Dr. Brunell's analysis of the level of RPV in the counties that make up SD
5, Dr. Lichtman's analysis demonstrates that, had that District been drawn at 40% BVAP, the
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preferred candidate of African-American voters would receive between 53.17% and 59.91% of
the vote. Pl. Trial Ex. 33.
325.
The redistricting chairs justified drawing SD 5 as a majority-black district based
on Brunell’s report. July 25, 2011 Senate Testimony (Sen. Rucho), p. 154 lines 10-25, p. 155,
lines 1-10.
Senate District 14
326.
Senate District 14 is located wholly within Wake County. Rucho Dep. Ex. 199.
327.
Defendants increased the TBVAP for Senate District 14 from 42.62% in 2010 to
51.28% under the 2011 plan. Stip. 1(a)(xii); Ketchie Fourth Affidavit, Table 6.
328.
The candidate of choice of black voters won the general election in 2010 with
65.92% of the vote, when the district had 42.62% TBVAP. Ketchie Fourth Affidavit, Table 6.
329.
In the 2004 general election, the Black candidate (Vernon Malone) defeated the
White candidate by 64.1% to 35.9%. In the 2006 general election, Senator Malone defeated the
White candidate by 65.9% to 34.1%. In the 2008 general election, Senator Malone defeated the
White candidate 69.45% to 30.55%. In the 2010 general election, the Black candidate (Dan Blue)
defeated the White candidate 65.9% to 34.1%. Def. Answer to Dickson Am. Compl., ¶ 136;
Churchill Dep. Ex. 82, p. 13, 21.
330.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American state senator Dan Blue, won the uncontested general election in 2012.
Ketchie Fourth Affidavit, Table 6.
331.
Senate District 14 as drawn is contorted in shape and has odd-looking appendages
that reach out to grab pockets of African-American voters. Trial Tr. June 4, 2013 (Blue), p. 23,
lines 13-19.
66
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332.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
endogenous elections in the prior Senate District 14. Brunell Dep. Ex. 299, p. 2-3.
333.
Dr. Brunell’s report showed that 50.6% of white voters in Wake County voted for
President Obama, the black candidate in the 2008 presidential primary. Brunell Dep. Ex. 299 p.
7, Table 1. In the 2008 Presidential General Election, 45.8% of white voters voted for President
Obama. Dr. Brunell classified this as “a considerable amount of white crossover voting” in Wake
County. Brunell Dep. Ex. 299, p. 9-10, Table 2.
334.
Dr. Brunell’s analysis showed that in the 2004 State Auditor election, 40.3% of
white voters voted for the black candidate. Brunell Dep. Ex. 299, p. 12, Table 3. This level of
white crossover voting enabled the candidate of choice of black voters in the 2004 State Auditor
race to win in Wake County. Mot. Jud. Not. (Granted June 4, 2013), Attachment 1, p. 2.
335.
The level of white crossover voting in the 2008 Presidential General Election
enabled the candidate of choice of black voters, President Obama, to win in Wake County. Mot.
Jud. Not. (Granted June 4, 2013), Attachment 3, p. 2.
336.
Dr. Brunell examined two 2010 races for seats on Wake County Board of County
Commissioners.
Dr. Brunell’s report showed that in precincts over 90% white, the black
candidate for the Wake County Board of Commissioners District 1 received 39.5% of the vote in
2010. The black candidate for the Board of Commissioners District 2 received 43.0% of the vote
in precincts over 90% white. Brunell Dep. Ex. 299, p. 16-18.
337.
In deposition, Dr. Brunell also noted that “Wake clearly is a county where there
are plenty of white voters who are willing to support a Democrat, black Democrat.” Brunell
Dep. Tr. p. 118, lines 19-22.
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338.
Since the 1960s, there has always been an African-American elected at-large to
the Wake County Commission, and oftentimes, more than one, in a disproportionate manner to
the population of Wake County. July 25, 2011 Senate Testimony (Sen. Blue), p. 105, lines 9-13.
339.
African-American judges have been consistently elected in county-wide races in
Wake County since the 1970s. July 25, 2011 Senate Testimony (Sen. Blue), p. 105, lines 14-17.
340.
Using Dr. Brunell's analysis of the level of RPV in Wake County, Dr. Lichtman's
analysis demonstrates that, had SD 14 been drawn at 40% BVAP, the preferred candidate of
African-American voters would receive 65.79% of the vote. Pl. Trial Ex. 33.
341.
The redistricting chairs justified drawing SD 14 as a majority-black district based
on Brunell’s report. July 25, 2011 Senate Testimony (Sen. Rucho), p. 154 lines 10-25, p. 155,
lines 1-10.
342.
Based on his longtime experience, Senator Blue testified that there was no
reasonable basis for concluding that the black population in Senate District 14 needed to be
raised from 44.94% to 51.28% in order for black voters to have a reasonable opportunity to elect
their candidate of choice. Trial Tr. June 4, 2013 (Blue), p. 25, lines 5-11.
343.
Senator Blue argued on the floor of the Senate that there was no need to increase
the black voting age population in the district. Trial Tr. June 4, 2013 (Blue), p. 30, lines 4-13.
Senate District 20
344.
Senate District 20 is comprised of Granville County and a piece of Durham
County. Rucho Dep. Ex. 199.
345.
Defendants increased the TBVAP for Senate District 20 from 44.64% in 2010 to
51.04% under the 2011 plan. Stip. 1(a)(xii); Ketchie Fourth Affidavit, Table 6.
346.
The candidate of choice of black voters won the general election in 2010 with
73.11% of the vote, when the district had 44.64% TBVAP. Ketchie Fourth Affidavit, Table 6.
68
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347.
In the 2004 general election, the Black candidate, Senator Lucas, defeated the
White candidate 90.2% to 9.8%. In the 2006 general election, Senator Lucas was not opposed. In
the 2008 general elections, the Black candidate defeated White opponents, by 73.58% to 22.55%.
Churchill Dep. Ex. 82, p. 6, 14; Def. Answer to Dickson Am. Compl., ¶ 149.
348.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American state senator Floyd McKissick, won the uncontested general election
in
2012. Ketchie Fourth Affidavit, Table 6.
349.
Senator Jeanne Lucas was elected to office at least 7 times prior to the election of
Senator McKissick. Trial Tr. June 4, 2013 (Hall), p. 101, lines 12-21.
350.
Both African-American senators holding this seat had substantial support from
white voters. Trial Tr. June 4, 2013 (Hall), p. 103, lines 23-25.
351.
Dr. Brunell’s report showed that 59.2% of white voters in Durham County voted
for President Obama, the candidate of choice of black voters in the 2008 presidential primary.
Brunell Dep. Ex. 299, p. 7, Table 1. In the 2008 General Election, 59.4% of white voters in
Durham County voted for President Obama. Dr. Brunell’s analysis shows that in the 2008
Presidential General Election, 26.5% of white voters voted for the candidate of choice of black
voters in Granville County. In his report and deposition, Dr. Brunell classified this as “a
considerable amount of white crossover voting” and “lots of white crossover voting.” Brunell
Dep. Ex. 299, p. 9-10, Table 2; Brunell Dep. Tr. p. 113, lines 15-16. He also acknowledged that
this number indicated that there was not racially polarized voting in that election. Brunell Dep.
Tr. p. 113, lines 22-25, p. 114, line 1. That pattern held for both the primary and general election
in Durham County in 2008. Brunell Dep. Tr. p. 115, lines 5-16.
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352.
Dr. Brunell’s report showed a “good deal of white crossover voting” in Durham
during the 2004 State Auditor election, where 50.0% of white voters voted for the black
candidate. Brunell Dep. Ex. 299, p. 12; id. at Table 3. In Granville County, 34.2% of white
voters voted from the candidate of choice of black voters. Id. This level of white crossover
voting enabled the candidate of choice of black voters to win the 2004 State Auditor contest in
Durham and Granville Counties. Mot. Jud. Not. (Granted June 4, 2013), Attachment 1, p. 1.
353.
The levels of white crossover voting in the 2008 Presidential General Election
(cited above) enabled the candidate of choice of black voters to win the 2008 Presidential
Election in Durham and Granville Counties. Mot. Jud. Not. (Granted June 4, 2013), Attachment
3, p. 1.
354.
Senate District 20 is one of the rare cases in which Dr. Brunell actually did
examine an endogenous election. Dr. Brunell examined the 2010 General Election from this
district. Brunell Dep. Ex. 299, p. 15. Dr. Brunell’s report showed that in precincts over 90%
white, the black candidate, Sen. McKissick, received 40.1% of the vote in 2010 in the previous
Senate District 20, located wholly within Durham County. Brunell Dep. Ex. 299. p. 16.
355.
Biracial alliances in Durham have elected an African-American mayor, a majority
of African Americans on Durham’s City Council, and a majority of African Americans on the
Durham County Commission, as well an African-American head of the Durham County School
Board. July 25, 2011 Senate Testimony (Sen. McKissick), p. 168, lines 20-25, p. 169, lines 1-15.
356.
Using Dr. Brunell's analysis of the level of RPV in the counties that make up SD
20, Dr. Lichtman's analysis demonstrates that, had that District been drawn at 40% BVAP, the
preferred candidate of African-American voters would receive between 58.21% and 72.82% of
the vote. Pl. Trial Ex. 33.
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357.
The redistricting chairs relied on Brunell’s finding of “statistically significant”
racially-polarized voting in Durham County to draw SD 20 as a VRA district. July 25, 2011
Senate Testimony (Sen. Rucho), p. 93, lines 14-19. A VRA district was drawn in Durham to
fulfill Defendants’ goal of proportionality. July 25, 2011 Senate Testimony (Sen. Rucho), p. 93,
lines 14-19.
358.
Defendants professed “serious” concern with Section 2 liability in Durham
County. July 25, 2011 Senate Testimony (Sen. Rucho), p. 150, lines 13-25. This concern
existed despite the record of African-Americans being elected for four terms in a district less
than 40% black. July 25, 2011 Senate Testimony (Sen. Berger), p. 155, lines 17-24.
359.
The mapdrawers did not believe that racially polarized voting in Granville County
warranted the drawing of a majority-black district in that county because they noted in an email
that if they could draw a majority-black district in Wake and Durham Counties, they would
abandon the Durham-Granville majority-black district. Morgan Dep. Ex. 377, p. 2.
360.
Based on his longtime experience, Representative Hall testified that there was no
reasonable basis for concluding that the black population in Senate District 20 needed to be
raised from 44.64% to 51.05% in order for black voters to have a reasonable opportunity to elect
their candidate of choice. Trial Tr. June 4, 2013 (Hall), p. 104, lines 7-25.
Senate District 21
361.
Senate District 21 is comprised of Hoke County and pieces of Cumberland
County. Rucho Dep. Ex. 199.
362.
Defendants increased the TBVAP for Senate District 21 from 44.93% in 2010 to
51.53% under the 2011 plan. Stip. 1(a)(xii); Ketchie Fourth Affidavit, Table 6.
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363.
The candidate of choice of black voters, Eric Mansfield, won the general election
in 2010 with 67.61% of the vote, when the district had 44.93% TBVAP. Ketchie Fourth
Affidavit, Table 6.
364.
In the 2004 general election, the Black candidate, Larry Shaw, received 61.21%
of the vote, the White candidate received 36.09% of the vote, and a third party candidate
received 2.69% of the votes. In the 2006 general election, Senator Shaw defeated the White
candidate by 61.6% to 38.4%. In the 2008 general election, Senator Shaw was unopposed. Def.
Answer to Dickson Am. Compl., ¶ 157; Churchill Dep. Ex. 82, p. 7, 15.
365.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American senator Ben Clark, won the uncontested general election in 2012. Ketchie
Fourth Affidavit, Table 6.
366.
The total black voting age population of the district in 2006 and 2008 when
Senator Shaw won was 41.00%. Churchill Dep. Ex. 82, p. 7, 15.
367.
Prior to Senator Shaw’s election, Senate District 21 was represented by another
African-American senator, C.R. Edwards. Trial Tr. June 4, 2013 (Mansfield), p. 54, lines 2-5.
368.
Senate District 21 has been represented by four different African-American
candidates in recent years, and in none of those districts were black voters a majority of the
electorate. Churchill Dep. Ex. 82, p. 7, 15; Ketchie Fourth Affidavit, Table 6.
369.
In his 2010 campaign for Senate District 21, African-American candidate Eric
Mansfield received substantial support from white voters. Trial Tr. June 4, 2013 (Mansfield), p.
54, lines 12-14, p. 55, lines 5-6.
370.
When elected to the State Senate in 2010, Dr. Mansfield won a majority of the
majority-white precincts in the district. Trial Tr. June 4, 2013 (Mansfield), p. 57, lines 1-3.
72
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371.
Then-Senator Mansfield spoke out against the configuration of Senate District 21
in the enacted plan and spoke personally with Senator Rucho, explaining that an increase in the
black voting age population in the district was not necessary and that it sent the message that
white voters in the district would only vote for a white candidate when that was clearly not the
case. Trial Tr. June 4, 2013 (Mansfield), p. 57, lines 21-23, p. 58, lines 9-14.
372.
Voters in Cumberland County have a history of electing black candidates in non-
majority-black jurisdictions, be it countywide or in the city of Fayetteville. Trial Tr. June 4,
2013 (Mansfield), p. 63, lines 14-25, p. 64, lines 1-4.
373.
President Obama carried Cumberland County in the 2008 and 2012 presidential
elections. Trial Tr. June 4, 2013 (Mansfield), p. 63, lines 22-24
374.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
endogenous elections in the prior Senate District 21. Brunell Dep. Ex. 299, p. 2-3.
375.
Dr. Brunell’s analysis shows that in Hoke and Cumberland Counties, in the 2004
State Auditor contest, the candidate of choice of black voters received 30.5%, and 33.5% of the
white vote. Brunell Dep. Ex. 299, p. 12-13, Table 3. This amount of white crossover voting
enabled the candidate of choice of black voters to win the 2004 State Auditor race in both Hoke
and Cumberland Counties. Mot. Jud. Not. (Granted June 4, 2013), Attachment 1, p. 1-2.
376.
In the 2008 Presidential General Election, the white crossover vote for the
candidate of choice of black voters in Hoke and Cumberland Counties was 25.1%, and 24.0%.
Brunell Dep. Ex. 299, p. 10, Table 2. This amount of white crossover voting enabled the
candidate of choice of black voters, President Obama, to win in both Hoke and Cumberland
Counties. Mot. Jud. Not. (Granted June 4, 2013), Attachment 3, p. 1-2.
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377.
Using Dr. Brunell's analysis of the level of RPV in the counties that make up SD
21, Dr. Lichtman's analysis demonstrates that, had that District been drawn at 40% BVAP, the
preferred candidate of African-American voters would receive between 56.53% and 56.68% of
the vote. Pl. Trial Ex. 33.
378.
In Cumberland County, the Senate district has never been over 42% but
consistently elected an African-American representative for the last 40 years. July 25, 2011
Senate Testimony (Sen. Mansfield), p. 162, lines 10-25.
379.
In Senate District 21, three majority-white precincts were removed and replaced
with majority-black precincts, despite the fact that Senator Mansfield won each of the three
majority-white precincts by a three to one margin in the prior election. July 25, 2011 Senate
Testimony (Sen. Mansfield), p. 163, lines 2-10.
380.
In his campaign for Senate District 21 in 2010, Senator Mansfield raised more
money from white voters than from African-American voters.
Trial Tr. June 4, 2013
(Mansfield), p.69, lines 22-25.
381.
Senator Mansfield testified that the boundaries of the plan, which split the
precinct in which he resides, prevented him from representing his neighbors across the street
because of his race. July 25, 2011 Senate Testimony (Sen. Mansfield), p. 163, lines 11-p. 164,
line 8. To him, the creation of SD 21 sent the message that, “to me, that is the most offensive
thing, that I was not elected because I was competent, I was not elected because I have great
character, I was elected by black people only because I was black. Which then says that those
people who voted for me only voted for me just because I was black, not because they thought I
was actually a good representative. And what it says to the other members of my district who are
not black, that they shouldn't have voted for me because obviously I cannot represent them,
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which I know is not true.” July 25, 2011 Senate Testimony (Sen. Mansfield), p. 164 line 19 – p.
165, line 5.
382.
In Cumberland County, successful political campaigning is much more about
canvassing than it is about money spent on advertising. Trial Tr. June 4, 2013 (Mansfield), p.70,
lines 7-12.
383.
Senator Mansfield had many white supporters who were his patients, church
members and constituents. July 27, 2011 House Testimony (Rep. Lucas) p. 16, line 23 – p. 18,
line 10.
384.
Representative Lewis described Senator Mansfield as a “star” and said that in
order for SD 21 to elect candidates who were not Senator Mansfield, it must be drawn at greater
than 50% BVAP. July 27, 2011 House Testimony (Rep. Lewis) p. 23, lines 15-25; p. 27, line 5 –
p. 31, line 18.
The redistricting chairs justified drawing SD 21 as a majority-black district
385.
based on Brunell’s report. July 25, 2011 Senate Testimony (Sen. Rucho), p. 154 lines 10-25, p.
155, lines 1-10.
Senate District 28
386.
Senate District 28 is located wholly within Guilford County. Rucho Dep. Ex. 199.
387.
Defendants increased the TBVAP for Senate District 28 from 47.20% in 2010 to
56.49% under the 2011 plan. Stip. 1(a)(xii); Ketchie Fourth Affidavit, Table 6.
388.
Senator Robinson won the general election in 2010 in a three-candidate race with
47.84% of the vote, when the district had 47.20% TBVAP. Ketchie Fourth Affidavit, Table 6.
389.
In that general election, there were two black candidates and one white candidate.
Trial Tr. June 4, 2013 (Wells), p. 137, lines 4-14; July 25, 2011 Senate Testimony (Sen.
Robinson), p. 160, lines 10-25.
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390.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American state senator Gladys Robinson, won the uncontested general election in 2012.
Ketchie Fourth Affidavit, Table 6.
391.
SD 28 has been represented by three black senators, Bill Martin, Katie Dorsett
and Gladys Robinson. July 25, 2011 Senate Testimony (Sen. Robinson), p. 160, lines 10-25.
392.
In the 2004 and 2006 general elections, the Black candidate, Katie Dorsett, was
not opposed. In the 2008 general election, Senator Dorsett was not opposed. Def. Answer to
Dickson Am. Compl., ¶ 173; Churchill Dep. Ex. 82, p. 8, 16.
393.
When Senator Dorsett was challenged in primary elections, she won precincts that
were majority white. Trial Tr. June 4, 2013 (Wells), p. 138, lines 3-6.
394.
Senator Dorsett had to win the support of white voters in the district because
black voters were not in the majority. Trial Tr. June 4, 2013 (Wells), p. 138, lines 7-13.
395.
The City of Greensboro is just 37% African American, but it has elected African-
American candidates on a city-wide basis. Trial Tr. June 4, 2013 (Wells), p. 141, lines 1-20.
396.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
endogenous elections in the prior Senate District 28. Brunell Dep. Ex. 299, p. 2-3.
397.
Dr. Brunell’s analysis shows that in Guilford County, in the 2004 State Auditor
contest, the candidate of choice of black voters received 34.8% of the white vote. Brunell Dep.
Ex. 299, p. 12-13, Table 3. This amount of white crossover voting enabled the candidate of
choice of black voters to win in Guilford County. Mot. Jud. Not. (Granted June 4, 2013),
Attachment 1, p. 1.
398.
In the 2008 Presidential General Election, the white crossover vote for the
candidate of choice of black voters was 37.3%. Brunell Dep. Ex. 299, p. 10, Table 2. This
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amount of white crossover voting enabled the candidate of choice of black voters, President
Obama, to win in Guilford County. Mot. Jud. Not. (Granted June 4, 2013), Attachment 3, p. 1.
399.
Using Dr. Brunell's analysis of the level of RPV in Guilford County, Dr.
Lichtman's analysis demonstrates that, had SD 28 been drawn at 40% BVAP, the preferred
candidate of African-American voters would receive 61.63% of the vote. Pl. Trial Ex. 33.
400.
The redistricting chairs justified drawing SD 28 as a majority-black district based
on Brunell’s report. July 25, 2011 Senate Testimony (Sen. Rucho), p. 154 lines 10-25, p. 155,
lines 1-10.
401.
Based on her longtime experience, Goldie Wells testified that there was no
reasonable basis for concluding that the black population in Senate District 28 needed to be
raised from 45.56% to 51.27% in order for black voters to have a reasonable opportunity to elect
their candidate of choice. Trial Tr. June 4, 2013 (Wells), p. 143, lines 9-23.
Senate District 38
402.
Senate District 38 is located wholly within Mecklenburg County. Rucho Dep. Ex.
403.
Defendants increased the TBVAP for Senate District 38 from 46.97% in 2010 to
199.
52.51% under the 2011 plan. Stip. 1(a)(xii); Ketchie Fourth Affidavit, Table 6.
404.
The candidate of choice of black voters won in 2010 with 68.67% of the vote
when the district had 46.97% TBVAP. Ketchie Fourth Affidavit, Table 6.
405.
In the 2004 and 2006 general elections, the Black candidate, Charlie Dannelly,
was unopposed. In the 2008 general election, Senator Dannelly defeated his White opponent by
wide margins—73.33% to 23.87%. Def. Answer to Dickson Am. Compl., ¶ 188; Churchill Dep.
Ex. 82, p. 9, 17.
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406.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
African-American state Senator Joel Ford, won the general election in 2012 with 80.21% of the
vote. Ketchie Fourth Affidavit, Table 6.
407.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
endogenous elections in the prior Senate District 38. Brunell Dep. Ex. 299, p. 2-3.
408.
Dr. Brunell’s analysis shows that in Mecklenburg County, in the 2004 State
Auditor contest, the candidate of choice of black voters received 31.6% of the white vote.
Brunell Dep. Ex. 299, p. 12-13, Table 3. This amount of white crossover voting enabled the
candidate of choice of black voters to win in Mecklenburg County. Mot. Jud. Not. (Granted June
4, 2013), Attachment 1, p. 2.
409.
In the 2008 Presidential General Election, the white crossover vote for the
candidate of choice of black voters was 41.9%. Brunell Dep. Ex. 299, p. 10, Table 2.
410.
This amount of white crossover voting enabled the candidate of choice of black
voters, President Obama, to win in Mecklenburg County. Mot. Jud. Not. (Granted June 4, 2013),
Attachment 3, p. 2. Dr. Brunell characterized this election as marked by “a considerable amount
of white crossover voting” in Mecklenburg County. Brunell Dep. Ex. 299, p. 9.
411.
Using Dr. Brunell's analysis of the level of RPV in Mecklenburg County, Dr.
Lichtman's analysis demonstrates that, had SD 38 been drawn at 40% BVAP, the preferred
candidate of African-American voters would receive 62.05% of the vote. Pl. Trial Ex. 33.
Senate District 40
412.
Senate District 40 is located wholly within Mecklenburg County. Rucho Dep. Ex.
413.
Defendants increased the TBVAP for Senate District 40 from 35.43% in 2010 to
199.
51.84% under the 2011 plan. Stip. 1(a)(xii); Ketchie Fourth Affidavit, Table 6.
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414.
Sen. Graham won in 2010 with 58.16% of the vote when the district had 35.43%
TBVAP. Ketchie Fourth Affidavit, Table 6.
415.
In the 2004 general election, Sen. Graham defeated his opponent by 57.88% to
42.11%. In the 2006 general election, Senator Graham was reelected by 61.47% to 38.52%; in
the 2008 general election, he was re-elected by 66.96% to 33.04%. Def. Answer to Dickson Am.
Compl., ¶ 195. Churchill Dep. Ex. 82, p. 28, 31.
416.
After the unnecessary increase in TBVAP, the candidate of choice of black voters,
Malcolm Graham, won the general election in 2012 with 84.11% of the vote. Ketchie Fourth
Affidavit, Table 6.
417.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
endogenous elections in the prior Senate District 40. Brunell Dep. Ex. 299, p. 2-3.
418.
Dr. Brunell’s analysis shows that in Mecklenburg County, in the 2004 State
Auditor contest, the candidate of choice of black voters received 31.6% of the white vote.
Brunell Dep. Ex. 299, p. 12-13, Table 3. This amount of white crossover voting enabled the
candidate of choice of black voters to win in Mecklenburg County. Mot. Jud. Not. (Granted June
4, 2013), Attachment 1, p. 2.
419.
In the 2008 Presidential General Election, the white crossover vote for the
candidate of choice of black voters was 41.9%. Brunell Dep. Ex. 299, p. 10, Table 2.
420.
This amount of white crossover voting enabled the candidate of choice of black
voters, President Obama, to win in Mecklenburg County. Mot. Jud. Not. (Granted June 4, 2013),
Attachment 3, p. 2. Dr. Brunell characterized this election as marked by “a considerable amount
of white crossover voting” in Mecklenburg County. Brunell Dep. Ex. 299, p. 9.
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421.
Using Dr. Brunell's analysis of the level of RPV in Mecklenburg County, Dr.
Lichtman's analysis demonstrates that, had SD 38 been drawn at 40% BVAP, the preferred
candidate of African-American voters would receive 62.05% of the vote. Pl. Trial Ex. 33.
422.
The redistricting chairs justified drawing SD 40 as a majority-black district based
on Brunell’s report. July 25, 2011 Senate Testimony (Sen. Rucho), p. 154 lines 10-25, p. 155,
lines 1-10.
Congressional District 1
423.
CD 1 is comprised of Bertie, Hertford, Northampton, Halifax, and Warren
Counties (5 whole counties), and pieces of Pasquotank, Perquimans, Chowan, Gates,
Washington, Martin, Pitt, Beaufort, Craven, Lenoir, Greene, Wayne, Wilson, Nash, Edgecombe,
Franklin, Vance, Granville, and Durham Counties (pieces of 18 counties). Stip. 1(a)(xviii).
424.
CD 1 was drawn at 52.65% TBVAP. Stip. 1(a)(xviii).
425.
The prior version of CD 1 was comprised of Bertie, Hertford, Northampton,
Halifax, Warren, Pasquotank, Perquimans, Chowan, Gates, Washington, Martin, Greene and
Edgecombe Counties (13 whole counties), and pieces of Pitt, Beaufort, Craven, Lenoir, Wayne,
Wilson, Nash, Vance, Granville and Jones Counties (pieces of 10 counties). Stip. 1(a)(xiv).
426.
The candidate of choice of black voters, Congressman G.K. Butterfield, won the
general election in 2012 with 75.32% of the vote. Mot. Jud. Not. (Granted June 4, 2013),
Attachment 4, p. 1.
427.
The candidate of choice of black voters, Congressman G.K. Butterfield, won the
general election in 2010 with 59.31% of the vote, when the district had 48.63% TBVAP. Def.
Answer to Dickson Am. Compl., ¶ 383; Churchill Dep. Ex. 81, p. 26.
428.
The candidate of choice of black voters also won the general election in 2006 and
2008. Churchill Dep. Ex. 81, p. 20, 24; Def. Answer to Dickson Am. Compl., ¶ 383.
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429.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
endogenous elections in the prior Congressional District 1. Brunell Dep. Ex. 299, p. 2-3.
430.
Dr. Brunell’s analysis showed that the white crossover vote for the candidate of
choice of black voters in the 2004 State Auditor Race was 42.1% in Pasquotank County, 27.1%
in Perquimans County, 34.5% in Chowan County, 54.3% in Gates County, 33.8% in Washington
County, 34.8% in Bertie County, 39.2% in Hertford County, 46.9% in Northampton County,
40.8% in Martin County, 40.6% in Halifax County, 36.2% in Pitt County, 29.1% in Beaufort
County, 27.8% in Craven County, 28.2% in Lenoir County, 23.8% in Greene County, 29.3% in
Wayne County, 32.4% in Wilson County, 28.8% in Nash County, 37.4% in Edgecombe County,
33.5% in Franklin County, 41.2% in Vance County, 34.2% in Granville County and 50.0% in
Durham County. Brunell Dep. Ex. 299, p. 12-13, Table 3.
431.
Dr. Brunell did not examine the racial voting patterns in Warren County in this
election. Brunell Dep. Ex. 299, p. 12-13, Table 3.
432.
However, this level of white crossover voting enabled the candidate of choice of
black voters in the 2004 State Auditor race to win in Pasquotank, Chowan, Gates, Washington,
Bertie, Hertford, Northampton, Martin, Halifax, Pitt, Lenoir, Greene, Wilson, Nash, Edgecombe,
Vance, Granville, and Durham Counties. The candidate of choice of black voters also won in
Warren County in this race, which Dr. Brunell did not examine. Mot. Jud. Not. (Granted June 4,
2013), Attachment 1, p. 1-3.
433.
In the 2008 Presidential General Election, Dr. Brunell’s data indicate that the
white crossover vote for the candidate of choice of black voters was 24.4% in Pasquotank
County, 26.9% in Perquimans County, 22.6% in Chowan County, 21.9% in Gates County,
10.0% in Washington County, 10.3% in Bertie County, 18.0% in Hertford County, 18.6% in
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Northampton County, 15.4% in Martin County, 21.0% in Halifax County, 30.9% in Pitt County,
5.4% in Beaufort County, 26.1% in Craven County, 14.5% in Lenoir County, 12.8% in Greene
County, 14.6% in Wayne County, 19.6% in Wilson County, 15.8% in Nash County, 14.5% in
Edgecombe County, 28.4% in Franklin County, 19.9% in Vance County, 26.5% in Granville
County, and 59.4% in Durham County. Brunell Dep. Ex. 299, p. 10-11, Table 2.
434.
Dr. Brunell again did not examine the racial voting patterns in Warren County in
this election. Brunell Dep. Ex. 299, p. 10-11, Table 2.
435.
This level of white crossover voting enabled the candidate of choice of black
voters in the 2008 Presidential General Election to win in Pasquotank, Gates, Washington,
Bertie, Hertford, Northampton, Martin, Halifax, Pitt, Lenoir, Wilson, Edgecombe, Vance,
Granville and Durham Counties. The candidate of choice of black voters, President Obama, also
won in Warren County, which Dr. Brunell did not examine. Mot. Jud. Not. (Granted June 4,
2013), Attachment 3, p. 1-3.
436.
Dr. Brunell repeatedly characterized elections in Durham County as marked by “a
considerable amount of white crossover voting,” “lots of white crossover voting,” and a “good
deal of white crossover voting.” Brunell Dep. Ex. 299, p. 9-10, Table 2; Brunell Dep. Tr. p. 113,
lines 15-16; Brunell Dep. Ex. 299, p. 12. He also acknowledged that this number indicated that
there was not racially polarized voting in that election.
437.
Using Dr. Brunell's analysis of the level of RPV in the counties that make up CD
1, Dr. Lichtman's analysis demonstrates that, had CD 1 been drawn at 40% BVAP, the preferred
candidate of African-American voters would receive over 50% of the vote in 22 out of the 23
counties. Pl. Trial Ex. 33.
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438.
Senator Rucho stated that CD 1 must be drawn with a sufficient number of
African Americans so that the 1st District could be re-established as a majority black district.
July 25, 2011 Senate Testimony (Sen. Rucho), p. 9, lines 3 -6.
439.
Senator Rucho stated that the enacted version of CD was inherited from prior
General Assemblies. July 25, 2011, Senate Testimony (Sen. Rucho), p. 8, lines 4-9.
440.
Senator Rucho stated that he assumed that Congressman Butterfield “would
support keeping the black population in Section 5 counties at similar or higher levels as
compared to the amount of black population in Section 5 counties under the 2001 version of the
1st District.” July 25, 2011 Senate Testimony (Sen. Rucho), p. 10, lines 17-22.
441.
Congressman Butterfield’s view was part of the public record. Congressman
Butterfield stated he did have “strong opposition to the removal of Section 5 counties … .
Unfortunately, the revised plan does not fully restore the Section 5 counties, but instead, extracts
the African-American voters from their communities and needlessly dissects affected counties.”
July 25, 2011 Senate Testimony (Sen. Jones, reading a letter from Congressman Butterfield), p.
35, lines 13-15, 22-25, p. 36, lines 1-2.
442.
Alternative maps indicate that CD 1 did not need to extend into either Durham or
Wake County in order to comply with equal population requirements.
Stip. 1(a)(xix)
(“Congressional Fair and Legal” map and stat pack).
443.
Senator Rucho stated that CD 1 was constructed to avoid Section 2 liability. July
25, 2011 Senate Testimony (Sen. Rucho), p. 17, lines 23-25.
444.
A Franklin County citizen testified during a public hearing that, “[d]uring the past
45 years we’ve worked hard to overcome racial prejudice and differences.”
Together, in
Franklin County, we have elected an African-American sheriff, African-American county
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commissioners and school board members.
June 23, 2011, Redistricting Public Hearing
Testimony (John May), p. 157, lines 23-25, p. 158, lines 1-5.
445.
The 2011 redistricting plan for the Franklin County Board of County
Commissions and Board of Education which slightly reduced the black voting age percentage in
two districts (from 47.59 to 44.44 and from 43.11 to 37.14) was submitted to the Department of
Justice for preclearance. Trial Pl. Ex. 1, p. 3.
446.
That submission noted that “African Americans in Franklin County have been
able to successfully elect candidates of their choice, specifically African-American candidates of
their choice, in contests where the voting age population of the electorate has been at least
27.36% African American. Thus, African Americans in Franklin County, who wish to maximize
their political influence in County elections, have sought to create as many “coalition-districts”
in the County over this threshold as possible. Specific emphasis has been put on protecting
African American influence in districts that have elected African American incumbents to
County offices while also creating new opportunities for African-American candidates in other
districts.” Trial Pl. Ex. 1, p. 5.
447.
The Attorney General did not interpose an objection, and the plan was precleared
as compliant with Section 5 of the Voting Rights Act. Trial, Pl. Ex. 2.
III.
FINDINGS OF FACT ON ISSUE #2
Senate Districts 31 and 32
448.
SD 32 is located wholly within Forsyth County. Rucho Dep. Ex. 199.
449.
SD 32 was drawn to be 42.53% TBVAP. Stip. 1(a)(xii).
450.
The candidate of choice of black voters, White state senator Linda Garrou, won in
2010 with 65.37% of the vote, when the district was 42.52% TBVAP. Ketchie Fourth Affidavit,
Table 6.
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451.
White State Senator Linda Garrou was elected 5 times in a district that was over
40% African-American in voting age population. Trial Tr. June 4, 2013 (Garrou), p. 151, lines
14-22.
452.
On the two occasions she had an African-American challenger in the primary
election, she won the primary with over 70 percent of the vote. Trial Tr. June 4, 2013 (Garrou),
p. 153, lines 2-8.
453.
Plaintiffs’ expert Dr. Allan Lichtman’s ecological regression analysis indicated
that Linda Garrou was, in fact, the candidate of choice of black voters. Lichtman First Aff.,
Table 2.
454.
SD 32 was not identified by Defendants as a VRA district. Churchill Dep. Ex. 55,
June 17, 2011, Joint Public Statement, p. 6.
455.
Dr. Brunell did not conduct a racially-polarized voting analysis for any of the
endogenous elections in the prior Senate District 32. Brunell Dep. Ex. 299, p. 2-3.
456.
Dr. Brunell’s analysis shows that in Forsyth County, in the 2004 State Auditor
contest, the candidate of choice of black voters received 34.1% of the white vote. Brunell Dep.
Ex. 299, p. 12-13, Table 3. This amount of white crossover voting enabled the candidate of
choice of black voters to win in Forsyth County. Mot. Jud. Not. (Granted June 4, 2013),
Attachment 1, p. 1.
457.
In the 2008 Presidential General Election, the white crossover vote for the
candidate of choice of black voters was 36.1%. Brunell Dep. Ex. 299, p. 10, Table 2. This
amount of white crossover voting enabled the candidate of choice of black voters, President
Obama, to win in Forsyth County. Mot. Jud. Not. (Granted June 4, 2013), Attachment 3, p. 1.
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458.
The enacted version of SD 32 drew Linda Garrou out of the district even though
she was supported by many African-American voters. Affidavit of Jane Thompson Stephens,
June 20, 2012, p. 1-3, para. 1-2, 4, 7.
459.
Senator Rucho admitted that the white incumbent was purposefully removed from
District 32 to “provide the minority community within the district with a better opportunity to
elect a candidate of their choice.” July 25, 2011 Senate Testimony (Sen. Rucho), p. 91, 16-25.
460.
In the public statement accompanying the release of the VRA districts,
Defendants stated, “Chairman Rucho recommends that the current white incumbent for the
Forsyth Senate district not be included in the proposed Senate District 32. The white incumbent
has defeated African-American candidates in Democratic primaries in 2004 and 2010. The
Senate Chair recommends this adjustment in the absence of a tenth reasonably compact majority
African American senate population. If adopted by the General Assembly, proposed coalition
district 32 will provide African American citizens with a more equal, and tenth opportunity, to
elect a candidate of choice.” Churchill Dep. Ex. 55, June 17, 2011 Joint Public Statement, p. 6.
461.
The enacted configuration of SD 32 was determined by Senator Rucho’s belief
that a black candidate had to represent SD 32, because “[i]n a coalition district, [they] wanted to
be sure that the people in that district have an opportunity of choose a candidate of their choice
that are of the population in that district.” Affidavit of Linda Garrou, January 6, 2012, Att. 1, p.
4.
462.
In the first version of SD 32 made public in “Rucho Senate VRA Districts,” the
district was 39.32% black voting age population and split 1 precinct. Trial Pl. Ex. 31(a), p. 1, 3.
463.
Hofeller, the mapdrawer, was instructed, after the first publicized version of the
district was drawn with a BVAP percentage of 39.32%, to draw the district with an increased
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BVAP percentage to match the BVAP percentage in the underpopulated benchmark district and
the BVAP percentage in the AFRAM map. Trial Tr. June 5, 2013 (Hofeller), p. 46, lines 14-24.
464.
Hofeller claims that Senator Rucho never told him to draw Linda Garrou out of
the district, even though Senator Rucho later claimed that was a purposeful action. Trial Tr. June
5, 2013 (Hofeller), p. 48, lines 23-25; Churchill Dep. Ex. 55, June 17, 2011 Joint Public
Statement, p. 6.
465.
In the enacted version of SD 32, the black voting age population is increased to
42.53% and 43 VTDs are split. Trial Ex. 31(b), p. 1-2.
466.
The integrated politics of Forsyth County are illustrative of the kind of racial
progress that is evident in much of North Carolina. Affidavit of Linda Garrou, January 6, 2012,
Att. 1, p. 1.
467.
The lines of SD 32, dividing that district from the rest of Forsyth County, are
meticulously racialized. Affidavit of Jane Thompson Stephens, June 20, 2012, p. 1-3, para. 1-2,
4, 7.
468.
African-American and white voters often support the same candidates for local
office in Forsyth County, as well as statewide and national offices. Affidavit of Linda Garrou,
January 6, 2012, Att. 1, p. 1. Affidavit of Anne Wilson, May 31, 2012, p. 1-3, paragraphs 1-2, 68.
469.
The Forsyth County delegation to the General Assembly has for many years been
comprised of both black and white representatives. Affidavit of Linda Garrou, January 6, 2012,
Att. 1, p. 1-2.
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470.
The unanimous view offered by Forsyth County residents at the public hearings
was that Senate District 32 should not be reconfigured so as to draw Senator Garrou out of the
district. Affidavit of Linda Garrou, January 6, 2012, Att. 1, p. 2.
471.
Sen. Linda Garrou has widespread and diverse support from African-American
voters. Affidavit of Anne Wilson, May 31, 2012, paragraphs 1-2, 6-8, 12: Affidavit of Linda
Garrou, January 6, 2012, Att. 1, p. 2.
House Districts 51 and 54
472.
HD 54 is located in Chatham and Lee Counties. Lewis Dep. Ex. 189.
473.
HD 54 was not identified by Defendants as a VRA district. Churchill Dep. Ex.
55, June 17, 2011, Joint Public Statement, p. 1-8 (no mention of HD 51 or 54); Stip. 1(a)(ii)
(Map of House VRA Districts—no HD 51 or 54); Stip.1(a)(iii) (Map of House VRA
Corrected—no HD 51 or 54); Hofeller Dep. Tr. Vol. II, p. 363, lines 1-5; Lewis Dep. Tr. p. 157,
lines 8-9.
474.
House District 54 is drawn with a tentacle that reaches down into Lee County,
grabbing a pocket of black voters out of the city of Sanford. Ketchie Third Affidavit, October 3,
2012, Att. Map. 17.
475.
Representative Lewis explained that the tentacle was necessary to even out the
population in the district. Lewis Dep. Tr. p. 157, lines 18-25, p. 158, lines 1-6.
476.
Representative Lewis testified that he instructed Hofeller to split Lee County.
Lewis Dep. Tr. p. 157, lines 13-15.
477.
Representative Lewis claimed it was necessary to extend the district into the city
of Sanford in Lee County in order to satisfy equal population requirements, saying that “Lee
county is a very interesting county in that the majority of the population of the county live in the
city of Sanford itself so it was easier to get higher numbers of population by going into Sanford,
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and so that's what we did, we extended the line from Chatham into Lee. It kept most of Lee in
the 51st, but again, for one-person, one-vote reasons we had to go into Lee.” Lewis Dep. Tr. p.
157, lines 25-25, p. 158, lines 1-6.
478.
In his deposition, Representative Lewis offered no partisan explanation for the
district’s awkward arm reaching into Lee County. Lewis Dep. Tr. p. 157, line 8 – p. 158, line 21.
479.
On the stand, Hofeller claims that House District 54 was drawn as it was to be a
strongly Democratic district. Trial Tr. June 5, 2013 (Hofeller), p. 54, lines 16-18.
480.
He claims that he had no racial data on his screen when he was drawing House
District 54. Trial Tr. June 5, p. 58, lines 9-11.
481.
Despite this contention, an examination of the racial make-up of the census blocks
extracted from Lee County for inclusion in HD 54 reveals that the HD 54 arm captures almost
every census block with a substantial black population. Ketchie Third Affidavit, October 3,
2012, Att. Map. 17.
482.
In deposition, Hofeller demonstrated with Maptitude what the screen usually
looked like when he was drawing maps. The demonstrative included thematic shading by race
and a “pending change” box that demonstrated what effect any change would have on the racial
composition of the district.
Hofeller described these demonstratives as “illustrious” and
“typical.” Hofeller Dep. Tr. Vol. II, p. 207, lines 13-14, p. 214, lines 7-8; Hofeller Dep. Exs.
508, 511.
483.
On the stand, Hofeller claimed that he knew which census blocks to extract for
HD 54 because the people sitting with him drawing the district instructed him on which census
blocks were the most democratic. (Trial Tr. June 5, 2013 (Hofeller), p. 58).
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484.
This explanation was never offered during the prior depositions of Hofeller,
Representative Lewis, or in any of Defendants’ briefing in this litigation. Lewis Dep. Tr. p. 157,
line 8 – p. 158, line 21.
485.
The splitting of the precincts in order to draw that tentacle belies Representative
Lewis’s claim. Three VTDs are split in order to construct the tentacle, and in each split precinct,
the portion of the split VTD with the higher black population is extracted for inclusion in the
tentacle of HD 54 and the portion of the split VTD with the higher white population is left in the
surrounding House District 51. Trial Pl. Ex. 7.
486.
The population extracted in the arm of HD 54 in three split precincts could have
been gathered from two different combinations of two whole precincts in Lee County, resulting
in configurations that would have been more compact and split no precincts. Trial Pl. Ex. 8.
Congressional District 4
487.
Congressional District 4 is comprised of pieces of Alamance, Orange, Durham,
Wake, Chatham, Harnett, and Cumberland Counties. Stip. 1(a)(xviii).
488.
The prior version of CD 4 was comprised of Orange and Durham Counties and
parts of Wake and Chatham Counties. Stip. 1(a)(xiv).
489.
The new version CD 4 was drawn at 31.71% TBVAP. Stip. 1(a)(xviii).
490.
CD 4 was not designated as a VRA district by Defendants. Churchill Dep. Ex. 55,
July 1, 2011, Joint Public Statement, p. 5.
491.
Defendants claimed that CD 4 was “substantially based” on the prior version of
CD 4. Churchill Dep. Ex. 55, July 1, 2011, Joint Public Statement, p. 6.
492.
Despite noting in their July 1 public statement that the prior CD 4 was
overpopulated, Defendants expanded the district into 3 new counties. Churchill Dep. Ex. 55,
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July 1, 2011, Joint Public Statement, p. 2, 6-7; July 25, 2011, Senate Transcript (Sen. Stein) p.
40, lines 15-25; p. 41, lines 1-25.
493.
CD 4 does not respect communities of interest. The military community in
Cumberland County does not share interests with the Research Triangle Park community in
Wake and Durham Counties. July 27, 2011, House Transcript (Rep. Michaux) p. 81, lines 2-19.
The district historically has been a very compact district centered on the Research Triangle Park.
July 27, 2011, House Transcript (Rep. Martin), p. 113, lines 18-21.
494.
The counties in which CD 4 was based in the prior plan are counties that are huge
job creators. The counties added in the enacted version of CD 4, such as Alamance and
Cumberland Counties, do not have such a strong focus on job development. July 25, 2011,
Senate Transcript (Sen. Blue), p. 26, lines 7-21.
495.
The enacted version of CD 4 splits 8 precincts/VTDs in Wake County and 4
precincts/VTDs in Cumberland County.
496.
Senator Rucho claimed that CD 4 was constructed out of heavily Democratic
voting precincts (based upon the 2008 presidential election results) and that the Defendants did
not consider race in the construction of the district. July 25, 2011, Senate Transcript (Sen.
Rucho), p. 21, lines 13-17, 22-24.
497.
The mapdrawer employed by Defendants did not have any reliable partisan or
political data when VTDs were split. Hofeller Dep. Tr. p. 219, lines 15-19.
498.
Despite this earlier admission, Hofeller testified at trial that a number of precincts
in CD 4 were split for political reasons. Those “political” reasons are not explained. Trial Tr.
June 5, 2013 (Hofeller), p. 37, lines 9-14; Trial Def. Ex. 14.
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499.
When CD 4 split VTDs in Wake and Cumberland County, the census blocks with
the higher black voting age population were put in the district, and the census blocks that had a
lower black population were left out of CD 4. July 25, 2011, Senate Transcript (Sen. Blue) p. 45,
lines 8-25, p. 46, lines 1-2.
500.
Legislators noted on the floor of the Senate that there was no way to differentiate
voters in a split precinct on any basis other than race. July 25, 2011, Senate Transcript (Sen.
Blue) p. 45, lines 8-25, p. 46, lines 1-2.
501.
Heavily Democratic precincts in Cumberland County that were predominantly
white were left out of CD 4. July 25, 2011, Senate Transcript (Sen. Mansfield) p. 76, lines 1825, p. 77, lines 1-25, p. 78, lines 1-13.
502.
At least two different configurations of CD 4 could have been constructed that
would have had comparable Democratic performance and would have been more compact and
not drawn to unite distant pockets of African American population. Trial Pl. Ex. 9, 10.
Congressional District 12
503.
Congressional District 12 is comprised of pieces of Mecklenburg, Cabarrus,
Rowan, Davidson, Forsyth, and Guilford Counties. Stip. 1(a)(xviii).
504.
Congressional District 12 was drawn at 50.66% TBVAP. Stip. 1(a)(xviii).
505.
The candidate of choice of black voters won the general election CD 12 in 2012
with 79.63% of the vote. Mot. Jud. Not. (Granted June 4, 2013), Attachment 4, p. 1.
506.
The candidate of choice of black voters won the general election in CD 12 in
2010 with 63.88% of the vote, when the district was 43.77% TBVAP. Def. Answer to Dickson
Am. Compl., ¶ 401.
507.
The candidate of choice of black voters also won the general election in CD 12 in
2006 and 2008. Churchill Dep. Ex. 81, p. 22, 31; Def. Answer to Dickson Am. Compl., ¶ 401.
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508.
The Defendants discussion of Congressional District 12 in the July 1, 2011, public
statement fell under the section of the statement entitled “Compliance with the Voting Rights
Act.” Churchill Dep. Ex. 55, July 1, 2011, Joint Public Statement, p. 2-4, 5.
509.
While Defendants asserted that CD 12 was not a “Section 2” district, they asserted
that they increased the black voting age population in the district in order to comply with Section
5 of the Voting Rights Act. Churchill Dep. Ex. 55, July 1, 2011, Joint Public Statement, p. 5.
510.
Defendants’ expert Hofeller admitted that Congressional District 12, like
Congressional District 1, was drawn first, and the rest of the congressional districts were drawn
after those two districts. Trial Tr. June 5, 2013 (Hofeller), p. 32, lines 5-6.
511.
Hofeller claimed that because Congressional District 12 was not a “voting rights
district,” the fact that it contained Guilford County, a county covered under Section 5, was not
important. Trial Tr. June 5, 2013 (Hofeller), p. 116, lines 8-11.
512.
Hofeller testified that the fact that there had never been a Section 5 objection
interposed to Congressional District 12, Section 5 was not a factor in the drawing of the district.
Trial Tr. June 5, 2013 (Hofeller), p. 118, lines 13-18.
513.
However, in their Section 5 submission for preclearance of the enacted
congressional plan, the redistricting chairs noted that “the total black voting age population for
the 2001 version of District 12 is 43.77%. The total black voting age population for 2011
version is 50.66 percent. Thus, the 2011 version maintains and in fact increases the African
American community’s ability to elect their candidate of choice. Churchill Dep. Ex. 83: Section
5 Submission (Congressional Compendium: “NC 2011 Congressional,” p. 15).
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514.
In his testimony, Hofeller indicated that Congressional Districts 1 and 12 were the
first districts he drew, and he only proceeded to Congressional District 4 after those two districts
were complete. Trial Tr. June 5, 2012 (Hofeller), p. 32, lines 5-6.
515.
In an in-person meeting with Representative Watt that took place in May or June
of 2011, Senator Rucho told Representative Watt that the Republican leadership had told him
(Sen. Rucho) that they were going to ramp up the 12th Congressional District up to over 50%
BVAP because they believed it was required by the Voting Rights Act and that Rucho would
need to sell the district as being in the interests of black voters in the district. Trial Tr. June 4,
2013 (Watt), p. 173, lines 9-23. Representative Watt told Senator Rucho that he could not
support that plan and that the black community would never believe this was in their best
interest. Trial Tr. June 4, 2013 (Watt), p. 175, lines 11-18.
516.
Representative Watt correctly predicted to Senator Rucho that if the district was
drawn as suggested, Representative Watt would win with 80% of the vote because he was
winning with approximately 65% of the vote in a district that was only 40% African American.
Trial Tr. June 4, 2013 (Watt), p. 20-24.
517.
That conversation was between Senator Rucho and Representative Watt, and
Representative Watt thought the conversation was intended to be private. Trial Tr. June 4, 2013
(Watt), p. 197, lines 20-25.
518.
After Senator Rucho misrepresented Representative Watt’s opinion on the
proposed version of CD 12, Representative Watt felt compelled to write a letter to have
submitted into the legislative record in which he corrected that misrepresentation. The letter
explicitly stated that the Congressman was submitting the letter “to provide additional context to
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the selective and misleading characterizations of my opinions that the Chairs of the North
Carolina’s legislative redistricting panel have entered into the record.” Trial Pl. Ex. 30.
519.
Representative Watt wrote the letter because he felt that Senator Rucho
represented to the public that it was Representative Watt’s idea to increase the African American
population in the 12th Congressional District from 40 percent to over 50 percent, which was not
accurate. Trial Tr. June 4, 2013 (Watt), p. 203, lines 11-16.
520.
Representative Watt asked State Senator Malcolm Graham from Mecklenburg
County to read the letter into the record at public hearing on July 7, 2011. Trial Pl. Ex. 32.
521.
Congressman Mel Watt communicated to Representative Lewis that he felt that
both African American and Hispanic voters supported his candidacy in the district. July 7 Public
Hearing Tr., p. 37, lines 11-25, p. 38, lines 1-25, p. 39, lines 1-22.
522.
Dr. Brunell did not conduct a racially polarized-voting analysis for any of the
endogenous elections in the prior Congressional District 12. Brunell Dep. Ex. 299, p. 2-3.
523.
Plaintiffs’ expert Dr. David Peterson reviewed a segment boundary analysis on
Congressional District 12. Peterson Second Affidavit, May 14, 2012, p. 2, ¶ 2. The segment
boundary analysis was developed by Dr. Peterson in the Shaw litigation as a method of
examining whether race or partisanship motivated the drawing of electoral district lines.
Peterson Second Affidavit, May 14, 2012, p. 2, n.1.
524.
A segment analysis produces data upon which a determination can be made
whether the evidence suggests that the reason a boundary line was drawn was in order to gather
into a district African-Americans, or in order to gather into a district Democrats. Peterson Dep.
Tr. p. 37, lines 1-25.
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525.
Dr. Peterson’s segment boundary analysis determined that racial considerations
provided a better explanation for the lines of CD 12 than did partisan considerations. Peterson
Second Affidavit, May 14, 2012, p. 2, ¶¶ 3, 18; Peterson Dep. Tr. p. 43, line 1 – p. 45, line 17.
526.
Dr. Peterson explained of his boundary segment analysis results for Congressional
District 12: “[i]f race is a better explanatory, provides a better explanation for the route of the
boundary better than political affiliation by the segment analysis measure, then certainly there is
no indication that political affiliation predominated over race because race is a better
explanation. Race correlates more strongly with the boundary than does political preference.”
Peterson Dep. Tr. p. 88, line 22 – p. 89, line 4.
527.
Dr. Peterson performed the same analysis of CD 12 in the Cromartie litigation,
and the results back then indicated that partisan considerations better explained the district lines
than racial considerations. Peterson Second Affidavit, May 14, 2012, p. 2, ¶17.
IV.
CONCLUSIONS OF LAW AS TO ISSUE I
Issue 1: Standard of Review
Defendants Bear the Burden of Production to Demonstrate that Each of the Districts Were
Narrowly Tailored
1.
In its May 13, 2013, Order, the Court instructed the parties to assume strict
scrutiny applies when considering whether each challenged district was narrowly tailored and
drawn in an area where Section 2 or Section 5 requires a majority-black district. As the Supreme
Court held in Shaw, a strict scrutiny analysis of challenged voting districts requires that a “plan
[be] narrowly tailored to further a compelling governmental interest.” Shaw v. Reno (Shaw I),
509 U.S. 630, 658 (1993).
2.
At the trial level, the State “bear[s] the burden of producing evidence
demonstrating there is a strong basis in evidence that the … [State’s] predominant use of raceconscious districting satisfies strict scrutiny.” Johnson v. Mortham, 915 F. Supp. 1574, 1580
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(N.D. Fla. 1996) (citations omitted) (trial on whether the use of race in Florida’s Third
Congressional District was narrowly tailored). If Defendants meet this burden of producing
evidence, Plaintiffs then bear the burden of "rebutting the evidence put forward by Defendants
…on the strict scrutiny issue, and persuading the Court that Defendants have not made a
sufficient showing to satisfy strict scrutiny review." Id. See Shaw v. Hunt 861 F. Supp. 408,
436 (E.D. N.C. 1994) (“[T]he state's burden at the strict scrutiny stage is producing evidence that
the plan's use of race is narrowly tailored”), rev’d on other grounds, 517 U.S. 899 (1996); Vera
v. Richards, 861 F. Supp. at 1342 ("[t]he State has the burden of producing evidence of narrowly
tailoring to achieve its compelling state interest."), aff’d sub nom Bush v. Vera, 517 U.S. 952,
982 (1996) (“[T]he State "must have had a strong basis in evidence to conclude that remedial
action was necessary, before it embarks on an affirmative action program.”)
3.
The narrow tailoring inquiry is far more rigorous than a mere evaluation of
“reasonableness,” and includes no deference to the State. As the Supreme Court observed, "the
history of racial classifications in this country suggests that blind judicial deference to legislative
or executive pronouncements of necessity has no place in equal protection analysis." City of
Richmond v. J. A. Croson, 488 U.S. 469, 501 (1989).
4.
Under strict scrutiny, the Defendants have the demanding burden of showing that
racial classifications were narrowly tailored. In San Antonio Independent School District v.
Rodriguez, 411 U.S. 1 (1973), the Court held:
Strict scrutiny means that the State's system is not entitled to the
usual presumption of validity, that the State rather than the
complainants must carry a 'heavy burden of justification,' that the
State must demonstrate that its [racial classification] has been
structured with precision, and is tailored narrowly to serve
legitimate objectives and that it has selected the 'less drastic
means' for effectuating its objectives."
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Id. at 16-17 (emphasis added).
5.
When the Court evaluates what was “reasonably necessary” to avoid liability
under Section 2 under the Voting Rights Act, the Court considers whether the state has drawn the
district based on a rigorous consideration of minority voters’ opportunity to elect their candidates
of choice. Shaw I, 509 U.S. at 654-55.
6.
As the Court considers whether the State narrowly tailored its redistricting to
avoid liability under the Voting Rights Act, the Court’s analysis is not limited to evidence that
was actually before the General Assembly when it enacted the challenged districts. What matters
for purposes of knowing whether the State could be liable under the Voting Rights Act is how
the political process actually worked. See, e.g., Miller v. Johnson, 515 U.S. 900, 921 (1995);
Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986). Moreover, the data on which Dr. Peterson’s
report and Dr. Lichtman’s report and testimony was based was in fact available to the General
Assembly at the time it was drawing the challenged districts. The fact that the Defendants chose
not to conduct important analyses of data available to them when enacting the challenged
districts cannot legally or reasonably render those analyses legally irrelevant. Similarly, while
Goldie Wells’ testimony and the testimony of Plaintiffs’ other witnesses who were not members
of the legislature, was not in the legislative record in 2011, their testimony was essentially
identical to the statements of numerous persons who spoke at the 2011 public hearings, and
indeed was information that Senator Rucho and Representative Lewis knew or should have
known in 2011. Because of North Carolina’s preference for admitting any “relevant evidence[,]”
the Court is well within its bounds to consider Plaintiffs’ witnesses and evidence on North
Carolina’s political process. See N.C. R. Evid. 402.
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7.
Consideration of expert and lay testimony conforms with other courts’ reliance on
expert testimony and past political experience. See, e.g., Moon v. Meadows, 952 F. Supp. 1441,
1149-50 (E.D. Va. 1997). The Court finds that precedent supports its use of post-enactment
evidence to consider narrow tailoring. Shaw II is not to the contrary: it only prevented the State
from relying on post-enactment evidence to establish a compelling state interest, which by
definition must have been the state’s actual motive rather than post-hoc justification. Shaw v.
Hunt (Shaw II), 517 U.S. 899, 910 (1996).
8.
Based upon evidence presented before and at trial, the Court concludes that
Defendants did not have sufficient evidence before them prior to the enactment of the plans, to
justify the State’s unprecedented use of race and have failed to produce sufficient evidence for
the Court to conclude that each of the districts was narrowly tailored.
a.
Narrow Tailoring Required for a Section 5 Defense
9.
Section 5 bars covered jurisdictions from implementing any voting change that
has a discriminatory purpose or would have the effect of reducing the ability of minority voters
to elect a candidate of their choice. 42 U.S.C. §§1973c(b), (c) (2006). In Shaw v. Reno, the Court
emphasized that strict scrutiny applied to districts designed to comply with the Voting Rights
Act, stating, “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 I, 509 U.S. at 654-655. Thus, Section 5 can only justify the State’s use of race to the
extent necessary to avoid retrogression.
10.
Section 5 does not require a State to create proportionality in the number of
majority minority districts. Nor does it justify dramatically increasing the number of majorityblack districts or the black voting age population in Section 5 covered districts. Johnson v.
Miller, 515 U.S 900, 926-27 (1995). Rather than setting an across-the-board quota for the
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increased population concentration of minority voters in protected districts, a state must show a
strong basis in evidence for using race in the name of Section 5 compliance. Id. at 922.
b.
Narrow tailoring for Section 2 liability
11.
Similarly, the United States Supreme Court has made clear that “[t]he State must
have a ‘strong basis in evidence’ for finding that the threshold conditions for § 2 liability are
present.” Bush v. Vera, 517 U.S. 952, 978 (1996). Thus, to prove that the districts were narrowly
tailored to avoid Section 2 liability, Defendants must show a strong basis in evidence for each of
the three Gingles factors: 1) that the minority group in question is “sufficiently large and
geographically compact to constitute a majority in a single-member district[;]” 2) that the
minority group is “politically cohesive[;]” and 3) that the majority votes “sufficiently as a bloc to
enable it . . . usually to defeat the minority’s preferred candidate.” Thornburg v. Gingles, 478
U.S. 30, 50-51 (1986); Vera, 517 U.S. at 978. Although the Defendants must show that the
districts they enacted are compact to prevail on their case as a whole, compactness does not have
to be analyzed to decide the issues presently before the Court. See Vera, 517 U.S. at 982.
Gingles requires an “intensely local appraisal” of the historical, social, and
12.
political climate of the geographical area where each district is drawn. Gingles, 478 U.S. at 78
(quoting White v. Regester, 412 U.S. 755, 769 (1973)). Thus, these prongs guide the Court’s
searching inquiry into whether each challenged district was drawn in a geographic location
where there was a need to ameliorate conditions creating Section 2 liability.
i.
13.
Legally Significant Racially Polarized Voting Only Exists, and Gingles’
Third Prong is only Satisfied, When White Bloc Voting Routinely Defeats
the Minority Candidate of Choice
To satisfy Gingles’ third prong, Defendants must present strong evidence that
there is racially polarized voting, which is only legally significant where the white voting bloc
usually defeats the minority bloc’s candidate of choice. Gingles, 478 U.S. at 51. If minorities’
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candidates of choice consistently win elections, then the third prong of Gingles is not satisfied,
and districts need not be—and should not be—crafted to increase the proportion of minorities
and therefore minorities’ odds of electing their preferred candidates. Id. at 77 (finding that the
District Court erred in ignoring the significance of the sustained success black voters had
experienced in Durham County). Moreover, in order to prove that there is legally significant
racially polarized voting, the Defendants must show that it exists in individual districts rather
than larger areas that include the contested district. See id. at 59 n.28 (requiring that the inquiry
into "racially polarized voting" be "district-specific").
14.
As a matter of law, statistically significant racially polarized voting is
fundamentally different than legally significant racially polarized voting. Statistically significant
racially polarized voting only means that there is a statically meaningful correlation between a
person’s race and her vote. See Trial Tr. June 5, 2013 (Lichtman), p. 142, lines 19-25, p. 143,
lines1-8. In contrast, legally significant racially polarized voting means that the white voting bloc
usually defeats the minority bloc’s candidate of choice. Gingles, 478 U.S.. at 56. Accordingly,
even if whites in a certain district are less likely than African-Americans to vote for AfricanAmericans’ preferred candidate, that fact alone is of no significance for purposes of Gingles’
third prong. The Court concludes that, so long as African-Americans’ preferred candidate does
not usually lose because of the white bloc voting, the third prong of Gingles cannot be satisfied.
See id. at 77. Thus, a mere showing of statistically significant racially polarized voting is
insufficient to demonstrate a strong basis in evidence for the third prong of Gingles. Abrams v.
Johnson, 521 U.S. 74, 92-93 (1997).
15.
The Court declines to discount the pattern of repeated, sustained success of the
African-American preferred candidate in the challenged districts as victories won in “special
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circumstances.” Although Gingles allows that “special circumstances, such as incumbency and
lack of opposition” may occasionally trump significant white bloc voting, Gingles, 478 U.S. at
54, to discount every minority candidate’s victory would render Gingles’ third prong
meaningless. Courts have repeatedly rejected the attempt to turn the repeated election of
minority candidates into special circumstances. Rollins v. Fort Bend Indep. Sch. Dist., 89 F.3d
1205, 1213 (5th Cir. 1996) (concluding that although special circumstances―may explain a
single minority candidate‘s victory . . . [e]very victory cannot be explained away as a fortuitous
event”). Particularly, courts rejected Defendants’ tact of discounting elections due to
incumbency. Circuit courts have emphasized that “[i]ncumbency is the “least ‘special’” of the
special circumstances, and incumbency “must play an unusually important role” before a court is
required to disregard an electoral victory of a minority-preferred candidate.” Cottier v. City of
Martin, 604 F.3d 553, 562 (8th Cir. S.D. 2010) (internal citations omitted). This is because
“unlike other ‘special circumstances,’ incumbency plays a significant role in the vast majority of
American elections … a contrary rule would confuse the ordinary with the special, and thus
make practically every American election a ‘special circumstance.’” Clarke v. City of Cincinnati,
40 F.3d 807, 813-814 (6th Cir. Ohio 1994) (internal citations omitted). Thus the Court concludes
that Defendants’ evidence regarding incumbency and campaign finances fails to show special
circumstances sufficient to justify discounting the repeated election of the candidates of choice
of black voters in each of the challenged districts.
ii.
16.
Relevance of Expert Reports on Racially Polarized Voting
Defendants rely on the reports of Dr. Thomas Brunell and Dr. Block, who found
racially polarized voting in North Carolina wherever fewer than 50% of whites voted for the
African-American voters’ candidate of choice. Based on consistent precedent contradicting Drs.
Brunell and Block’s definition of racially polarized voting, the Court concludes that Defendants
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cannot demonstrate a strong basis in evidence for the third prong of Gingles by merely showing
only the presence of statistically significant racially polarized voting in a particular geographic
area. Gingles, 478 U.S. at 56; Abrams, 521 U.S. at 92-93.
17.
The Court concludes that Dr. Block’s and Dr. Brunell’s reports cannot form a
strong basis in evidence for demonstrating narrow tailoring because they do not support the
finding that the white voting bloc usually defeats the candidate of choice of black voters in each
of the geographic areas where the challenged majority-black districts were drawn. Gingles, 478
U.S. at 77.
18.
Further, relying on the testimony of Plaintiffs’ expert Dr. Allan Lichtman, this
Court finds that the report of Dr. Brunell shows what the Supreme Court described as the
“general willingness of white voters to vote for black candidates” in each of the geographic areas
where the challenged majority-black districts were drawn. Abrams, 521 U.S. at 93.
19.
Dr. Block’s report does not show that the Defendants satisfy the third prong of
Gingles, because Dr. Block’s report does not show legally significant racially polarized voting in
any of the challenged districts. See Gingles, 478 U.S. at 56; Abrams, 521 U.S. at 92-93.
20.
Likewise, Dr. Brunell’s report does not show that the Defendants satisfy the third
prong of Gingles because the report shows no legally significant racially polarized voting in any
of the challenged districts. See Gingles, 478 U.S. at 56; Abrams, 521 U.S. at 92-93. In fact, Dr.
Brunell’s analysis shows that even if a district had a 40% BVAP, enough whites would vote for
the same candidate as African-Americans to ensure that the African-Americans’ candidate of
choice would be elected. See Trial Tr. June 5, 2013 (Lichtman), p. 150, lines 23-25, p. 151, lines
1-6; Pl. Trial Ex. 33.
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iii.
21.
Relevance of Defendants’ Proportionality Policy
Gingles requires that each Section 2 district be drawn in the particular geographic
location where Section 2 liability occurred. Gingles, 478 U.S. at 56. Therefore, a statewide
proportionality defense, based on statewide evidence, is antithetical to a showing that Defendants
had a strong basis in evidence that, based on local voting patterns, a Section 2 district is
necessary to protect the State from liability. See id.
22.
Likewise, in Miller, the Supreme Court clearly stated that the non-retrogression
standard under Section 5 does not require ostensibly ameliorative goals such as increasing the
number of majority-minority districts without regard to local communities’ different needs and
interests. See Miller, 515 U.S. at 924-25.
23.
The Court concludes that, based on Defendants’ admitted focus on statewide
proportionality rather than local communities’ needs, Defendants failed to tailor the location of
majority-black districts to areas where there was a strong basis in evidence for the necessity of
majority-black districts.
a. House Districts
House District 5
24.
When drawing HD 5 with a majority black voting age population, Defendants had
no district-specific evidence of legally significant racially polarized voting and therefore failed to
engage in the intensely local inquiry required by Gingles. See Gingles 478 U.S. at 78.
25.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
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strong basis in evidence to conclude that HD 5 needed to be drawn with a 54.17% black voting
age population in order to avoid liability under Section 2. See Gingles 478 U.S. at 78.
26.
Additionally, the Court concludes that the state did not have a strong basis in
evidence for redrawing the district as majority-black to avoid retrogression and a Section 5
violation. See Miller, 515 U.S. at 922.
27.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, HD 5 is not narrowly tailored to comply with a compelling state interest.
See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78.3 The Court
concludes that HD 5 is unconstitutional.
House District 7
28.
When drawing HD 7 with a majority black voting age population, Defendants had
no district-specific evidence of legally significant racially polarized voting and therefore failed to
satisfy the intensely local inquiry required by Gingles. See Gingles, 478 U.S. at 78.
29.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
strong basis in evidence to conclude that HD 7 needed to be drawn with a 50.67% black voting
age population in order to avoid liability under Section 2. See Gingles, 478 U.S. at 78.
3
HD 5 is also not narrowly tailored because it is not compact, unnecessarily divides precincts and unnecessarily
divides Pasquotank County.
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30.
Additionally, the Court concludes that the state did not have a strong basis in
evidence for redrawing the district at majority-black to avoid retrogression and a Section 5
violation. See Miller, 515 U.S. at 922.
31.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, HD 7 is not narrowly tailored to comply with a compelling state interest.
See Miller, 515 U.S. at 921; Shaw, 509 U.S. at 655; Gingles, 478 U.S. at 78.4 The Court
concludes that HD 7 is unconstitutional.
House District 12
32.
When drawing HD 12 with a majority black voting age population, Defendants
had no district-specific evidence of legally significant racially polarized voting and therefore
failed to satisfy the intensely local inquiry required by Gingles. See Gingles, 478 U.S. at 78.
33.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
strong basis in evidence to conclude that HD 12 needed to be drawn with a 50.6% black voting
age population in order to avoid liability under Section 2. See Gingles, 478 U.S. at 78.
34.
Additionally, the Court concludes that the state did not have a strong basis in
evidence for redrawing the district at majority-black to avoid retrogression and a Section 5
violation. See Miller, 515 U.S. at 922.
35.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, HD 12 is not narrowly tailored to comply with a compelling state
4
HD 7 is also not narrowly tailored because it is not compact and unnecessarily divides precincts and counties.
106
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interest. See Miller, 515 U.S. at 921; Shaw, 509 U.S. at 655; Gingles, 478 U.S. at 78. The Court
concludes that HD 12 is unconstitutional.
House District 21
36.
When drawing HD 21 with a majority black voting age population, Defendants
had no district-specific evidence of legally significant racially polarized voting and therefore
failed to engage in the intensely local inquiry required by Gingles. See Gingles, 478 U.S. at 78.
37.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
strong basis in evidence to conclude that HD 21 needed to be drawn with a 51.90% black voting
age population in order to avoid liability under Section 2. See Gingles, 478 U.S. at 78.
38.
Additionally, the Court concludes that the State did not have a strong basis in
evidence for redrawing the district as majority-black to avoid retrogression and a Section 5
violation. See Miller, 515 U.S. at 922.
39.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, HD 21 is not narrowly tailored to comply with a compelling state
interest. See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78. The Court
concludes that HD 21 is unconstitutional.
107
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House District 24
40.
When drawing HD 24 with a majority black voting age population, Defendants
had no district-specific evidence of legally significant racially polarized voting and therefore
failed to engage in the intensely local inquiry required by Gingles. See Gingles, 478 U.S. at 78.
41.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
strong basis in evidence to conclude that HD 24 needed to be drawn with a 57.33% black voting
age population in order to avoid liability under Section 2. See Gingles, 478 U.S. at 78.
42.
Additionally, the Court concludes that the State did not have a strong basis in
evidence for redrawing the district as majority-black to avoid retrogression and a Section 5
violation. See Miller, 515 U.S. at 922.
43.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, HD 24 is not narrowly tailored to comply with a compelling state
interest. See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78.5 The
Court concludes that HD 24 is unconstitutional.
House Districts 29 and 31
44.
When drawing HD 29 and 31 with a majority black voting age population,
Defendants had no district-specific evidence of legally significant racially polarized voting and
therefore failed to engage in the intensely local inquiry required by Gingles. See Gingles, 478
U.S. at 78.
5
HD 24 is also not narrowly tailored because it is not compact and unnecessarily divides precincts.
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45.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the districts demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
strong basis in evidence to conclude that HD 29 and HD 31 needed to be drawn with,
respectively, a 51.34% and 51.81% black voting age population in order to avoid liability under
Section 2. See Gingles, 478 U.S. at 78.
46.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, HD 29 and HD 31 are not narrowly tailored to comply with a compelling
state interest. See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78.6 The
Court concludes that HD 29 and 31 are unconstitutional.
House District 32
47.
When drawing HD 32 with a majority black voting age population, Defendants
had no district-specific evidence of legally significant racially polarized voting and therefore
failed to engage in the intensely local inquiry required by Gingles. See Gingles, 478 U.S. at 78.
48.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
strong basis in evidence to conclude that HD 32 needed to be drawn with a 50.45% black voting
age population in order to avoid liability under Section 2. See Gingles, 478 U.S. at 78.
6
HD 29 and 31 are also not narrowly tailored because they are not compact and unnecessarily divides precincts.
109
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49.
Additionally, the Court concludes that the State did not have a strong basis in
evidence for redrawing the district as majority-black to avoid retrogression and a Section 5
violation. See Miller, 515 U.S. at 922.
50.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, HD 32 is not narrowly tailored to comply with a compelling state
interest. See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78.7 The
Court concludes that HD 32 is unconstitutional.
House Districts 33 and 38
51.
When drawing HD 33 and HD 38 with a majority black voting age population,
Defendants had no district-specific evidence of legally significant racially polarized voting and
therefore failed to engage in the intensely local inquiry required by Gingles. See Gingles, 478
U.S. at 78.
52.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the districts demonstrated that the
candidate of choice of black voters could win elections in a district in Wake County with a less
than 50% black voting age population. Thus, the third prong of Gingles is not satisfied, black
voters have demonstrably had a fair opportunity to elect candidates of their choice, and
Defendants had no strong basis in evidence to conclude that HD 33 and 38 needed to be drawn
with, respectively, a 51.74% and 51.37% black voting age population in order to avoid liability
under Section 2. See Gingles, 478 U.S. at 78.
53.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, HD 33 and 38 are not narrowly tailored to comply with a compelling
7
HD 32 is also not narrowly tailored because it is not compact and unnecessarily divides precincts.
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state interest. See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78.8 The
Court concludes that HD 33 and 38 are unconstitutional.
House District 42
54.
When drawing HD 42 with a majority black voting age population, Defendants
had no district-specific evidence of legally significant racially polarized voting and therefore
failed to engage in the intensely local inquiry required by Gingles. See Gingles, 478 U.S. at 78.
55.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
strong basis in evidence to conclude that HD 42 needed to be drawn with a 52.56% black voting
age population in order to avoid liability under Section 2. See Gingles, 478 U.S. at 78.
56.
Additionally, the Court concludes that the State did not have a strong basis in
evidence for redrawing the district as majority-black to avoid retrogression and a Section 5
violation. See Miller, 515 U.S. at 922.
57.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, HD 42 is not narrowly tailored to comply with a compelling state
interest. See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78.9 The
Court concludes that HD 42 is unconstitutional.
8
9
HD 33 and 38 are also not narrowly tailored because they are not compact and unnecessarily divides precincts.
HD 42 is also not narrowly tailored because it is not compact and unnecessarily divides precincts.
111
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House District 48
58.
When drawing HD 48 with a majority black voting age population, Defendants
had no district-specific evidence of legally significant racially polarized voting and therefore
failed to engage in the intensely local inquiry required by Gingles. See Gingles, 478 U.S. at 78.
59.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
strong basis in evidence to conclude that HD 48 needed to be drawn with a 51.27% black voting
age population in order to avoid liability under Section 2. See Gingles, 478 U.S. at 78.
60.
Additionally, the Court concludes that the State did not have a strong basis in
evidence for redrawing the district as majority-black to avoid retrogression and a Section 5
violation. See Miller, 515 U.S. at 922.
61.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, HD 48 is not narrowly tailored to comply with a compelling state
interest. See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78.10 The
Court concludes that HD 48 is unconstitutional.
House District 57
62.
When drawing HD 57 with a majority black voting age population, Defendants
had no district-specific evidence of legally significant racially polarized voting and therefore
failed to engage in the intensely local inquiry required by Gingles. See Gingles, 478 U.S. at 78.
10
HD 48 is also not narrowly tailored because it is not compact and unnecessarily divides counties and precincts.
112
- 1148 -
63.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
strong basis in evidence to conclude that HD 57 needed to be drawn with a 56.69% black voting
age population in order to avoid liability under Section 2. See Gingles, 478 U.S. at 78.
64.
Additionally, the Court concludes that the State did not have a strong basis in
evidence for redrawing the district as majority-black to avoid retrogression and a Section 5
violation. See Miller, 515 U.S. at 922.
65.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, HD 57 is not narrowly tailored to comply with a compelling state
interest. See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78.11 The
Court concludes that HD 57 is unconstitutional.
House Districts 99, 102, 106, 107
66.
When drawing HD 99, HD 102, HD 106, and HD 107 with a majority black
voting age population, Defendants had no district-specific evidence of legally significant racially
polarized voting and therefore failed to engage in the intensely local inquiry required by Gingles.
See Gingles, 478 U.S. at 78.
67.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the districts demonstrated that the
candidate of choice of black voters could win elections in a district in Mecklenburg County with
a less than 50% black voting age population. Thus, the third prong of Gingles is not satisfied,
11
HD 57 is also not narrowly tailored because it is not compact and unnecessarily divides precincts.
113
- 1149 -
black voters have demonstrably had a fair opportunity to elect candidates of their choice, and
Defendants had no strong basis in evidence to conclude that HD 99, HD 102, HD 106, and HD
107 needed to be drawn with, respectively, a 54.65%, 53.53%, 51.12%, and 51.44% black voting
age population in order to avoid liability under Section 2. See Gingles, 478 U.S. at 78.
68.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, HD 99, HD 102, HD 106, and HD 107 are not narrowly tailored to
comply with a compelling state interest. See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655;
Gingles, 478 U.S. at 78.12 The Court concludes that HD 99, HD 102, HD 106, and HD 107 are
unconstitutional.
b. Senate Districts
Senate District 4
69.
When drawing SD 4 with a majority black voting age population, Defendants had
no district-specific evidence of legally significant racially polarized voting and therefore failed to
engage in the intensely local inquiry required by Gingles. See Gingles, 478 U.S. at 78.
70.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
strong basis in evidence to conclude that SD 4 needed to be drawn with a 52.75% black voting
age population in order to avoid liability under Section 2. See Gingles, 478 U.S. at 78.
12
HD 99, 102, 106 and 107 are also not narrowly tailored because they are not compact and unnecessarily divides
precincts.
114
- 1150 -
71.
Additionally, the Court concludes that the State did not have a strong basis in
evidence for redrawing the district as majority-black to avoid retrogression and a Section 5
violation. See Miller, 515 U.S. at 922.
72.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, SD 4 is not narrowly tailored to comply with a compelling state interest.
See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78.13 The Court
concludes that SD 4 is unconstitutional.
Senate District 5
73.
When drawing SD 5 with a majority black voting age population, Defendants had
no district-specific evidence of legally significant racially polarized voting and therefore failed to
engage in the intensely local inquiry required by Gingles. See Gingles, 478 U.S. at 78.
74.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
strong basis in evidence to conclude that SD 5 needed to be drawn with a 51.97% black voting
age population in order to avoid liability under Section 2. See Gingles, 478 U.S. at 78.
75.
Additionally, the Court concludes that the State did not have a strong basis in
evidence for redrawing the district as majority-black to avoid retrogression and a Section 5
violation. See Miller, 515 U.S. at 922.
13
SD 4 is also not narrowly tailored because it is not compact, unnecessarily divides precincts and unnecessarily
divides Nash County.
115
- 1151 -
76.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, SD 5 is not narrowly tailored to comply with a compelling state interest.
See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78.14 The Court
concludes that SD 5 is unconstitutional.
Senate District 14
77.
When drawing SD 14 with a majority black voting age population, Defendants
had no district-specific evidence of legally significant racially polarized voting and therefore
failed to engage in the intensely local inquiry required by Gingles. See Gingles, 478 U.S. at 78.
78.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district in Wake County with a less
than 50% black voting age population. Thus, the third prong of Gingles is not satisfied, black
voters have demonstrably had a fair opportunity to elect candidates of their choice, and
Defendants had no strong basis in evidence to conclude that SD 14 needed to be drawn with a
51.28% black voting age population in order to avoid liability under Section 2. See Gingles, 478
U.S. at 78.
79.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, SD 14 is not narrowly tailored to comply with a compelling state
interest. See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78.15 The
Court concludes that SD 14 is unconstitutional.
14
15
SD 5 is also not narrowly tailored because it is not compact and unnecessarily divides precincts and counties.
SD 14 is also not narrowly tailored because it is not compact and unnecessarily divides counties.
116
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Senate District 20
80.
When drawing SD 20 with a majority black voting age population, Defendants
had no district-specific evidence of legally significant racially polarized voting and therefore
failed to engage in the intensely local inquiry required by Gingles. See Gingles, 478 U.S. at 78.
81.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
strong basis in evidence to conclude that SD 20 needed to be drawn with a 51.04% black voting
age population in order to avoid liability under Section 2. See Gingles, 478 U.S. at 78.
82.
Additionally, the Court concludes that the State did not have a strong basis in
evidence for redrawing the district as majority-black to avoid retrogression and a Section 5
violation. See Miller, 515 U.S. at 922.
83.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, SD 20 is not narrowly tailored to comply with a compelling state
interest. See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78.16 The
Court concludes that SD 20 is unconstitutional.
Senate District 21
84.
When drawing SD 21 with a majority black voting age population, Defendants
had no district-specific evidence of legally significant racially polarized voting and therefore
failed to engage in the intensely local inquiry required by Gingles. See Gingles, 478 U.S. at 78.
16
SD 20 is also not narrowly tailored because it is not compact and unnecessarily divides counties.
117
- 1153 -
85.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
strong basis in evidence to conclude that SD 21 needed to be drawn with a 51.34% black voting
age population in order to avoid liability under Section 2. See Gingles, 478 U.S. at 78.
86.
Additionally, the Court concludes that the State did not have a strong basis in
evidence for redrawing the district as majority-black to avoid retrogression and a Section 5
violation. See Miller, 515 U.S. at 922.
87.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, SD 21 is not narrowly tailored to comply with a compelling state
interest. See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78.17 The
Court concludes that SD 21 is unconstitutional.
Senate District 28
88.
When drawing SD 28 with a majority black voting age population, Defendants
had no district-specific evidence of legally significant racially polarized voting and therefore
failed to engage in the intensely local inquiry required by Gingles. See Gingles, 478 U.S. at 78.
89.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
17
SD 21 is also not narrowly tailored because it is not compact and unnecessarily divides counties.
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strong basis in evidence to conclude that SD 28 needed to be drawn with a 56.49% black voting
age population in order to avoid liability under Section 2. See Gingles, 478 U.S. at 78.
90.
Additionally, the Court concludes that the State did not have a strong basis in
evidence for redrawing the district as majority-black to avoid retrogression and a Section 5
violation. See Miller, 515 U.S. at 922.
91.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, SD 28 is not narrowly tailored to comply with a compelling state
interest. See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78.18 The
Court concludes that SD 28 is unconstitutional.
Senate Districts 38 and 40
92.
When drawing SD 38 and SD 40 with a majority black voting age population,
Defendants had no district-specific evidence of legally significant racially polarized voting and
therefore failed to engage in the intensely local inquiry required by Gingles. See Gingles, 478
U.S. at 78.
93.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the districts demonstrated that the
candidate of choice of black voters could win elections in a district in Mecklenburg County with
a less than 50% black voting age population. Thus, the third prong of Gingles is not satisfied,
black voters have demonstrably had a fair opportunity to elect candidates of their choice, and
Defendants had no strong basis in evidence to conclude that SD 38 and SD 40 needed to be
drawn with a, respectively, 52.51% and 51.84% black voting age population in order to avoid
liability under Section 2. See Gingles, 478 U.S. at 78.
18
SD 28 is also not narrowly tailored because it is not compact and unnecessarily divides counties.
119
- 1155 -
94.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, SD 38 and SD 40 are not narrowly tailored to comply with a compelling
state interest. See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78.19
The Court concludes that SD 38 and SD 40 are unconstitutional.
c. Congressional District 1
95.
When drawing CD 1 with a majority black voting age population, Defendants had
no district-specific evidence of legally significant racially polarized voting and therefore failed to
engage in the intensely local inquiry required by Gingles. See Gingles, 478 U.S. at 78.
96.
Evidence before the General Assembly at the time of enactment and the sustained
success of African Americans’ preferred candidates in the district demonstrated that the
candidate of choice of black voters could win elections in a district with a less than 50% black
voting age population. Thus, the third prong of Gingles is not satisfied, black voters have
demonstrably had a fair opportunity to elect candidates of their choice, and Defendants had no
strong basis in evidence to conclude that CD 1 needed to be drawn with a 52.65% black voting
age population in order to avoid liability under Section 2. See Gingles, 478 U.S. at 78.
97.
Additionally, the Court concludes that the State did not have a strong basis in
evidence for redrawing the district as majority-black to avoid retrogression and a Section 5
violation. See Miller, 515 U.S. at 922.
98.
Because the State divided voters into districts based on race with no basis for
doing so in federal law, CD 1 is not narrowly tailored to comply with a compelling state
interest.20 See Miller, 515 U.S. at 921; Shaw I, 509 U.S. at 655; Gingles, 478 U.S. at 78. The
Court concludes that CD 1 is unconstitutional.
19
20
SD 38 and 40 are also not narrowly tailored because they are not compact and unnecessarily divides counties.
CD 1 is also not narrowly tailored because it is not compact and unnecessarily divides counties and precincts.
120
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V.
CONCLUSIONS OF LAW AS TO ISSUE NO. 2: STANDARD OF REVIEW
99.
To prove a racial gerrymandering claim, Plaintiffs must first prove that race was
the dominant factor that determined the boundaries and composition of the challenged district.
See Vera, 517 U.S. at 959; Shaw I, 509 U.S. at 643. Plaintiffs may show that race predominated
by presenting “either . . . ‘circumstantial evidence of a district's shape and demographics’ or . . .
‘more direct evidence going to legislative purpose.’” Shaw II, 517 U.S. at 905 (citations omitted)
(quoting Miller, 515 U.S. at 916).
100.
If the Plaintiffs carry that burden, the Defendants must then satisfy strict scrutiny
by proving that (a) the district lines were drawn to meet some compelling governmental interest
and (b) the lines were narrowly drawn to meet that compelling interest. See Shaw I, 509 U.S. at
643.
101.
As is true for its consideration of narrow tailoring, the Court will consider all
relevant evidence in deciding whether race was the predominant factor in how the Defendants
drew the districts discussed below. See N.C. R. Evid. 402. Indirect evidence that race is a
predominant factor in state action typically is drawn from a wide range of sources, not just
evidence formally before the state actor. See Vill. of Arlington Heights, 429 U.S.at 267-68. On
the other hand, a compelling state interest is, by definition, the state’s actual motive rather than
post-hoc justification, and so the relevance of post-enactment evidence for compelling state
interest analysis is different than the Court’s relevance analysis generally. Shaw II, 517 U.S. at
910.
Senate Districts 32 and 31
102.
Based on Hofeller’s testimony that he redrew SD 32 because of instructions to
increase the black voting age population in the district, and had to redraw SD 31 in the process of
redrawing SD 32, the Court concludes that race was the predominant factor motivating the
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General Assembly to create SD 31 and SD 32 and, in the process of increasing the black voting
age population, to split 42 additional precincts in SD 32. See Trial Tr. 46:13-24 (Hofeller), June
5, 2013.
103.
SD 32 also has a contorted shape, appearing as a Rorschach blot in the middle of
Forsyth County and extending a small appendage to the east. The Court finds that the district
shape is so contorted that it can only be explained by race or by a disregard for traditional
redistricting criteria. See Johnson v. Miller, 864 F. Supp. 1354, 1374 (S.D. Ga. 1994).
104.
In Joint Statements released by the redistricting Chairs, and statements made on
the floor of the Senate, Senator Rucho stated that Senator Garrou, the white incumbent, was
removed from her district in order to allow African-Americans an opportunity to elect the
candidate of their choice. Sen. Rucho confirmed this reasoning in his deposition. Rucho Dep. Tr.
P. 193, line 5 – p. 194, line 3.
105.
The Court may use contemporaneous statements by decision makers to determine
issues of legislative intent. See Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 489 (2000)
(analyzing legislative purpose in redistricting inquiry); Vill. of Arlington Heights, 429 U.S. at
268 (1977).
106.
Based on the unequivocal evidence before us, the Court concludes that race was
the predominant factor in the decision to exclude Senator Linda Garrou from SD 32.
107.
Because doing so would inappropriately presume that race determines voters’
preferences, the Court will not assume or conclude that African-Americans’ candidate of choice
will be also be African-American. See, e.g., Johnson v. DeGrandy, 512 U.S. 997, 1027 (1994)
(Kennedy, J., concurring); Askew v. City of Rome, 127 F.3d 1355, 1378 (11th Cir. 1997)
(refusing to “ assume that the black community can only be satisfied by black candidates”).
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108.
Based on the splitting of 43 precincts in SD 32, the contorted shape of the district,
and the purposeful removal of the incumbent based on race, the Court finds that race
predominated over traditional redistricting principles in drawing SD 31 and SD 32. See Shaw II,
517 U.S. at 905.
109.
The Court also finds that SD 32 is not a district designed to avoid Section 2
liability. Def. Designations and Legal Discussion (May 24, 2013), p. 63)
110.
Because Defendants have not produced any evidence that the use of race in
drawing SD 31 and SD 32 was motivated by a compelling state interest, the Court finds SD 32
and SD 31 to be unconstitutional. See Shaw I, 509 U.S. at 643.
House Districts 54 and 51
111.
The Court concludes that the bizarre shapes of HD 54, which was drawn with a
tentacle reaching into Lee County to grab a pocket of black voters out of the city of Sanford by
splitting precincts based on higher concentrations of African-American voting age populations,
and HD 51, where precincts were split to include greater concentrations of white voting age
populations, are evidence that race predominated in the drawing of HD 51 and HD 54. See Shaw
II, 517 U.S. at 905; Ketchie 3d Aff. Oct. 2, 2012, Att. Map 17.
112.
The Court finds the testimony of Representative Lewis and Hofeller to be
contradictory and unpersuasive as evidence of race-neutral criteria for drawing HD 51 and HD
54. Representative Lewis testified at deposition that HD 54 included the city of Sanford in Lee
County in order to satisfy equal population requirements. Hofeller testified that he was told by
people sitting with him, drawing the district, that the census blocks grabbed by the HD 54
tentacle were grabbing Democratic voters. Trial Tr. June 5, 2013 (Hofeller), p.57, line 3—p. 58,
line 4. Yet the political data that could conceivably support splitting precincts in Sanford for
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partisan purposes is simply not available below the precinct level, whereas racial data is
available below the precinct level. Hofeller Dep. 219:15-19.
113.
Accordingly, the Court concludes that as a legal matter neither Representative
Lewis nor Hofeller gave a convincing explanation for the higher black voting age population
portions of precincts being drawn into HD 54 and drawn out of HD 51.
114.
The court concludes that the inclusion of Lee County in HD 54 is explainable
only on the grounds of race. See Shaw I, 509 U.S. at 643. Notwithstanding the Section 2 liability
defense taken by Defendants, SD HD 54 is not a district designed to avoid Section 2 liability.
Def. Designations and Legal Discussion (May 24, 2013), p. 63). Thus, the use of race was not
justified by the Voting Rights Act, and the Court finds HD 51 and HD 54 to be unconstitutional.
Congressional District 4
115.
In deciding whether CD 4 was drawn predominantly based on race, the Court
considers CD 4’s “shape and demographics.” Shaw II, 517 U.S. at 905 (quoting Miller, 515 U.S.
at 916). The fact that parts of seven counties and 31.71% black voting age population were
included in the enacted district, compared to the inclusion of two whole counties and parts of two
others as well as a 19% black voting age population in CD 4’s prior version, see Stip. 1(a)(xviii),
(xiv), is indicative to this Court that race played a predominant role in the drawing of the district.
116.
The Court concludes that neither the shape nor the demographics of CD 4 are
explicable by “traditional districting principles” or common voter interests such as “economic
status.” Shaw I, 509 U.S. at 642, 647. Cumberland County’s military community, for instance,
has little in common with Research Triangle Park’s community; Durham County’s economic
situation has little in common with Cumberland County’s situation.
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117.
The Court rejects the Defendants’ claim that partisanship could explain CD 4,
because partisan voting data that could explain why precincts were split between CD 4 and 12
are simply unavailable below the precinct level and were not before Hofeller when he split
precincts. See Senate Tr. 45:8-25, 46:1-2 (Sen. Blue), July 25, 2011; Hofeller Dep. 219:15-19,
[date].
118.
The Court also rejects the Defendants’ claim that there was a political rather than
racial purpose in drawing CD 4, because precincts were split along racial lines despite a lack of
political data below the precinct level. More particularly, census blocks with fewer AfricanAmericans were omitted from CD 4 while census blocks with more African-Americans were
included in CD 4. See Senate Tr. 45:8-25, 46:1-2 (Sen. Blue), July 25, 2011. Most fatally for
Defendants’ claim of a political purpose, the Court notes that heavily Democratic precincts in
Cumberland County that were predominantly white were left out of CD 4. See Senate Tr. 76:1825, 77:1-25, 78:1-13 (Sen. Mansfield), July 25, 2011.
119.
Because of CD 4’s tortured shape, its constituents’ profoundly heterogeneous
needs and interests, the dramatic increase in the proportion of black voting age population, and
the lack of plausible alternative explanations, the Court concludes that CD 4 was enacted on the
basis of race. See Shaw II, 517 U.S. at 905.
120.
Having concluded that CD 4 was enacted on the basis of race, the Court further
concludes that the enactment was not narrowly tailored to pursue any compelling interest. The
Defendants have shown no evidence of legally significant racially polarized voting that would
satisfy the third prong of Gingles. See Gingles, 478 U.S. at 78. Additionally, the Defendants have
not shown a strong basis in evidence that CD 4 was necessary to avoid retrogression in any
Section 5 covered district. See Miller, 515 U.S. at 922.
125
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121.
The Court concludes that the Defendants enacted CD 4 based predominantly on
race and that, accordingly, CD 4 is unconstitutional.
Congressional District 12
122.
Defendants disavow CD 12 as a Section 2 district, yet they drew CD 1 and CD 12
before other Congressional Districts and increased the proportion of black voting age population
in CD 12. Notwithstanding Defendants’ arguments, when a district is drawn in the same pattern
as “VRA” districts, with the same specifications as “VRA” districts, and by the same process as
“VRA” districts, the mere designation of the district by Defendants as a “non-VRA” district does
not save the district from a determination that race predominated in the drawing of the district.
123.
Defendants admitted publicly that they increased the black voting age population
in the district in order to comply with Section 5 of the Voting Rights Act. Churchill Dep. Ex. 55,
July 1, 2011, Joint Public Statement, p. 5.
124.
Additionally, this Court finds persuasive the testimony of Congressman Mel Watt
that Senator Rucho told him that the district would be drawn with more than 50% black voting
age population. Trial Tr. 173:17-24, June 4, 2013 (Watt).Congressman Watt’s actions—the
submission of two letters to the public record and having Senator Malcolm Graham read those
letters aloud—in an avowed attempt to correct Senator Rucho’s misrepresentation of
Congressman Watt’s support for CD 12 lends credibility to Congressman Watt’s testimony. See
Trial Tr. 180:3-19, June 4, 2013 (Watt).
125.
The Court may use contemporaneous statements by decision makers to determine
issues of legislative intent. See Arlington Heights, 429 U.S. at 268.
126.
The Court concludes that Dr. Peterson’s segment boundary analysis, which
determined that racial considerations provided a better explanation for the lines of CD 12 than
126
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did partisan considerations, is a persuasive explanation for the shape of CD 12. See Hunt v.
Cromartie, 526 U.S. 541, 549-551 (1999) (relying on Dr. Peterson’s conclusion that politics
rather than race predominated in the boundaries of District 12).; Peterson Second Aff., 2, ¶¶ 3,
18, May 14, 2012.
127.
Based on the contemporaneous statements of the district chairs, as well as Dr.
Peterson’s segment analysis, the Court concludes that race predominated over traditional
redistricting principles in drawing CD 12. See Shaw I, 509 U.S. at 643. The Defendants have
offered no compelling state interest for which their actions have been narrowly tailored, and the
Court accordingly finds CD 12 to be unconstitutional.
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Respectfully submitted, this the
11 ~ay of June, 2013.
Edwin M. Speas, .
N.C. State Bar No. 4112
espeas@poynerspruill.com
John W. O'Hale
N.C. State Bar No. 35895
johale@poynerspruilLcom
Caroline P. Mackie
N.C. State Bar No. 41512
cmackie@poynerspruill.com
Post Office Box 1801
Raleigh, NC 27602-1801
Telephone: (919) 783-6400
Facsimile: (919) 783-1075
Attorneys for Dickson Plaintiffs
S. ffl-v£
l. ~
Anita S. Earls (State Bar # 15597)
Clare Barnett (State Bar # 42678)
Allison Riggs (State Bar # 40028)
Southern Coalition for Social Justice
1415 Highway 54, Suite 101
Durham, NC 27707
Telephone: 919-323-3380 ext. 115
Facsimile: 919-323-3942
E-mail: anita@southerncoalition.org
~_J!M S/7/ J
~-Stein (State Bar # 4
Tin Fulton Walker & Owe, PLLC
312 West Franklin Street
Chapel Hill, North Carolina 27516
Telephone: 919240 ..7089
astein@tinfulton.com
Attorneys for NAACP Plaintiffs
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fLA----
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CERTIFICATE OF SERVICE
This is to certifY that the undersigned has this day served the foregoing PLAINTIFFS'
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW in the above-titled
action upon all other parties in this consolidated cause by:
Hand delivering a GOpy hereof to each said party or to the attorney thereof;
Transmitting a copy hereofto each said party via facsimile transmittal;
[ X] Transmitting a copy to the email addresses indicated below;
[ X] Depositing a copy hereof with first class postage pre-paid in the United States mail,
proper! y addressed to:
Alexander McC. Peters
Susan K. Nichols
North Carolina Department of Justice
P. O. Box 629
Raleigh, NC 27602
apeters@ncdoj.gov
snichols@ncdoj.gov
Counsel for Defendants
Thomas A. FaIT
Philip J. Strach
Ogletree, Deakins, Nash, Smoak & Stewart, PC
4208 Six Forks Road, Suite 1100
Raleigh, NC 27622
thomas.farr@ogletreedeakins.com
phil.strach@ogletreedeakins.com
Counsel for Legislative Defendants
This the
Jf-
f $ay of June, 2013.
129