                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 16-1270


RALEIGH WAKE CITIZENS ASSOCIATION; JANNET B. BARNES;
BEVERLEY S. CLARK; WILLIAM B. CLIFFORD; BRIAN FITZSIMMONS;
GREG FLYNN; DUSTIN MATTHEW INGALLS; AMY T. LEE; ERWIN
PORTMAN; SUSAN PORTMAN; JANE ROGERS; BARBARA VANDENBERGH;
JOHN G. VANDENBERGH; AMYGAYLE L. WOMBLE; PERRY WOODS,

                Plaintiffs - Appellants,

          v.

WAKE COUNTY BOARD OF ELECTIONS,

                Defendant - Appellee,

          and

CHAD BAREFOOT, in his official capacity as Senator and
primary sponsor of SB 181; PHILLIP E. BERGER, in his
official capacity as President Pro Tempore of the North
Carolina Senate; TIM MOORE, in his official capacity as
Speaker of the North Carolina House of Representatives,

                Defendants.



                              No. 16-1271


CALLA WRIGHT; WILLIE J. BETHEL; AMY T. LEE; AMYGAYLE L.
WOMBLE; JOHN G. VANDENBERGH; BARBARA VANDENBERGH; AJAMU G.
DILLAHUNT; ELAINE E. DILLAHUNT; LUCINDA H. MACKETHAN;
WILLIAM B. CLIFFORD; ANN LONG CAMPBELL; GREG FLYNN; BEVERLEY
S. CLARK; CONCERNED CITIZENS FOR AFRICAN-AMERICAN CHILDREN,
d/b/a Coalition of Concerned Citizens for African-American
Children; RALEIGH WAKE CITIZENS ASSOCIATION,

                Plaintiffs - Appellants,
           v.

WAKE COUNTY BOARD OF ELECTIONS,

                 Defendant - Appellee,

           and

STATE OF NORTH CAROLINA,

                 Defendant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.     James C. Dever III,
Chief District Judge. (5:15-cv-00156-D; 5:13-cv-00607-D)


Argued:   May 9, 2016                     Decided:   July 1, 2016


Before MOTZ, GREGORY, and WYNN, Circuit Judges.


Reversed and remanded in part and affirmed in part by published
opinion. Judge Wynn wrote the majority opinion, in which Judge
Gregory joined. Judge Motz wrote a dissenting opinion.


ARGUED: Anita Sue Earls, Allison Jean Riggs, SOUTHERN COALITION
FOR SOCIAL JUSTICE, Durham, North Carolina, for Appellants.
Charles Foster Marshall, III, BROOKS, PIERCE, MCLENDON, HUMPHREY
& LEONARD, L.L.P., Raleigh, North Carolina, for Appellee.     ON
BRIEF: George E. Eppsteiner, SOUTHERN COALITION FOR SOCIAL
JUSTICE, Durham, North Carolina, for Appellants.      Matthew B.
Tynan, Jessica Thaller-Moran, BROOKS, PIERCE, MCLENDON, HUMPHREY
& LEONARD, L.L.P., Raleigh, North Carolina, for Appellee.




                                  2
WYNN, Circuit Judge:

     The right to vote is “fundamental,” and once that right “is

granted to the electorate, lines may not be drawn which are

inconsistent with the Equal Protection Clause of the Fourteenth

Amendment.”      Bush v. Gore, 531 U.S. 98, 104-05 (2000) (quotation

marks and citation omitted).         “It must be remembered that” the

right to vote “can be denied by a debasement or dilution of the

weight of a citizen’s vote just as effectively as by wholly

prohibiting the free exercise.”          Id. (quoting Reynolds v. Sims,

377 U.S. 533, 555 (1964)).

     In these consolidated cases, Plaintiffs, registered voters

and civic organizations in Wake County, North Carolina, claim

that under the two (identically drawn) redistricting laws they

challenge, some Wake County School Board and Wake County Board

of   County   Commissioners     districts   have    been   over-populated,

while   others    have   been   under-populated.      Plaintiffs   further

assert that these discrepancies result in some votes counting

more while others count less, and that the discrepancies stem

from illegitimate redistricting factors.           As explained below, we

agree, hold that Plaintiffs have proven their state and federal

one person, one vote claims, and therefore reverse.

     Plaintiffs also claim that one discrete district was the

product of racial gerrymandering.           We hold that the district



                                     3
court     did   not   clearly   err    in       rejecting   that   claim   and   thus

affirm.

                                            I.

      In the years leading up to 2013, the Wake County School

Board (“School Board”) consisted of nine members elected from

single-member districts.         Those districts were subject to change

every ten years following the decennial census.

        In 2010, the census showed that Wake County’s population

had grown by 43.51% over the preceding decade, causing the then-

existing districting plan to have a maximum population deviation

of   47.89%. 1        The   School    Board,       at   that   time   dominated    by

registered Republicans, 2 redrew its districts in light of the

2010 census.



      1“[C]ourts usually analyze[] apportionment plan[s] in terms
of the maximum population deviation among the districts.
Generally, to calculate maximum deviation, the court first
constructs a hypothetical ideal district by dividing the total
population of the political unit (e.g., state or county) by the
total number of representatives who serve that population.
Then, the court determines how much the actual population of
each district varies from the population of the ideal district.
This deviation is expressed as a percentage of the ideal
population. Maximum deviation is the sum of the absolute value
of the deviation of the district with the smallest population
and that of the district with the largest population.” Daly v.
Hunt, 93 F.3d 1212, 1215 n.2 (4th Cir. 1996).
      2While the School Board is nominally non-partisan, its
members are routinely registered and affiliated with the
Democratic and Republican Parties, and uncontroverted trial
testimony showed a high level of partisanship in “what’s
supposed to be a nonpartisan election.”  J.A. 234; see also,
(Continued)
                                            4
      That effort led to a redistricting plan with geographically

compact districts having a maximum population deviation of 1.75%

and no district deviating from the ideal district population by

even 1%.    The first election under the new districting, in Fall

2011, resulted in a School Board with a Democratic majority.

      In 2013, the Republican-controlled North Carolina General

Assembly (“General Assembly”), over the objection of a majority

of the School Board and every Democratic and African-American

legislator in the General Assembly, passed a local bill, Session

Law   2013–110,    making     numerous      changes   to   the       School      Board’s

method of selection.          Among other things, Session Law 2013-110

changed    the    School    Board’s    make-up    from        nine    single-member

districts    to    seven      single-member      districts           and    set    less

geographically compact boundaries for this new set of districts.

The   maximum    population    deviation      among     the    new    single-member

districts swelled to over 7%.

      Additionally,        Session    Law    2013-110      created         two    “super

districts” that overlaid the single-member districts.                        J.A. 160.

One super district formed a donut of outer, more rural areas of

the county, while the other formed a donut hole in the inner,




e.g., J.A. 254 (noting that such local races have “become more
partisan-based” due to “block candidates,” the “political party
machine,” and “money”).



                                         5
urban area.       The maximum population deviation between the super

districts exceeded even that of the single-member districts—just

shy   of   10%.      Session   Law   2013-110     moved   elections       to   even-

numbered years, and limited the School Board’s ability to make

changes to its method of election until 2021.

      In    August     2013,   thirteen        individuals    and     two      civic

organizations filed suit in the United States District Court for

the   Eastern      District    of      North    Carolina,     challenging       the

constitutionality      of   the   districts      that   Session     Law   2013-110

established.         The   complaint    alleged    that     the   plan    unevenly

weighted the votes of citizens in the county for impermissible

reasons, thereby violating the one-person, one-vote guarantees

of the federal and state constitutions.                   In March 2014, the

district court dismissed Plaintiffs’ suit for failure to state a

claim.     Wright v. North Carolina, 975 F. Supp. 2d 539 (E.D.N.C.

2014).     Plaintiffs appealed.

      In April 2015, while Plaintiffs’ appeal was pending before

this Court, the General Assembly enacted Session Law 2015-4,

making the electoral system for the Wake County Board of County

Commissioners (“Board of County Commissioners”) identical to the

system it had created for the School Board with Session Law




                                         6
2013-110. 3           With Session Law 2015-4, too, the General Assembly

forced a local bill on Wake County despite opposition from the

majority         of    the    Board       of    County       Commissioners,            polled     Wake

County      voters,       nearly        every    Democratic          state       legislator,       and

every       African-American             legislator           in    the    General        Assembly.

Fourteen individuals and a civic organization filed suit shortly

thereafter,           challenging         the      Board       of     County       Commissioners’

redistricting           plan       as    violating           the    one    person,        one     vote

guarantees of the state and federal constitutions.

       In Plaintiffs’ appeal from the district court’s March 2014

dismissal,         this      Court,       in    May     2015,       held       that    “Plaintiffs’

allegations in support of their claim that [Session Law 2013-

110]    violates        the     one      person,       one    vote    principle          suffice    to

survive      a    motion      to    dismiss        for   failure          to    state     a    claim.”

Wright v. North Carolina, 787 F.3d 256, 269 (4th Cir. 2015).                                        We

therefore         reinstated          Plaintiffs’        complaint             against    the     Wake

County Board of Elections.

       On    remand,         the        district       court        consolidated         the     suits

challenging           Session      Law    2013-110       and        Session      Law     2015-4    and

expedited discovery.                Discovery was further limited by the state



       3
       Previously, members of the Board of County Commissioners
were elected at-large, subject to the requirement that one
member had to be elected from each of the county’s seven
residency districts.



                                                   7
legislators’ refusing Plaintiffs’ discovery requests, claiming

legislative privilege. 4                   In December 2015, the district court

held       a   bench     trial,       in    which         Plaintiffs         presented      numerous

witnesses, including legislators, citizens, and experts, as well

as copious documentary evidence, with 481 exhibits including:

expert         reports    and      supporting             data;    school         assignment       maps;

campaign finance reports; results data from various elections;

excerpts of legislative transcripts; and public polling results.

By contrast, Defendant, the Board of Elections that administers

elections        with    no     stake       in    the       “political        interests        of   the

General Assembly,” Trial Tr. vol. I, 13:24-25, presented none of

its own.          Defendant simply cross-examined Plaintiffs’ witnesses

and made legal argument.

       Nevertheless,            the    district             court      ruled       for     Defendant.

Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, No.

5:13-CV-607-D, 2016 WL 1060378 (E.D.N.C. Feb. 26, 2016).                                             The

district         court       discredited         every       single         one    of     Plaintiffs’

witnesses,         for       example       as    “anecdotal,”           id.       at     *28-29,    and

“unhelpful,”           id.    at   *32.          It       went    on   to    hold,       among     other

things, that “in order to prove a prima facie case in a one



       4
       Pursuant to an agreement between Plaintiffs and particular
legislators,   certain   external   communications  between   the
legislators and third parties—but no internal communications
amongst the legislators—were produced.



                                                      8
person one vote challenge, plaintiffs must at least negate the

most     common        legitimate        reasons      that     could        explain      the

legislature’s          action.”      Id.        at    *22    (quotation       marks      and

citations omitted).              The district court held that Plaintiffs

failed to meet this and the other requisite burdens.                          Plaintiffs

appealed.

                                           II.

       On appeal, “‘[w]e review judgments resulting from a bench

trial under a mixed standard of review: factual findings may be

reversed only if clearly erroneous, while conclusions of law are

examined de novo.’”              Nat’l Fed’n of the Blind v. Lamone, 813

F.3d 494, 502 (4th Cir. 2016) (quoting Plasterers’ Local Union

No. 96 Pension Plan v. Pepper, 663 F.3d 210, 215 (4th Cir.

2011)).         Findings    will    be    deemed      clearly     erroneous        if,   for

example,    “even       though    there    is    some   evidence       to    support     the

finding, the reviewing court, on review of the record, is left

with a definite and firm conviction that a mistake has been

made,”     or     if    findings     were       made    using      “incorrect         legal

standards.”       Consol. Coal Co. v. Local 1643, United Mine Workers

of Am., 48 F.3d 125, 128 (4th Cir. 1995) (quotation marks and

citation omitted).           “Of course, if the trial court bases its

findings        upon    a   mistaken       impression        of    applicable         legal

principles,       the    reviewing    court      is    not   bound     by    the   clearly



                                            9
erroneous standard.”             Inwood Labs., Inc. v. Ives Labs., Inc.,

456 U.S. 844, 855 n.15 (1982).

                                            III.

     With their primary argument on appeal, Plaintiffs contend

that the district court applied the wrong legal standard for

adjudicating their one person, one vote claim.                          For the reasons

explained below, we agree.

                                             A.

     The right to vote is “fundamental,” and once that right “is

granted to the electorate, lines may not be drawn which are

inconsistent with the Equal Protection Clause of the Fourteenth

Amendment.”        Bush,       531   U.S.    at     104-05      (quotation       marks   and

citation      omitted).              Indeed,        allowing,          through     unequal

apportionment amongst districts, a vote to be “worth more in one

district    than       in    another     would     .    .   .   run     counter    to    our

fundamental ideas of democratic government.”                       Reynolds, 377 U.S.

at 563 (quotation marks and citation omitted).                         This requirement

that all citizens’ votes be weighted equally, known as the one

person,    one    vote      principle,      applies      not    just    to   the   federal

government       but   also    to    state    and      local    governments—including

school boards and county governing bodies.                            Avery v. Midland

Cty., 390 U.S. 474, 480 (1968).

     Courts      have       recognized    that      “[m]athematical          exactness    or

precision is hardly a workable constitutional requirement” and

                                             10
thus    do   not    require      “identical           numbers”     in    state    and    local

government districts.            Reynolds, 377 U.S. at 577.                   Nevertheless,

governments        must    “make      an   honest         and   good    faith     effort”     to

construct      districts         as     close        to    equal     population      “as      is

practicable.”        Id.     To assess what is “practicable,” the Supreme

Court    has   allowed       some       population         deviation     for     “legitimate

considerations”           such     as      compactness          and      contiguity,         the

integrity of political subdivisions, and balance among political

parties.       Harris v. Ariz. Indep. Redistricting Comm’n, 136 S.

Ct. 1301, 1306 (2016).

       Generally, a districting plan “with a maximum population

deviation      under      10%    will      not,      by    itself,      support    an    equal

protection claim.”              Wright, 787 F.3d at 264 (quotation marks

omitted and emphasis added).                    Rather, plaintiffs in such cases

“must show that it is more probable than not that a deviation of

less    than       10%     reflects        the       predominance        of     illegitimate

reapportionment factors rather than” legitimate considerations

such as compactness or the integrity of political subdivisions.

Harris, 136 S. Ct. at 1307.

       In Harris, the Supreme Court’s most recent, and arguably

most    lucid,     pronouncement           as    to       plaintiffs’     burdens       in   one

person, one vote cases below the 10% deviation threshold, the

Court unanimously noted that the plaintiffs there had claimed

that the plan’s deviations from “absolute equality of population

                                                11
reflect . . . political efforts to help the Democratic party.”

Id.     Crucially, however, the plaintiffs “failed to prove this

claim.”        Id.         Instead,    “the     record    b[ore]      out”       that     the

deviations “predominantly reflected . . . efforts to achieve

compliance with the federal Voting Rights Act, not to secure

political advantage for one party.”                  Id.       In other words, the

plaintiffs in Harris foundered not because their one person, one

vote challenge failed as a matter of law, but because they did

not     muster       the     evidence      needed        to     show        it       to    be

“more probable than not that [the] deviation of less than 10%

reflect[ed]      the       predominance    of    illegitimate         reapportionment

factors.”      Id.

      By contrast, in Larios v. Cox, the plaintiffs succeeded in

proving their one person, one vote claims.                     300 F. Supp. 2d 1320

(N.D.   Ga.)     (three-judge         panel),    aff’d,       542    U.S.    947      (2004)

(mem.).     In       Larios,    a    federal    court     struck      down       a   Georgia

redistricting plan that disproportionately favored Democrats by

under-populating districts in the urban Atlanta region and the

rural    south—both        Democratic     strongholds—while           over-populating

suburban    districts          with     Republican-leaning            voters.             The

redistricting created a maximum population deviation of 9.98%

and disproportionately protected Democratic incumbents.                              Id. at

1328–31.         The       Supreme     Court     (with        only    Justice         Scalia



                                          12
dissenting)        affirmed   the     district    court’s       rejection    of   the

redistricting.        Larios, 542 U.S. 947.

       As    the    Supreme   Court    has     explained,    in    Larios,    “those

attacking the plan had shown that it was more probable than not

that   the    use    of   illegitimate       factors   significantly        explained

deviations from numerical equality among districts.”                         Harris,

136 S. Ct. at 1310.           The Supreme Court noted the “many examples

showing that population deviation as well as the shape of many

districts did not result from any attempt to create districts

that were compact or contiguous, or to keep counties whole, or

to preserve the cores of prior districts.”                  Id. (quotation marks

and citation omitted).           The Supreme Court contrasted the Larios

plaintiffs’         successful      showing     with     that     of   the    failed

plaintiffs in Harris, stating “[i]t is appellants’ inability to

show   that    the    present    plan’s      deviations     and   boundary    shapes

result from the predominance of similarly illegitimate factors

that makes [Larios] inapposite here.”              Id.

       Looking at Larios and Harris, we conclude that, to succeed

on the merits, plaintiffs in one person, one vote cases with

population deviations below 10% must show by a preponderance of

the    evidence       that    improper       considerations       predominate      in

explaining the deviations.             This is just such a case, and that

legal standard therefore applies.

                                          B.

                                          13
                                                1.

        The   law     in    this     area    is      challenging.     In   the   earlier

appeal of this matter, we sought to clarify some points to ease

the    burden    on    the    district       court.         Nonetheless,   there     were

numerous instances in which the law we set out in Wright was not

adhered to.          For example, in evaluating Plaintiffs’ one person,

one vote claim, the district court did not properly characterize

what    Plaintiffs         must    show     to    succeed.      The    district    court

stated, for example, that “in order to prove a prima facie case

in a one person one vote challenge, plaintiffs must at least

negate the most common legitimate reasons that could explain the

legislature’s action.”                   Raleigh Wake Citizens Ass’n, 2016 WL

1060378, at *22 (quotation marks and citation omitted).                               The

district      court        indicated       that      “any   conceivable    legislative

purpose is sufficient” to support the redistricting plan and

that those “attacking the rationality” thereof “have the burden

to [negate] every conceivable basis which might support it.”

Id. at 27 (alteration in original) (quotation marks and citation

omitted).

       Contrary       to    the    district       court’s    characterization,       what

Plaintiffs must actually show to succeed with their one person,

one vote claims is that it is “more probable than not that a

deviation       of    less        than    10%     reflects     the    predominance     of

illegitimate reapportionment factors.”                       Harris, 136 S. Ct. at

                                                14
1307.     This specific, deviation-focused inquiry differs markedly

from the district court’s rational-basis review of whether a

rational state policy could explain the redistricting generally.

                                              2.

       Further, in Wright, we emphasized the importance of the

Supreme Court’s affirmance of Larios for this case.                                   Thus, we

made    it   clear        that    Larios      was      more      than     a    mere    summary

affirmance holding little sway.                     Raleigh Wake Citizens Ass’n,

2016 WL 1060378, at *18.                Instead, with Wright, we set forth

precedent binding on the district courts of this Circuit making

clear that Larios constitutes persuasive authority generally, as

well as analogous authority in this concrete case.                                Wright, 787

F.3d at 267.          The district court’s heavy emphasis on Justice

Scalia’s Larios dissent—an opinion with no precedential value—is

thus squarely at odds with Wright.                             See, e.g., Raleigh Wake

Citizens     Ass’n,       2016     WL   1060378,          at    *18-19        (“According   to

Justice      Scalia,        ‘politics        as        usual’        is   a      ‘traditional

redistricting        criterion,’        and       ‘a      constitutional          one,’”    and

“‘[f]erreting        out        political     motives           in    minute       population

deviations        seems    to    me   more    likely       to    encourage        politically

motivated litigation than to vindicate political rights.’”).

       Moreover, the district court misapplied the core principles

of Larios.         The district court stated, for example, that, in

contrast     to    Larios,       Plaintiffs        here    did    not     prove    “that    the

                                              15
General    Assembly     disregarded     all    districting     principles      in

creating the 2013 Wake County School Board Plan, or that the

2013 Wake County School Board Plan is not rationally related to

a permissible, rational state policy of improving School Board

representation.”       Raleigh Wake Citizens Ass’n, 2016 WL 1060378,

at *36.     The district court thus concluded that “unlike Larios,

plaintiffs have failed to prove that the 2013 Wake County School

Board Plan resulted from a desire to favor suburban and rural

voters over urban voters.”        Id.

      Crucially,      neither    the    three-judge       district    court    in

Larios, nor the Supreme Court in affirming and later discussing

Larios, ever suggested that plaintiffs in such cases need to

show that “all districting principles” were “disregarded.”                    Id.

Further, neither court focused on the challenged redistricting

plans as a whole.         Instead, the focus, in Larios as well as,

Harris, was whether “deviation[s] of less than 10% reflect[ed]

the     predominance    of    illegitimate      reapportionment       factors.”

Harris, 136 S. Ct. at 1307 (emphasis added); Larios, 300 F.

Supp. 2d at 1338 (holding that “population deviations . . . not

supported by . . . legitimate interests . . . cannot withstand

constitutional     scrutiny”     (emphasis     added)).      In     Larios,   the

state     legislature’s      attempt    to    privilege     rural    and   urban

Democrats at the expense of suburban Republicans explained the

deviations in population, not the redistricting plan generally,

                                        16
did not constitute a legitimate apportionment factor, and was

prohibited.       Larios, 300 F. Supp. 2d at 1338.

                                                3.

       Additionally,          in     evaluating            the       evidence       Plaintiffs

proffered    to    support         their    one      person,        one    vote    claims,   the

district     court      improperly          discounted           every      single     one   of

Plaintiffs’       fifteen          trial        witnesses.                For     example,    it

discredited       all   the    testifying            legislators          because    of   their

“strong legislative opposition to the 2013 Wake County School

Board Plan.       [The pertinent] testimony at trial fits within the

line    of   precedent        giving       no     weight       to    statements       made   by

opponents of legislation.”                 Raleigh Wake Citizens Ass’n, 2016 WL

1060378, at *29.

       The   only       analogous          case      in    the       purported       “line   of

precedent,” Veasey v. Abbott, 796 F.3d 487 (5th Cir. 2015), has

been vacated and is thus no longer good law, 815 F.3d 958 (5th

Cir. 2016) (granting rehearing en banc and vacating the panel

opinion).         The    other       cases      the       district        court    cited—cases

dealing with statutory interpretation—stand for the unremarkable

and inapposite proposition that courts usually do not “accord

much   weight     to    the    statements            of    a   bill’s       opponents     [when

interpreting the words of the bill].                           The fears and doubts of

the opposition are no authoritative guide to the construction of

legislation.”        Shell Oil Co. v. Iowa Dep’t of Revenue, 488 U.S.

                                                17
19, 29 (1988) (quotation marks, citation, and brackets omitted)

(holding that one passing reference to preemption in a speech by

an     opponent     of    a     law     cannot      properly         guide     the    court’s

interpretation       of       that     law);    see     also        Schwegmann       Bros.    v.

Calvert Distillers Corp., 341 U.S. 384, 394 (1951) (noting that

“doubts of the opposition” do not guide “the construction of

legislation”); NLRB v. Fruit & Vegetable Packers & Warehousemen,

Local 760, 377 U.S. 58, 66 (1964) (same).

       This   is    not    a    case    about       what     a     particular    word    in     a

statute means.           Rather, at the heart of this case is whether

illegitimate        factors          predominated            the     General      Assembly’s

supplemental redistricting of Wake County such that illegitimate

factors explain the population deviations in the redistricting

plan.      While    we    recognize       that      a   trial       judge    generally        may

consider      “bias        or        prejudice”         when         “assessing        witness

credibility,” United States v. Muse, 83 F.3d 672, 676-77 (4th

Cir.    1996),     the    district      court       discredited        categorically          the

legislators’ testimony, even regarding objective facts.                               Yet the

district court has cited, and we see, no controlling precedent

suggesting        that    their        testimony        should        simply     have     been

discounted       wholesale      and     “giv[en]        no    weight.”         Raleigh       Wake

Citizens Ass’n, 2016 WL 1060378, at *29.

       Similarly,        the    district        court        completely        rejected       as

“materially flawed and unhelpful,” id. at *32, the analysis of

                                               18
Plaintiffs’ expert Dr. Jowei Chen, a political science professor

from    the     University         of    Michigan.              Upon    closer        inspection,

however, it is the district court’s own analysis of Dr. Chen’s

analysis that is materially flawed.

       Dr. Chen analyzed whether the population deviations in the

seven single-member district plans and the two super districts

plans    were      motivated        by    a     partisan         purpose       using        computer

simulation        programming       techniques          that     allow        him    to     generate

randomly      a    large     number       of     alternative           redistricting           plans

created subject to traditional redistricting criteria.                                      The four

traditional         redistricting              criteria         Dr.      Chen        used      were:

population        equality;        keeping       municipalities               intact;        keeping

precincts         whole;     and     geographic            compactness.               Dr.     Chen’s

computer simulations are based on the logic that if a computer

randomly      draws        five     hundred       redistricting               plans       following

traditional redistricting criteria, and the actual enacted plans

fall    completely         outside       the    range      of    what     the       computer       has

drawn, one can conclude that the traditional criteria do not

explain that enacted plan.

       The    computer       simulations             led    Dr.        Chen     to     just     that

conclusion:         that     the     “enacted         districting             plans       create    a

partisan distribution of seats falling completely outside the

range    of       outcomes    that        are    possible         under        a     non-partisan

districting        process     that       creates       equally        populated          districts

                                                19
while       maximizing        compactness             and       preserving         precinct          and

municipal boundaries.”                  J.A. 768.         Dr. Chen thus concluded “with

extremely high statistical certainty, beyond any sort of doubt

here”    that       “the     only       way    to     draw      districts         as   extreme        in

partisanship as the legislature’s B and A districts is to use

population         deviations”          that    are       high.        J.A.   463.       In        other

words, Dr. Chen testified that he could conclude with certainty

from his simulations that the deviations at issue here are the

result of using partisanship in apportioning the districts.

       In     critiquing          Dr.    Chen’s          analysis,      the    district            court

seized on the fact that certain criteria accounted for in the

computer          simulations—such              as        setting       maximum         population

deviation         at   2%    or     less       or    “completely         .    .    .    ignor[ing]

partisanship,” Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at

*30,    are       required    by        neither      state      nor     federal        law.         This

critique misses the point: The point is not that the simulated

plans       are     legally        required,             but    rather        that      they        help

demonstrate what might explain the population deviations in the

enacted plan.

       The    district        court       went       on    to   “find[]       that     Dr.     Chen’s

simulations simply show that ‘better’ . . . redistricting plans

were    possible,           but    ‘better’          plans        do    not    equate         to    the

unconstitutionality of the 2013 Wake County School Board Plan.”

Id.     With that finding, the district court again missed the

                                                    20
point: The import of Dr. Chen’s simulations was not to produce

better     plans,       but      rather       to     hold      several      legitimate

apportionment        considerations        constant    so     that    Dr.   Chen    could

assess whether the population deviations in the challenged plans

could have been the product of something other than partisan

bias.     He concluded “with extremely high statistical certainty,

beyond any sort of doubt here” that they could not have.                                J.A.

463.      The    district       court      clearly    and     reversibly        erred    in

rejecting Dr. Chen’s expert testimony.                  Easley v. Cromartie, 532

U.S. 234 (2001) (reversing a three-judge district court panel in

a racial gerrymandering case in which the district court clearly

erred in rejecting expert evidence).

                                             4.

       We could go on detailing the errors in the opinion below.

Suffice it to say that the legal analysis of what Plaintiffs

needed    to    show    as     well   as     the   evaluation        of   the    evidence

Plaintiffs      proffered       to    make    that   showing     are      fundamentally

flawed.

                                             C.

                                             1.

       When,    as     here,    the     district      court    applies      the    wrong

standards, we tend to remand to allow “the trier of fact to re-

examine the record” using the correct standards.                          Kelley v. S.

Pac. Co., 419 U.S. 318, 332 (1974).                   However, when “the record

                                             21
permits    only     one       resolution      of    the     factual      issue,”      Pullman–

Standard       v.   Swint,       456       U.S.     273,    292     (1982),      remand     is

unnecessary, and we may rule based on the record before us.

Thus,    for    example,       in    the    recent     Class      v.    Towson       University

opinion, this Court, based on the record before it, straight-out

reversed the district court, which had applied the incorrect

legal standard following a bench trial.                        806 F.3d 236 (4th Cir.

2015).     And      in    Cromartie,         532    U.S.     234,      the    Supreme    Court

outright reversed a three-judge district court panel in a racial

gerrymandering case because, among other things, the district

court had clearly erred in rejecting pertinent expert evidence.

     Likewise, here, we deem remand unnecessary.                               At trial, in

addition to copious documentary evidence, Plaintiffs presented

fifteen    live     witnesses—two            experts,        four      legislators,       four

county elected officials, and five plaintiffs and lay witnesses. 5

These    witnesses       and    documents         presented       abundant      support     for

Plaintiffs’ one person, one vote claims within the nine-hour

total that the district court allowed Plaintiffs for presenting

their case.

     Defendant,          by    contrast,          offered    not       even    one    witness.

Instead,       Defendant            expressly        disclaimed          any     stake      in

     5  The district court did                      not deem any of Plaintiffs’
witnesses to be untrustworthy.                       Raleigh Wake Citizens Ass’n,
2016 WL 1060378.



                                              22
“representing the political interests of the General Assembly,”

Trial Tr. vol. I, 13:24-25, and essentially passed on defending

the   General    Assembly’s     redistricting.            Even     the    legislative

proponents      of    the   challenged    redistricting           laws    refused       to

defend their actions, instead claiming legislative immunity.

      The    resulting      record,   discussed      in    more        detail     below,

permits only one resolution of Plaintiffs’ one person, one vote

claims:      Plaintiffs have proven that it is more probable than

not that the population deviations at issue here reflect the

predominance of a illegitimate reapportionment factor, Harris,

136 S. Ct. at 13—namely an “intentional effort” to create “a

significant . . . partisan advantage,” Larios, 542 U.S. at 947-

49 (Stevens, J., concurring).             In other words, Plaintiffs have

successfully made their case.

                                         2.

      First putting the challenged plans in context, the evidence

at trial showed that that Wake County’s population generally,

and the overall population deviation amongst the School Board

districts in particular, swelled significantly by the time of

the   2010   decennial      census.           Accordingly,       the     School    Board

redrew its election maps.           The resulting 2011 redistricting plan

reduced     maximum    population     deviation     down     to    1.75%,       with    no

single district deviation reaching even 1% from the ideal.                             The

districts were “vetted” by county residents and the members of

                                         23
the    School       Board,       and       were    considered           relatively       compact,

contiguous, and respectful of communities of interest.                                          J.A.

210.        The     Board    of        County      Commissioners           also       redrew     its

residency districts after the 2010 decennial census.

       Despite the fact the 2011 redistricting had been shepherded

by a “Republican School Board” and that a “Republican lawyer”

had drafted the districts, J.A. 420, the 2011 elections, the

first administered under the new plan, resulted in a “shift[]

from     the    Republicans           to    the     Democrats.”            J.A.       200.       The

Republican-controlled General Assembly then intervened with the

redistricting plans that are the subject of this action.

       Uncontroverted            testimony        and    evidence         adduced       at     trial

showed      that    the    legislative            process    relating       to        Session    Law

2013-110 was truncated by, for example, not having “community

hearings and participation of the affected parties,” J.A. 211,

and failing to incorporate “any of the ideas that people . . .

proffered,” id., without even “discussing it amongst the [Wake

County]      delegation          first,”      a     “stark      departure”        from       common

practice, J.A. 419.                As School Board Member Bill Fletcher, a

registered Republican, put it, “nothing was discussed.                                         There

was    no    opportunity         to     provide        input,      to    have     a    debate     or

discussion about different election strategies, it was simply

drafted        in   a     bill    and       presented        and        passed    with       little

opportunity for rational thought.”                      J.A. 263.

                                                  24
                                            3.

       Moving on to the showing Plaintiffs needed to make on their

one person, one vote claims, uncontroverted evidence at trial

showed    that    the      deviations        resulting         from    the    latter-day

redistricting more likely than not reflected the predominance of

illegitimate reapportionment factors.

       Plaintiffs         proffered        uncontroverted            evidence     of       an

illegitimate      factor       predominating            in     the    skewed,     unequal

redistricting: an attempt to guaranty Republican victory through

the    intentional        packing     of    Democratic         districts.         Various

witnesses    testified        that        “the       true    motivation[]”       for   the

redistricting was to “ensure Republican control . . . at the

expense of Democrats.”             J.A. 364.          The “real reason” behind the

redistricting       was    “[t]o    ensure       a    Republican      majority    .    .    .

despite the vote totals,” J.A. 405, a “kind of punitive and

retributive effort to punish the Democrats for winning,” J.A.

392.

       Plaintiffs’ expert Anthony Fairfax analyzed the challenged

redistricting       plans     and     reported,        among    other       things,    that

“[t]here was a marked pattern of overpopulation in Democratic-

performing       districts,         and     underpopulation            in     Republican-

performing districts.”             J.A. 805.          And as Mr. Fairfax noted in

his    testimony,    “by     overpopulating           you    obviously      minimize    the



                                            25
Democratic         performance      in   other   districts,      other     surrounding

districts.”         J.A. 305. 6

       Plaintiffs’ second expert, Dr. Chen, conducted an analysis

showing that “[t]he General Assembly’s enacted districting plans

create       a     partisan     distribution     of    seats    falling    completely

outside the range of outcomes that are possible under a non-

partisan          districting     process   that      creates    equally    populated

districts while maximizing compactness and preserving precinct

and municipal boundaries.”               J.A. 768.       In other words, as Dr.

Chen testified at trial, “the only way to achieve a districting

plan       that    allowed    for    such   an   extreme       partisan    Republican

control over four districts out of seven, the only way to create

such an extreme partisan plan was to deviate from population

equality to a great extent.”              J.A. 466-67.




       6
       The district court discounted Mr. Fairfax’s testimony just
as it did every single one of Plaintiffs’ other witnesses. And
in the case of Mr. Fairfax, as with the others, the bases for
that discounting fall apart upon careful inspection.          For
example, the district court faulted Mr. Fairfax for using
election results data, asserting that he “failed to analyze
voter registration data in Wake County.” Raleigh Wake Citizens
Ass’n, 2016 WL 1060378, at *34.      Yet in focusing on election
results instead of registration data, Mr. Fairfax followed
precisely what the Supreme Court has instructed those analyzing
redistricting plans to do.     See, e.g., Cromartie, 532 U.S. at
239 (noting its instruction that courts should look to “data
showing how voters actually behave, not data showing only how
those voters are registered”).



                                            26
     The legislators who hatched the redistricting plans claimed

legislative immunity.     Absent from the record, therefore, is any

trial testimony confirming (or denying) a partisan motive behind

the redistricting and its deviations. 7       The record does, however,

contain   several   e-mails   including      third    parties,    the    only

category of e-mails Plaintiffs managed to obtain, that indeed

suggest   a   partisan   motive   behind    the   redistricting    and   its

deviations.    For example, the Wake County Republican Party Chair

exchanged several e-mails with, and apparently met with, key

legislators involved in the redistricting, with a focus on “how

we would take 5 of the 9 seats.”         J.A. 1114.

     We do not doubt that some amount of partisan politics is

par for the course in redistricting generally.           For example, in

Gaffney v. Cummings, a case on which the district court relied

here, the Supreme Court upheld a redistricting plan drawn based

on partisan considerations.       412 U.S. 735 (1973).      But the facts

in and consequences of Gaffney differ markedly and tellingly

     7 Both the district court and Defendant make much ado of the
admissions the legislators made in Larios, noting the direct
evidence   that    legislators   purposefully   skewed   district
deviations along urban, suburban, and rural divides to achieve
partisan goals.   See, e.g., Appellee’s Br. at 41; Raleigh Wake
Citizens Ass’n, 2016 WL 1060378, at *18. Both Defendant and the
district court contrast those facts with this case, with its
lack of such direct evidence.      But here, the lack of direct
evidence may have its roots in the legislators’ avoiding
discovery through claims of legislative immunity.       Moreover,
direct evidence is simply not required.



                                    27
from those here.         In Gaffney, a state legislature had drafted a

redistricting plan following a decennial census; in doing so, it

followed a “policy of ‘political fairness.’”                  Id. at 738.            The

plan,    which   exhibited     less   than    2%   overall    deviation         in   the

state senate and less than 8% overall deviation in the state

house,    sought   “proportional       representation        of    the    two    major

political parties. . . . [T]he Board took into account the party

voting results in the preceding three statewide elections, and,

on that basis, created what was thought to be a proportionate

number of Republican and Democratic legislative seats.”                    Id.

     In this case, by contrast, rather than seeking proportional

representation of the two main political parties, the evidence

shows    that    the    challenged    plans    under-populated           Republican-

leaning     districts        and      over-populated         Democratic-leaning

districts in order to gerrymander Republican                      victories. 8        In

other     words,       the   challenged      redistricting         here     subverts



     8 The district court played up the fact that District 5 and
District 6 constitute exceptions to the rule that Democratic-
leaning districts were over-populated and Republican-leaning
districts were under-populated.    Raleigh Wake Citizens Ass’n,
2016 WL 1060378, at *35.      According to the district court,
“[t]his   evidence  belies  a   systematic  under-population  of
districts to harm incumbents . . . who are registered Democrats
who support ‘progressive’ education policies.”    Id.   What the
evidence actually belies is the tenuousness of the district
court’s analysis—because both District 5 and District 6 exhibit
only negligible deviations from ideal population—both less than
0.2%.



                                        28
political         fairness         and      proportional           representation            and

sublimates         partisan        gamesmanship.                Gaffney     simply        cannot

reasonably be read as supporting that; if anything, it does the

opposite.         Indeed, the Supreme Court suggested that partisanship

is    not   a     legitimate       reason      to      weight    some     votes    more    than

others,         and   the       Gaffney        Court      itself         underscored        that

redistricting so as to “minimize” the “political strength” of a

party or group would be constitutionally “vulnerable.”                                 Id. at

754.

       Further,       the    Supreme       Court       rejected     just    such     partisan

deviation games in Larios, 542 U.S. 947, indicating that “if a

plan contains any population deviations, a court may decide that

the    deviations         are    caused     by      impermissible         partisanship      and

strike      the    plan     down   .   .   .     for    failure     to    comply    with    one

person, one vote.”              Samuel Issacharoff & Pamela S. Karlan, Where

to Draw the Line?: Judicial Review of Political Gerrymanders,

153 U. Pa. L. Rev. 541, 567-68 (2004); see Larios, 300 F. Supp.

2d at 1338 (holding that pertinent “population deviations” were

“not the result of an effort to further any legitimate” policy

but were instead “systematically and intentionally created” to

“protect Democratic incumbents” and holding that that did not

“withstand[] Equal Protection scrutiny”).

       We recognize that the Supreme Court has not yet clarified

when     exactly      partisan         considerations            cross     the     line    from

                                                 29
legitimate to unlawful.    See, e.g., Harris v. McCrory, No. 1:13-

CV-949, 2016 WL 3129213, at *2 (M.D.N.C. June 2, 2016) (citing

Larios, 542 U.S. 947, for the proposition that redistricting

plans may be challenged “when partisan considerations go ‘too

far,’” while citing Vieth v. Jubelirer, 541 U.S. 267 (2004), for

the lack of “judicially discernible and manageable standards for

adjudicating   political   gerrymandering   claims”).         Yet   it   is

important to bear in mind that only a plurality (i.e., not a

controlling majority) of the Supreme Court has suggested that

partisanship-based   redistricting     claims   should   be    considered

nonjusticiable. 9    Id.    And   shortly   after   Vieth,     a    nearly

unanimous Supreme Court, including three Justices from the Vieth

plurality, affirmed Larios, in which the lower court struck down

a redistricting plan with population deviations under 10% as a




     9 The district court incorrectly suggested that “[i]n Vieth,
the Supreme Court rejected as nonjusticiable a political
gerrymandering claim.”    Raleigh Wake Citizens Ass’n 2016 WL
1060378, at *19, n.11. On the contrary, as we noted in Wright,
“a majority of the (Vieth) Supreme Court refused to deem
political gerrymandering claims to be per se nonjusticiable.
And the Court has since recognized as much.” 787 F.3d at 269
(citing League of United Latin Am. Citizens v. Perry, 548 U.S.
399, 414 (2006) (“A plurality of the Court in Vieth would have
held [political gerrymandering] challenges to be nonjusticiable
political questions, but a majority declined to do so.”)).



                                  30
blatant and unlawful attempt at partisan favoritism.                              Larios,

542 U.S. 947. 10

                                              4.

       Not only did the uncontested record evidence demonstrate

that        illegitimate        reapportionment            factors      predominated,

resulting      in   an    overall      deviation      of   barely     under    10%;    the

evidence also exposed the stated reasons for the redistricting

as   pretextual.         For    example,      one     stated   goal    of   the      School

Board’s      redistricting       was    to    increase     the   alignment        between

citizen’s       voting      districts         and      their     assigned       schools.

Uncontroverted           testimony       at        trial    indicated         that     the

redistricting       resulted      in    the        opposite,   “mak[ing]       alignment

worse.”       J.A. 235.        Indeed, “[j]ust a perfect downtown example

is Daniels Middle School and Broughton High School[, which] are

in the same feeder pattern, they were in the same district under

the 2011 maps . . . but they were in different districts under

the [new] map” challenged here.                     J.A. 424.       Further, even if




       10
       Stated different, “barely two months [after Vieth], three
of those Justices were part of an eight-Justice majority that
affirmed the judgment in Larios, a case in which the lower court
struck down a plan [with] relatively minuscule population
deviations . . . because they reflected ‘blatantly partisan and
discriminatory’ attempts to protect Democratic incumbents while
undermining Republican-held seats. As Sister Maria says in The
Sound of Music, ‘When the Lord closes a door, somewhere He opens
a window.’” Issacharoff & Karlan, 153 U. Pa. L. Rev. at 542.



                                              31
increased alignment were indeed a goal, it need not necessarily

have resulted in population deviations amongst the districts.

       A second stated rationale for the redistricting debunked at

trial:      reducing        campaign        costs.            As   trial     testimony

demonstrated, “the proponents of this legislation said that they

were    concerned     about    the     cost   of    campaigning     and    that   these

districts would make it cheaper to run. . . . That is either

inaccurate or deceptive, because Wake County is a media market

and if you’re going to run in any of these widespread districts

here or if you’re going to run all in the entire county you are

still going to be advertising in the Raleigh/Wake media market,

[and]    it’s     still   expensive.”         J.A.     395-96.      Further,      moving

down-ballot races like those for School Board members to even

years    that     include     congressional          and   presidential      races    is

“going to dramatically increase the costs of running” in those

elections, J.A. 420, even simply for candidates “to have any

visibility in a Presidential election cycle.”                       J.A. 258.        And,

again,    nothing     about     this    stated        rationale,    cost    reduction,

explains the population deviation amongst the districts.

        Another    stated     goal     of     the     redistricting       legislation—

increasing voter turnout—also has nothing to do with re-drawing

districts, much less re-drawing them unequally.                           The district

court     noted     that      “Plaintiffs        do     not     dispute    the     other

legislative goal of increasing voter turnout by having . . .

                                            32
elections in even-numbered years.”                Raleigh Wake Citizens Ass’n,

2016 WL 1060378, at *27 n.18.               But they did not need to dispute

that goal, because it has no logical connection to, and does not

justify,     re-drawing         districts,        much     less     districts          with

population deviations.

        A further rationale given for the redistricting: allowing

voters greater representation.                  Yet the redistricting of the

County Commission arguably reduced citizens’ opportunity to cast

votes for their preferred commissioners by moving away from an

all at-large system.             As testified at trial, voters “had the

ability to elect all seven members . . . . As it stands with the

maps that were passed by the House and the Senate, [they] will

be able to exercise [their] vote on only two of those members,

so   with    every      --    everything     that    I     know     about     the       word

representation, that’s less.”              J.A. 387-88.        And again, nothing

about    this    goal    explains     the       population    deviations          of    the

districts as drawn.

     Moreover,         alternatives    were       suggested        that     would       have

achieved,       even    more    effectively,        the    stated         rationale      of

increased       representation       without       resulting        in     such        great

population      deviations.         For     example,       Representative           Darren

Jackson     proposed     an    amendment    to    create     two   purely     at       large

districts instead of the donut and donut hole districts, while

maintaining the 2011 single-member districts.                      Such a plan would

                                           33
have “accomplish[ed] both of the Republicans’ stated goals, to

give you more representation on the School Board and to make

sure that you had a School Board member who represented your

child’s school, and it accomplished both of those goals.”                             J.A.

354.      That      amendment,      which        would     have    achieved      greater

representation         on   the    School        Board,    was    rejected—yet        more

evidence that the stated rationales were pretextual and fail to

justify      the       population      deviations            in     the    challenged

redistricting.

       The legislators pushing the redistricting also sought to

ground it in administrative ease, having the School Board and

Board of County Commissioners fall under the same plan.                          Again,

that goal is wholly unrelated to, and plainly fails to justify,

the deviations in population amongst the districts.                             Somewhat

relatedly, and certainly breathtakingly under the circumstances,

the Board of County Commissioners’ redistricting was ostensibly

intended to “avoid litigation.”                   Raleigh Wake Citizens Ass’n,

2016 WL 1060378, at *37.            Yet the School Board redistricting was

being actively litigated and was in fact pending before this

Court at that time.           The litigation rationale is thus utterly

irrational      and,    further,     has     no     logical       connection     to    the

deviations at issue.

       Moving      beyond    the     pretextual           rationales,     the    record

evidence demonstrates that traditional, legitimate apportionment

                                            34
factors did not predominate.                 On the contrary, the redistricting

resulted in: “a total of 31 [split] precincts” (as opposed to 12

split precincts under the 2011 plan), J.A. 805; bizarrely shaped

districts,         including    “donut[s]”         and    “donut    munchkin[s],”         J.A.

432, “crab claw[s]” and “pincer[s],” J.A. 212; and obviously

non-compact         districts    that      make     it    harder,     for      example,   for

School      Board    members     “to    have       more    detailed       knowledge    about

[their] own districts,” J.A. 280. 11                      Indeed, Plaintiffs’ expert

Dr.         Chen     considered            several         traditional,           legitimate

reapportionment criteria, i.e., population equality, community

and precinct boundaries, and geographical compactness, and found

that    the    redistricting      “create[d]          a    partisan       distribution      of

seats falling completely outside the range of outcomes that are

possible under a non-partisan districting process that creates

equally       populated    districts         while       maximizing       compactness     and

preserving precinct and municipal boundaries.”                        J.A. 768.

       Representative          Rosa    Gill       also     proposed       an    alternative

redistricting         during    the     legislative            process.        Her   proposal

demonstrated that it was entirely possible to meet all of the

stated rationales for the skewed redistricting—including giving

voters       the    opportunity       to    elect        two    school    board      members,

       11
       No party has made an argument regarding Voting Rights Act
compliance, also recognized as a legitimate apportionment
factor. We therefore do not address it.



                                              35
providing district representation for the County Commissioners,

moving school board elections to even numbered years to increase

turnout, reducing voter confusion by using the same districts

for both the School Board and the Board of County Commissioners,

and    reducing          costs—while      creating     only      miniscule     deviations.

Representative Gill’s plan divided no precincts and had overall

deviations in the single-member and super districts of less than

0.5%.        J.A. 795-96.

         The trial court dismissed the evidence of Representative

Gill’s alternative plan because it “simply shows that ‘better’

plans    can        be     drawn,   but    ‘better’         plans   do   not   equate    to

unconstitutionality.”               Raleigh         Wake    Citizens     Ass’n,   2016   WL

1060378, at *33.              In fact, what the alternative plan shows is

that legitimate considerations, including the stated rationales

for the redistricting, utterly failed to explain or justify the

high    levels       of     deviation     in   the    enacted       plans—because   those

rationales could have been accomplished by a plan with virtually

no population deviations.

                                               5.

        At    the    end     of   the   day,   when        we   review   the   evidentiary

record, we can reach only one conclusion: that Plaintiffs, the

only parties to make their case at trial, successfully showed it

to be more probable than not that the deviations at issue here

reflect        the       predominance     of   an     illegitimate       reapportionment

                                               36
factor rather than legitimate considerations.                                 Harris, 136 S.

Ct.     at    1307.           We    recognize       that,       generally,      “attacks      on

deviations          under     10%    will    succeed        only    rarely,      in    unusual

cases.”           Id.    But after reviewing this matter closely, and for

the reasons discussed above, we are convinced that these mid-

decade,       partisan        redistricting      plans      constitute         just    such   an

unusual case.            The district court therefore committed reversible

error in granting judgment in Defendant’s favor.

                                               6.

       In     addition        to    improper    partisanship,           Plaintiffs     claimed

improper regional favoritism as an illegitimate factor behind

the deviations in the challenged reapportionments.                                Because we

have already ruled in Plaintiffs’ favor based on partisanship,

we     need       not    reach      this    related       but    separate       basis.        We

nevertheless note that “[a] citizen, a qualified voter, is no

more nor no less so because he lives in the city or on the farm.

This is the clear and strong command of our Constitution’s Equal

Protection          Clause.”         Reynolds,      377   U.S.     at    568.     Therefore,

“[i]n Larios, a federal court struck down a [state] legislative

redistricting plan . . . . The plaintiffs there alleged that the

plan    .     .    .    under-populat[ed]        districts        in    the    urban   Atlanta

region        and       the    rural       south-Georgia           area—both      Democratic

strongholds—while             over-populating         districts          with    Republican-

leaning voters.”               Wright, 787 F.3d at 266-67.                     In Wright, we

                                               37
left no doubt that, as in Larios, Plaintiffs here claim that “a

state legislature designed a redistricting plan with a maximum

deviation in population of just under 10%, designed to pit rural

and urban voters against one another” and that “[e]ven if Larios

does not control this case . . ., we nevertheless find it” and

its rejection of regional favoritism as a basis for deviating

from ideal population by such margins “persuasive.”                           Id. at 267.

      Moreover,     the     district          court       held    that       “the     General

Assembly     rationally      considered           the     communities         of    interest

within Wake County’s urban areas and within Wake County’s rural

and   suburban     areas    in    adopting”         the    challenged        redistricting

plans.     Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at *40.

But the pertinent inquiry is not whether it was “rational” to

“consider”       communities          of    interest       in    adopting       the    plans

generally;       instead,        the       proper       inquiry        is    whether      the

redistricting’s      deviations            more   likely        than   not    reflect     the

predominance of illegitimate reapportionment factors.                                 Harris,

136 S. Ct. at 1307.              The district court plainly engaged the

wrong    legal    standard       in    its    analysis      of     this      factor.      But

because we rule on the basis of partisanship, we need go no

further of the regional favoritism issue.

                                             D.

        In addition to their federal constitutional one person, one

vote claim, Plaintiffs brought a similar North Carolina state

                                             38
claim.     Under the North Carolina Constitution, “[t]he right to

vote on equal terms in representative elections—a one-person,

one-vote    standard—is     a   fundamental     right.”          Blankenship     v.

Bartlett, 681 S.E.2d 759, 762–63 (N.C. 2009).                   A North Carolina

analysis    of   the   state’s    “Equal     Protection        Clause    generally

follows the analysis of the Supreme Court of the United States

in interpreting the corresponding federal clause.”                     Id. at 762.

If anything, North Carolina’s one person, one vote principle

applies with even more force than its federal counterpart.                     See,

e.g., id. at 763 (deeming the one person, one vote principle

applicable in North Carolina’s election of superior court judges

even    though   “federal   courts   have    articulated        that    the   ‘one-

person,    one-vote’   standard    is    inapplicable      to    state    judicial

elections”); Stephenson v. Bartlett, 562 S.E.2d 377, 397 (N.C.

2002)    (requiring    legislative      districts   to    be    within    plus   or

minus five percent of ideal population).                 Accordingly, for the

same reasons that Plaintiffs succeed with their federal claim,

so, too, do they succeed with their North Carolina state one

person, one vote claim.

                                     IV.

       In addition to their one person, one vote claim, Plaintiffs

have also brought a racial gerrymandering claim regarding the




                                        39
Board of County Commissioners’ District 4. 12                         Plaintiffs contend

that race predominated in determining the boundaries, shape, and

composition of that district without narrow tailoring to serve a

compelling state interest.                    As explained below, the district

court did not commit clear error in rejecting this claim.

                                               A.

        To       successfully        challenge      the     constitutionality            of    an

electoral         district       under      the     Equal        Protection          Clause,    a

plaintiff must “show, either through circumstantial evidence of

a    district’s        shape   and     demographics         or    more    direct       evidence

going       to   legislative        purpose,      that    race     was    the       predominant

factor       motivating        the     legislature’s          decision          to     place    a

significant           number   of    voters    within       or    without       a    particular

district.”         Ala. Legislative Black Caucus v. Alabama, 135 S. Ct.

1257, 1267 (2015) (quotation marks and citation omitted).

       Such       a    showing      requires        proof     that       “the       legislature

subordinated traditional race-neutral districting principles . .

. to racial considerations.”                   Miller v. Johnson, 515 U.S. 900,

916     (1995).           Traditional         race-neutral           principles         include

“compactness, contiguity, and respect for political subdivisions

or    communities         defined      by     actual        shared       interests,”       id.,

       12
        Even though the corresponding School Board district is
identical, Plaintiffs in Wright made no such claim.      We, like
the district court, therefore do not address that issue.



                                               40
incumbency protection, and political advantage, Bush v. Vera,

517   U.S.    952,    964,     968       (1996).      And     evidence     that      such

traditional principles took a back seat to racial considerations

may include direct and circumstantial evidence of legislative

intent,    indications       that    a    racial    percentage        within   a    given

district     was   non-negotiable,          bizarre    or     non-compact      district

shapes,      and    district      lines      that     cut     through     traditional

geographic boundaries or election precincts.                       See, e.g., Vera,

517 U.S. at 970-71; Miller, 515 U.S. at 917-18; Shaw v. Reno,

509 U.S. 630, 646–48 (1993).

      If a plaintiff successfully shows racial predominance in

drawing the lines of a district, the court must apply “strictest

scrutiny,” Miller, 515 U.S. at 915, that is, it must determine

whether    the     design    of    the     challenged       district    was    narrowly

tailored to advance a compelling state interest—a burden the

state must bear, Shaw v. Hunt, 517 U.S. 899, 908 (1996).                           If the

answer to that question is no, the district must be struck as

unconstitutional.

                                            B.

      In   contrast    to    its     one    person,     one    vote    analysis,      the

district     court    did      not    miscomprehend          the   applicable        law.

Accordingly, while we were “not bound by the clearly erroneous

standard” regarding the one person, one vote findings, Inwood

Labs., 456 U.S. at 855 n.15, the same cannot be said here.

                                            41
Here, we must affirm if “the district court’s account of the

evidence is plausible,” even if we are “convinced that we would

have decided the question of fact differently.”                   TFWS, Inc. v.

Franchot, 572 F.3d 186, 196 (4th Cir. 2009) (quotation marks and

citation omitted).

       While we might have decided this matter differently in the

first instance, we cannot say that the district court’s account

of the evidence is not plausible; it is.                      For example, the

district     court   considered    legislator      comments    indicating    that

race was a consideration in the redistricting process, such as a

representative’s       observation   “that       at-large   electoral   systems

submerge the views of various minorities, ‘whether it’s racial,

gender, political, rural, urban or whatever.’”                    Raleigh Wake

Citizens Ass’n, 2016 WL 1060378, at *46.                While such comments

evidence     the     fact   that   race    was    a   consideration     in    the

redistricting process, doing so is not unlawful.                    See, e.g.,

Miller, 515 U.S. at 916 (“Redistricting legislatures will, for

example, almost always be aware of racial demographics; but it

does   not   follow    that   race   predominates      in   the   redistricting

process.”).        We cannot fault the district court for determining

that the comments here did not constitute direct evidence that

race predominated in the drawing of District 4, i.e., of racial

gerrymandering.



                                      42
      Further,     in    the       racial    gerrymandering         context,    partisan

advantage    may        be     considered         a    traditional        redistricting

criterion, and evidence that politics was the primary motivation

for the drawing of a district can defeat an allegation that race

predominated.       See, e.g., Cromartie, 532 U.S. at 257–58; Vera,

517 U.S. at 968.              The district court recognized this, noting

that the fact that District 4 is majority-minority “alone does

not   mean   that       the        General     Assembly      racially     gerrymandered

District 4,” Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at

*47, and that evidence supports the district’s having been drawn

with a focus on partisanship rather than race.                         For example, in

evaluating        the        expert     support        for        Plaintiffs’     racial

gerrymandering claim, the district court noted that the expert’s

“partisan neutral” analysis did not help answer the question of

whether politics or race led to District 4’s boundaries.                                Id.

Here, too, we cannot disagree.

      In sum, even if we might have found otherwise in the first

instance,    it    was       not    implausible       for   the     district    court   to

determine    that       Plaintiffs       had    fallen      short    of   proving   that

traditional districting criteria were subordinated to race in

the drawing of District 4.                   Accordingly, because the district

court’s analysis of Plaintiffs’ racial gerrymandering claim is

not clearly erroneous, we affirm on that issue.



                                             43
                                   V.

     For the reasons discussed above, we reverse the district

court’s   judgment   in   Defendant’s   favor   as   to   Plaintiffs’   one

person, one vote claims.       We remand with instructions to enter

immediately 13 judgment for Plaintiffs, granting both declaratory

relief and a permanent injunction, as to the one person, one

vote claims.    However, we affirm the district court’s judgment

for Defendant as to Plaintiffs’ racial gerrymander claim.



                                         REVERSED AND REMANDED IN PART
                                                  AND AFFIRMED IN PART




     13 We see no reason why the November 2016 elections should
proceed under the unconstitutional plans we strike down today.



                                   44
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

       With respect, I dissent from the majority’s holding that

the    district     court    erred    in     rejecting    Plaintiffs’         equal

protection       challenge   to      twin    presumptively       constitutional

redistricting plans.         Plaintiffs’ one person, one vote claim

rests on their contention that improper “partisanship” rendered

the challenged redistricting plans unconstitutional, even though

those plans have population deviations of less than 10%. 1                       If

such a claim is justiciable, and it is not clear that it is, the

showing necessary to prove such a claim is extremely demanding.

The    Supreme   Court   explained    only    a   few   weeks   ago   that     such

challenges “will succeed only rarely, in unusual cases.”                  Harris

v.    Ariz.   Indep.   Redistricting    Comm’n,     136   S.    Ct.   1301,    1307

(2016).       The challenge here, like that in Harris, is not that



       1
       In their amended complaint, Plaintiffs also alleged that
the plans impermissibly favored rural voters over urban voters.
At   trial,   however,  they   focused   on   assertedly improper
“partisanship” and produced scant evidence that the State sought
to advantage rural over urban voters.     Plaintiffs did not even
offer evidence as to which districts they considered “urban” or
“rural.”    Their experts testified that assertedly illegitimate
“partisan” motivations, not regional favoritism, predominately
motivated the challenged plans.      Unsurprisingly, the district
court found that Plaintiffs “failed to prove” that either plan
“impermissibly favors suburban and rural voters over urban
voters or substantially dilutes the individual voting strength
of Wake County’s urban voters.” Raleigh Wake Citizens Ass’n v.
Wake Cty. Bd. of Elections, No. 5:15-CV-156-D, 2016 WL 1060378,
at *40 (E.D.N.C. Feb. 26, 2016). On appeal, Plaintiffs provide
no basis on which to disturb that finding.
“unusual case.”       For this reason, I would affirm in its entirety

the    judgment   of       the     district    court   rejecting    Plaintiffs’

challenges to the redistricting plans.



                                         I.

       The Equal Protection Clause requires a State to “make an

honest and good faith effort to construct [state legislative]

districts     .   .    .    as     nearly     of   equal   population   as     is

practicable.”     Reynolds v. Sims, 377 U.S. 533, 577 (1964).                But,

the Reynolds Court itself recognized that, in determining what

is “practicable,” the Constitution permits some deviations from

perfect     population      equality     when      justified   by   “legitimate

considerations incident to the effectuation of a rational state

policy.”    Id. at 579; accord Harris, 136 S. Ct. at 1306.

       In a long line of cases decided in the wake of Reynolds,

the Court has held that districts, like those at issue here,

with    a    “maximum        population       deviation    under     10%”     are

presumptively constitutional.            See, e.g., Brown v. Thomson, 462

U.S. 835, 842 (1983); accord Harris, 136 S. Ct. at 1307 and

cases cited therein.             These “minor deviations from mathematical

equality do not, by themselves, make out a prima facie case of

invidious discrimination under the Fourteenth Amendment so as to

require justification by the State.”               Harris, 136 S. Ct. at 1307



                                         46
(quoting    Gaffney      v.     Cummings,        412    U.S.   735,      745     (1973))

(internal quotation marks omitted).

     It was because of “the inherent difficulty of measuring and

comparing      factors     that      may    legitimately       account     for     small

deviations from strict mathematical equality” that the Supreme

Court recently reiterated that “attacks on deviations under 10%

will succeed only rarely, in unusual cases.”                     Harris, 136 S. Ct.

at 1307.    To prevail on such claims, the Harris Court held that

a challenger “must show that it is more probable than not that a

deviation      of   less      than    10%    reflects      the     predominance      of

illegitimate reapportionment factors rather than the ‘legitimate

considerations’”      that      the    Court      had   identified       in    previous

cases.   Id.

     In earlier cases the Supreme Court had identified numerous

“legitimate considerations” justifying a State’s reapportionment

plan.    Among them are a State’s valid interests in:                     maintaining

the competitive balance among political parties, Gaffney, 412

U.S. at 752-53; accord Harris, 136 S. Ct. at 1306, avoiding

contests between incumbents as long as incumbents of one party

are not favored over those of another, Karcher v. Daggett, 462

U.S. 725, 740 (1983), and recognizing communities of interest,

Evenwel v. Abbott, 136 S. Ct. 1120, 1124 (2016).                          Indeed, in

League of United Latin American Citizens v. Perry, the Supreme

Court characterized “avoiding the pairing of incumbents” as a

                                            47
“‘neutral’        redistricting           standard[         ]”      and        “maintaining

communities       of     interest”         as        a   “traditional           districting

principle[ ].”          548 U.S. 399, 412 (2006) (plurality opinion)

(“LULAC”); Id. at 433 (majority opinion).

     Thus,    notwithstanding             Plaintiffs’        apparent          belief,      the

Court has expressly recognized that a redistricting plan can in

these      ways        legitimately            take       account         of         political

considerations.          The Court has never suggested that doing so

constitutes       reliance          on    an        “illegitimate         reapportionment

factor.”     Harris, 136 S. Ct. at 1307.                  This approach necessarily

follows     from       the      fact      that        “[p]olitics         and        political

considerations           are        inseparable           from      districting             and

apportionment”         and     so    “districting         inevitably           has    and    is

intended to have substantial political consequences.”                                Gaffney,

412 U.S. at 753.

     If those attacking a redistricting plan prove that a State

has abused legitimate political considerations by systemically

over- or under-populating districts to benefit one party at the

expense another, then the challengers may be able to prevail as

they did in Larios v. Cox, 300 F. Supp. 2d 1320, 1325 (N.D.

Ga.),   aff’d,     542       U.S.   947    (2004)        (mem.).      Plaintiffs            lean

heavily on Larios.           Their reliance is misplaced.

     First, Plaintiffs ignore the very different factual record

developed in that case.              In Larios, the challenged plan paired

                                               48
in the same district, and thus pitted against each other, 37 of

the 74 incumbent Republicans but only 9 of the 105 incumbent

Democrats.         300   F.    Supp.      2d    at    1326.             In    Larios,      Georgia

legislators admitted before the district court that they had

intentionally drawn legislative districts to favor incumbents of

one party over those of the other.                           Id. at 1325.                Thus, in

Larios, the state legislators conceded that they had not made

the “good faith effort” to draw equal districts that Reynolds

requires.    The record in this case contains no such evidence.

     In    addition       to   ignoring        the        very    different         evidentiary

record in Larios, Plaintiffs turn a blind eye to the Court’s

subsequent     treatment       of      that     case.             In     LULAC,      the     Court

explained     that       Larios     “does       not        give       clear     guidance”        in

“addressing    political          motivation          as    a     justification            for   an

equal-protection         violation.”                548     U.S.        at    423    (plurality

opinion).     And in Harris, the unanimous Supreme Court expressly

reserved     the     question        of        whether          the      sort       of     abusive

partisanship        at     issue       in      Larios            even        constitutes         “an

illegitimate redistricting factor.”                       Harris, 136 S. Ct. at 1310. 2


     2 Tellingly, the Court has never addressed the alternative
holding by the lower court in Larios invalidating the challenged
plans on the basis of regional favoritism.      That alternative
holding has little precedential or persuasive value given, as
the Supreme Court has explained, “a summary affirmance is an
affirmance of the judgment only,” not the rationale of the lower
court, which “should not be understood as breaking new ground.”
(Continued)
                                               49
Despite       Plaintiffs’        protestations      to      the     contrary,         the

foundations        of   Larios   as   persuasive     authority      rest   on    shaky

ground.

      Equally       significantly,     Plaintiffs     take    no    notice      of    the

holding       in   Harris   that,     even    if    abusive       partisanship       did

constitute         an   illegitimate     factor,      those       challenging         the

redistricting plan before it had “not carried their burden.”

Id.     This holding is particularly significant given that the

Harris plaintiffs had made a much stronger evidentiary showing

than Plaintiffs do here.              For example, the Harris plaintiffs

offered direct evidence of a Republican-leaning district made

“more competitive” at the request of a Democratic redistricting

commissioner by “hyperpacking Republicans into other districts.”

Id.     at     1309     (internal     quotation      marks        omitted).           The

redistricting commission in Harris had overpopulated almost all

the   Republican-leaning         districts    in    the     thirty-district          plan

while        underpopulating        almost    all     the     Democratic-leaning




Mandel v. Bradley, 432 U.S. 173, 176 (1977). And invalidating a
redistricting plan because it allegedly favors “rural” or
“urban” voters would break new ground.    The Supreme Court has
never before or after Larios suggested that considering the
urban or rural characteristics of a district is an illegitimate
apportionment factor.    In fact, statements in several cases
suggest that these are the quintessential types of communities
of interest a State may consider when redistricting. See, e.g.,
Dusch v. Davis, 387 U.S. 112, 117 (1967).



                                         50
districts.    Id. at 1309-10.          Even in the face of this evidence,

the    district    court      did     not        find     the     redistricting        plan

unconstitutional -- and the Supreme Court agreed.                      Id. at 1309.

       Furthermore,    in     explaining         its     rejection    of   the     Harris

plaintiffs’ claims, the Supreme Court distinguished Larios in

ways that apply with equal force here.                      The Harris Court held

that in Larios, unlike in the case before it (and unlike in the

case at hand), “the district court found that those attacking

the plan had shown” that no legitimate factors explained the

deviations in the plan.              Id. at 1310 (emphasis added).                      The

Harris Court explained:             “It is appellants’ inability to show”

that    illegitimate    factors       predominated          “that     makes   [Larios]

inapposite    here.”        Id.      Thus        the    Court   emphasized       and    re-

emphasized that those attacking a presumptively constitutional

redistricting      plan,    like      Plaintiffs          here,     must   prove       that

illegitimate factors predominated.

       In   sum,    even      if     abusive            partisanship       claims       are

justiciable, and do provide the basis for a one person, one vote

claim, Plaintiffs had to prove at trial that the State relied on

this consideration in redistricting, and that this reliance took

precedence     over     all       legitimate            considerations,       including

maintaining political balance among political parties, avoiding

contests    between    incumbents      of        both    parties,    and   recognizing

communities of interest.            The State, on the other hand, did not

                                            51
need       to    offer        any       justification         for     its        presumptively

constitutional          redistricting           plans.       See,     e.g.,          Harris,      136

S. Ct. at 1307.

       A    fair      review       of     the   factual      record       seems       to     me   to

demonstrate that, as in Harris, Plaintiffs here failed to meet

their burden and so, as the Supreme Court did in Harris, we

should affirm the district court’s rejection of their challenge. 3



                                                II.

       In attempting to meet their substantial burden, Plaintiffs

principally           rely    on    the     trial      testimony       of       their      expert,

Dr. Jowei Chen.              On the basis of statistical models that he had

created,        Dr.    Chen    opined       that      deviations      in    the       challenged

redistricting          plans       were    motivated        entirely       by    a    desire      to

obtain      “Republican        partisan         control     over    four        of    the”    seven

numbered        districts      and      over    one    of    the    two     lettered         super-

districts.         But, as the district court found, Dr. Chen’s model




       3
       The district court also rejected Plaintiffs’ one person,
one vote claim under the North Carolina Constitution.    Because
North Carolina courts “generally follow[ ] the analysis of the
Supreme Court of the United States” when interpreting the
State’s corresponding Equal Protection Clause, I would affirm
the district court’s finding that Plaintiffs failed to carry
their burden on their state law claims for the same reasons that
apply to their federal claims.     Blankenship v. Bartlett, 681
S.E.2d 759, 762 (N.C. 2009).



                                                 52
simply does not prove either conclusion.                   Dr. Chen’s analysis

suffers from two critical flaws.

      First, in his model, Dr. Chen pegged the maximum tolerable

level of population deviation between districts at 2%.                   In doing

so he held the State to a standard not required by law.                          Of

course, a State must make a “good faith effort” to draw equal

districts.     Reynolds, 377 U.S. at 577.               But neutral factors may

cause population deviations well above 10% without running afoul

of the Constitution.      See, e.g., Mahan v. Howell, 410 U.S. 315,

328 (1973).     Moreover, Dr. Chen’s arbitrary 2% threshold seems

particularly    unwarranted    in     light        of    the   Supreme    Court’s

repeated characterization of deviations below 10% as “minor” and

its admonition that such minor deviations do not “substantially

dilute the weight of individual votes in the larger districts so

as   to   deprive    individuals    in     these    districts     of     fair   and

effective representation.”         White v. Regester, 412 U.S. 755, 764

(1973).

      The second fatal flaw in Dr. Chen’s analysis is his failure

to look beyond what he considered to be the only four legitimate

or   “traditional”    districting     factors       --    population     equality,

intact municipal      boundaries,    intact     precincts,      and    geographic




                                      53
compactness. 4     Dr. Chen ignored the many apolitical and political

factors States may consider during redistricting (like striking

a competitive balance among political parties, avoiding contests

among incumbents, and recognizing communities of interest), even

if pursuing these goals causes minor population deviations.

     This    is    particularly      troubling       because    it   is    undisputed

that two of the legitimate districting factors Dr. Chen failed

to consider -- incumbency protection and grouping communities of

interest    --     actually      motivated     the    legislature       here.       The

parties     stipulated     to     the   accuracy      of   transcripts       of    the

legislative       debate   and    those    transcripts         reveal     that    state

legislators altered the district lines in the final version of

the School Board redistricting bill to protect two incumbents --

one registered Democrat and one registered Republican.                      Further,

the Democratic incumbent, Christine Kushner, testified at trial

that “Ms. Prickett, who is a registered Republican, had been

placed into a Democratic leaning district,” but “was moved out



     4  Plaintiffs actually concede the limited reach of
Dr. Chen’s analysis, noting that his analysis “shows that the
partisanship of the enacted districts does not happen when
traditional   redistricting   criteria   are  followed.”     See
Plaintiffs’ Rep. Br. at 21 (emphasis added).       Of course, as
explained above, the Supreme Court has repeatedly recognized
numerous legitimate ‘redistricting criteria’ other than those
that Dr. Chen considers “traditional.”    And in LULAC, 548 U.S.
at 433, the Court expressly included “maintaining communities of
interest” among “traditional” redistricting criteria.



                                          54
of that district and put into a Republican leaning district, and

I [Ms. Kushner] was switched out of District 2 into District 5,”

which   she    admitted       was    a    “more      favorable       district”     for   her.

Accommodating the legitimate interest in protecting incumbents

of   both    parties      had    a   demonstrable           impact    on   the    population

deviations across four of the seven numbered districts in the

plan.        District     1     swung    from       2.76%    overpopulated        to   -0.41%

underpopulated.           District 2 swelled from -4.19% underpopulated

to just -1.05% underpopulated.                       District 5 dipped from 0.19%

overpopulated        to   -1.53%        underpopulated.          Finally,        District    6

grew from -0.14% underpopulated to 1.6% overpopulated.

       Dr. Chen’s model does not in any way account for these

population      deviations.             As    a   result,      Dr.    Chen’s      view   that

nothing but improper “partisanship” could explain the population

deviations in the twin redistricting plans completely ignores

the undisputed impact that the legislative effort to protect the

two incumbents had on the plans.                      In light of that omission, I

cannot agree that the district court clearly erred in concluding

that    Dr.     Chen’s        testimony        did     not     demonstrate        that     the

legislature      deviated        from        population       equality     only    for     the

predominant purpose of creating four safe Republican seats out

of seven.

       Dr.    Chen   committed          the    same    sort    of    analytic      error    in

considering the two lettered super-districts.                          One of the stated

                                               55
purposes for the super-districts was to improve representation

for   voters       in    rural     areas.            Without     challenging      the       State’s

consideration of communities of interest generally, Plaintiffs

argue    that       “[t]here       is      no    possible        way     that    [the       stated]

rationales        explain       why     Super        District     A     needs    to   be     44,117

people larger than Super District B.”                            Plaintiffs’ Rep. Br. at

12.     According to Dr. Chen, again improper “partisanship” is the

only explanation.

      And     again,        Dr.       Chen’s         model      does     not     support      this

conclusion.          To    be    sure,        the     State     could    have    overpopulated

District A, an area of the County that has historically voted

for Democratic candidates, to increase a Republican candidate’s

odds of winning in District B.                           But the State also could have

deviated from population equality to group more urban areas in

District A based on their shared interests.                                This, after all,

was   the    purpose       for    having        the       super-districts        in   the     first

place,      and    of     course      it      constitutes        a     clearly    valid       State

interest.         See Evenwel, 136 S. Ct. at 1124.                       Or the State could

have had the dual motivation to accomplish both.                                      Dr. Chen’s

model tells us nothing about how grouping together communities

of    interest      motivated           the     legislature           because    it     a    priori

excludes      any       consideration           of       that   legitimate       redistricting

consideration.



                                                    56
       Plaintiffs’     remaining         evidence         also        falls    far    short    of

meeting    their     burden       of    proving          that     illegitimate         partisan

considerations       predominated         here.          Plaintiffs’          expert     Anthony

Fairfax concluded that the legislature desired to “minimize the

Democratic performance” in certain districts by overpopulating

the “Democratic performing districts.”                           That opinion rests on

his view that correlation between overpopulation and Democratic

performance     in    the   districts           in    and       of    itself     demonstrates

legislative     intent       --        i.e.,     that       the       numbers        speak    for

themselves.     The district court concluded that they do not.

       The record here provides no basis for holding that finding

clearly erroneous.          Of the four districts assertedly favorable

or competitive for Democrats, three are overpopulated.                                   Of the

five    districts         assertedly           favorable             or    competitive        for

Republicans, only three are underpopulated by more than 1%.                                   One

of these three districts, District 2, is underpopulated by just

-1.05%.    Thus, the asserted correlation between population and

Democratic     performance        is,    to     say      the    least,        minimal.       This

minimal correlation limits the strength of any inference that

can be drawn.        Cf. Harris, 136 S. Ct. at 1309-10 (refusing to

infer predominance of illegitimate partisanship over a thirty-

district plan where every district underpopulated by more than

1%     (nine    total)      favored            Democrats             and   every       district

overpopulated        by     more        than        1%     (twelve         total)        favored

                                               57
Republicans).          At the very least, the district court did not

clearly err when it declined, as the Supreme Court did in Harris

in   the    face     of    stronger    evidence,          to   make    an    inference   of

unconstitutional motivation.

      Plaintiffs also offered the lay testimony of members of the

state legislature who opposed the redistricting plans.                             I agree

with the majority that the district court erred in categorically

rejecting      this       testimony    as    irrelevant.             But,    despite   this

error, the testimony does not move the needle far on the issue

of   intent    of     those    voting       to    adopt    the      redistricting      plans

because, to a person, Plaintiffs’ lay witnesses disclaimed any

knowledge of the sponsors’ motivations. 5

      In     sum,     faced    with    the       heavy     burden     of    proving    that

assertedly          illegitimate        “partisanship”                constituted        the

predominant         motivation    for       the     presumptively           constitutional

redistricting        plans,    Plaintiffs         failed       to   offer    any   evidence

truly      probative      of   legislative        intent.           Plaintiffs’    experts

tendered      conclusions       that    their      analyses         could    not   support.

      5More probative are emails from Wake County Republican
Chairwoman Donna Williams to Republican members of the state
legislature and School Board.    Williams expressed concern that
the proposed map would not be sufficiently favorable to
Republicans to permit them to “take 5 of the 9 seats.” However,
the record does not contain requests for information or
responses   from    State officials   or  any   indication  that
Ms. Williams’    lobbying  efforts   had  any   effect   on  the
legislation.



                                             58
Plaintiffs’   remaining   evidence    proved   little.   The   district

court refused to draw Plaintiffs’ preferred inference.         In doing

so, the court did not clearly err.        To the contrary, given the

weakness of Plaintiffs’ case, Defendants would have had strong

grounds to appeal had the district court ruled otherwise.

     I would affirm the judgment of the district court in its

entirety.




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