HARRIS v. COOPER
Memorandum and Opinion — Document #142
District Court, M.D. North Carolina
Description
MEMORANDUM OPINION - CIRCUIT JUDGE ROGER L. GREGORY wrote the majority opinion, in which DISTRICT JUDGE MAX O. COGBURN, JR., joined and filed a separate concurrence. DISTRICT JUDGE WILLIAM L. OSTEEN, JR., joined in part and filed a dissent as to Part II.A.2: on 2/5/2016. (Israel, Lisa) (Entered: 02/05/2016)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
________________________________
)
DAVID HARRIS, CHRISTINE )
BOWSER, and SAMUEL LOVE, )
)
Plaintiffs, )
)
v. ) Case No. 1:13-cv-949
)
PATRICK MCCRORY, in his )
capacity as Governor of North )
Carolina, NORTH CAROLINA )
STATE BOARD OF ELECTIONS, )
and JOSHUA HOWARD, in his )
capacity as Chairman of the )
North Carolina State Board )
of Elections, )
)
Defendants. )
)
MEMORANDUM OPINION
Circuit Judge Roger L. Gregory wrote the majority opinion, in
which District Judge Max O. Cogburn, Jr., joined and filed a
separate concurrence. District Judge William L. Osteen, Jr.,
joined in part and filed a dissent as to Part II.A.2:
“[T]he Framers of the Fourteenth Amendment . . . desired to
place clear limits on the States’ use of race as a criterion for
legislative action, and to have the federal courts enforce those
limitations.” Richmond v. J.A. Croson Co., 488 U.S. 469, 491
(1989). For good reason. Racial classifications are, after
all, “antithetical to the Fourteenth Amendment, whose ‘central
purpose’ was ‘to eliminate racial discrimination emanating from
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official sources in the States.’” Shaw v. Hunt, 517 U.S. 899,
907 (1996) (Shaw II) (quoting McLaughlin v. Florida, 379 U.S.
184, 192 (1964)).
The “disregard of individual rights” is the “fatal flaw” in
such race-based classifications. Regents of the Univ. of Cal.
v. Bakke, 438 U.S. 265, 320 (1978); see also J.A. Croson Co.,
488 U.S. at 493 (explaining that the “‘rights created by the
first section of the Fourteenth Amendment are, by its terms,
guaranteed to the individual. The rights established are
personal rights’” (quoting Shelley v. Kraemer, 334 U.S. 1, 22
(1948))). By assigning voters to certain districts based on the
color of their skin, states risk “engag[ing] in the offensive
and demeaning assumption that voters of a particular race,
because of their race, ‘think alike, share the same political
interests, and will prefer the same candidates at the polls.’”
Miller v. Johnson, 515 U.S. 900, 911–12 (1995) (quoting Shaw v.
Reno, 509 U.S. 630, 647 (1993) (Shaw I)). Quotas are especially
pernicious embodiments of racial stereotypes because they
threaten citizens’ “‘personal rights’ to be treated with equal
dignity and respect.” J.A. Croson Co., 488 U.S. at 493.
Laws that classify citizens based on race are
constitutionally suspect and therefore subject to strict
scrutiny; racially gerrymandered districting schemes are no
different, even when adopted for benign purposes. Shaw II, 517
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U.S. at 904–05. This does not mean that race can never play a
role in redistricting. Miller, 515 U.S. at 916. Legislatures
are almost always cognizant of race when drawing district lines,
and simply being aware of race poses no constitutional
violation. See Shaw II, 517 U.S. at 905. Only when race is the
“dominant and controlling” consideration in drawing district
lines does strict scrutiny apply. Id.; see also Easley v.
Cromartie, 532 U.S. 234, 241 (2001) (Cromartie II).
This case challenges the constitutionality of two North
Carolina congressional districts as racial gerrymanders in
violation of the Equal Protection Clause of the Fourteenth
Amendment. Specifically, this case concerns North Carolina’s
Congressional District 1 (“CD 1”) and Congressional District 12
(“CD 12”) as they stood after the 2011 redistricting. The
plaintiffs contend that the congressional map adopted by the
North Carolina General Assembly in 2011 violates the Fourteenth
Amendment: race was the predominant consideration with respect
to both districts, and the General Assembly did not narrowly
tailor the districts to serve a compelling interest. The Court
agrees.
After careful consideration of all evidence presented
during a three-day bench trial, the parties’ findings of fact
and conclusions of law, the parties’ arguments, and the
applicable law, the Court finds that the plaintiffs have shown
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that race predominated in both CD 1 and CD 12 and that the
defendants have failed to establish that its race-based
redistricting satisfies strict scrutiny. Accordingly, the Court
holds that the general assembly’s 2011 Congressional
Redistricting Plan is unconstitutional as violative of the Equal
Protection Clause of the Fourteenth Amendment.
Having found that the 2011 Congressional Redistricting Plan
violates the Equal Protection Clause, the Court will require
that new congressional districts be drawn forthwith to remedy
the unconstitutional districts. See Wise v. Lipscomb, 437 U.S.
535, 539-40 (1978).
Before turning to a description of the history of the
litigation and an analysis of the issues it presents, the Court
notes that it makes no finding as to whether individual
legislators acted in good faith in the redistricting process, as
no such finding is required. See Page v. Va. Bd. of Elections,
No. 3:13-cv-678, 2015 WL 3604029, at *7 (E.D. Va. June 5, 2015)
(“[T]he good faith of the legislature does not excuse or cure
the constitutional violation of separating voters according to
race.”). Nevertheless, the resulting legislative enactment has
affected North Carolina citizens’ fundamental right to vote, in
violation of the Equal Protection Clause.
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I.
A.
The North Carolina Constitution requires decennial
redistricting of the North Carolina Senate and North Carolina
House of Representatives, subject to several specific
requirements. The general assembly is directed to revise the
districts and apportion representatives and senators among those
districts. N.C. Const. art. II, §§ 3, 5. Similarly, consistent
with the requirements of the Constitution of the United States,
the general assembly establishes North Carolina’s districts for
the U.S. House of Representatives after every decennial census.
See U.S. Const. art. I, §§ 2, 4; N.C. Const. art. II, §§ 3, 5; 2
U.S.C. §§ 2a, 2c.
Redistricting legislation must comply with the Voting
Rights Act of 1965 (“VRA”). “The Voting Rights Act was designed
by Congress to banish the blight of racial discrimination in
voting . . . .” South Carolina v. Katzenbach, 383 U.S. 301, 308
(1966), abrogated by Shelby Cnty., Ala. v. Holder, 133 S. Ct.
2612 (2013). Enacted pursuant to Congress’s enforcement powers
under the Fifteenth Amendment, see Shelby Cnty., 133 S. Ct. at
2619–21, the VRA prohibits states from adopting plans that would
result in vote dilution under section 2, 52 U.S.C. § 10301, or
in covered jurisdictions, retrogression under section 5, 52
U.S.C. § 10304.
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Section 2(a) of the VRA prohibits the imposition of any
electoral practice or procedure that “results in a denial or
abridgement of the right of any citizen . . . to vote on account
of race or color.” 52 U.S.C. § 10301(a). A section 2 violation
occurs when, based on the totality of circumstances, the
political process results in minority “members hav[ing] less
opportunity than other members of the electorate to participate
in the political process and to elect representatives of their
choice.” Id. § 10301(b).
Section 5 of the VRA prohibits a state or political
subdivision subject to section 4 of the VRA from enforcing “any
voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting different from
that in force or effect on November 1, 1964,” unless it has
obtained a declaratory judgment from the District Court for the
District of Columbia that such change “does not have the purpose
and will not have the effect of denying or abridging the right
to vote on account of race or color” or has submitted the
proposed change to the U.S. attorney general and the attorney
general has not objected to it. Beer v. United States, 425 U.S.
130, 131-32 (1976). By requiring that proposed changes be
approved in advance, Congress sought “‘to shift the advantage of
time and inertia from the perpetrators of the evil to its
victim,’ by ‘freezing election procedures in the covered areas
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unless the changes can be shown to be nondiscriminatory.’” Id.
at 140 (quoting H.R. Rep. No. 94–196, pp. 57–58 (1970)). The
purpose of this approach was to ensure that “no voting-procedure
changes would be made that would lead to a retrogression in the
position of racial minorities with respect to their effective
exercise of the electoral franchise.” Holder v. Hall, 512 U.S.
874, 883 (1994). Section 5, therefore, prohibits a covered
jurisdiction from adopting any change that “has the purpose of
or will have the effect of diminishing the ability of [the
minority group] . . . to elect their preferred candidates of
choice.” 52 U.S.C. § 10304(b).
In November 1964, several counties in North Carolina met
the criteria to be classified as a “covered jurisdiction” under
section 5. See id. §§ 10303–10304. As such, North Carolina was
required to submit any changes to its election or voting laws to
the U.S. Department of Justice (“DOJ”) for federal preapproval,
a process called “preclearance.” See id. § 10304(a). To obtain
preclearance, North Carolina had to demonstrate that a proposed
change had neither the purpose nor effect “of denying or
abridging the right to vote on account of race or color.” Id.
The legal landscape changed dramatically in 2012, when the
Supreme Court held unconstitutional the coverage formula used to
determine which states are subject to the section 5 preclearance
requirement. See Shelby Cnty., 133 S. Ct. at 2612. As a result
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of the invalidation of the coverage formula under section 4,
North Carolina is no longer obligated to comply with the
preclearance requirements of section 5.1 See id. at 2631.
B.
For decades, African-Americans enjoyed tremendous success
in electing their preferred candidates in former versions of CD
1 and CD 12 regardless of whether those districts contained a
majority black voting age population (“BVAP”)—that is the
percentage of persons of voting age who identify as African–
American.
The general assembly first drew CD 1 in an iteration of its
present form in 1992. Pls.’ Ex. 64. Between 1997 and 2011, the
BVAP fell below 50 percent. The BVAP stood at 46.54 percent,
for example, for the plan in place from 1997 to 2001. Pls.’ Ex.
110. After the 2000 census, the general assembly enacted the
2001 Congressional Redistricting Plan (now referred to as the
“benchmark” or “benchmark plan”) that redrew CD 1, modestly
increasing the BVAP to 47.76 percent. Pls.’ Ex. 111.
The BVAP of former CD 12 mirrored that of former CD 1.
Initially in 1991, to comply with the DOJ’s then-existing
“maximization” policy — requiring majority-minority districts
1
Nothing in Shelby County affects the continued validity or
applicability of section 2 to North Carolina. 133 S. Ct. at
2619. And both sections 2 and 5 were still in full effect when
the legislation in this case was enacted.
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wherever possible — CD 12 was drawn with a BVAP greater than 50
percent. Pls.’ Ex. 72. After years of litigation and the U.S.
Supreme Court’s repudiation of the maximization policy, see
Miller, 515 U.S. at 921–24, the general assembly redrew the
district in 1997 with a BVAP of 32.56 percent. Pls.’ Ex. 110.
The general assembly thus determined that the VRA did not
require drawing CD 12 as a majority African-American district.
See Cromartie v. Hunt, 133 F. Supp. 2d 407, 413 (E.D.N.C. 2000)
(“District 12 [was] not a majority-minority district”). The
2001 benchmark version of CD 12 reflected a BVAP of 42.31
percent. Pls.’ Ex. 111.
Despite the fact that African-Americans did not make up a
majority of the voting-age population in these earlier versions
of CD 1 or CD 12, African-American preferred candidates easily
and repeatedly won reelection under those plans. Representative
Eva Clayton prevailed in CD 1 in 1998 and 2000, for instance,
winning 62 percent and 66 percent of the vote, respectively.
Pls.’ Ex. 112. Indeed, African-American preferred candidates
prevailed with remarkable consistency, winning at least 59
percent of the vote in each of the five general elections under
the version of CD 1 created in 2001. Id. Representative G.K.
Butterfield has represented that district since 2004. Id.
Meanwhile, in CD 12, Congressman Mel Watt won every general
election in CD 12 between 1992 and 2012. Id. He never received
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less than 55.95 percent of the vote, gathering at least 64
percent in each election under the version of CD 12 in effect
during the 2000s. Id.
No lawsuit was ever filed to challenge the benchmark 2001
version of CD 1 or CD 12 on VRA grounds. Trial Tr. 46:2-7,
47:4-7 (Blue).
C.
Following the census conducted April 1, 2010, leaders of
the North Carolina House of Representatives and Senate
independently appointed redistricting committees. Each
committee was responsible for recommending a plan applicable to
its own chamber, while the two committees jointly were charged
with preparing a redistricting plan for the U.S. House of
Representatives North Carolina districts. Senator Rucho and
Representative Lewis were appointed chairs of the Senate and
House Redistricting Committees, respectively, on January 27 and
February 15, 2011. Parties’ Joint Actual Stipulation, ECF No.
125 ¶ 3.
Senator Rucho and Representative Lewis were responsible for
developing a proposed congressional map. Id. In Representative
Lewis’s words, he and Senator Rucho were “intimately involved”
in the crafting of these maps. Pls.’ Ex. 136 at 17:21–24 (Joint
Committee Meeting July 21, 2011).
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Senator Rucho and Representative Lewis engaged private
redistricting counsel and a political consultant. Specifically,
Senator Rucho and Representative Lewis engaged the law firm of
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (“Ogletree”) as
their private redistricting counsel. In December 2010, Ogletree
engaged Dr. Thomas Hofeller, who served as redistricting
coordinator for the Republican National Committee for the 1990,
2000, and 2010 redistricting cycles, to design and draw the 2011
Congressional Redistricting Plan under the direction of Senator
Rucho and Representative Lewis. Trial Tr. 577:1-23; 587:14-25;
588:1-2 (Hofeller). Dr. Hofeller was the “principal architect”
of the 2011 Congressional Redistricting Plan (as well as the
state senate and house plans). Id. 586:13-15.
Senator Rucho and Representative Lewis were the sole
sources of instruction for Dr. Hofeller regarding the design and
construction of congressional maps. See Trial Tr. 589:3-19
(Hofeller). All such instructions were provided to Dr. Hofeller
orally – there is no written record of the precise instructions
Senator Rucho and Representative Lewis gave to Dr. Hofeller.
Id. at 589:14-590:10. Dr. Hofeller never received instructions
from any legislator other than Senator Rucho and Representative
Lewis, never conferred with Congressmen Butterfield or Watt, and
never conferred with the Legislative Black Caucus (or any of its
individual members) with respect to the preparation of the
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congressional maps. Trial Tr. 48:23-25; 49:1-5 (Blue); 588:3-
589:13 (Hofeller). Representative Lewis did not make Dr.
Hofeller available to answer questions for the members of the
North Carolina Senate and House Redistricting Committees. Pls.’
Ex. 136 at 23:3-26:3 (Joint Committee Meeting July 21, 2011).
Throughout June and July 2011, Senator Rucho and
Representative Lewis released a series of public statements
describing, among other things, the criteria that they had
instructed Dr. Hofeller to follow in drawing the proposed
congressional map. As Senator Rucho explained at the July 21,
2011, joint meeting of the Senate and House Redistricting
Committees, those statements “clearly delineated” the “entire
criteria” that were established and “what areas we were looking
at that were going to be in compliance with what the Justice
Department expected us to do as part of our submission.” Id. at
29:2–9.
In their June 17, 2011, public statement, Senator Rucho and
Representative Lewis highlighted one criterion in their
redistricting plan:
In creating new majority African American
districts, we are obligated to follow . . .
the decisions by the North Carolina Supreme
Court and the United States Supreme Court in
Strickland v. Bartlett, 361 N.C. 491 (2007),
affirmed, Bartlett v. Strickland, 129 S.Ct.
1231 (2009). Under the Strickland
decisions, districts created to comply with
section 2 of the Voting Rights Act, must be
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created with a “Black Voting Age Population”
(“BVAP”), as reported by the Census, at the
level of at least 50% plus one. Thus, in
constructing VRA majority black districts,
the Chairs recommend that, where possible,
these districts be drawn at a level equal to
at least 50% plus one “BVAP.”
Defs. Ex. 5.11 at 2 (emphasis added).
On July 1, 2011, Senator Rucho and Representative Lewis
made public their first proposed congressional plan, entitled
“Rucho-Lewis Congress,” and issued a public statement. Pls.’
Ex. 67. The plan was drawn by Dr. Hofeller and contained two
majority-BVAP districts, namely CD 1 and CD 12. With regard to
proposed CD 1, Senator Rucho and Representative Lewis stated
that they had included a piece of Wake County (an urban county
in which the state capital, Raleigh, is located) because the
benchmark CD 1 was underpopulated by 97,500 people. Senator
Rucho and Representative then added:
Because African Americans represent a high
percentage of the population added to the
First District from Wake County, we have
also been able to re-establish Congressmen
Butterfield’s district as a true majority
black district under the Strickland case.
Pls.’ Ex. 67 at 4.
With regard to CD 12, Senator Rucho and Representative
Lewis noted that although the 2001 benchmark district was “not a
Section 2 majority black district,” there “is one county in the
Twelfth District that is covered by Section 5 of the Voting
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Rights Act (Guilford).” Pls.’ Ex. 67 at 5. Therefore,
“[b]ecause of the presence of Guilford County in the Twelfth
District, we have drawn our proposed Twelfth District at a black
voting age level that is above the percentage of black voting
age population found in the current Twelfth District.” Id.
On July 28, 2011, the general assembly enacted the
congressional and legislative plans, which Dr. Hofeller had
drawn at the direction of Senator Rucho and Representative
Lewis. ECF No. 125 ¶ 5; see Session Law 2011-403 (July 28,
2011) (amended by curative legislation, Session Law 2011-414
(Nov. 7, 2011)). The number of majority-BVAP districts in the
2011 Congressional Redistricting Plan increased from zero to two
when compared to the benchmark 2001 Congressional Redistricting
Plan. The BVAP in CD 1 increased from 47.76 percent to 52.65
percent, and in CD 12 the BVAP increased from 43.77 percent to
50.66 percent. Pls.’ Exs. 106-107.
Following the passage of the 2011 Congressional
Redistricting Plan, the general assembly, on September 2, 2011,
submitted the plan to the DOJ for preclearance under section 5
of the VRA. See Pls.’ Ex. 74 at 10-11. On November 1, 2011,
the DOJ precleared the 2011 Congressional Redistricting Plan.
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D.
1.
Two sets of plaintiffs challenged the 2011 Congressional
Redistricting Plan in state court for illegal racial
gerrymandering. See N.C. Conference of Branches of the NAACP v.
State of North Carolina, Amended Complaint (12/9/11), ECF No. 44
at Exs. 1-2; Dickson v. Rucho, Amended Complaint (12/12/11), ECF
No. 4 at Exs. 3-4. A three-judge panel consolidated the two
cases.
The state court held a two-day bench trial on June 5 and 6,
2013. See Dickson v. Rucho, J. and Mem. of Op. [hereinafter
“State Court Opinion”], ECF No. 30 at Exs. 1-2. On July 8,
2013, the court issued a decision denying the plaintiffs’
pending motion for summary judgment and entering judgment for
the defendants. Id. The court acknowledged that the general
assembly used race as the predominant factor in drawing CD 1.
Nonetheless, applying strict scrutiny, the court concluded that
North Carolina had a compelling interest in avoiding liability
under the VRA, and that the districts had been narrowly tailored
to avoid that liability. With regard to CD 12, the court held
that race was not the driving factor in its creation, and
therefore examined and upheld it under rational-basis review.
The state court plaintiffs appealed, and the North Carolina
Supreme Court affirmed the trial court’s judgment. Dickson v.
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Rucho, 766 S.E.2d 238 (N.C. 2014). The U.S. Supreme Court,
however, granted certiorari, vacated the decision, and remanded
the case to the North Carolina Supreme Court for further
consideration in light of Alabama Legislative Black Caucus v.
Alabama, 135 S. Ct. 1257 (2015). On December 18, 2015, the
North Carolina Supreme Court reaffirmed the trial court’s
judgment.
2.
Plaintiffs David Harris and Christine Bowser are U.S.
citizens registered to vote in CD 1 or CD 12, respectively.
Neither was a plaintiff in the state-court litigation.
Plaintiffs brought this action on October 24, 2013,
alleging, among other things, that North Carolina used the VRA’s
section 5 preclearance requirements as a pretext to pack
African–American voters into North Carolina’s Congressional
Districts 1 and 12 and reduce those voters’ influence in other
districts. Compl. ¶ 3, ECF No. 1.
Plaintiffs sought a declaratory judgment that North
Carolina’s Congressional Districts 1 and 12, as drawn in the
2011 Congressional Redistricting Plan, was a racial gerrymander
in violation of the Equal Protection Clause of the Fourteenth
Amendment. Id. ¶¶ 1, 6. Plaintiffs also sought to permanently
enjoin the defendants from giving effect to the boundaries of
the First and Twelfth Congressional Districts, including barring
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the defendants from conducting elections for the U.S. House of
Representatives based on the 2011-enacted First and Twelfth
Congressional Districts. Id. at 19.
Because the plaintiffs’ action “challeng[ed] the
constitutionality of the apportionment of congressional
districts” in North Carolina, 28 U.S.C. § 2284(a), the chief
judge of the U.S. Court of Appeals for the Fourth Circuit
granted the plaintiffs’ request for a hearing by a three-judge
court on October 18, 2013. ECF No. 16
A three-day bench trial began on October 13, 2015. After
the bench trial, this Court ordered the parties to file post-
trial briefs. The case is now ripe for consideration.
II.
“[A] State may not, absent extraordinary justification,
. . . separate its citizens into different voting districts on
the basis of race.” Miller, 515 U.S. at 911-12 (internal
quotations and citations omitted). A voting district is an
unconstitutional racial gerrymander when a redistricting plan
“cannot be understood as anything other than an effort to
separate voters into different districts on the basis of race,
and that the separation lacks sufficient justification.” Shaw
I, 509 U.S. at 649.
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In a racial gerrymander case, the “plaintiff’s burden is to
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.”
Miller, 515 U.S. at 916. “To make this showing, a plaintiff
must prove that the legislature subordinated traditional race-
neutral districting principles, including but not limited to
compactness, contiguity, and respect for political subdivisions
or communities defined by actual shared interests, to racial
considerations.” Id. Public statements, submissions, and sworn
testimony by the individuals involved in the redistricting
process are not only relevant but often highly probative. See,
e.g., Bush v. Vera, 517 U.S. 952, 960-61 (1996) (examining the
state’s preclearance submission to the DOJ and the testimony of
state officials).
Once plaintiffs establish race as the predominant factor,
the Court applies strict scrutiny, and “the State must
demonstrate that its districting legislation is narrowly
tailored to achieve a compelling interest.” Miller, 515 U.S. at
920. If race did not predominate, then only rational-basis
review applies.
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For the reasons that follow, the Court finds that the
plaintiffs have presented dispositive direct and circumstantial
evidence that the legislature assigned race a priority over all
other districting factors in both CD 1 and CD 12. There is
strong evidence that race was the only nonnegotiable criterion
and that traditional redistricting principles were subordinated
to race. In fact, the overwhelming evidence in this case shows
that a BVAP-percentage floor, or a racial quota, was established
in both CD 1 and CD 12. And, that floor could not be
compromised. See Shaw II, 517 U.S. at 907 (“Race was the
criterion that, in the State’s view, could not be compromised;
respecting communities of interest and protecting Democratic
incumbents came into play only after the race-based decision had
been made.”). A congressional district necessarily is crafted
because of race when a racial quota is the single filter through
which all line-drawing decisions are made, and traditional
redistricting principles are considered, if at all, solely
insofar as they did not interfere with this quota. Id.
Accordingly, the Court holds that “race was the predominant
factor motivating the legislature’s decision to place a
significant number of voters within or without a particular
district.” Miller, 515 U.S. at 916.
Because race predominated, the state must demonstrate that
its districting decision is narrowly tailored to achieve a
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compelling interest. Even if the Court assumes that compliance
with the VRA is a compelling state interest, attempts at such
compliance “cannot justify race-based districting where the
challenged district was not reasonably necessary under a
constitutional reading and application” of federal law. Id. at
921; see also Bush, 517 U.S. at 977. Thus, narrow tailoring
requires that the legislature have a “strong basis in evidence”
for its race-based decision, that is, “good reasons to believe”
that the chosen racial classification was required to comply
with the VRA. Alabama, 135 S. Ct. at 1274. Evidence of narrow
tailoring in this case is practically nonexistent; the state
does not even proffer any evidence with respect to CD 12. Based
on this record, as explained below, the Court concludes that
North Carolina’s 2011 Congressional Redistricting Plan was not
narrowly tailored to achieve compliance with the VRA, and
therefore fails strict scrutiny.
A.
As with any law that distinguishes among individuals on the
basis of race, “equal protection principles govern a State’s
drawing of congressional districts.” Miller, 515 U.S. at 905.
“Racial classifications with respect to voting carry particular
dangers. Racial gerrymandering, even for remedial purposes, may
balkanize us into competing racial factions; it threatens to
carry us further from the goal of a political system in which
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race no longer matters . . . .” Shaw I, 509 U.S. at 657. As
such, “race-based districting by our state legislatures demands
close judicial scrutiny.” Id.
To trigger strict scrutiny, the plaintiffs first bear the
burden of proving that race was not only one of several factors
that the legislature considered in drawing CD 1 and CD 12, but
that race “predominated.” Bush, 517 U.S. at 963. Under this
predominance test, a plaintiff must show that “the legislature
subordinated traditional race-neutral districting principles
. . . to racial considerations.” Miller, 515 U.S. at 916; see
also Alabama, 135 S. Ct. at 1271 (“[T]he ‘predominance’ question
concerns which voters the legislature decides to choose, and
specifically whether the legislature predominantly uses race as
opposed to other, ‘traditional’ factors when doing so.”). When
a legislature has “relied on race in substantial disregard of
customary and traditional districting principles,” such
traditional principles have been subordinated to race. Miller,
515 U.S. at 928 (O’Connor, J., concurring).
When analyzing the legislative intent underlying a
redistricting decision, there is a “presumption of good faith
that must be accorded legislative enactments.” Id. at 916.
This presumption “requires courts to exercise extraordinary
caution in adjudicating claims that a State has drawn district
lines on the basis of race.” Id. Such restraint is
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particularly warranted given the “complex interplay of forces
that enter a legislature’s redistricting calculus,” id. at 915–
16, making redistricting possibly “the most difficult task a
legislative body ever undertakes,” Smith v. Beasley, 946 F.
Supp. 1174, 1207 (D.S.C. 1996). This presumption must yield,
however, when the evidence shows that citizens have been
assigned to legislative districts primarily based on their race.
See Miller, 515 U.S. at 915–16.
1.
CD 1 presents a textbook example of racial predominance.
There is an extraordinary amount of direct evidence –
legislative records, public statements, instructions to Dr.
Hofeller, the “principal architect” of the 2011 Congressional
Redistricting Plan, and testimony – that shows a racial quota,
or floor, of 50-percent-plus-one-person was established for CD
1. Because traditional districting criteria were considered, if
at all, solely insofar as they did not interfere with this 50-
percent-plus-one-person minimum floor, see Shaw II, 517 U.S. at
907, the quota operated as a filter through which all line-
drawing decisions had to pass. As Dr. Hofeller stated,
“[S]ometimes it wasn’t possible to adhere to some of the
traditional redistricting criteria in the creation of [CD 1]”
because “the more important thing was to . . . follow the
instructions that I ha[d] been given by the two chairmen [to
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draw the district as majority-BVAP].” Trial Tr. 626:19-627:1
(Hofeller) (emphasis added). Indeed. The Court therefore finds
that race necessarily predominates when, as here, “the
legislature has subordinated traditional districting criteria to
racial goals, such as when race is the single immutable
criterion and other factors are considered only when consistent
with the racial objective.” Bethune-Hill v. Va. State Bd. of
Elections, 14-cv-852, 2015 WL 6440332, at *63 (Oct. 22, 2015)
(Keenan, J., dissenting) (citing Shaw II, 517 U.S. at 907).
a.
The legislative record is replete with statements
indicating that race was the legislature’s paramount concern in
drawing CD 1. During legislative sessions, Senator Rucho and
Representative Lewis made clear that CD 1 “[w]as required by
Section 2” of the VRA to have a BVAP of at least 50 percent plus
one person. See Pls.’ Ex. 139 at 8:19-9:6 (July 25, 2011 Senate
Testimony of Rucho) (CD 1 was “required by Section 2” of the VRA
to contain a majority BVAP, and “must include a sufficient
number of African-Americans so that [CD 1] can re-establish as a
majority black district”); id. 17:23-25 (CD 1 “has Section 2
requirements, and we fulfill those requirements”); see also
Pls.’ Ex. 140, at 30:2-4 (July 27, 2011 House Testimony of
Lewis) (Representative Lewis stating that CD 1 “was drawn with
race as a consideration, as is required by the [VRA]”); Trial
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Tr. 57:24-58:6 (Blue) (Senator Blue, describing conversation
with Senator Rucho in which Senator Rucho explained “his
understanding and his belief that he had to take [districts of
less than 50 percent BVAP] all beyond 50 percent because
Strickland informed him that that’s what he’s supposed to do”);
Defs.’ Ex. 100 at 29:2-7 (July 22, 2011, House Committee Tr.
Lewis) (“In order to foreclose the opportunity for any Section 2
lawsuits, and also for the simplicity of this conversation, we
elected to draw the VRA district at 50 percent plus one
. . . .”).
b.
The public statements released by Senator Rucho and
Representative Lewis also reflect their legislative goal,
stating that, to comply with section 2 of the VRA, CD 1 must be
established with a BVAP of 50 percent plus one person. See,
e.g., Defs.’ Ex. 5.11 at 2 (June 17, 2011 Joint Public
Statement); Pls.’ Ex. 67 at 3-4 (July 1, 2011 Joint Public
Statement); Pls.’ Ex. 68 at 3 (July 19, 2011 Joint Public
Statement). Further, in its preclearance submission to the DOJ,
North Carolina makes clear that it purposefully set out to add
“a sufficient number of African-American voters in order to”
draw CD 1 “at a majority African-American level.” Pls.’ Ex. 74
at 12; see also id. at 13 (“Under the enacted version of
District 1, the . . . majority African-American status of the
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District is corrected by drawing the District into Durham
County.”).
c.
In light of this singular legislative goal, Senator Rucho
and Representative Lewis, unsurprisingly, instructed Dr.
Hofeller to treat CD 1 as a “voting rights district,” Trial Tr.
478:25-479:11 (Hofeller), meaning that he was to draw CD 1 to
exceed 50-percent BVAP. Id. 480:21-481:1 (“My understanding was
I was to draw that 1st District with a black voting-age
population in excess of 50 percent because of the Strickland
case.”); see also id. 573:1-6 (Dr. Hofeller’s instructions were
to draw CD 1 at “50 percent [BVAP] plus one person”); id. 610:3-
8 (“[T]he instruction was to draw District 1 with a black VAP
level of 50 percent or more.”); id. 615:15-21 (“I received an
instruction that said . . . that District 1 was a voting rights
district.”); id. 572:6-17 (“[T]he 1st District was drawn to be a
majority minority district.”); id. at 615:20–21 (“[B]ecause of
the Voting Rights Act, [CD 1] was to be drawn at 50 percent
plus.”); id. 620:5-11 (“Once again, my instructions from the
chairman of the two committees was because of the Voting Rights
Act and because of the Strickland decision that the district had
to be drawn at above 50 percent.”); id. 620:17-20 (agreeing that
his “express instruction” was to “draw CD 1 as 50 percent black
voting-age population plus one”).
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The Court is sensitive to the fact that CD 1 was
underpopulated; it is not in dispute that CD 1 was
underpopulated by 97,500 people and that there were efforts to
create districts with approximately equal population. While
equal population objectives “may often prove ‘predominant’ in
the ordinary sense of that word,” the question of whether race
predominated over traditional raced-neutral redistricting
principles is a “special” inquiry: “It is not about whether a
legislature believes that the need for equal population takes
ultimate priority,” but rather whether the legislature placed
race above nonracial considerations in determining which voters
to allocate to certain districts in order to achieve an equal
population goal. Alabama, 135 S. Ct. at 1270-71.
To accomplish equal population, Dr. Hofeller intentionally
included high concentrations of African-American voters in CD 1
and excluded less heavily African-American areas from the
district. During cross-examination, Dr. Hofeller, in response
to why he moved into CD 1 a part of Durham County that was “the
heavily African-American part” of the county, stated, “Well, it
had to be.” Trial Tr. 621:3-622:19 (Hofeller); see id. 620:21-
621:15; id. 640:7-10; see also Bush, 517 U.S. at 962 (“These
findings – that the State substantially neglected traditional
districting criteria such as compactness, that it was committed
from the outset to creating majority-minority districts, and
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that it manipulated district lines to exploit unprecedentedly
detailed racial data – together weigh in favor of the
application of strict scrutiny.” (emphasis added)).
Dr. Hofeller, after all, had to “make sure that in the end it
all adds up correctly” – that is, that the “net result” was a
majority-BVAP district. See Trial Tr. 621:3-622:19 (Hofeller);
see also id. 620:21-621:15; id. 640:7-10.
Dr. Hofeller certainly “ma[de] sure that in the end it
add[ed] up correctly.” Id. 621:7. The BVAP substantially
increased from 47.76 percent, the BVAP in CD 1 when the
benchmark plan was enacted, to 52.65 percent, the BVAP under the
2011 Congressional Plan – an increase of nearly five percentage
points. Pls.’ Ex. 69 at 111. And, while Dr. Hofeller had
discretion, conceivably, to increase the BVAP to as high as he
wanted, he had no discretion to go below 50-percent-plus-one-
person BVAP. See Trial Tr. 621:13-622:19 (Hofeller). This is
the very definition of a racial quota.
d.
The Supreme Court’s skepticism of racial quotas is
longstanding. See generally J.A. Croson Co., 488 U.S. at 469
(minority set-aside program for construction contracts); Bakke,
438 U.S. at 265 (higher education admissions). The Court,
however, has yet to decide whether use of a racial quota in a
legislative redistricting plan or, in particular, use of such a
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quota exceeding 50 percent, establishes predominance as a matter
of law under Miller.2 See Bush, 517 U.S. at 998 (Kennedy, J.,
concurring) (reserving the question). But see League of United
Latin Am. Citizens v. Perry, 548 U.S. 399, 517 (2006) (Scalia,
J., concurring in the judgment in part and dissenting in part)
(“[W]hen a legislature intentionally creates a majority-minority
district, race is necessarily its predominant motivation and
strict scrutiny is therefore triggered.”).3 The Court recently
has cautioned against “prioritizing mechanical racial targets
above all other districting criteria” in redistricting.
Alabama, 135 S. Ct. at 1267, 1272–73. Although the Court in
Alabama did not decide whether the use of a racial quota
exceeding 50 percent, standing alone, can establish predominance
as a matter of law, the Court made clear that such “mechanical
racial targets” are highly suspicious. Id. at 1267.
There is “strong, perhaps overwhelming” direct evidence in
this case that the general assembly “prioritize[ed] [a]
mechanical racial target[] above all other districting criteria”
in redistricting. See id. at 1267, 1272–73. In order to
2
This Court need not reach this question because there is
substantial direct evidence that traditional districting
criteria were considered, if at all, solely insofar as they did
not interfere with this 50-percent-plus-one-person quota.
3
Chief Justice Roberts, Justice Thomas, and Justice Alito
appear to agree with Justice Scalia’s statement. Id.
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achieve the goal of drawing CD 1 as a majority-BVAP district,
Dr. Hofeller not only subordinated traditional race-neutral
principles but disregarded certain principles such as respect
for political subdivisions and compactness. See Stephenson v.
Bartlett, 562 S.E. 2d 377, 385-89 (N.C. 2002) (recognizing “the
importance of counties as political subdivisions of the State of
North Carolina” and “observ[ing] that the State Constitution’s
limitations upon redistricting and apportionment uphold what the
United States Supreme Court has termed ‘traditional districting
principles’ . . . such as ‘compactness, contiguity, and respect
for political subdivisions’” (quoting Shaw I, 509 U.S. at 647)).
Dr. Hofeller testified that he would split counties and
precincts when necessary to achieve a 50-percent-plus-one-person
BVAP in CD 1. Trial Tr. 629:17-629:24 (Hofeller); see also
Pls.’ Ex. 67 at 7 (July 1, 2011 Joint Public Statement) (“Most
of our precinct divisions were prompted by the creation of
Congressman Butterfield’s majority black First Congressional
District.”). Dr. Hofeller further testified that he did not use
mathematical measures of compactness in drawing CD 1. Pls.’ Ex.
129 (Hofeller Dep. 44:19-45:12). Had he done so, Dr. Hofeller
would have seen that the 2011 Congressional Redistricting Plan
reduced the compactness of CD 1 significantly. Pls.’ Ex. 17,
Table 1; see also Trial Tr. 689:22-690:1-11 (Ansolabehere).
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Apparently seeing the writing on the wall, the defendants
make the passing argument that the legislature configured CD 1
to protect the incumbent and for partisan advantage.4 Defs.’
Findings of Fact, ECF No. 138 at 74. The defendants, however,
proffer no evidence to support such a contention. Id. There is
nothing in the record that remotely suggests CD 1 was a
political gerrymander, or that CD 1 was drawn based on political
data. Compare Trial Tr. 479:4-479:22 (Hofeller) (“Congressional
District 1 was considered by the chairs to be a voting rights
district . . . so it had to be drawn in accordance with the fact
that it needed to be passed through . . . Section 2 and also
Section 5.”); with id. (“[M]y instructions from the two chairmen
were to treat the 12th District as . . . a political
[district].”). It cannot seriously be disputed that the
predominant focus of virtually every statement made, instruction
given, and action taken in connection with the redistricting
effort was to draw CD 1 with a BVAP of 50 percent plus one
person to comply with the VRA. See, e.g., Trial Tr. 479:4-
479:22 (Hofeller).
4
The defendants have suggested that CD 1’s configuration
was necessary to add voters to the district to equalize
population. Defs.’ Findings of Fact, ECF No. 138 at 74. As
discussed earlier, Alabama squarely forecloses this argument as
a matter of law, holding that “an equal population goal is not
one factor among others to be weighed against the use of race to
determine whether race predominates.” 135 S. Ct. at 1270.
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e.
Even if the Court assumes, arguendo, that this is a “mixed-
motive suit” - in which a state’s conceded goal of “produc[ing]
majority-minority districts” is accompanied by “other goals,
particularly incumbency protection” - race can be the
predominant factor in the drawing of a district without the
districting revisions being “purely race-based.” Bush, 517 U.S.
at 959 (emphasis omitted). Indeed, the Supreme Court has
observed that “partisan politicking” may often play a role in a
state’s redistricting process, but the fact “[t]hat the
legislature addressed these interests [need] not in any way
refute the fact that race was the legislature’s predominant
consideration.” Shaw II, 517 U.S. at 907; see also Alabama, 135
S. Ct. at 1271 (remanding to trial court to determine whether
race predominated even though “preserving the core of the
existing district, following county lines, and following highway
lines played an important boundary-drawing role”); Bush, 517
U.S. at 962 (finding predominant racial purpose where state
neglected traditional districting criteria such as compactness,
committed itself to creating majority-minority districts, and
manipulated district lines based on racial data); Clark v.
Putnam Cnty., 293 F.3d 1261, 1270 (11th Cir. 2002) (“[The] fact
that other considerations may have played a role in . . .
redistricting does not mean that race did not predominate.”).
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As the Supreme Court has explained, traditional factors
have been subordinated to race when “[r]ace was the criterion
that, in the State’s view, could not be compromised,” and when
traditional, race-neutral criteria were considered “only after
the race-based decision had been made.” Shaw II, 517 U.S. at
907. When a legislature has “relied on race in substantial
disregard of customary and traditional districting practices,”
such traditional principles have been subordinated to race.
Miller, 515 U.S. at 928 (O’Connor, J., concurring). Here, the
record is unequivocally clear: the general assembly relied on
race – the only criterion that could not be compromised – in
substantial disregard of traditional districting principles.
See, e.g., Trial Tr. 626:19-627:1 (Hofeller).
Moreover, because traditional districting criteria were
considered, if at all, solely insofar as they did not interfere
with this 50-percent-plus-one-person minimum floor, see Shaw II,
517 U.S. at 907, the quota operated as a filter through which
all line-drawing decisions had to pass. Such a racial filter
had a discriminatory effect on the configuration of CD 1 because
it rendered all traditional criteria that otherwise would have
been “race-neutral” tainted by and subordinated to race. Id.
For these reasons, the Court holds that the plaintiffs have
established that race predominated in the legislative drawing of
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CD 1, and the Court will apply strict scrutiny in examining the
constitutionality of CD 1.
2.
CD 12 presents a slightly more complex analysis than CD 1
as to whether race predominated in redistricting. Defendants
contend that CD 12 is a purely political district and that race
was not a factor even considered in redistricting.
Nevertheless, direct evidence indicating racial predominance
combined with the traditional redistricting factors’ complete
inability to explain the composition of the new district rebut
this contention and leads the Court to conclude that race did
indeed predominate in CD 12.
a.
While not as robust as in CD 1, there is nevertheless
direct evidence supporting the conclusion that race was the
predominant factor in drawing CD 12. Public statements released
by Senator Rucho and Representative Lewis reflect this
legislative goal. In their June 17, 2011, statement, for
example, Senator Rucho and Representative Lewis provide,
In creating new majority African American
districts, we are obligated to follow . . .
the decisions by the North Carolina Supreme
Court and the United States Supreme Court
. . . . Under the[se] decisions, districts
created to comply with section 2 of the
Voting Rights Act, must be created with a
“Black Voting Age Population” (“BVAP”), as
reported by the Census, at the level of at
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least 50% plus one. Thus, in constructing
VRA majority black districts, the Chairs
recommend that, where possible, these
districts be drawn at a level equal to at
least 50% plus one “BVAP.”
Defs.’ Ex. 5.11 at 2 (emphasis added). This statement describes
not only the new CD 1, as explained above, but clearly refers to
multiple districts that are now majority minority. This is
consistent with the changes to the congressional map following
redistricting: the number of majority-BVAP districts in the
2011 plan, compared to the benchmark 2001 plan, increased from
zero to two, namely CD 1 and CD 12. Tr. 59:25-60:6 (Blue). The
Court cannot conclude that this statement was the result of
happenstance, a mere slip of the pen. Instead, this statement
supports the contention that race predominated.
The public statement issued July 1, 2011, further supports
this objective. There, Senator Rucho and Representative Lewis
stated, “Because of the presence of Guilford County in the
Twelfth District [which is covered by section 5 of the VRA], we
have drawn our proposed Twelfth District at a black voting age
level that is above the percentage of black voting age
population found in the current Twelfth District.” Pls.’ Tr.
Ex. 67 at 5 (emphasis added). As explained, section 5 was
intended to prevent retrogression; to ensure that such result
was achieved, any change was to be precleared so that it did
“not have the purpose and [would] not have the effect of denying
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or abridging the right to vote on account of race or color.”
Beer, 425 U.S. at 131-33. Despite the fact that nothing in
section 5 required the creation of a majority-minority district
in CD 12,5 this statement indicates that it was the intention in
redistricting to create such a district—it was drawn at a higher
BVAP than the previous version. This statement does not simply
“show[] that the legislature considered race, along with other
partisan and geographic considerations,” Cromartie II, 532 U.S.
at 253; instead, reading the text in its ordinary meaning, the
statement evinces a level of intentionality in the decisions
regarding race. The Court will again decline to conclude that
it was purely coincidental that the district was now majority
BVAP after it was drawn.
Following the ratification of the revised redistricting
plan, the North Carolina General Assembly and attorney general
submitted the plan to the DOJ for preclearance under section 5.
Pls.’ Ex. 74. The submission explains,
One of the concerns of the Redistricting
Chairs was that in 1992, the Justice
Department had objected to the 1991
Congressional Plan because of a failure by
the state to create a second majority
minority district combining the African-
American community in Mecklenburg County
with African-American and Native American
voters residing in south central and
southeastern North Carolina.
5
See infra Part II.B.
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Id. at 14. The submission further explains that Congressman
Watt did not believe that African-American voters in Mecklenburg
County were politically cohesive with Native American voters in
southeastern North Carolina. Id. The redistricting committee
accordingly drew the new CD 12 based on these considerations,
id. at 15, including DOJ’s 1992 concern that a new majority-
minority district be created—a concern that the U.S. Supreme
Court handily rejected in Miller, when it repudiated the
maximization policy, see 515 U.S. at 921–24. The discussion of
CD 12 in the DOJ submission concludes, “Thus, the 2011 version
maintains, and in fact increases, the African-American
community’s ability to elect their candidate of choice in
District 12.” Pls.’ Ex. 74 at 15. Given the express concerns
of the redistricting committee, the Court will not ascribe the
result to mere coincidence and instead finds that the submission
supports race predominance in the creation of CD 12.
b.
In addition to the public statements issued, Congressman
Watt testified at trial that Senator Rucho himself told
Congressman Watt that the goal was to increase the BVAP in CD 12
to over 50 percent. Congressman Watt testified that Senator
Rucho said “his leadership had told him that he had to ramp up
the minority percentage in [the Twelfth] Congressional District
up to over 50 percent to comply with the Voting Rights Law.”
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Trial Tr. 108:23-109:1 (Watt). Congressman Watt sensed that
Senator Rucho seemed uncomfortable discussing the subject
“because his leadership had told him that he was going to have
to go out and justify that [redistricting goal] to the African-
American community.” Id. at 109:2-3; see also id. at 136:5-9
(“[H]e told me that his leadership had told him that they were
going to ramp -- or he must ramp up these districts to over 50
percent African-American, both the 1st and the 12th, and that it
was going to be his job to go and convince the African-American
community that that made sense.”).
Defendants argue that Senator Rucho never made such
statements to Congressman Watt, citing Senator Rucho and
Congresswoman Ruth Samuelson’s testimony in the Dickson trial.
Defs.’ Proposed Findings of Fact, ECF No. 138, at 40 (citing
Dickson Tr. 358, 364). Nevertheless, after submitting
Congressman Watt to thorough and probing cross-examination about
the specifics of the content and location of this conversation,
the defendants declined to call Senator Rucho or Congresswoman
Samuelson to testify, despite both being listed as defense
witnesses and being present throughout the trial. The Court is
thus somewhat crippled in its ability to assess either Senator
Rucho or Congresswoman’s Samuelson’s credibility as to their
claim that Senator Rucho never made such statements. Based on
its ability to observe firsthand Congressman Watt and his
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consistent recollection of the conversation between him and
Senator Rucho, the Court credits his testimony and finds that
Senator Rucho did indeed explain to Congressman Watt that the
legislature’s goal was to “ramp up” CD 12’s BVAP.
And, make no mistake, the BVAP in CD 12 was ramped up: the
BVAP increased from 43.77 percent to 50.66 percent. Pls.’ Exs.
106-107. This correlates closely to the increase in CD 1. Such
a consistent and whopping increase makes it clear that the
general assembly’s predominant intent regarding district 12 was
also race.
c.
The shape of a district is also relevant to the inquiry, as
it “may be persuasive circumstantial evidence that race for its
own sake, and not other districting principles, was the
legislature’s dominant and controlling rationale in drawing its
district lines.” Miller, 515 U.S. at 913. CD 12 is a
“serpentine district [that] has been dubbed the least
geographically compact district in the Nation.” Shaw II, 517
U.S. at 906.
Under the benchmark 2001 plan, CD 12 had a Reock score6 of
.116, the lowest in the state by far. Pls.’ Ex. 17, Expert
6
The Reock score is “a commonly used measure of compactness
that is calculated as the ratio of the area of a district to the
area of the smallest inscribing circle of a district.” Pls.’
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Report of Stephen Ansolabehere, at 22. Under the new plan, the
Reock score of CD 12 decreased to .071, remaining the lowest in
the state by a good margin. Id. A score of .071 is low by any
measure. At trial, Dr. Ansolabehere testified that a score of
.2 “is one of the thresholds that [is] commonly use[d] . . . one
of the rules of thumb” to say that a district is noncompact.
Trial Tr. 354:8-13.
Defendants do not disagree. At trial, Dr. Hofeller
testified that in redrawing CD 12, he made the district even
less compact. Id. 658:3-5; see also id. at 528:1 (Hofeller) (“I
have no quarrel whatsoever with [Ansolabehere’s] Reock
scores.”); id. at 656:20-21 (Hofeller) (“When I calculated the
Reock scores, I got the same scores he did. So, obviously,
we’re in agreement.”). And importantly, Dr. Hofeller did not
“apply the mathematical measures of compactness to see how the
districts were holding up” as he was drawing them. Pls.’ Ex.
129 (Hofeller Dep. 45:3-7). Nevertheless, Dr. Hofeller opined
that “District 12’s compactness was in line with former versions
of District 12 and in line with compactness as one would
understand it in the context of North Carolina redistricting
. . . .” Id. (Hofeller Dep. 45:20-23). While he did not recall
Ex. 17, Expert Report of Stephen Ansolabehere, at 5. As “[t]he
circle is the most compact geometric shape,” the Reock score of
a perfect square “would be the ratio of the area of a square to
the area of its inscribing circle, or .637.” Id. n.1.
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any specific instructions as to compactness, he was generally
“to make plans as compact as possible with the goals and
policies of the entire plan,” id. (Hofeller Dep. 44:25-45:2)—
that is, as the defendants claim, to make the state more
favorable to Republican interests, a contention to which the
Court now turns.
d.
Defendants claim that politics, not race, was the driving
factor behind the redistricting in CD 12. The goal, as the
defendants portray it, was to make CD 12 an even more heavily
Democratic district and make the surrounding counties better for
Republican interests. This goal would not only enable
Republican control but also insulate the plan from challenges
such as the instant one. See Cromartie II, 532 U.S. at 258;
Cromartie I, 526 U.S. at 551-52 (“Evidence that blacks
constitute even a supermajority in one congressional district
while amounting to less than a plurality in a neighboring
district will not, by itself, suffice to prove that a
jurisdiction was motivated by race in drawing its district lines
when the evidence also shows a high correlation between race and
party preference.”).
Dr. Hofeller testified to this singular aim time and again
at trial: “My instructions from the two chairman [Senator Rucho
and Congressman Lewis] were to treat District 12 as a political
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district and to draw it using political data and to draw it in
such a manner that it favorably adjusted all of the surrounding
districts.” Trial Tr. 495:12-15 (Hofeller); see also, e.g., id.
479:20-22 (“So my instructions from the two chairmen were to
treat the 12th District exactly as it has been treated by the
Democrats in 1997 and 2001 as a political draw.”); id. 496:10-
13, 15-22 (“It really wasn’t about -- totally about the 12th
District. It was about what effect it was having on the
surrounding districts. . . . [T]he 6th District needed to be
made better for Republican interests by having more Democratic
votes removed from it, whereas the 5th District had a little
more strength in it and could take on some additional Democratic
areas in -- into it in Forsyth County.”).
Dr. Hofeller testified that he complied with Senator Rucho
and Representative Lewis’s instructions and did not look at race
at all when creating the new districts. Using Maptitude,7 Dr.
Hofeller provided, “On the screen when I was drawing the map was
the Obama/McCain race shaded in accordance with the two-party
vote, which excluded the minor party candidates, and that was
the sole thematic display or numeric display on the screen
except for one other thing, and that was the population of the
precinct because of one person, one vote,” id. 526:3-8
7
Software commonly used in redistricting. Trial Tr. 343:14
(Ansolabehere).
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(Hofeller); see also id. at 496:4-5 (“[T]he thematic was based
on the two-party presidential vote in 2008 Obama versus
McCain.”); id. at 662:1-17 (stating that only one set of
election results can be on the screen at a time and that the
only results Dr. Hofeller had on his screen were the 2008 Obama
election results). Hofeller testified that it was only after
the fact that he considered race and what impact it may or may
not have had. Id. at 644:24–45:1 (“[W]hen we checked it, we
found out that we did not have an issue in Guilford County with
fracturing the black community.”).
Despite the defendants’ protestations, the Court is not
persuaded that the redistricting was purely a politically driven
affair. Parts of Dr. Hofeller’s own testimony belie his
assertions that he did not consider race until everything was
said and done. At trial, he testified that he was “aware of the
fact that Guilford County was a Section 5 county” and that he
“was instructed [not] to use race in any form except perhaps
with regard to Guilford County.” Id. at 608:23–24, 644:12-13
(emphasis added). Dr. Hofeller also testified in his deposition
that race was a more active consideration: “[I]n order to be
cautious and draw a plan that would pass muster under the Voting
Rights Act, it was decided to reunite the black community in
Guilford County into the Twelfth.” Pls.’ Ex. 129 (Hofeller Dep.
75:13-16); see id. (Hofeller Dep. 37:7-16) (“[M]y understanding
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of the issue was because Guilford was a Section 5 county and
because there was a substantial African-American population in
Guilford County, that if the portion of the African-American
community was in the former District 13 . . . which was a strong
Democratic district was not attached to another strong
Democratic district [and] that it could endanger the plan and
make a challenge to the plan.”).8
Moreover, Senator Rucho and Representative Lewis themselves
attempted to downplay the “claim[] that [they] have engaged in
extreme political gerrymandering.” Pls.’ Ex. 68 at 1. In their
joint statement published July 19, 2011, they assert that these
claims are “overblown and inconsistent with the facts.” Id.
The press release continues to explain how Democrats maintain a
majority advantage in three districts and a plurality advantage
in the ten remaining districts. Id. at 2. This publication
serves to discredit their assertions that their sole focus was
to create a stronger field for Republicans statewide.
That politics not race was more of a post-hoc
rationalization than an initial aim is also supported by a
series of emails presented at trial. Written by counsel for
8
Moreover, Dr. Hofeller’s assertion that he, the “principal
architect,” considered no racial data when drawing the maps
rings a somewhat hollow when he previously served as the staff
director to the U.S. House Subcommittee on the Census leading up
to the 2000 census. See Defs.’ Ex. 129, Hofeller Resume, at 6.
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Senator Rucho and Representative Lewis during the redistricting,
the first email, dated June 30, 2011, was sent to Senator Rucho,
Representative Lewis, Dr. Hofeller, and others involved in the
redistricting effort, providing counsel’s thoughts on a draft
public statement “by Rucho and Lewis in support of proposed 2011
Congressional Plan.” See Pls.’ Ex. 13. “Here is my best
efforts to reflect what I have been told about legislative
intent for the congressional plans. Please send me your
suggestions and I will circulate a revised version for final
approval by [Senator Rucho] and [Representative Lewis] as soon
as possible tomorrow morning,” counsel wrote. Id. In response,
Brent Woodcox, redistricting counsel for the general assembly,
wrote, “I do think the registration advantage is the best aspect
to focus on to emphasize competitiveness. It provides the best
evidence of pure partisan comparison and serves in my estimation
as a strong legal argument and easily comprehensible political
talking point.” Id. Unlike the email at issue in Cromartie II,
which did not discuss “the point of the reference” to race,
Cromartie II, 532 U.S. at 254, this language intimates that the
politics rationale on which the defendants so heavily rely was
more of an afterthought than a clear objective.
This conclusion is further supported circumstantially by
the findings of the plaintiffs’ experts, Drs. Peterson and
Ansolabehere. At trial, Dr. Peterson opined that race “better
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accord[ed] with” the boundary of CD 12 than did politics, based
on his “segment analysis.” Trial Tr. 211:21-24 (Peterson); see
id. 220:16-18, 25. This analysis looked at three different
measures of African-American racial representation inside and
outside of the boundary of CD 12, and four different measures of
representations of Democrats for a total of twelve segment
analyses. Id. at 213:24-214:2, 219:5, 9-11. Four of the twelve
studies supported the political hypothesis; two support both
hypotheses equally; while six support the race hypothesis—“and
in each of these six, the imbalance is more pronounced than in
any of the four studies favoring the Political Hypothesis.”
Pls.’ Ex. 15, Second Aff. of David W. Peterson Ph.D., at 6; see
also Trial Tr. 219-20 (Peterson).
Using different methods of analysis, Dr. Ansolabehere
similarly concluded that the new districts had the effect of
sorting along racial lines and that the changes to CD 12 from
the benchmark plan to the Rucho-Lewis plan “can be only
explained by race and not party.” Trial Tr. 314, 330:10-11.
Defendants argue that these findings are based on a theory
the Supreme Court has rejected—that is, Dr. Ansolabehere used
only party registration in his analysis, and the Supreme Court
has found that election results are better predictors of future
voting behavior. Defs.’ Findings of Fact, ECF No. 128, at 79
(citing Cromartie I and II). But Dr. Ansolabehere stated that
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he understood the Supreme Court’s finding and explained why in
this situation he believed that using registration data was
nonetheless preferable: registration data was a good indicator
of voting data and it “allowed [him] to get down to [a deeper]
level of analysis.” Trial Tr. 309:7-8, 349:2-3 (Ansolabehere).
Moreover, Defendants themselves appear to have considered
registration data at some point in the redistricting process:
in their July 19, 2011, statement, Senator Rucho and
Representative Lewis consider the numbers of registered
Democrats, Republicans, and unaffiliated voters across all
districts. Pls.’ Ex. 68 at 2.
While both studies produce only circumstantial support for
the conclusion that race predominated, the plaintiffs were not
limited to direct evidence and were entitled to use “direct or
circumstantial evidence, or a combination of both.” Cromartie
I, 526 U.S. at 547; see also id. at 546 (“The task of assessing
a jurisdiction’s motivation, however, is not a simple matter; on
the contrary, it is an inherently complex endeavor, one
requiring the trial court to perform a ‘sensitive inquiry into
such circumstantial and direct evidence of intent as may be
available.’” (quoting Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 266 (1977))). The defendants’ argument
that Dr. Peterson’s analysis is “of little to no use” to the
Court, as he “did not and could not conclude” that race
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predominated, Defs.’ Proposed Findings of Fact, ECF No. 138, at
77 (emphasis omitted), is unavailing in this regard.
The defendants contend that, to show that race
predominated, the plaintiffs must show “alternative ways” in
which “the legislature could have achieved its legitimate
political objectives” that were more consistent with traditional
districting principles and that resulted in a greater racial
balance. Cromartie II, 532 U.S. at 258; see Defs.’ Proposed
Findings of Fact, ECF No. 138, at 62. The Supreme Court,
however, limited this requirement to “a case such as [the one at
issue in Cromartie II],” id.—that is, a case in which “[t]he
evidence taken together . . . [did] not show that racial
considerations predominated,” id. Here, the evidence makes
abundantly clear that race, although generally highly
correlative with politics, did indeed predominate in the
redistricting process: “the legislature drew District 12’s
boundaries because of race rather than because of political
behavior.” Id. Redistricting is inherently a political
process; there will always be tangential references to politics
in any redistricting—that is, after all, the nature of the
beast. Where, like here, at the outset district lines were
admittedly drawn to reach a racial quota, even as political
concerns may have been noted at the end of the process, no
“alternative” plans are required.
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e.
In light of all of the evidence, both direct and
circumstantial, the Court finds that race predominated in the
redistricting of CD 12. Traditional redistricting principles
such as compactness and contiguity were subordinated to this
goal. Moreover, the Court does not find credible the
defendants’ purported rationale that politics was the ultimate
goal. To find that otherwise would create a “magic words” test
that would put an end to these types of challenges. See Dickson
v. Rucho, No. 201PA12, 2015 WL 9261836, at *53 (N.C. Dec. 18,
2015) (Beasley, J., dissenting) (“To justify this serpentine
district, which follows the I–85 corridor between Mecklenburg
and Guilford Counties, on partisan grounds allows political
affiliation to serve as a proxy for race and effectively creates
a “magic words” test for use in evaluating the lawfulness of
this district.”) To accept the defendants’ explanation would
“create[] an incentive for legislators to stay “on script” and
avoid mentioning race on the record.” Id. The Court’s
conclusion finds support in light of the defendants’ stated goal
with respect to CD 1 to increase the BVAP of the district to 50
percent plus one person, the result of which is consistent with
the changes to CD 12.
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B.
The fact that race predominated when the legislature
devised CD 1 an CD 12, however, does not automatically render
the districts constitutionally infirm. Rather, if race
predominates, strict scrutiny applies, but the districting plan
can still pass constitutional muster if narrowly tailored to
serve a compelling governmental interest. Miller, 515 U.S. at
920. While such scrutiny is not necessarily “strict in theory,
but fatal in fact,” Johnson v. California, 543 U.S. 499, 514
(2005), the state must establish the “most exact connection
between justification and classification.” Parents Involved in
Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720
(2007).
The Court’s strict-scrutiny analysis for CD 12 is
straightforward. The defendants completely fail to provide this
Court with a compelling state interest for the general
assembly’s use of race in drawing CD 12. Accordingly, because
the defendants bear the burden of proof to show that CD 12 was
narrowly tailored to further a compelling interest, and the
defendants failed to carry that burden, the Court concludes that
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CD 12 is an unconstitutional racial gerrymander in violation of
the Equal Protection Clause of the Fourteenth Amendment.9
The defendants do, however, point to two compelling
interests for CD 1: the interest in avoiding liability under
the “results” test of VRA section 2(b) and the
“nonretrogression” principle of VRA section 5. Although the
Supreme Court has yet to decide whether VRA compliance is a
compelling state interest, it has assumed as much for the
purposes of subsequent analyses. See, e.g., Shaw II, 517 U.S.
at 915 (“We assume, arguendo, for the purpose of resolving this
suit, that compliance with § 2 [of the VRA] could be a
compelling interest. . . .”); Bush, 517 U.S. at 977 (“[W]e
assume without deciding that compliance with the results test
[of the VRA] . . . can be a compelling state interest.”). The
Court, therefore, will assume, arguendo, that compliance with
the VRA is a compelling state interest. Even with the benefit
of that assumption, the 2011 Congressional Redistricting Plan
does not survive strict scrutiny because the defendants did not
have a “strong basis in evidence” for concluding that creation
9
Even assuming, arguendo, that there was a compelling
interest under the VRA, the Court finds, for principally the
same reasons discussed in its analysis of CD 1, that the
defendants did not have a “strong basis in evidence” for
concluding that creation of a majority-minority district – CD 12
- was reasonably necessary to comply with the VRA. Alabama, 135
S. Ct. at 1274.
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of a majority-minority district – CD 1 - was reasonably
necessary to comply with the VRA. Alabama, 135 S. Ct. at 1274.
Accordingly, the Court holds that CD 1 was not narrowly tailored
to achieve compliance with the VRA, and therefore fails strict
scrutiny.
1.
a.
“The essence of a § 2 claim is that a certain electoral
law, practice, or structure interacts with social and historical
conditions to cause an inequality in the opportunities enjoyed
by black and white voters to elect their preferred
representatives.” Thornburg v. Gingles, 478 U.S. 30, 47 (1986).
Section 2 of the VRA forbids state and local voting procedures
that “result[ ] in a denial or abridgement of the right of any
citizen of the United States to vote on account of race[.]” 52
U.S.C. § 10301(a). “Vote dilution claims involve challenges to
methods of electing representatives - like redistricting or at-
large districts - as having the effect of diminishing
minorities’ voting strength.” League of Women Voters of N.C. v.
North Carolina, 769 F.3d 224, 239 (4th Cir. 2014); see also Shaw
II, 517 U.S. at 914 (“Our precedent establishes that a plaintiff
may allege a § 2 violation . . . if the manipulation of
districting lines fragments politically cohesive minority voters
among several districts or packs them into one district or a
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small number of districts, and thereby dilutes the voting
strength of members of the minority population.”).
The question of voting discrimination vel non, including
vote dilution, is determined by the totality of the
circumstances. Gingles, 478 U.S. at 43-46. Under Gingles,
however, the Court does not reach the totality-of-the-
circumstances test unless the challenging party is able to
establish three preconditions. Id. at 50-51; see also Bartlett
v. Strickland, 556 U.S. 1, 21 (2009) (“[T]he Gingles
requirements are preconditions, consistent with the text and
purpose of § 2, to help courts determine which claims could meet
the totality-of-the-circumstances standard for a § 2
violation.”); Jenkins v. Red Clay Consol. Sch. Dist. Bd. of
Educ., 4 F.3d 1103, 1135 (3d Cir. 1993) (“[I]t will be only the
very unusual case in which the plaintiffs can establish the
existence of the three Gingles factors but still have failed to
establish a violation of § 2 under the totality of
circumstances.”).
Unlike cases such as Gingles, in which minority groups use
section 2 as a sword to challenge districting legislation, here
the Court is considering the general assembly’s use of section 2
as a shield. The general assembly, therefore, must have a
“strong basis in evidence” for finding that the threshold
conditions for section 2 liability are present: “first, ‘that
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[the minority group] is sufficiently large and geographically
compact to constitute a majority in a single member district’;
second, ‘that [the minority group] is politically cohesive’; and
third, ‘that the white majority votes sufficiently as a bloc to
enable it . . . usually to defeat the minority’s preferred
candidate.’” Growe v. Emison, 507 U.S. 25, 40 (1993) (quoting
Gingles, 478 U.S. at 50–51). A failure to establish any one of
the Gingles factors is fatal to the defendants’ claim. Gingles,
478 U.S. at 50–51; see also Overton v. City of Austin, 871 F.2d
529, 538 (5th Cir. 1989). For the reasons stated below, the
Court finds that the defendants fail to show the third Gingles
factor, that the legislature had a “strong basis in evidence” of
racially polarized voting in CD 1 significant enough that the
white majority routinely votes as a bloc to defeat the minority
candidate of choice.
b.
“[R]acial bloc voting . . . never can be assumed, but
specifically must be proved.” Shaw I, 509 U.S. at 653.
Generalized assumptions about the “prevalence of racial bloc
voting” do not qualify as a “strong basis in evidence.” Bush,
517 U.S. at 994 (O’Connor, J., concurring). Moreover, the
analysis must be specific to CD 1. See Alabama, 135 S. Ct. at
1265. Thus, evidence that racially polarized voting occurs in
pockets of other congressional districts in North Carolina does
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not suffice. The rationale behind this principle is clear:
simply because “a legislature has strong basis in evidence for
concluding that a § 2 violation exists [somewhere] in the State”
does not permit it to “draw a majority-minority district
anywhere [in the state].” Shaw II, 517 U.S. at 916–17 (“[The
argument] that the State may draw the district anywhere derives
from a misconception of the vote-dilution claim. To accept that
the district may be placed anywhere implies that the claim, and
hence the coordinate right to an undiluted vote (to cast a
ballot equal among voters), belongs to the minority as a group
and not to its individual members. It does not.”).
Strikingly, there is no evidence that the general assembly
conducted or considered any sort of a particularized polarized-
voting analysis during the 2011 redistricting process for CD 1.
Dr. Hofeller testified that he did not do a polarized voting
analysis for CD 1 at the time he prepared the map. Trial Tr.
639:21-25 (Hofeller). Further, there is no evidence “‘that the
white majority votes sufficiently as a bloc to enable it . . .
usually to defeat the minority’s preferred candidate.’” Growe,
507 U.S. at 40 (quoting Gingles, 478 U.S. at 51). In fact,
based on the defendants’ own admission, “African American voters
have been able to elect their candidates of choice in the First
District since the district was established in 1992.” Defs.’
Memo. of Law in Opp. to Pls.’ Mot. for Sum. J. (June 23, 2014),
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ECF No. 76, at 2, 8. This admission, in the Court’s view, ends
the inquiry. In the interest of completeness, the Court will
comment on an argument the defendants’ counsel made at trial and
in their posttrial brief.
The defendants contend that there is some evidence that the
general assembly considered “two expert reports” that “found the
existence of racially polarized voting in” North Carolina.
Defs.’ Findings of Fact, ECF No. 138 at 93. These generalized
reports, standing alone, do not constitute a “strong basis in
evidence” that the white majority votes as a bloc to defeat the
minority’s preferred candidate of choice in CD 1. Moreover, it
is not enough for the general assembly to simply nod to the
desired conclusion by claiming racially polarized voting showed
that African-Americans needed the ability to elect candidates of
their choice without asserting the existence of a necessary
premise: that the white majority was actually voting as a bloc
to defeat the minority’s preferred candidates. See, e.g.,
Rodriguez v. Pataki, 308 F. Supp. 2d 346, 438-39 (S.D.N.Y. 2004)
(rejecting an “analysis [that] examines racially polarized
voting without addressing the specifics of the third Gingles
factor, which requires white majority bloc voting that usually
defeats the [minority]-preferred candidate” and noting that
“[e]ven if there were racially polarized voting, the report does
not speak—one way or the other—to the effects of the polarized
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voting”), aff’d, 543 U.S. 997 (2004); Moon v. Meadows, 952 F.
Supp. 1141, 1149-50 (E.D. Va. 1997) (state could not justify
redistricting plan under section 2 where “white bloc voting does
not prevent blacks from electing their candidates of choice” as
“black candidates . . . were elected despite the absence of a
black majority district”). “Unless [this] point[] [is]
established, there neither has been a wrong nor can be a
remedy.” Growe, 507 U.S. at 40.
Contrary to the defendants’ unfounded contentions, the
composition and election results under earlier versions of CD 1
vividly demonstrate that, though not previously a majority-BVAP
district, the white majority did not vote as a bloc to defeat
African-Americans’ candidate of choice. In fact, precisely the
opposite occurred in these two districts: significant crossover
voting by white voters supported the African-American candidate.
See Strickland, 556 U.S. at 24 (“In areas with substantial
crossover voting it is unlikely that the plaintiffs would be
able to establish the third Gingles precondition – bloc voting
by majority voters” and thus “[i]n those areas majority-minority
districts would not be required in the first place”).10 The
10
The defendants’ reliance on Strickland is misplaced. A
plurality in Strickland held that section 2 did not require
states to draw election-district lines to allow a racial
minority that would make up less than 50 percent of the voting
age population in the new district to join with crossover voters
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suggestion that the VRA would somehow require racial
balkanization where, as here, citizens have not voted as racial
blocs, where crossover voting has naturally occurred, and where
a majority-minority district is created in blatant disregard for
fundamental redistricting principles is absurd and stands the
VRA on its head. As the defendants fail to meet the third
Gingles factor, the Court concludes that section 2 did not
require the defendants to create a majority-minority district in
CD 1.
2.
Turning to consider the defendants’ section 5 defense, the
Supreme Court has repeatedly struck down redistricting plans
that were not narrowly tailored to the goal of avoiding “‘a
retrogression in the position of racial minorities with respect
to their effective exercise of the electoral franchise.’” Bush,
517 U.S. at 983 (quoting Miller, 515 U.S. at 926); see also Shaw
II, 517 U.S. at 915–18 (concluding that districts were not
to elect the minority’s candidate of choice. 556 U.S. at 25
(plurality). That is, section 2 does not compel the creation of
crossover districts wherever possible. This is a far cry from
saying that states must create majority-BVAP districts wherever
possible - in fact, the case stands for the opposite
proposition: “Majority-minority districts are only required if
all three Gingles factors are met and if § 2 applies based on a
totality of the circumstances.” Id. at 24 (emphasis added). As
extensively discussed, the general assembly did not have a
“strong basis in evidence” to conclude that the threshold
conditions for section 2 liability were present.
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narrowly tailored to comply with the VRA). Indeed, “the [VRA]
and our case law make clear that a reapportionment plan that
satisfies § 5 still may be enjoined as unconstitutional,” as
section 5 does not “give covered jurisdictions carte blanche to
engage in racial gerrymandering in the name of
nonretrogression.” Shaw I, 509 U.S. at 654–55. “A
reapportionment plan would not be narrowly tailored to the goal
of avoiding retrogression if the State went beyond what was
reasonably necessary to avoid retrogression.” Id. Applying
that principle below, it is clear that CD 1 is not narrowly
tailored to the avoidance of section 5 liability.
a.
In Alabama, the Supreme Court made clear that section 5
“does not require a covered jurisdiction to maintain a
particular numerical minority percentage.” 135 S. Ct. at 1272.
Rather, section 5 requires legislatures to ask the following
question: “To what extent must we preserve existing minority
percentages in order to maintain the minority’s present ability
to elect its candidate of choice?” Id. at 1274. There is no
evidence that the general assembly asked this question.
Instead, the general assembly directed Dr. Hofeller to create CD
1 as a majority-BVAP district; there was no consideration of why
the general assembly should create such a district.
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While the Court “do[es] not insist that a legislature guess
precisely what percentage reduction a court or the Justice
Department might eventually find to be retrogressive,” the
legislature must have a “strong basis in evidence” for its use
of racial classifications. Id. at 1273–74. Specifically, the
Supreme Court noted that it would be inappropriate for a
legislature to “rel[y] heavily upon a mechanically numerical
view as to what counts as forbidden retrogression.” Id. at
1273. That is precisely what occurred here: the general
assembly established a mechanical BVAP target for CD 1 of 50
percent plus one person, as opposed to conducting a more
sophisticated analysis of racial voting patterns in CD 1 to
determine to what extent it must preserve existing minority
percentages to maintain the minority’s present ability to elect
its candidate of choice. See id. at 1274.
b.
Although CD 1 has been an extraordinarily safe district for
African-American preferred candidates of choice for over twenty
years, the 2011 Congressional Redistricting Plan increased CD
1’s BVAP from 47.76 percent to 52.65 percent. Despite the fact
that African-Americans did not make up a majority of the voting-
age population in CD 1, African-American preferred candidates
easily and repeatedly won reelection under earlier congressional
plans, including the 2001 benchmark plan. Representative Eva
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Clayton prevailed in CD 1 in 1998 and 2000, for instance,
winning 62 percent and 66 percent of the vote, respectively.
Pls.’ Ex. 112. Indeed, African-American preferred candidates
prevailed with remarkable consistency, winning at least 59
percent of the vote under each of the five general elections
under the benchmark version of CD 1. Id. In 2010, Congressman
Butterfield won 59 percent of the vote, while in 2012 – under
the redistricting plan at issue here – he won by an even larger
margin, receiving 75 percent of the vote. Id.
In this respect, the legislature’s decision to increase the
BVAP of CD 1 is similar to the redistricting plan invalidated by
the Supreme Court in Bush. See 517 U.S. at 983. In Bush, a
plurality of the Supreme Court held that increasing the BVAP
from 35.1 percent to 50.9 percent was not narrowly tailored
because the state’s interest in avoiding retrogression in a
district where African–American voters had successfully elected
their representatives of choice for two decades did not justify
“substantial augmentation” of the BVAP. Id. Such an
augmentation could not be narrowly tailored to the goal of
complying with section 5 because there was “no basis for
concluding that the increase to a 50.9% African–American
population . . . was necessary to ensure nonretrogression.” Id.
“Nonretrogression is not a license for the State to do whatever
it deems necessary to ensure continued electoral success; it
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merely mandates that the minority’s opportunity to elect
representatives of its choice not be diminished, directly or
indirectly, by the State’s actions.” Id. While the BVAP
increase here is smaller than that in Bush, the principle is the
same. Defendants show no basis for concluding that an
augmentation of CD 1’s BVAP to 52.65 percent was narrowly
tailored when the district had been a safe district for African-
American preferred candidates of choice for over two decades.
In sum, the legislators had no basis - let alone a strong
basis - to believe that an inflexible racial floor of 50 percent
plus one person was necessary in CD 1. This quota was used to
assign voters to CD 1 based on the color of their skin. “Racial
classifications of any sort pose the risk of lasting harm to our
society. They reinforce the belief, held by too many for too
much of our history, that individuals should be judged by the
color of their skin.” Shaw I, 509 U.S. at 657.
For these reasons, the Court finds that CD 1 cannot survive
strict scrutiny. Accordingly, the Court is compelled to hold
that CD 1 violates the Equal Protection Clause of the Fourteenth
Amendment.
III.
Having found that the 2011 Congressional Redistricting Plan
violates the Equal Protection Clause, the Court now addresses
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the appropriate remedy. Plaintiffs have requested that we
“determine and order a valid plan for new congressional
districts.” Compl., ECF No. 1 at 19. Nevertheless, the Court
is conscious of the powerful concerns for comity involved in
interfering with the state’s legislative responsibilities. As
the Supreme Court has repeatedly recognized, “redistricting and
reapportioning legislative bodies is a legislative task which
the federal courts should make every effort not to pre-empt.”
Wise, 437 U.S. at 539. As such, it is “appropriate, whenever
practicable, to afford a reasonable opportunity for the
legislature to meet constitutional requirements by adopting a
substitute measure rather than for the federal court to devise
. . . its own plan.” Id. at 540. Under North Carolina law,
courts must give legislatures at least two weeks to remedy
defects identified in a redistricting plan. See N.C. Gen. Stat.
§ 120-2.4.
The Court also recognizes that individuals in CD 1 and CD
12 whose constitutional rights have been injured by improper
racial gerrymandering have suffered significant harm. “Those
citizens ‘are entitled to vote as soon as possible for their
representatives under a constitutional apportionment plan.’”
Page, 2015 WL 3604029, at *18 (quoting Cosner v. Dalton, 522 F.
Supp. 350, 364 (E.D. Va. 1981)). Therefore, the Court will
require that new districts be drawn within two weeks of the
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entry of this opinion to remedy the unconstitutional districts.
In accordance with well-established precedent that a state
should have the first opportunity to create a constitutional
redistricting plan, see, e.g., Wise, 437 U.S. at 539-40, the
Court allows the legislature until February 19, 2016, to enact a
remedial districting plan.
IV.
Because the plaintiffs have shown that race predominated in
CD 1 and CD 12 of North Carolina's 2011 Congressional
Redistricting Plan, and because the defendants have failed to
establish that this race-based redistricting satisfies strict
scrutiny, the Court finds that the 2011 Congressional
Redistricting Plan is unconstitutional, and will require the
North Carolina General Assembly to draw a new congressional
district plan. A final judgment accompanies this opinion.
SO ORDERED.
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COGBURN, District Judge, concurring:
I fully concur with Judge Gregory’s majority opinion.
Since the issue before the court was created by gerrymandering,
and based on the evidence received at trial, I write only to
express my concerns about how unfettered gerrymandering is
negatively impacting our republican form of government.
Voters should choose their representatives. Mitchell N.
Berman, Managing Gerrymandering, 83 Tex. L. Rev. 781 (2005).
This is the “core principle of republican government.” Id. To
that end, the operative clause of Article I, § 4 of the United
States Constitution, the Elections Clause, gives to the states
the power of determining how congressional representatives are
chosen:
The Times, Places and Manner of holding Elections
for Senators and Representatives, shall be prescribed
in each State by the Legislature thereof; but the
Congress may at any time by Law make or alter such
Regulations, except as to the places of chusing
Senators.
U.S. Const. art. I, § 4, cl. 1. As redistricting through
political gerrymander rather than reliance on natural boundaries
and communities has become the tool of choice for state
legislatures in drawing congressional boundaries, the
fundamental principle of the voters choosing their
representative has nearly vanished. Instead, representatives
choose their voters.
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Indeed, we heard compelling testimony from Congressman G.
K. Butterfield (CD 1) and former Congressman Mel Watt (CD 12)
that the configuration of CD 1 and CD 12 made it nearly
impossible for them to travel to all the communities comprising
their districts. Not only has political gerrymandering
interfered with voters selecting their representatives, it has
interfered with the representatives meeting with those voters.
In at least one state, Arizona, legislative overuse of political
gerrymandering in redistricting has caused the people to take
congressional redistricting away from the legislature and place
such power in an independent congressional redistricting
commission, an action that recently passed constitutional
muster. See Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n, ___ U.S. ___, 135 S. Ct. 2652, 192 L. Ed.
2d 704 (2015).
Redistricting through political gerrymandering is nothing
new. Starting in the year the Constitution was ratified, 1788,
state legislatures have used the authority under the Elections
Clause to redraw congressional boundaries in a manner that
favored the majority party. For example, in 1788, Patrick Henry
persuaded the Virginia legislature to remake its Fifth
Congressional District to force Henry’s political foe James
Madison to run against James Monroe. Madison won in spite of
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this, but the game playing had begun. In 1812, Governor
Elbridge Gerry signed a bill redistricting Massachusetts to
benefit his party with one district so contorted that it was
said to resemble a salamander, forever giving such type of
redistricting the name gerrymander. Thus, for more than 200
years, gerrymandering has been the default in congressional
redistricting.
Elections should be decided through a contest of issues,
not skillful mapmaking. Today, modern computer mapping allows
for gerrymandering on steroids as political mapmakers can easily
identify individual registrations on a house-by-house basis,
mapping their way to victory. As was seen in Arizona State
Legislature, supra, however, gerrymandering may well have an
expiration date as the Supreme Court has found that the term
“legislature” in the Elections Clause is broad enough to include
independent congressional redistricting commissions. 135 S. Ct.
at 2673.
To be certain, gerrymandering is not employed by just one
of the major political parties. Historically, the North
Carolina Legislature has been dominated by Democrats who wielded
the gerrymander exceptionally well. Indeed, CD 12 runs its
circuitous route from Charlotte to Greensboro and beyond --
thanks in great part to a state legislature then controlled by
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Democrats. It is a district so contorted and contrived that the
United States Courthouse in Charlotte, where this concurrence
was written, is five blocks within its boundary, and the United
States Courthouse in Greensboro, where the trial was held, is
five blocks outside the same district, despite being more than
90 miles apart and located in separate federal judicial
districts. How a voter can know who their representative is or
how a representative can meet with those pocketed voters is
beyond comprehension.
While redistricting to protect the party that controls the
state legislature is constitutionally permitted and lawful, it
is in disharmony with fundamental values upon which this country
was founded. “[T]he true principle of a republic is, that the
people should choose whom they please to govern them.” Powell
v. McCormack, 395 U.S. 486, 540–41, 89 S. Ct. 1944, 23 L. Ed. 2d
491 (1969) (quoting Alexander Hamilton, 2 Debates on the Federal
Constitution 257 (J. Elliot ed. 1876)). Beyond taking offense
at the affront to democracy caused by gerrymandering, courts
will not, however, interfere with gerrymandering that is
philosophically rather than legally wrong. As has been seen in
Arizona, it is left to the people of the state to decide whether
they wish to select their representatives or have their
representatives select them.
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OSTEEN, JR., District Judge, concurring in part and dissenting
in part:
I concur with the majority in finding that Plaintiffs have
met their burden of proving that race predominated in the
drawing of North Carolina’s First Congressional District
(“CD 1”) and that Defendants have failed to show that the
legislature’s use of race in the drawing of that district was
narrowly tailored to serve a compelling governmental interest.
I also concur with the majority with respect to North Carolina’s
Twelfth Congressional District (“CD 12”) in that, if race was a
predominant factor, Defendants did not meet their burden to
prove that CD 12 was narrowly tailored to serve a compelling
state interest. However, I respectfully dissent from the
majority in that I find that Plaintiffs have not met their
burden of proving that race predominated in the drawing of CD
12. As a result, I conclude that the district is subject to and
passes the rational basis test and is constitutional. I differ
with the well-reasoned opinion of my colleagues only as to the
degree to which race was a factor in the drawing of CD 12.
I. CONGRESSIONAL DISTRICT I
With respect to my concurring opinion, I only add that I do
not find, as Plaintiffs have contended, that this legislative
effort constitutes a “flagrant” violation of the Fourteenth
Amendment. The majority opinion makes clear that bad faith is
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not necessary in order to find a violation. (Maj. Op. at 4.)
Although Plaintiffs argued that the actions of the legislature
stand in “flagrant” violation of Fourteenth Amendment principles
(See Pls.’ Trial Br. (Doc. 109) at 7.), Plaintiffs also conceded
at trial they did not seek to prove any ill-intent. (Trial Tr.
at 16:20-25.) Nevertheless, I wish to emphasize that the
evidence does not suggest a flagrant violation. Instead, the
legislature’s redistricting efforts reflect the difficult
exercise in judgment necessary to comply with section 5 of the
Voting Rights Act (“VRA”) in 2010, prior to the Supreme Court’s
decision in Shelby County v. Holder, ____ U.S. ____, 133 S. Ct.
2612 (2013). Shelby struck down as unconstitutional the formula
created under section 4 of the VRA and, resultingly, removed
those covered jurisdictions from section 5. Id.
In Shelby, the Supreme Court recognized the success of the
VRA. Id. at 2626 (“The [Voting Rights] Act has proved immensely
successful at redressing racial discrimination and integrating
the voting process.”). However, the Court also described its
concern with an outdated section 4 formula and the restrictions
of section 5:
Yet the Act has not eased the restrictions in § 5 or
narrowed the scope of the coverage formula in § 4(b)
along the way. Those extraordinary and unprecedented
features were reauthorized — as if nothing had
changed. In fact, the Act’s unusual remedies have
grown even stronger. When Congress reauthorized the
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Act in 2006, it did so for another 25 years on top of
the previous 40 — a far cry from the initial five-year
period. Congress also expanded the prohibitions in
§ 5. We had previously interpreted § 5 to prohibit
only those redistricting plans that would have the
purpose or effect of worsening the position of
minority groups. In 2006, Congress amended § 5 to
prohibit laws that could have favored such groups but
did not do so because of a discriminatory purpose,
even though we had stated that such broadening of § 5
coverage would “exacerbate the substantial federalism
costs that the preclearance procedure already exacts,
perhaps to the extent of raising concerns about § 5’s
constitutionality.” In addition, Congress expanded
§ 5 to prohibit any voting law “that has the purpose
of or will have the effect of diminishing the ability
of any citizens of the United States,” on account of
race, color, or language minority status, “to elect
their preferred candidates of choice.” In light of
those two amendments, the bar that covered
jurisdictions must clear has been raised even as the
conditions justifying that requirement have
dramatically improved.
Shelby Cnty., 133 S. Ct. at 2626-27 (internal citations
omitted).
Although no court has held that compliance with section 5
is a compelling state interest, the Supreme Court has generally
assumed without deciding that is the case. See Bush v. Vera,
517 U.S. 952, 977 (1996); Shaw v. Hunt, 517 U.S. 899, 915 (1996)
(“Shaw II”). Compliance with section 5 was, in my opinion, at
least a substantial concern to the North Carolina legislature in
2011, a concern made difficult by the fact that, at least by
2013 and likely by 2010, see Nw. Austin Mun. Util. Dist. No. 1
v. Holder, 557 U.S. 193 (2009), coverage was “based on decades-
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old data and eradicated practices” yet had expanded
prohibitions. Shelby, 133 S. Ct. at 2617.
As a result, while I agree with my colleagues that CD 1, as
drawn, violates the Fourteenth Amendment, I do not find that
violation to be flagrant, as argued by Plaintiffs. (See Pls.’
Trial Brief (Doc. 109) at 7.) Instead, I simply find the
violation as to CD 1 to be the result of an ultimately failed
attempt at the very difficult task of achieving constitutionally
compliant redistricting while at the same time complying with
section 5 and receiving preclearance from the Department of
Justice. In drawing legislative districts, the Department of
Justice and other legislatures have historically made similar
mistakes in their attempts to apply the VRA. See generally,
e.g., Ala. Legislative Black Caucus v. Alabama, ____ U.S. ____,
135 S. Ct. 1257 (2015); Miller v. Johnson, 515 U.S. 900 (1995);
Shaw v. Reno, 509 U.S. 630 (1993) (“Shaw I”); Page v. Va. State
Bd. of Elections, Civil Action No. 3:13cv678, 2015 WL 3604029
(E.D. Va. June 5, 2015). Further, the difficult exercise of
judgment involved in the legislature’s efforts to draw these
districts is reflected in the differing conclusions reached by
this court and the North Carolina Supreme Court. See generally
Dickson v. Rucho, No. 201PA12-3, 2015 WL 9261836 (N.C. Dec. 18,
2015). Contrary to Plaintiffs’ suggestion, I find nothing
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flagrant or nefarious as to the legislature’s efforts here, even
though I agree that CD 1 was improperly drawn using race as a
predominant factor without sufficient justification.
II. CONGRESSIONAL DISTRICT 12
Turning to my dissent regarding whether Plaintiffs have
carried their burden of showing that race was the dominant and
controlling consideration in drawing CD 12, a brief history of
redistricting efforts in the state will provide helpful context
to the current situation. In 1991, North Carolina enacted a
Congressional Districting Plan with a single majority-black
district — the 1991 version of CD 1. The 1991 version of CD 1
was a majority single-race-black district in both total
population and voting age population (”VAP”). The State filed
for preclearance from the Department of Justice for the 1991
plan under section 5 of the VRA, and there was no objection to
the 1991 version of CD 1 specifically. See Shaw II, 517 U.S. at
902, 912; (Defs.’ Ex. 126, Tab 1, “Section 5 Submission for 1991
Congressional Redistricting Plan”.) There was, however, a
preclearance objection to the 1991 Congressional Plan overall
because of the State’s failure to create a second majority-
minority district running from the southcentral to southeastern
region of the State. Shaw II, 517 U.S. at 902, 912.
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As a result of this objection, the General Assembly drew a
new Congressional Plan in 1992. The 1992 plan included a
different version of CD 1 that was majority minority but did not
include any portion of Durham County. The General Assembly also
created a second majority-minority district (CD 12) that
stretched from Mecklenburg County to Forsyth and Guilford
Counties and then all the way into Durham County. The Attorney
General did not interpose an objection to the 1992 Congressional
Plan.
Under the 1992 Congressional Plan, CD 12 was drawn with a
single-race total black population of 56.63% and a single-race
black VAP (“BVAP”) of 53.34%. (Defs.’ Ex. 126, Tab 2, “1992
Congressional Base Plan #10”; Defs.’ Ex. 4.1A; Defs.’ Ex. 4.)
Under a mathematical test for measuring the compactness of
districts called the “Reock” test (also known as the dispersion
test), the 1992 CD 12 had a compactness score of 0.05. (Trial
Tr. at 351:24-352:16.)
The 1992 districts were subsequently challenged under the
VRA, and in Shaw I, the Supreme Court found that the 1992
versions of CD 1 and 12 were racial gerrymanders in violation of
the Fourteenth Amendment. 509 U.S. 630 (1993). The case was
remanded for further proceedings. Id. On appeal again after
remand, in Shaw II, the Supreme Court again found that the 1992
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version of CD 12 constituted a racial gerrymander. 517 U.S. at
906.
Following the decision in Shaw II, in 1997 the North
Carolina General Assembly enacted new versions of CD 1 and
CD 12. The 1997 version of CD 12 was drawn with a black total
population of 46.67% and a black VAP of 43.36%. (Defs.’ Ex.
126, Tab 3, “97 House/Senate Plan A”.)
The plan was yet again challenged in court, and in
Cromartie v. Hunt, 34 F. Supp. 2d 1029 (E.D.N.C. 1998) (three-
judge court), rev’d, 526 U.S. 541 (1999) (“Cromartie I”), a
three-judge panel held on summary judgment that the 1997 version
of CD 12 also constituted a racial gerrymander in violation of
the Fourteenth Amendment, although the decision was reversed by
the Supreme Court on appeal.
On remand, the district court again found the 1997 version
of CD 12 to be an unconstitutional racial gerrymander in
violation of the Fourteenth Amendment, Cromartie v. Hunt, 133 F.
Supp. 2d 407 (E.D.N.C. 2000) (three-judge court), a ruling that
the State again appealed, Hunt v. Cromartie, 529 U.S. 1014
(2000). The Supreme Court reversed the district court, finding
that politics, not race, was the predominant motive for the
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district. Easley v. Cromartie, 532 U.S. 234 (2001) (“Cromartie
II”).1
In 2001, the North Carolina General Assembly enacted the
Congress Zero Deviation Plan for redistricting based upon the
2000 Census (“2001 Congressional Plan”). (Defs.’ Ex. 126, Tab
5, “Congress Zero Deviation 2000 Census”; Defs.’ Ex. 4.4A;
Defs.’ Ex. 4.4.)
Under the 2000 Census, the 2001 version of CD 12 was drawn
with a single-race black total population of 45.02% and an any-
part black total population of 45.75%. (Pls.’ Ex. 80.) Single-
race black VAP was 42.31% and any-part black VAP was 42.81%.
(Id.)
In every election held in CD 12 between 1992 and 2010,
without exception, the African-American candidate of choice,
Congressman Mel Watt, prevailed with no less than 55.95% of the
vote, regardless of whether the black VAP in CD 12 exceeded 50%,
and regardless of any other characteristic of any specific
1
They reversed the trial court despite evidence such as:
(1) the legislature’s statement in its 1997 DOJ preclearance
submission that it drew the 1997 CD 12 with a high enough
African-American population to “provide a fair opportunity for
incumbent Congressman Watt to win election”; (2) the admission
at trial that the General Assembly had considered race in
drawing CD 12; and (3) the district court’s rejection of
evidence that the high level of black population in CD 12 was
sheer happenstance.
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election, demonstrating clearly that African-Americans did not
require a majority of the VAP to elect their chosen candidate.
The relevant election results are set forth in the following
table:
Twelfth Congressional District
Election
Results and Black Voting
Percent
Year BVAP of Vote Candidate
1992 53.34% 70.37% Mel Watt
1994 53.34% 65.80% Mel Watt
1996 53.34% 71.48% Mel Watt
1998 32.56% 55.95% Mel Watt
2000 43.36% 65.00% Mel Watt
2002 42.31% 65.34% Mel Watt
2004 42.31% 66.82% Mel Watt
2006 42.31% 67.00% Mel Watt
2008 42.31% 71.55% Mel Watt
2010 42.31% 63.88% Mel Watt
A. The 2011 Redistricting Process
Following the 2010 Census, Senator Robert Rucho and
Representative David Lewis were appointed chairs of the Senate
and House Redistricting Committees, respectively, on January 27,
2011, and February 15, 2011. (See Parties’ Joint Factual
Stipulation (Doc. 125) ¶ 3.)
Jointly, Senator Rucho and Representative Lewis were
responsible for developing a proposed congressional map based
upon the 2010 Census. (Id.) Under the 2010 Census, the 2001
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version of CD 12 was overpopulated by 2,847 people, or 0.39%.
(Defs.’ Ex. 4.5 at 3.)
They hired Dr. Thomas Hofeller to be the architect of the
2011 plan, and he began working under the direction of Senator
Rucho and Representative Lewis in December 2010.2 Senator Rucho
and Representative Lewis were the sole source of instructions
for Dr. Hofeller regarding the criteria for the design and
construction of the 2011 congressional maps.
Throughout June and July of 2011, Senator Rucho and
Representative Lewis released a series of public statements
describing, among other things, the criteria that they had used
to draw the proposed congressional plan. As Senator Rucho
explained at the July 21, 2011 joint meeting of the Senate and
House Redistricting Committees, those public statements “clearly
delineated” the “entire criteria” that were established and
“what areas [they] were looking at that were going to be in
compliance with what the Justice Department expected [them] to
do as part of [their] submission.” (Pls.’ Ex. 136 at 29:2-9
(7/21/11 Joint Committee Meeting transcript).)
2
Dr. Hofeller had served as Redistricting Coordinator for
the Republican National Committee for the 1990, 2000, and 2010
redistricting cycles. (See Trial Tr. at 577:1-23 (Testimony of
Dr. Thomas Hofeller).)
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B. The Factors Used to Draw CD 123
On July 1, 2011, Senator Rucho and Representative Lewis
made public the first version of their proposed congressional
plan, Rucho-Lewis Congress 1, along with a statement explaining
the rationale for the map. Specifically with regard to CD 12,
Senator Rucho and Representative Lewis noted that although the
2001 benchmark version of CD 12 was “not a Section 2 majority
black district,” there “is one county in the Twelfth District
that is covered by Section 5 of the Voting Rights Act
(Guilford).” (Pls.’ Ex. 67 at 5.) Therefore, “[b]ecause of the
presence of Guilford County in CD 12, we have drawn our proposed
Twelfth District at a black voting age level that is above the
percentage of black voting age population found in the current
Twelfth District.” (Id.) Although the proposed map went
through several iterations, CD 12 remained largely unchanged
from Rucho-Lewis 1 throughout the redistricting process.
(Compare Defs.’ Ex. 4.7 (Rucho Lewis 1), with Defs.’ Ex. 4.11
(Rucho Lewis 3).)
3
CD 12 contains pieces of six counties: Mecklenburg,
Cabarrus, Rowan, Davidson, Forsyth, and Guilford. A line of
precincts running through Cabarrus, Rowan, and Davidson counties
connects population centers in Mecklenburg (Charlotte), Forsyth
(Winston Salem), and Guilford (Greensboro). CD 12 splits
thirteen cities and towns. (Pls.’ Ex. 17 ¶ 17.)
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It is clear from both this statement and the record that
race was, at the very least, one consideration in how CD 12 was
drawn. These instructions apparently came, at least in part,
from concerns about obtaining preclearance from the DOJ. (See
Trial Tr. at 645:4-20 (Dr. Hofeller: “[M]y understanding of the
issue was because Guilford was a Section 5 county and because
there was a substantial African-American population in Guilford
County, . . . that it could endanger the plan” unless Guilford
County was moved into CD 12.); see also Pls.’ Ex. 129 (Hofeller
Dep. 75:13-16) (“So in order to be cautious and draw a plan that
would pass muster under the VRA it was decided to reunite the
black community in Guilford County into the 12th.”).) Testimony
was elicited at trial that Dr. Hofeller was in fact told to
consider placing the African-American population of Guilford
County into CD 12 because Guilford County was a covered
jurisdiction under section 5 of the VRA. (See Trial Tr. at
608:19-24 (Dr. Hofeller “was instructed [not] to use race in any
form [in drawing CD 12] except perhaps with regard to Guilford
County” (emphasis added)).)4
4
I share the majority’s concern over the fact that much of
the communication regarding the redistricting instructions given
to Dr. Hofeller were provided orally rather than in writing or
by email. (Maj. Op. at 11.) As a result, the process used to
draw CD 12 is not particularly transparent in several critical
areas.
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That race was at least present as a concern in the General
Assembly’s mind is further confirmed when looking to the General
Assembly’s 2011 preclearance submission to the Department of
Justice. There it explained that it drew “District 12 as an
African-American and very strong Democratic district that has
continually elected a Democratic African American since 1992,”
and also noted that CD 12 had been drawn to protect “African-
American voters in Guilford and Forsyth.” (Pls.’ Ex. 74 at 15
(emphasis added).)
The DOJ preclearance submission also explained that the
General Assembly had drawn CD 12 in such a way to mitigate
concerns over the fact that “in 1992 the Justice Department had
objected to the 1991 Congressional Plan because of a failure by
the State to create a second majority-minority district
combining the African-American community in Mecklenburg County
with African American and Native American voters residing in
south central and southeastern North Carolina.” (Id. at 14.)
The preclearance submission further stated that “the 2011
version [of CD 12] maintains and in fact increases the African
American community’s ability to elect their candidate of
choice.” (Id. at 15.) I note that I interpret this statement
slightly differently from the majority. (See Maj. Op. at 36).
I conclude that this statement describes one result of how the
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new district was drawn, rather than the weight a particular
factor was given in how to draw the district in the first place.
Essentially, I would find this statement is an explanation by
legislature that because they chose to add Guilford County back
into CD 12, the district ended up with an increased ability to
elect African- American candidates, rather than the legislature
explaining that they chose to add Guilford County back into CD
12 because of the results that addition created.
However, while it is clear that race was a concern, it is
also clear that race was not the only concern with CD 12. In
their July 19, 2011 Joint Statement, Senator Rucho and
Representative Lewis stated that the version of CD 12 in Rucho-
Lewis Congress 2, the second map that they put forward, was
based upon the 1997 and 2001 versions of that district and that
the 2011 version was again drawn by the legislative leaders
based upon political considerations. According to them, CD 12
was drawn to maintain that district as a “very strong Democratic
district . . . based upon whole precincts that voted heavily for
President Obama in the 2008 General Election.” (Defs.’ Ex. 72
at 40-44 “19 July Joint Statement” (noting that the co-chairs
also “[understood] that districts adjoining the Twelfth District
[would] be more competitive for Republican candidates”); Trial
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Tr. at 491:2-493:13; Defs.’ Ex. 26.1 at 21-22, Maps 2 and 3.)5
The co-chairs stated that by making CD 12 a very strong
Democratic district, adjoining districts would be more
competitive for Republicans. (Id.)
Further, Dr. Hofeller testified that he constructed the
2011 version of CD 12 based upon whole Voting Tabulation
Districts (“VTDs”) in which President Obama received the highest
vote totals during the 2008 Presidential Election, indicating
that political lean was a primary factor. (Trial Tr. at 495:20-
496:5, 662:12-17.) The only information on the computer screen
used by Dr. Hofeller in selecting VTDs for inclusion in the CD
12 was the percentage by which President Obama won or lost a
particular VTD. (Trial Tr. at 495:20-496:5, 662:12-17.)
Dr. Hofeller has also stated that there was no racial data on
the screen when he constructed the district, providing some
support for the conclusion that racial concerns did not
predominate over politics. (Trial Tr. at 526:3-11.)
Although Plaintiffs argue that the primary difference
between the 2001 and 2011 versions of CD 12 is the increase in
5
The use of election results from the 2008 presidential
election was the subject of some dispute at trial. However,
regardless of the merits of either position, I find nothing to
suggest those election results should not be properly considered
in political issues or political leanings as described
hereinafter.
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black VAP, allegedly due to the predominance of race as a
factor, Defendants contend that by increasing the number of
Democratic voters in the 2011 version of CD 12 located in
Mecklenburg and Guilford Counties, the 2011 Congressional Plan
created districts that were more competitive for Republican
candidates as compared to the 2001 versions of these districts,
including Congressional Districts 6, 8, 9, and 13, a stated goal
of the redistricting chairs. (See Trial Tr. at 491:2-495:19;
Defs.’ Ex. 26.1 at 22-23, maps 2 and 3; Defs.’ Ex. 126, Tab 6,
Tab 12.)6 Defendants argue that the principal differences
between the 2001 and 2011 versions of CD 12 are that the 2011
version: (1) adds more strong Democratic voters located in
Mecklenburg and Guilford Counties; (2) adds more Democratic
voters to the 2011 version of CD 5 because it was able to accept
additional Democrats while remaining a strong Republican
district; (3) removes Democratic voters from the 2011 CD 6 in
Guilford County and places them in the 2001 CD 12; and (4)
removes Republican voters who had formerly been assigned to the
2001 CD 12 from the corridor counties of Cabarrus, Rowan,
6
Plaintiffs did not dispute persuasively that CD 5, CD 6,
CD 8, and CD 13 became more competitive for Republican
candidates. Dr. Stephen Ansolabehere’s analysis was limited to
movement into and out of CD 12, without regard to the effects in
surrounding districts.
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Davidson and other locations. (Trial Tr. at 491:6-493:13,
495:9-19, 561:5-562:14; Defs.’ Ex. 31 at 220, 247-49.)
Defendants also contend, or at least intimate, that the
final black VAP of the 2011 version of CD 12 resulted in part
from the high percentage of African-Americans who vote strongly
Democrat. They note that, both in previous versions of CD 12
and in alternative proposals that were before the General
Assembly in 2010, African-Americans constituted a super-majority
of registered Democrats in the district, citing the 2001 Twelfth
Congressional Plan (71.44%); the Southern Coalition for Social
Justice Twelfth Congressional Plan (71.53%); and the “Fair and
Legal” Twelfth Congressional Plan (69.14%). (Defs.’ Ex. 2 ¶ 27;
Defs.’ Ex. 2.64; Defs.’ Ex. 2.66; Defs.’ Ex. 2.67.)7 Defendants
are apparently making the same argument the State has made
several times previously: the percentage of African-Americans
added to the district is coincidental and the result of moving
Democrats who happen to be African-American into the district.
C. Racial Concerns did not Predominate
Equal protection principles deriving from the Fourteenth
Amendment govern a state’s drawing of electoral districts.
7
In comparison, the statewide percentage of Democrats who
are African-American is 41.38%. (Defs.’ Ex. 62 at 83-84, F.F.
No. 173.)
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Miller, 515 U.S. at 905. The use of race in drawing a district
is a concern because “[r]acial gerrymandering, even for remedial
purposes, may balkanize us into competing racial factions; it
threatens to carry us further from the goal of a political
system in which race no longer matters.” Shaw I, 509 U.S. at
657. To prove a claim of racial gerrymandering, Plaintiffs
first have the burden to prove that race was the predominant
factor in the drawing of the allegedly gerrymandered districts.
Id. at 643; see also Page, 2015 WL 3604029, at *6. Predominance
can be shown by proving that a district “is so extremely
irregular on its face that it rationally can be viewed only as
an effort to segregate the races for purposes of voting, without
regard for traditional districting principles,” (i.e., proving
predominance circumstantially), Shaw I, 509 U.S. at 642, or by
proving that “race for its own sake, and not other districting
principles, was the legislature’s dominant and controlling
rationale in drawing its district lines. . . . [and] that the
legislature subordinated traditional race-neutral districting
principles . . . to racial considerations” (i.e., proving
predominance directly), Miller, 515 U.S. at 913, 916.
Plaintiffs can meet this burden through direct evidence of
legislative purpose, showing that race was the predominant
factor in the decision on how to draw a district. Such evidence
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can include statements by legislative officials involved in
drawing the redistricting plan and preclearance submissions
submitted by the state to the Department of Justice. Shaw I,
509 U.S. at 645; Clark v. Putnam Cty., 293 F.3d 1261, 1267-68,
1272 (11th Cir. 2002); Page, 2015 WL 3604029, at *9. Plaintiffs
can also meet this burden through circumstantial evidence such
as the district’s shape, compactness, or demographic statistics.
See, e.g., Shaw II, 517 U.S. at 905. Circumstantial evidence
can show that traditional redistricting criteria were
subordinated and that a challenged district is unexplainable on
grounds other than race. Plaintiffs do not need to show that
race was the only factor that the legislature considered, just
that it predominated over other factors. Clark, 293 F.3d at
1270 (“The fact that other considerations may have played a role
in . . . redistricting does not mean that race did not
predominate.”).
If race is established as the predominant motive for CD 12,
then the district will be subject to strict scrutiny,
necessitating an inquiry into whether the use of race to draw
the district was narrowly tailored to meet a compelling state
interest. See Bush, 517 U.S. at 976. The Supreme Court has
assumed without deciding that compliance with sections 2 and 5
of the VRA is a compelling state interest. Shaw II, 517 U.S. at
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915; Bush, 517 U.S. at 977. Defendants in this case contend
that, if the court finds that either district was drawn
predominantly based on race, their maps are narrowly tailored to
avoid liability under these sections in satisfaction of strict
scrutiny.
Just as with CD 1, the first hurdle Plaintiffs must
overcome is to show that racial concerns predominated over
traditional criteria in the drawing of CD 12. As stated above,
it is in this finding that I dissent from the majority.
Most importantly, as compared to CD 1, I find that
Plaintiffs have put forth less, and weaker, direct evidence
showing that race was the primary motivating factor in the
creation of CD 12, and none that shows that it predominated over
other factors.8 Plaintiffs first point to several public
statements that they argue demonstrate the State’s intent to
8
In their Proposed Findings of Fact and Conclusions of Law,
Plaintiffs point to the increase in black VAP from 42.31% to
50.66% as direct evidence of racial intent. (See Pls.’ Proposed
Findings of Fact and Conclusions of Law, supp. pt. 3 (Doc.
137-2) ¶ 103.) I disagree, and would find that on these facts,
the black VAP increase is a result, not an explanation, and thus
is at most circumstantial evidence of a legislature’s intent in
drawing the district. While CD 12 certainly experienced a large
increase in black VAP, it is still Plaintiffs’ burden
(especially given the high correlation between the Democratic
vote and the African-American vote) to prove that race, not
politics, predominated and that the increase is not coincidental
and subordinate to traditional political considerations.
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draw CD 12 at a majority black level and argue that this stated
goal demonstrates that race predominated. However, I find that
the statements issued by the redistricting chairs show only a
“consciousness” of race, rather than a predominance, and by
themselves do not show an improperly predominant racial motive.
See Bush, 517 U.S. at 958.
First, Plaintiffs cite to the July 1, 2011 press release
where the redistricting chairs explained that:
Because of the presence of Guilford County [a section
5 jurisdiction under the VRA] in the Twelfth District,
we have drawn our proposed Twelfth District at a black
voting age level that is above the percentage of black
voting age population found in the current Twelfth
District. We believe this measure will ensure
preclearance of the plan.
(Pls.’ Ex. 67 at 5.) This statement seems similar to, and
perhaps slightly more persuasive than, the statements that the
Supreme Court found unpersuasive in Cromartie II. In Cromartie
II, the Supreme Court considered a statement by the mapmaker
that he had “moved [the] Greensboro Black Community into the
12th, and now need to take about 60,000 out of the 12th.” See
532 U.S. at 254. The Court in that case noted that while the
statement did reference race, it did not discuss the political
consequences or motivation for placing the population of
Guilford County in the 12th district. Id. Here, while the
statement by the co-chairs does reference political consequences
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(ensuring preclearance), it still does not rise to the level of
evidence that the Supreme Court has found significant in other
redistricting cases. See Bush, 517 U.S. at 959 (O’Connor, J.,
principal opinion) (Texas conceded that one of its goals was to
create a majority-minority district); Shaw II, 517 U.S. at 906
(recounting testimony that creating a majority-minority district
was the “principal reason” for the 1992 version of District 12);
Miller, 515 U.S. at 907 (State set out to create majority-
minority district). While this statement, like the statement in
Cromartie II, provides some support for Plaintiffs’ contention,
it does not rise to the level of showing predominance. It does
not indicate that other concerns were subordinated to this goal,
merely, that it was a factor.9
The co-chairs’ later statement that this result would help
to ensure preclearance under the VRA similarly falls short of
explaining that such actions were taken in order to ensure
preclearance, or that a majority BVAP (or even an increase in
BVAP) was a non-negotiable requirement.10 In fact, the co-chairs
9
The statement by Dr. Hofeller, set out below, furthers
this finding in that he testified that Guilford County was
placed in CD 12 as a result of an effort to re-create the 1997
CD 12.
10
The State’s DOJ submission is in a similar stance, in
that while it explains that the BVAP of CD 12 increased, it does
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explicitly state in the same release that CD 12 was created with
“the intention of making it a very strong Democratic district”
and that that it was not a majority black district that was
required by section two (insinuating that it became so as a
result of the addition of Guilford County, rather than Guilford
being added in order to achieve that goal), belying that there
was any mechanical racial threshold of the sort that would lend
itself to a finding of predominance. (Pls.’ Ex. 67 at 5.)
Further, regarding the placement of Guilford County into
CD 12, Dr. Hofeller testified as follows:
My instructions in drawing the 12th District were to
draw it as it were a political district, as a whole.
We were aware of the fact that Guilford County was a
Section 5 county. We were also aware of the fact that
the black community in Greensboro had been fractured
by the Democrats in the 2001 map to add Democratic
strengths to two Democratic districts. During the
process, it was my understanding that we had had a
comment made that we might have a liability for
fracturing the African-American community in Guilford
County between a Democratic district and a Republican
district. When the plan was drawn, I knew where the
old 97th, 12th District had been drawn, and I used
that as a guide because one of the things we needed to
do politically was to reconstruct generally the 97th
district; and when we checked it, we found out that we
did not have an issue in Guilford County with
fracturing the black community.
(Trial Tr. at 644:11-645:1 (emphasis added).)
not show that the State had any improper threshold or racial
goal. (See Pls.’ Ex. 74 at 15.)
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Dr. Hofeller’s testimony shows that, while the map drawers
were aware that Guilford County was a VRA county and that there
were possibly some VRA concerns surrounding it, the choice to
place Guilford County in CD 12 was at least in part also based
on a desire to reconstruct the 1997 version of CD 12 for
political reasons and doing so also happened to eliminate any
possible fracturing complaint. This is furthered by
Dr. Hofeller’s deposition testimony, in which he explained that
while the redistricting chairs were certainly concerned about a
fracturing complaint over Guilford County, “[his] instruction
was not to increase [the black] population. [His] instruction
was to try and take care of [the VRA] problem, but the primary
instructions and overriding instruction in District 12 was to
accomplish the political goal.” (Pls.’ Ex. 129 at 71:19-24.)11
11
It should be noted that Guilford County had been placed
in District 12 before but had been moved into the newly-created
District 13 during the 2001 redistricting process. This
occurred as a result of North Carolina gaining a thirteenth
congressional seat and needing to create an entirely new
district. As Dr. Hofeller testified, in 2011, CD 13, which in
2001 had been strongly Democratic, was being moved for political
reasons, and thus the districts surrounding District 13 would
necessarily be different than they had been in 2001. As the
legislature wished for these districts to be strongly
Republican, moving Guilford County, which is strongly
Democratic, into the already Democratic CD 12 only made sense.
(Pls.’ Ex. 129 at 71:6-18.) Given that as a result of CD 13’s
move, Guilford County was going to end up being moved anyways,
the decision to re-create the 1997 version of CD 12 as a way to
avoid a VRA claim does not persuade me that the choice to move
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Compare these statements with those made about CD 1, where
Dr. Hofeller repeatedly testified that he was told “to draw that
1st District with a black voting-age population in excess of 50
percent because of the Strickland case.” (See Trial Tr. at
480:21-481:1.) He also testified that this goal for CD 1 could
not be compromised, explaining that while he had some leeway in
how high he could take the BVAP of the district, he could not go
lower than 50% plus 1. (Trial Tr. at 621:13-622:19.) These are
the sorts of statements that show predominance, rather than
consciousness, of race and are clearly distinguishable from
those made about CD 12, where there is only evidence that race
was one among several factors.
Based upon this direct evidence, I conclude that race was a
factor in how CD 12 was drawn, although not a predominant one.
A comparison of the legislative statements as to CD 12 with
those made with respect to CD 1 is illustrative, given that the
legislature clearly stated its intention to create a majority-
minority district within CD 1.
Compared with such open expressions of intent, the
statements made with respect to CD 12 seem to be more a
description of the resulting characteristics of CD 12 rather
Guilford County to CD 12 was in and of itself predominantly
racial.
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than evidence about the weight that the legislature gave various
factors used to draw CD 12. For example, as the majority points
out, in the public statement issued July 1, 2011, Senator Rucho
and Representative Lewis stated, “[b]ecause of the presence of
Guilford County in the Twelfth District [which is covered by
section 5 of the VRA], we have drawn our proposed Twelfth
District at a black voting age level that is above the
percentage of black voting age population found in the current
Twelfth District.” (Pls.’ Tr. Ex. 67 at 5; (Maj. Op. at 35).)
While the majority reaches an imminently reasonable conclusion
that this is evidence of an intention to create a majority-
minority district, I, on the other hand, conclude that the
statement reflects a recognition of the fact the black VAP
voting age was higher in the new district because of the
inclusion of a section 5 county, not necessarily that race was
the predominant factor or that Guilford County was included in
order to bring about that result. It seems clear to me that
some recognition of the character of the completed CD 12 to the
Department of Justice addressing the preclearance issue was
necessary. However, that recognition does not necessarily
reflect predominant, as opposed to merely significant, factors
in drawing the district.
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Plaintiffs also point to circumstantial evidence, including
the shape of the district, the low compactness scores, and
testimony from two experts who contend that race, and not
politics, better explains the choices made in drawing CD 12.
As regards the district’s shape and compactness, as
Defendants point out, the redistricting co-chairs were not
working from a blank slate when they drew the 2011 version of
CD 12. CD 12 has been subject to litigation almost every single
time it has been redrawn since 1991, and, although Plaintiffs
are correct that it has a bizarre shape and low compactness
scores, it has always had a bizarre shape and low compactness
scores. As such, pointing out that these traditional criteria
were not observed by the co-chairs in drawing CD 12 is less
persuasive evidence of racial predominance than it might
otherwise be, given that to create a district with a more
natural shape and compactness score, the surrounding districts
(and likely the entire map) would have to be redrawn. It is
hard to conclude that a district that is as non-compact as CD 12
was in 2010 was revised with some specific motivation when it
retains a similar shape as before and becomes slightly less
compact than the geographic oddity it already was.
As for Plaintiffs’ expert testimony, I first note that
Dr. David Peterson’s testimony neither establishes that race was
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the predominant motive for the drawing of CD 12 nor does it even
purport to. As Dr. Peterson himself stated, his opinion was
simply that race “better accounts for” the boundaries of CD 12
than does politics, but he did not have an opinion on the
legislature’s actual motivation, on whether political concerns
predominated over other criteria, or if the planners had non-
negotiable racial goals. (Trial Tr. at 233:17-234:3.)
Further, when controlling for the results of the 2008
presidential election, the only data used by the map’s architect
in drawing CD 12, Dr. Peterson’s analysis actually finds that
politics is a better explanation for CD 12 than race. (Defs.’
Ex. 122 at 113-15.) As such, even crediting his analysis,
Dr. Peterson’s report and testimony are of little use in
examining the intent behind CD 12 in that they, much like
Plaintiffs’ direct evidence, show at most that race may have
been one among several concerns and that politics was an equal,
if not more significant, factor.
As for Dr. Ansolabehere, his testimony may provide some
insight into the demographics that resulted from how CD 12 was
drawn. However, even assuming that his testimony is to be
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credited in its entirety, I do not find that it establishes that
race predominated as a factor in how CD 12 was drawn.12
First, as Defendants point out, Dr. Ansolabehere relied on
voter registration data, rather than actual election results, in
his analysis. (Trial Tr. at 307:4-308:9.) Even without
assuming the Supreme Court’s admonishment about the use of
registration data as less correlative of voting behavior than
actual election results remains accurate, Dr. Ansolabehere’s
analysis suffers from a separate flaw. Dr. Ansolabehere’s
analysis says that race better explains the way CD 12 was drawn
than does political party registration. However, this is a
criterion that the state did not actually use when drawing the
map. Dr. Hofeller testified that when drawing the districts, he
examined only the 2008 presidential election results when
deciding which precincts to move in and out of a district.13 (See
12
I note that Dr. Ansolabehere testified that he performed
the same analysis in Bethune-Hill v. Virginia State Board of
Elections, Civil Action No. 3:14CV852, 2015 WL 6440332 (E.D. Va.
Oct. 22, 2015), and that the three-judge panel in that case
rejected the use of his analysis. Id. at *41-42.
13
While Plaintiffs criticize this use of an admittedly
unique electoral situation, the fact that the 2008 presidential
election was the only election used to draw CD 12 does not, in
and of itself, establish that politics were merely a pretext for
racial gerrymandering. In my opinion, the evidence does not
necessarily establish the correlation between the specific
racial identity of voters and voting results; instead, a number
of different factors may have affected the voting results.
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Trial Tr. at 495:20-502:14.) This fact is critical to the
usefulness of Dr. Ansolabehere’s analysis because, absent some
further analysis stating that race better explains the
boundaries of CD 12 than the election results from the 2008
presidential election, his testimony simply does not address the
criteria that Dr. Hofeller actually used. Plaintiffs contend
that the legislature’s explanation of political motivation is
not persuasive because, if it were the actual motivation,
Dr. Ansolabehere’s analysis would show that the boundaries were
better explained by voter registration than by race. However,
because Defendants have explained that they based their
political goals on the results of the 2008 presidential
election, rather than voter registration, Dr. Ansolabehere’s
analysis is simply not enough to prove a predominant racial
motive.
This is particularly true when the other evidence that
might confirm Dr. Ansolabehere’s analysis is less than clear,
(Compare, e.g., Trial Tr. at 325:7-9 (“There’s huge academic
literature on this topic that goes into different patterns of
voting and how Obama changed it . . .”) with Trial Tr. at
403:17-18 (“you can’t tell at the individual level how
individuals of different races voted”); id. at 503:7-10 (“we’re
looking for districts that will hold their political
characteristics, to the extent that any districts hold them,
over a decade rather than a one or two year cycle.”).) As a
result, I do not find the use of the 2008 presidential election
to be pretext for racial gerrymandering.
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and in fact provides some hesitation as to the analysis, rather
than corroborating it. Specifically, Dr. Ansolabehere applied
his envelope analysis to CD 12, a district that was originally
drawn in order to create a majority-minority district, has
retained a substantial minority population in the twenty years
since its creation, and was extremely non-compact when
originally drawn. Therefore, absent some consideration of other
factors - the competitiveness of surrounding, contiguous
districts and the compactness of those districts - it is
difficult to place great weight on Dr. Ansolabehere’s analysis.
In other words, if a district starts out as an extremely
gerrymandered district, drawn with race as a predominant factor,
I do not find compelling a subsequent study concluding that
race, and not politics, may be a better predictor of the
likelihood of voter inclusion in a modification of the original
district. See Bethune-Hill, 2015 WL 6440332 at *42 (“If a
district is intentionally designed as a performing district for
Section 5 purposes, there should be little surprise that the
movement of VTDs into or out of the district is correlated -
even to a statistically significant degree - with the racial
composition of the population.”).
As the Supreme Court has explained, Plaintiffs’ burden of
proving that racial considerations were “dominant and
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controlling” is a demanding one. See Miller, 515 U.S. at 913,
929. In my opinion, Plaintiffs have not met that burden here as
to CD 12. Plaintiffs’ direct evidence shows only that race was
a factor in how CD 12 was drawn, not the “dominant and
controlling” factor. As for their circumstantial evidence,
Plaintiffs must show that the district is unexplainable on
grounds other than race. Id. at 905. Here, Defendants explain
CD 12 based on the use of political data that Plaintiffs’
experts do not even specifically address. As the Court in
Cromartie II explained, in cases where racial identification
correlates highly with political affiliation, Plaintiffs
attacking a district must show “at the least that the
legislature could have achieved its legitimate political
objectives in alternative ways that are comparably consistent
with traditional districting principles [and] that those
districting alternatives would have brought about significantly
greater racial balance.” Cromartie II, 532 U.S. at 234, 258.
Plaintiffs have not done so here. In essentially alleging that
political goals were pretext, they have put forth no alternative
plan that would have made CD 12 a strong Democratic district
while simultaneously strengthening the surrounding Republican
districts and not increasing the black VAP. As such, they have
not proven that politics was mere pretext in this case.
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Finally, mindful of the fact that the burden is on
Plaintiffs to prove “that the legislature subordinated
traditional race-neutral districting principles . . . to racial
considerations” (i.e., proving predominance directly), Miller,
515 U.S. at 913, 916, it is not clear whether compliance with
section 5, although it necessarily involved consideration of
race, should be considered a “neutral” redistricting principle
or a purely racial consideration. Although I reach the same
decision regardless, I conclude that actions taken in compliance
with section 5 and preclearance should not be a factor that
elevates race to a “predominant factor” when other traditional
districting principles exist, as here, supporting a finding
otherwise. As a result, the fact that certain voters in
Guilford County were included in CD 12 in an effort to comply
with section 5, avoid retrogression, and receive preclearance
does not persuade me that race was a predominant factor in light
of the other facts of this case.
As Plaintiffs have failed to show that race was the
predominant factor in the drawing of CD 12, it is subject to a
rational basis test rather than strict scrutiny. Because I find
that CD 12 passes the rational basis test, I would uphold that
district as constitutional.
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