Raleigh Wake Citizens Assoc v. Wake County Board of Election
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:15-cv-00156-D. [999876685]. [16-1270, 16-1271]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1270
RALEIGH WAKE CITIZENS ASSOCIATION; JANNET B. BARNES;
BEVERLEY S. CLARK; WILLIAM B. CLIFFORD; BRIAN FITZSIMMONS;
GREG FLYNN; DUSTIN MATTHEW INGALLS; AMY T. LEE; ERWIN
PORTMAN; SUSAN PORTMAN; JANE ROGERS; BARBARA VANDENBERGH;
JOHN G. VANDENBERGH; AMYGAYLE L. WOMBLE; PERRY WOODS,
Plaintiffs - Appellants,
v.
WAKE COUNTY BOARD OF ELECTIONS,
Defendant - Appellee,
and
CHAD BAREFOOT, in his official capacity as Senator and
primary sponsor of SB 181; PHILLIP E. BERGER, in his
official capacity as President Pro Tempore of the North
Carolina Senate; TIM MOORE, in his official capacity as
Speaker of the North Carolina House of Representatives,
Defendants.
No. 16-1271
CALLA WRIGHT; WILLIE J. BETHEL; AMY T. LEE; AMYGAYLE L.
WOMBLE; JOHN G. VANDENBERGH; BARBARA VANDENBERGH; AJAMU G.
DILLAHUNT; ELAINE E. DILLAHUNT; LUCINDA H. MACKETHAN;
WILLIAM B. CLIFFORD; ANN LONG CAMPBELL; GREG FLYNN; BEVERLEY
S. CLARK; CONCERNED CITIZENS FOR AFRICAN-AMERICAN CHILDREN,
d/b/a Coalition of Concerned Citizens for African-American
Children; RALEIGH WAKE CITIZENS ASSOCIATION,
Plaintiffs - Appellants,
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v.
WAKE COUNTY BOARD OF ELECTIONS,
Defendant - Appellee,
and
STATE OF NORTH CAROLINA,
Defendant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:15-cv-00156-D; 5:13-cv-00607-D)
Argued:
May 9, 2016
Decided:
July 1, 2016
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Reversed and remanded in part and affirmed in part by published
opinion. Judge Wynn wrote the majority opinion, in which Judge
Gregory joined. Judge Motz wrote a dissenting opinion.
ARGUED: Anita Sue Earls, Allison Jean Riggs, SOUTHERN COALITION
FOR SOCIAL JUSTICE, Durham, North Carolina, for Appellants.
Charles Foster Marshall, III, BROOKS, PIERCE, MCLENDON, HUMPHREY
& LEONARD, L.L.P., Raleigh, North Carolina, for Appellee.
ON
BRIEF: George E. Eppsteiner, SOUTHERN COALITION FOR SOCIAL
JUSTICE, Durham, North Carolina, for Appellants.
Matthew B.
Tynan, Jessica Thaller-Moran, BROOKS, PIERCE, MCLENDON, HUMPHREY
& LEONARD, L.L.P., Raleigh, North Carolina, for Appellee.
2
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WYNN, Circuit Judge:
The right to vote is “fundamental,” and once that right “is
granted to the electorate, lines may not be drawn which are
inconsistent with the Equal Protection Clause of the Fourteenth
Amendment.”
Bush v. Gore, 531 U.S. 98, 104-05 (2000) (quotation
marks and citation omitted).
“It must be remembered that” the
right to vote “can be denied by a debasement or dilution of the
weight of a citizen’s vote just as effectively as by wholly
prohibiting the free exercise.”
Id. (quoting Reynolds v. Sims,
377 U.S. 533, 555 (1964)).
In these consolidated cases, Plaintiffs, registered voters
and civic organizations in Wake County, North Carolina, claim
that under the two (identically drawn) redistricting laws they
challenge, some Wake County School Board and Wake County Board
of
County
while
Commissioners
others
have
been
districts
have
under-populated.
been
over-populated,
Plaintiffs
further
assert that these discrepancies result in some votes counting
more while others count less, and that the discrepancies stem
from illegitimate redistricting factors.
As explained below, we
agree, hold that Plaintiffs have proven their state and federal
one person, one vote claims, and therefore reverse.
Plaintiffs also claim that one discrete district was the
product of racial gerrymandering.
3
We hold that the district
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court
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did
not
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clearly
err
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in
rejecting
that
claim
and
thus
affirm.
I.
In the years leading up to 2013, the Wake County School
Board (“School Board”) consisted of nine members elected from
single-member districts.
Those districts were subject to change
every ten years following the decennial census.
In 2010, the census showed that Wake County’s population
had grown by 43.51% over the preceding decade, causing the thenexisting districting plan to have a maximum population deviation
of
47.89%. 1
The
School
Board,
at
that
time
dominated
by
registered Republicans, 2 redrew its districts in light of the
2010 census.
1
“[C]ourts usually analyze[] apportionment plan[s] in terms
of the maximum population deviation among the districts.
Generally, to calculate maximum deviation, the court first
constructs a hypothetical ideal district by dividing the total
population of the political unit (e.g., state or county) by the
total number of representatives who serve that population.
Then, the court determines how much the actual population of
each district varies from the population of the ideal district.
This deviation is expressed as a percentage of the ideal
population. Maximum deviation is the sum of the absolute value
of the deviation of the district with the smallest population
and that of the district with the largest population.” Daly v.
Hunt, 93 F.3d 1212, 1215 n.2 (4th Cir. 1996).
2
While the School Board is nominally non-partisan, its
members are routinely registered and affiliated with the
Democratic and Republican Parties, and uncontroverted trial
testimony showed a high level of partisanship in “what’s
supposed to be a nonpartisan election.”
J.A. 234; see also,
(Continued)
4
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That effort led to a redistricting plan with geographically
compact districts having a maximum population deviation of 1.75%
and no district deviating from the ideal district population by
even 1%.
The first election under the new districting, in Fall
2011, resulted in a School Board with a Democratic majority.
In 2013, the Republican-controlled North Carolina General
Assembly (“General Assembly”), over the objection of a majority
of the School Board and every Democratic and African-American
legislator in the General Assembly, passed a local bill, Session
Law
2013–110,
making
method of selection.
changed
districts
the
School
to
numerous
to
the
School
Board’s
Among other things, Session Law 2013-110
Board’s
seven
changes
make-up
single-member
from
nine
districts
single-member
and
set
less
geographically compact boundaries for this new set of districts.
The
maximum
population
deviation
among
the
new
single-member
districts swelled to over 7%.
Additionally,
Session
Law
2013-110
created
districts” that overlaid the single-member districts.
two
“super
J.A. 160.
One super district formed a donut of outer, more rural areas of
the county, while the other formed a donut hole in the inner,
e.g., J.A. 254 (noting that such local races have “become more
partisan-based” due to “block candidates,” the “political party
machine,” and “money”).
5
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urban area.
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The maximum population deviation between the super
districts exceeded even that of the single-member districts—just
shy
of
10%.
Session
Law
2013-110
moved
elections
to
even-
numbered years, and limited the School Board’s ability to make
changes to its method of election until 2021.
In
August
2013,
thirteen
individuals
and
two
civic
organizations filed suit in the United States District Court for
the
Eastern
District
constitutionality
established.
of
The
of
the
North
districts
complaint
Carolina,
that
alleged
challenging
Session
that
the
the
Law
2013-110
plan
unevenly
weighted the votes of citizens in the county for impermissible
reasons, thereby violating the one-person, one-vote guarantees
of the federal and state constitutions.
In March 2014, the
district court dismissed Plaintiffs’ suit for failure to state a
claim.
Wright v. North Carolina, 975 F. Supp. 2d 539 (E.D.N.C.
2014).
Plaintiffs appealed.
In April 2015, while Plaintiffs’ appeal was pending before
this Court, the General Assembly enacted Session Law 2015-4,
making the electoral system for the Wake County Board of County
Commissioners (“Board of County Commissioners”) identical to the
system it had created for the School Board with Session Law
6
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2013-110. 3
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With Session Law 2015-4, too, the General Assembly
forced a local bill on Wake County despite opposition from the
majority
County
every
of
the
voters,
Board
nearly
of
County
every
African-American
Commissioners,
Democratic
legislator
in
state
the
polled
Wake
legislator,
General
and
Assembly.
Fourteen individuals and a civic organization filed suit shortly
thereafter,
challenging
redistricting
plan
as
the
Board
violating
of
the
County
one
Commissioners’
person,
one
vote
guarantees of the state and federal constitutions.
In Plaintiffs’ appeal from the district court’s March 2014
dismissal,
this
Court,
in
May
2015,
held
that
“Plaintiffs’
allegations in support of their claim that [Session Law 2013110]
violates
survive
a
the
motion
one
to
person,
dismiss
one
for
vote
failure
principle
to
state
suffice
a
claim.”
Wright v. North Carolina, 787 F.3d 256, 269 (4th Cir. 2015).
therefore
reinstated
Plaintiffs’
complaint
against
to
the
We
Wake
County Board of Elections.
On
remand,
challenging
the
Session
expedited discovery.
district
Law
court
2013-110
and
consolidated
Session
Law
the
suits
2015-4
and
Discovery was further limited by the state
3
Previously, members of the Board of County Commissioners
were elected at-large, subject to the requirement that one
member had to be elected from each of the county’s seven
residency districts.
7
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legislators’ refusing Plaintiffs’ discovery requests, claiming
legislative privilege. 4
held
a
bench
trial,
In December 2015, the district court
in
which
Plaintiffs
presented
numerous
witnesses, including legislators, citizens, and experts, as well
as copious documentary evidence, with 481 exhibits including:
expert
reports
and
supporting
data;
school
assignment
maps;
campaign finance reports; results data from various elections;
excerpts of legislative transcripts; and public polling results.
By contrast, Defendant, the Board of Elections that administers
elections
with
no
stake
in
the
“political
interests
of
the
General Assembly,” Trial Tr. vol. I, 13:24-25, presented none of
its own.
Defendant simply cross-examined Plaintiffs’ witnesses
and made legal argument.
Nevertheless,
the
district
court
ruled
for
Defendant.
Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, No.
5:13-CV-607-D, 2016 WL 1060378 (E.D.N.C. Feb. 26, 2016).
district
court
witnesses,
“unhelpful,”
for
id.
discredited
every
example
“anecdotal,”
at
as
*32.
It
single
went
on
one
id.
to
of
at
hold,
The
Plaintiffs’
*28-29,
among
and
other
things, that “in order to prove a prima facie case in a one
4
Pursuant to an agreement between Plaintiffs and particular
legislators,
certain
external
communications
between
the
legislators and third parties—but no internal communications
amongst the legislators—were produced.
8
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person one vote challenge, plaintiffs must at least negate the
most
common
legitimate
action.”
legislature’s
reasons
Id.
citations omitted).
at
that
*22
could
explain
(quotation
the
marks
and
The district court held that Plaintiffs
failed to meet this and the other requisite burdens.
Plaintiffs
appealed.
II.
On appeal, “‘[w]e review judgments resulting from a bench
trial under a mixed standard of review: factual findings may be
reversed only if clearly erroneous, while conclusions of law are
examined de novo.’”
Nat’l Fed’n of the Blind v. Lamone, 813
F.3d 494, 502 (4th Cir. 2016) (quoting Plasterers’ Local Union
No. 96 Pension Plan v. Pepper, 663 F.3d 210, 215 (4th Cir.
2011)).
example,
Findings
“even
will
though
be
there
deemed
is
clearly
some
erroneous
evidence
to
if,
for
support
the
finding, the reviewing court, on review of the record, is left
with a definite and firm conviction that a mistake has been
made,”
or
if
standards.”
findings
were
made
using
“incorrect
legal
Consol. Coal Co. v. Local 1643, United Mine Workers
of Am., 48 F.3d 125, 128 (4th Cir. 1995) (quotation marks and
citation omitted).
findings
upon
principles,
the
a
“Of course, if the trial court bases its
mistaken
reviewing
impression
court
9
is
not
of
applicable
bound
by
the
legal
clearly
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erroneous standard.”
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Inwood Labs., Inc. v. Ives Labs., Inc.,
456 U.S. 844, 855 n.15 (1982).
III.
With their primary argument on appeal, Plaintiffs contend
that the district court applied the wrong legal standard for
adjudicating their one person, one vote claim.
For the reasons
explained below, we agree.
A.
The right to vote is “fundamental,” and once that right “is
granted to the electorate, lines may not be drawn which are
inconsistent with the Equal Protection Clause of the Fourteenth
Amendment.”
citation
Bush,
531
omitted).
U.S.
at
104-05
Indeed,
(quotation
allowing,
marks
through
and
unequal
apportionment amongst districts, a vote to be “worth more in one
district
than
in
another
would
.
.
.
run
fundamental ideas of democratic government.”
counter
to
our
Reynolds, 377 U.S.
at 563 (quotation marks and citation omitted).
This requirement
that all citizens’ votes be weighted equally, known as the one
person,
one
government
vote
but
principle,
also
to
applies
state
and
not
local
just
to
the
federal
governments—including
school boards and county governing bodies.
Avery v. Midland
Cty., 390 U.S. 474, 480 (1968).
Courts
have
recognized
that
“[m]athematical
exactness
or
precision is hardly a workable constitutional requirement” and
10
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thus
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do
not
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require
“identical
government districts.
governments
construct
must
Court
has
“make
Id.
in
state
an
as
honest
close
and
to
good
equal
and
local
Nevertheless,
faith
effort”
population
“as
to
is
To assess what is “practicable,” the Supreme
allowed
considerations”
numbers”
Reynolds, 377 U.S. at 577.
districts
practicable.”
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some
such
population
as
deviation
compactness
and
for
“legitimate
contiguity,
the
integrity of political subdivisions, and balance among political
parties.
Harris v. Ariz. Indep. Redistricting Comm’n, 136 S.
Ct. 1301, 1306 (2016).
Generally, a districting plan “with a maximum population
deviation
under
10%
protection claim.”
will
not,
by
itself,
support
an
equal
Wright, 787 F.3d at 264 (quotation marks
omitted and emphasis added).
Rather, plaintiffs in such cases
“must show that it is more probable than not that a deviation of
less
than
10%
reflects
the
predominance
of
illegitimate
reapportionment factors rather than” legitimate considerations
such as compactness or the integrity of political subdivisions.
Harris, 136 S. Ct. at 1307.
In Harris, the Supreme Court’s most recent, and arguably
most
lucid,
pronouncement
as
to
plaintiffs’
burdens
in
one
person, one vote cases below the 10% deviation threshold, the
Court unanimously noted that the plaintiffs there had claimed
that the plan’s deviations from “absolute equality of population
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reflect . . . political efforts to help the Democratic party.”
Id.
Crucially, however, the plaintiffs “failed to prove this
claim.”
Id.
Instead,
“the
record
b[ore]
out”
that
the
deviations “predominantly reflected . . . efforts to achieve
compliance with the federal Voting Rights Act, not to secure
political advantage for one party.”
Id.
In other words, the
plaintiffs in Harris foundered not because their one person, one
vote challenge failed as a matter of law, but because they did
not
muster
the
evidence
needed
to
show
it
to
be
“more probable than not that [the] deviation of less than 10%
reflect[ed]
factors.”
the
predominance
of
illegitimate
reapportionment
Id.
By contrast, in Larios v. Cox, the plaintiffs succeeded in
proving their one person, one vote claims.
(N.D.
Ga.)
(mem.).
In
(three-judge
Larios,
a
panel),
federal
aff’d,
court
300 F. Supp. 2d 1320
542
struck
U.S.
down
947
a
(2004)
Georgia
redistricting plan that disproportionately favored Democrats by
under-populating districts in the urban Atlanta region and the
rural
south—both
suburban
Democratic
districts
with
strongholds—while
Republican-leaning
over-populating
voters.
The
redistricting created a maximum population deviation of 9.98%
and disproportionately protected Democratic incumbents.
Id. at
1328–31.
Scalia
The
Supreme
Court
12
(with
only
Justice
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dissenting)
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affirmed
redistricting.
As
the
the
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district
court’s
rejection
of
the
Larios, 542 U.S. 947.
Supreme
Court
has
explained,
in
Larios,
“those
attacking the plan had shown that it was more probable than not
that
the
use
of
illegitimate
factors
significantly
explained
deviations from numerical equality among districts.”
136 S. Ct. at 1310.
Harris,
The Supreme Court noted the “many examples
showing that population deviation as well as the shape of many
districts did not result from any attempt to create districts
that were compact or contiguous, or to keep counties whole, or
to preserve the cores of prior districts.”
and citation omitted).
plaintiffs’
Id. (quotation marks
The Supreme Court contrasted the Larios
successful
showing
with
that
of
the
failed
plaintiffs in Harris, stating “[i]t is appellants’ inability to
show
that
the
present
plan’s
deviations
and
boundary
shapes
result from the predominance of similarly illegitimate factors
that makes [Larios] inapposite here.”
Id.
Looking at Larios and Harris, we conclude that, to succeed
on the merits, plaintiffs in one person, one vote cases with
population deviations below 10% must show by a preponderance of
the
evidence
that
improper
explaining the deviations.
considerations
predominate
in
This is just such a case, and that
legal standard therefore applies.
B.
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1.
The
law
in
this
area
is
challenging.
In
the
earlier
appeal of this matter, we sought to clarify some points to ease
the
burden
on
the
district
court.
Nonetheless,
there
were
numerous instances in which the law we set out in Wright was not
adhered to.
For example, in evaluating Plaintiffs’ one person,
one vote claim, the district court did not properly characterize
what
Plaintiffs
must
show
to
succeed.
The
district
court
stated, for example, that “in order to prove a prima facie case
in a one person one vote challenge, plaintiffs must at least
negate the most common legitimate reasons that could explain the
legislature’s action.”
Raleigh Wake Citizens Ass’n, 2016 WL
1060378, at *22 (quotation marks and citation omitted).
district
court
indicated
that
“any
conceivable
The
legislative
purpose is sufficient” to support the redistricting plan and
that those “attacking the rationality” thereof “have the burden
to [negate] every conceivable basis which might support it.”
Id. at 27 (alteration in original) (quotation marks and citation
omitted).
Contrary
to
the
district
court’s
characterization,
what
Plaintiffs must actually show to succeed with their one person,
one vote claims is that it is “more probable than not that a
deviation
of
less
than
10%
reflects
illegitimate reapportionment factors.”
14
the
predominance
of
Harris, 136 S. Ct. at
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1307.
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This specific, deviation-focused inquiry differs markedly
from the district court’s rational-basis review of whether a
rational state policy could explain the redistricting generally.
2.
Further, in Wright, we emphasized the importance of the
Supreme Court’s affirmance of Larios for this case.
made
it
clear
that
Larios
was
affirmance holding little sway.
more
2016 WL 1060378, at *18.
than
a
Thus, we
mere
summary
Raleigh Wake Citizens Ass’n,
Instead, with Wright, we set forth
precedent binding on the district courts of this Circuit making
clear that Larios constitutes persuasive authority generally, as
well as analogous authority in this concrete case.
F.3d at 267.
Wright, 787
The district court’s heavy emphasis on Justice
Scalia’s Larios dissent—an opinion with no precedential value—is
thus squarely at odds with Wright.
Citizens
Ass’n,
Justice
2016
Scalia,
WL
criterion,’
“‘[f]erreting
out
deviations
seems
1060378,
‘politics
redistricting
as
and
me
more
at
*18-19
usual’
‘a
political
to
See, e.g., Raleigh Wake
is
(“According
a
‘traditional
constitutional
motives
likely
in
to
to
one,’”
and
minute
population
encourage
politically
motivated litigation than to vindicate political rights.’”).
Moreover, the district court misapplied the core principles
of Larios.
The district court stated, for example, that, in
contrast
Larios,
to
Plaintiffs
15
here
did
not
prove
“that
the
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General
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Assembly
disregarded
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all
districting
principles
in
creating the 2013 Wake County School Board Plan, or that the
2013 Wake County School Board Plan is not rationally related to
a permissible, rational state policy of improving School Board
representation.”
at *36.
Raleigh Wake Citizens Ass’n, 2016 WL 1060378,
The district court thus concluded that “unlike Larios,
plaintiffs have failed to prove that the 2013 Wake County School
Board Plan resulted from a desire to favor suburban and rural
voters over urban voters.”
Crucially,
neither
Id.
the
three-judge
district
court
in
Larios, nor the Supreme Court in affirming and later discussing
Larios, ever suggested that plaintiffs in such cases need to
show that “all districting principles” were “disregarded.”
Id.
Further, neither court focused on the challenged redistricting
plans as a whole.
Instead, the focus, in Larios as well as,
Harris, was whether “deviation[s] of less than 10% reflect[ed]
the
predominance
of
illegitimate
reapportionment
factors.”
Harris, 136 S. Ct. at 1307 (emphasis added); Larios, 300 F.
Supp. 2d at 1338 (holding that “population deviations . . . not
supported by . . . legitimate interests . . . cannot withstand
constitutional
state
scrutiny”
legislature’s
(emphasis
attempt
to
added)).
privilege
In
Larios,
rural
and
the
urban
Democrats at the expense of suburban Republicans explained the
deviations in population, not the redistricting plan generally,
16
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did not constitute a legitimate apportionment factor, and was
prohibited.
Larios, 300 F. Supp. 2d at 1338.
3.
Additionally,
proffered
to
district
court
support
Plaintiffs’
discredited
in
evaluating
their
one
improperly
fifteen
all
the
the
person,
discounted
trial
evidence
one
testifying
vote
every
witnesses.
Plaintiffs
single
For
legislators
claims,
the
one
of
example,
it
because
of
their
“strong legislative opposition to the 2013 Wake County School
Board Plan.
line
of
[The pertinent] testimony at trial fits within the
precedent
giving
opponents of legislation.”
no
weight
to
statements
made
by
Raleigh Wake Citizens Ass’n, 2016 WL
1060378, at *29.
The
only
analogous
case
in
the
purported
“line
of
precedent,” Veasey v. Abbott, 796 F.3d 487 (5th Cir. 2015), has
been vacated and is thus no longer good law, 815 F.3d 958 (5th
Cir. 2016) (granting rehearing en banc and vacating the panel
opinion).
The
other
cases
the
district
court
cited—cases
dealing with statutory interpretation—stand for the unremarkable
and inapposite proposition that courts usually do not “accord
much
weight
to
the
statements
of
interpreting the words of the bill].
a
bill’s
opponents
[when
The fears and doubts of
the opposition are no authoritative guide to the construction of
legislation.”
Shell Oil Co. v. Iowa Dep’t of Revenue, 488 U.S.
17
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19, 29 (1988) (quotation marks, citation, and brackets omitted)
(holding that one passing reference to preemption in a speech by
an
opponent
of
interpretation
a
of
law
that
cannot
law);
properly
see
also
guide
the
Schwegmann
court’s
Bros.
v.
Calvert Distillers Corp., 341 U.S. 384, 394 (1951) (noting that
“doubts of the opposition” do not guide “the construction of
legislation”); NLRB v. Fruit & Vegetable Packers & Warehousemen,
Local 760, 377 U.S. 58, 66 (1964) (same).
This
is
not
statute means.
illegitimate
a
case
about
what
a
particular
word
in
a
Rather, at the heart of this case is whether
factors
predominated
the
General
Assembly’s
supplemental redistricting of Wake County such that illegitimate
factors explain the population deviations in the redistricting
plan.
While
consider
we
“bias
recognize
or
that
a
judge
when
prejudice”
trial
generally
“assessing
may
witness
credibility,” United States v. Muse, 83 F.3d 672, 676-77 (4th
Cir.
1996),
the
district
court
discredited
categorically
legislators’ testimony, even regarding objective facts.
the
Yet the
district court has cited, and we see, no controlling precedent
suggesting
discounted
that
their
wholesale
and
testimony
“giv[en]
should
no
simply
have
weight.”
Raleigh
completely
rejected
been
Wake
Citizens Ass’n, 2016 WL 1060378, at *29.
Similarly,
the
district
court
as
“materially flawed and unhelpful,” id. at *32, the analysis of
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Plaintiffs’ expert Dr. Jowei Chen, a political science professor
from
the
University
of
Michigan.
Upon
closer
inspection,
however, it is the district court’s own analysis of Dr. Chen’s
analysis that is materially flawed.
Dr. Chen analyzed whether the population deviations in the
seven single-member district plans and the two super districts
plans
were
simulation
randomly
motivated
programming
a
large
by
a
partisan
techniques
number
of
purpose
that
allow
alternative
using
him
computer
to
generate
redistricting
created subject to traditional redistricting criteria.
traditional
population
redistricting
equality;
precincts
whole;
criteria
keeping
and
Dr.
Chen
municipalities
geographic
plans
The four
used
intact;
compactness.
were:
keeping
Dr.
Chen’s
computer simulations are based on the logic that if a computer
randomly
draws
five
hundred
redistricting
plans
following
traditional redistricting criteria, and the actual enacted plans
fall
completely
outside
the
range
of
what
the
computer
has
drawn, one can conclude that the traditional criteria do not
explain that enacted plan.
The
computer
conclusion:
that
simulations
the
led
“enacted
Dr.
Chen
districting
to
just
plans
that
create
a
partisan distribution of seats falling completely outside the
range
of
districting
outcomes
process
that
are
possible
that
creates
19
under
equally
a
non-partisan
populated
districts
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while
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maximizing
Pg: 20 of 59
compactness
municipal boundaries.”
and
J.A. 768.
preserving
precinct
and
Dr. Chen thus concluded “with
extremely high statistical certainty, beyond any sort of doubt
here”
that
“the
only
way
to
draw
districts
as
extreme
in
partisanship as the legislature’s B and A districts is to use
population
deviations”
that
are
high.
J.A.
463.
In
other
words, Dr. Chen testified that he could conclude with certainty
from his simulations that the deviations at issue here are the
result of using partisanship in apportioning the districts.
In
critiquing
Dr.
Chen’s
analysis,
the
district
court
seized on the fact that certain criteria accounted for in the
computer
simulations—such
deviation
at
2%
or
less
as
or
setting
maximum
“completely
.
.
.
population
ignor[ing]
partisanship,” Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at
*30,
are
required
by
neither
state
nor
federal
law.
This
critique misses the point: The point is not that the simulated
plans
are
legally
required,
but
rather
that
they
help
demonstrate what might explain the population deviations in the
enacted plan.
The
district
court
went
on
to
“find[]
that
Dr.
Chen’s
simulations simply show that ‘better’ . . . redistricting plans
were
possible,
but
‘better’
plans
do
not
equate
to
the
unconstitutionality of the 2013 Wake County School Board Plan.”
Id.
With that finding, the district court again missed the
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point: The import of Dr. Chen’s simulations was not to produce
better
plans,
apportionment
but
rather
considerations
to
hold
constant
so
several
that
legitimate
Dr.
Chen
could
assess whether the population deviations in the challenged plans
could have been the product of something other than partisan
bias.
He concluded “with extremely high statistical certainty,
beyond any sort of doubt here” that they could not have.
463.
The
district
court
clearly
and
rejecting Dr. Chen’s expert testimony.
reversibly
J.A.
erred
in
Easley v. Cromartie, 532
U.S. 234 (2001) (reversing a three-judge district court panel in
a racial gerrymandering case in which the district court clearly
erred in rejecting expert evidence).
4.
We could go on detailing the errors in the opinion below.
Suffice it to say that the legal analysis of what Plaintiffs
needed
to
Plaintiffs
show
as
proffered
well
as
to
make
the
evaluation
that
showing
of
are
the
evidence
fundamentally
flawed.
C.
1.
When,
as
here,
the
district
court
applies
the
wrong
standards, we tend to remand to allow “the trier of fact to reexamine the record” using the correct standards.
Pac. Co., 419 U.S. 318, 332 (1974).
21
Kelley v. S.
However, when “the record
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permits
only
Standard
v.
Filed: 07/01/2016
resolution
one
Pg: 22 of 59
the
Swint,
456
of
U.S.
factual
273,
292
issue,”
(1982),
Pullman–
remand
is
unnecessary, and we may rule based on the record before us.
Thus,
for
example,
in
the
recent
Class
v.
Towson
University
opinion, this Court, based on the record before it, straight-out
reversed the district court, which had applied the incorrect
legal standard following a bench trial.
2015).
And
in
Cromartie,
532
U.S.
806 F.3d 236 (4th Cir.
234,
the
Supreme
Court
outright reversed a three-judge district court panel in a racial
gerrymandering case because, among other things, the district
court had clearly erred in rejecting pertinent expert evidence.
Likewise, here, we deem remand unnecessary.
At trial, in
addition to copious documentary evidence, Plaintiffs presented
fifteen
live
witnesses—two
experts,
four
legislators,
four
county elected officials, and five plaintiffs and lay witnesses. 5
These
witnesses
and
documents
presented
abundant
support
for
Plaintiffs’ one person, one vote claims within the nine-hour
total that the district court allowed Plaintiffs for presenting
their case.
Defendant,
Instead,
by
Defendant
contrast,
offered
expressly
5
The district court did
witnesses to be untrustworthy.
2016 WL 1060378.
22
not
disclaimed
even
any
one
witness.
stake
in
not deem any of Plaintiffs’
Raleigh Wake Citizens Ass’n,
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“representing the political interests of the General Assembly,”
Trial Tr. vol. I, 13:24-25, and essentially passed on defending
the
General
proponents
Assembly’s
of
the
redistricting.
challenged
Even
the
redistricting
laws
legislative
refused
to
defend their actions, instead claiming legislative immunity.
The
resulting
record,
discussed
in
more
detail
below,
permits only one resolution of Plaintiffs’ one person, one vote
claims:
Plaintiffs have proven that it is more probable than
not that the population deviations at issue here reflect the
predominance of a illegitimate reapportionment factor, Harris,
136 S. Ct. at 13—namely an “intentional effort” to create “a
significant . . . partisan advantage,” Larios, 542 U.S. at 94749 (Stevens, J., concurring).
In other words, Plaintiffs have
successfully made their case.
2.
First putting the challenged plans in context, the evidence
at trial showed that that Wake County’s population generally,
and the overall population deviation amongst the School Board
districts in particular, swelled significantly by the time of
the
2010
decennial
census.
redrew its election maps.
reduced
maximum
population
Accordingly,
the
School
Board
The resulting 2011 redistricting plan
deviation
down
to
1.75%,
with
single district deviation reaching even 1% from the ideal.
no
The
districts were “vetted” by county residents and the members of
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School
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Board,
and
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were
considered
relatively
compact,
contiguous, and respectful of communities of interest.
210.
The
Board
of
County
Commissioners
also
J.A.
redrew
its
residency districts after the 2010 decennial census.
Despite the fact the 2011 redistricting had been shepherded
by a “Republican School Board” and that a “Republican lawyer”
had drafted the districts, J.A. 420, the 2011 elections, the
first administered under the new plan, resulted in a “shift[]
from
the
Republicans
to
the
Democrats.”
J.A.
200.
The
Republican-controlled General Assembly then intervened with the
redistricting plans that are the subject of this action.
Uncontroverted
showed
that
the
testimony
and
legislative
evidence
process
adduced
relating
to
at
trial
Session
Law
2013-110 was truncated by, for example, not having “community
hearings and participation of the affected parties,” J.A. 211,
and failing to incorporate “any of the ideas that people . . .
proffered,” id., without even “discussing it amongst the [Wake
County]
delegation
practice, J.A. 419.
first,”
a
“stark
departure”
from
As School Board Member Bill Fletcher, a
registered Republican, put it, “nothing was discussed.
was
no
opportunity
common
to
provide
input,
to
have
a
There
debate
or
discussion about different election strategies, it was simply
drafted
in
a
bill
and
presented
opportunity for rational thought.”
24
and
passed
J.A. 263.
with
little
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3.
Moving on to the showing Plaintiffs needed to make on their
one person, one vote claims, uncontroverted evidence at trial
showed
that
the
deviations
resulting
from
the
latter-day
redistricting more likely than not reflected the predominance of
illegitimate reapportionment factors.
Plaintiffs
illegitimate
proffered
factor
uncontroverted
predominating
in
evidence
the
skewed,
of
an
unequal
redistricting: an attempt to guaranty Republican victory through
the
intentional
witnesses
packing
testified
of
that
Democratic
“the
true
districts.
Various
motivation[]”
for
the
redistricting was to “ensure Republican control . . . at the
expense of Democrats.”
redistricting
was
J.A. 364.
“[t]o
ensure
The “real reason” behind the
a
Republican
majority
.
.
.
despite the vote totals,” J.A. 405, a “kind of punitive and
retributive effort to punish the Democrats for winning,” J.A.
392.
Plaintiffs’ expert Anthony Fairfax analyzed the challenged
redistricting
plans
and
reported,
among
other
things,
that
“[t]here was a marked pattern of overpopulation in Democraticperforming
districts,
performing districts.”
his
testimony,
“by
and
underpopulation
J.A. 805.
overpopulating
25
in
Republican-
And as Mr. Fairfax noted in
you
obviously
minimize
the
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Democratic
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performance
districts.”
in
Pg: 26 of 59
other
districts,
other
surrounding
J.A. 305. 6
Plaintiffs’ second expert, Dr. Chen, conducted an analysis
showing that “[t]he General Assembly’s enacted districting plans
create
a
partisan
distribution
of
seats
falling
completely
outside the range of outcomes that are possible under a nonpartisan
districting
process
that
creates
equally
populated
districts while maximizing compactness and preserving precinct
and municipal boundaries.”
J.A. 768.
In other words, as Dr.
Chen testified at trial, “the only way to achieve a districting
plan
that
allowed
for
such
an
extreme
partisan
Republican
control over four districts out of seven, the only way to create
such an extreme partisan plan was to deviate from population
equality to a great extent.”
J.A. 466-67.
6
The district court discounted Mr. Fairfax’s testimony just
as it did every single one of Plaintiffs’ other witnesses. And
in the case of Mr. Fairfax, as with the others, the bases for
that discounting fall apart upon careful inspection.
For
example, the district court faulted Mr. Fairfax for using
election results data, asserting that he “failed to analyze
voter registration data in Wake County.” Raleigh Wake Citizens
Ass’n, 2016 WL 1060378, at *34.
Yet in focusing on election
results instead of registration data, Mr. Fairfax followed
precisely what the Supreme Court has instructed those analyzing
redistricting plans to do.
See, e.g., Cromartie, 532 U.S. at
239 (noting its instruction that courts should look to “data
showing how voters actually behave, not data showing only how
those voters are registered”).
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The legislators who hatched the redistricting plans claimed
legislative immunity.
Absent from the record, therefore, is any
trial testimony confirming (or denying) a partisan motive behind
the redistricting and its deviations. 7
contain
several
e-mails
including
The record does, however,
third
parties,
the
only
category of e-mails Plaintiffs managed to obtain, that indeed
suggest
a
deviations.
partisan
motive
behind
the
redistricting
and
its
For example, the Wake County Republican Party Chair
exchanged several e-mails with, and apparently met with, key
legislators involved in the redistricting, with a focus on “how
we would take 5 of the 9 seats.”
J.A. 1114.
We do not doubt that some amount of partisan politics is
par for the course in redistricting generally.
For example, in
Gaffney v. Cummings, a case on which the district court relied
here, the Supreme Court upheld a redistricting plan drawn based
on partisan considerations.
412 U.S. 735 (1973).
But the facts
in and consequences of Gaffney differ markedly and tellingly
7
Both the district court and Defendant make much ado of the
admissions the legislators made in Larios, noting the direct
evidence
that
legislators
purposefully
skewed
district
deviations along urban, suburban, and rural divides to achieve
partisan goals.
See, e.g., Appellee’s Br. at 41; Raleigh Wake
Citizens Ass’n, 2016 WL 1060378, at *18. Both Defendant and the
district court contrast those facts with this case, with its
lack of such direct evidence.
But here, the lack of direct
evidence may have its roots in the legislators’ avoiding
discovery through claims of legislative immunity.
Moreover,
direct evidence is simply not required.
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from those here.
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In Gaffney, a state legislature had drafted a
redistricting plan following a decennial census; in doing so, it
followed a “policy of ‘political fairness.’”
Id. at 738.
The
plan,
deviation
the
which
exhibited
less
than
2%
overall
in
state senate and less than 8% overall deviation in the state
house,
sought
“proportional
representation
of
the
two
major
political parties. . . . [T]he Board took into account the party
voting results in the preceding three statewide elections, and,
on that basis, created what was thought to be a proportionate
number of Republican and Democratic legislative seats.”
Id.
In this case, by contrast, rather than seeking proportional
representation of the two main political parties, the evidence
shows
leaning
that
the
challenged
districts
and
plans
under-populated
over-populated
Democratic-leaning
districts in order to gerrymander Republican
other
words,
the
challenged
8
Republican-
redistricting
victories. 8
here
In
subverts
The district court played up the fact that District 5 and
District 6 constitute exceptions to the rule that Democraticleaning districts were over-populated and Republican-leaning
districts were under-populated.
Raleigh Wake Citizens Ass’n,
2016 WL 1060378, at *35.
According to the district court,
“[t]his
evidence
belies
a
systematic
under-population
of
districts to harm incumbents . . . who are registered Democrats
who support ‘progressive’ education policies.”
Id.
What the
evidence actually belies is the tenuousness of the district
court’s analysis—because both District 5 and District 6 exhibit
only negligible deviations from ideal population—both less than
0.2%.
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political
fairness
and
proportional
sublimates
partisan
gamesmanship.
representation
Gaffney
simply
and
cannot
reasonably be read as supporting that; if anything, it does the
opposite.
Indeed, the Supreme Court suggested that partisanship
is
legitimate
not
others,
a
and
the
reason
to
Gaffney
weight
Court
some
itself
votes
more
underscored
than
that
redistricting so as to “minimize” the “political strength” of a
party or group would be constitutionally “vulnerable.”
Id. at
754.
Further,
the
Supreme
Court
rejected
just
such
partisan
deviation games in Larios, 542 U.S. 947, indicating that “if a
plan contains any population deviations, a court may decide that
the
deviations
strike
the
are
plan
caused
down
person, one vote.”
.
.
by
.
impermissible
for
failure
to
partisanship
comply
with
and
one
Samuel Issacharoff & Pamela S. Karlan, Where
to Draw the Line?: Judicial Review of Political Gerrymanders,
153 U. Pa. L. Rev. 541, 567-68 (2004); see Larios, 300 F. Supp.
2d at 1338 (holding that pertinent “population deviations” were
“not the result of an effort to further any legitimate” policy
but were instead “systematically and intentionally created” to
“protect Democratic incumbents” and holding that that did not
“withstand[] Equal Protection scrutiny”).
We recognize that the Supreme Court has not yet clarified
when
exactly
partisan
considerations
29
cross
the
line
from
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legitimate to unlawful.
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See, e.g., Harris v. McCrory, No. 1:13-
CV-949, 2016 WL 3129213, at *2 (M.D.N.C. June 2, 2016) (citing
Larios, 542 U.S. 947, for the proposition that redistricting
plans may be challenged “when partisan considerations go ‘too
far,’” while citing Vieth v. Jubelirer, 541 U.S. 267 (2004), for
the lack of “judicially discernible and manageable standards for
adjudicating
political
gerrymandering
claims”).
Yet
it
is
important to bear in mind that only a plurality (i.e., not a
controlling majority) of the Supreme Court has suggested that
partisanship-based
redistricting
nonjusticiable. 9
Id.
And
claims
shortly
should
after
be
Vieth,
considered
a
nearly
unanimous Supreme Court, including three Justices from the Vieth
plurality, affirmed Larios, in which the lower court struck down
a redistricting plan with population deviations under 10% as a
9
The district court incorrectly suggested that “[i]n Vieth,
the Supreme Court rejected as nonjusticiable a political
gerrymandering claim.”
Raleigh Wake Citizens Ass’n 2016 WL
1060378, at *19, n.11. On the contrary, as we noted in Wright,
“a majority of the (Vieth) Supreme Court refused to deem
political gerrymandering claims to be per se nonjusticiable.
And the Court has since recognized as much.” 787 F.3d at 269
(citing League of United Latin Am. Citizens v. Perry, 548 U.S.
399, 414 (2006) (“A plurality of the Court in Vieth would have
held [political gerrymandering] challenges to be nonjusticiable
political questions, but a majority declined to do so.”)).
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blatant and unlawful attempt at partisan favoritism.
Larios,
542 U.S. 947. 10
4.
Not only did the uncontested record evidence demonstrate
that
illegitimate
resulting
in
an
reapportionment
overall
deviation
factors
of
barely
predominated,
under
10%;
the
evidence also exposed the stated reasons for the redistricting
as
pretextual.
Board’s
example,
redistricting
citizen’s
voting
Uncontroverted
redistricting
worse.”
For
was
to
resulted
in
stated
increase
districts
testimony
J.A. 235.
one
and
at
the
their
trial
the
goal
of
alignment
assigned
indicated
opposite,
the
“mak[ing]
School
between
schools.
that
the
alignment
Indeed, “[j]ust a perfect downtown example
is Daniels Middle School and Broughton High School[, which] are
in the same feeder pattern, they were in the same district under
the 2011 maps . . . but they were in different districts under
the [new] map” challenged here.
10
J.A. 424.
Further, even if
Stated different, “barely two months [after Vieth], three
of those Justices were part of an eight-Justice majority that
affirmed the judgment in Larios, a case in which the lower court
struck down a plan [with] relatively minuscule population
deviations . . . because they reflected ‘blatantly partisan and
discriminatory’ attempts to protect Democratic incumbents while
undermining Republican-held seats. As Sister Maria says in The
Sound of Music, ‘When the Lord closes a door, somewhere He opens
a window.’” Issacharoff & Karlan, 153 U. Pa. L. Rev. at 542.
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increased alignment were indeed a goal, it need not necessarily
have resulted in population deviations amongst the districts.
A second stated rationale for the redistricting debunked at
trial:
reducing
campaign
costs.
As
trial
testimony
demonstrated, “the proponents of this legislation said that they
were
concerned
about
the
cost
of
campaigning
and
that
these
districts would make it cheaper to run. . . . That is either
inaccurate or deceptive, because Wake County is a media market
and if you’re going to run in any of these widespread districts
here or if you’re going to run all in the entire county you are
still going to be advertising in the Raleigh/Wake media market,
[and]
it’s
still
expensive.”
J.A.
395-96.
Further,
moving
down-ballot races like those for School Board members to even
years
that
include
congressional
and
presidential
races
is
“going to dramatically increase the costs of running” in those
elections, J.A. 420, even simply for candidates “to have any
visibility in a Presidential election cycle.”
J.A. 258.
again,
cost
nothing
about
this
stated
rationale,
And,
reduction,
explains the population deviation amongst the districts.
Another
stated
goal
of
the
redistricting
legislation—
increasing voter turnout—also has nothing to do with re-drawing
districts, much less re-drawing them unequally.
court
noted
that
“Plaintiffs
do
not
dispute
The district
the
other
legislative goal of increasing voter turnout by having . . .
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elections in even-numbered years.”
2016 WL 1060378, at *27 n.18.
Raleigh Wake Citizens Ass’n,
But they did not need to dispute
that goal, because it has no logical connection to, and does not
justify,
re-drawing
districts,
much
less
districts
with
population deviations.
A further rationale given for the redistricting: allowing
voters greater representation.
Yet the redistricting of the
County Commission arguably reduced citizens’ opportunity to cast
votes for their preferred commissioners by moving away from an
all at-large system.
As testified at trial, voters “had the
ability to elect all seven members . . . . As it stands with the
maps that were passed by the House and the Senate, [they] will
be able to exercise [their] vote on only two of those members,
so
with
every
--
everything
representation, that’s less.”
about
this
goal
explains
that
I
know
J.A. 387-88.
the
population
about
the
word
And again, nothing
deviations
of
the
districts as drawn.
Moreover,
alternatives
achieved,
even
increased
representation
population
Jackson
more
effectively,
deviations.
proposed
an
were
without
For
amendment
suggested
the
to
stated
resulting
example,
create
that
in
would
rationale
such
Representative
two
have
purely
at
of
great
Darren
large
districts instead of the donut and donut hole districts, while
maintaining the 2011 single-member districts.
33
Such a plan would
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have “accomplish[ed] both of the Republicans’ stated goals, to
give you more representation on the School Board and to make
sure that you had a School Board member who represented your
child’s school, and it accomplished both of those goals.”
354.
That
amendment,
representation
on
the
which
would
Board,
School
have
was
achieved
J.A.
greater
rejected—yet
more
evidence that the stated rationales were pretextual and fail to
justify
the
population
deviations
in
the
challenged
redistricting.
The legislators pushing the redistricting also sought to
ground it in administrative ease, having the School Board and
Board of County Commissioners fall under the same plan.
Again,
that goal is wholly unrelated to, and plainly fails to justify,
the deviations in population amongst the districts.
Somewhat
relatedly, and certainly breathtakingly under the circumstances,
the Board of County Commissioners’ redistricting was ostensibly
intended to “avoid litigation.”
2016 WL 1060378, at *37.
Raleigh Wake Citizens Ass’n,
Yet the School Board redistricting was
being actively litigated and was in fact pending before this
Court at that time.
irrational
and,
The litigation rationale is thus utterly
further,
has
no
logical
connection
to
the
deviations at issue.
Moving
beyond
the
pretextual
rationales,
the
record
evidence demonstrates that traditional, legitimate apportionment
34
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factors did not predominate.
Pg: 35 of 59
On the contrary, the redistricting
resulted in: “a total of 31 [split] precincts” (as opposed to 12
split precincts under the 2011 plan), J.A. 805; bizarrely shaped
districts,
including
“donut[s]”
and
“donut
munchkin[s],”
J.A.
432, “crab claw[s]” and “pincer[s],” J.A. 212; and obviously
non-compact
School
districts
Board
members
that
“to
make
it
have
harder,
more
[their] own districts,” J.A. 280. 11
Dr.
Chen
considered
for
detailed
example,
knowledge
for
about
Indeed, Plaintiffs’ expert
several
traditional,
legitimate
reapportionment criteria, i.e., population equality, community
and precinct boundaries, and geographical compactness, and found
that
the
redistricting
“create[d]
a
partisan
distribution
of
seats falling completely outside the range of outcomes that are
possible under a non-partisan districting process that creates
equally
populated
districts
while
maximizing
preserving precinct and municipal boundaries.”
Representative
redistricting
during
Rosa
the
Gill
also
compactness
J.A. 768.
proposed
legislative
and
process.
an
alternative
Her
proposal
demonstrated that it was entirely possible to meet all of the
stated rationales for the skewed redistricting—including giving
voters
the
opportunity
to
elect
11
two
school
board
members,
No party has made an argument regarding Voting Rights Act
compliance, also recognized as a legitimate apportionment
factor. We therefore do not address it.
35
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providing district representation for the County Commissioners,
moving school board elections to even numbered years to increase
turnout, reducing voter confusion by using the same districts
for both the School Board and the Board of County Commissioners,
and
reducing
costs—while
creating
only
miniscule
deviations.
Representative Gill’s plan divided no precincts and had overall
deviations in the single-member and super districts of less than
0.5%.
J.A. 795-96.
The trial court dismissed the evidence of Representative
Gill’s alternative plan because it “simply shows that ‘better’
plans
can
be
drawn,
unconstitutionality.”
1060378, at *33.
but
‘better’
Raleigh
Wake
plans
do
Citizens
not
equate
Ass’n,
2016
to
WL
In fact, what the alternative plan shows is
that legitimate considerations, including the stated rationales
for the redistricting, utterly failed to explain or justify the
high
levels
of
deviation
in
the
enacted
plans—because
those
rationales could have been accomplished by a plan with virtually
no population deviations.
5.
At
the
end
of
the
day,
when
we
review
the
evidentiary
record, we can reach only one conclusion: that Plaintiffs, the
only parties to make their case at trial, successfully showed it
to be more probable than not that the deviations at issue here
reflect
the
predominance
of
an
36
illegitimate
reapportionment
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factor rather than legitimate considerations.
Ct.
at
1307.
deviations
cases.”
We
under
Id.
10%
recognize
will
that,
succeed
Harris, 136 S.
generally,
only
“attacks
rarely,
in
on
unusual
But after reviewing this matter closely, and for
the reasons discussed above, we are convinced that these middecade,
partisan
unusual case.
redistricting
plans
constitute
just
such
an
The district court therefore committed reversible
error in granting judgment in Defendant’s favor.
6.
In
addition
to
improper
partisanship,
Plaintiffs
claimed
improper regional favoritism as an illegitimate factor behind
the deviations in the challenged reapportionments.
Because we
have already ruled in Plaintiffs’ favor based on partisanship,
we
need
not
reach
this
related
but
separate
basis.
We
nevertheless note that “[a] citizen, a qualified voter, is no
more nor no less so because he lives in the city or on the farm.
This is the clear and strong command of our Constitution’s Equal
Protection
Clause.”
Reynolds,
377
U.S.
at
568.
Therefore,
“[i]n Larios, a federal court struck down a [state] legislative
redistricting plan . . . . The plaintiffs there alleged that the
plan
.
region
.
.
and
under-populat[ed]
the
rural
districts
south-Georgia
in
the
area—both
strongholds—while
over-populating
leaning voters.”
Wright, 787 F.3d at 266-67.
37
urban
districts
with
Atlanta
Democratic
Republican-
In Wright, we
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left no doubt that, as in Larios, Plaintiffs here claim that “a
state legislature designed a redistricting plan with a maximum
deviation in population of just under 10%, designed to pit rural
and urban voters against one another” and that “[e]ven if Larios
does not control this case . . ., we nevertheless find it” and
its rejection of regional favoritism as a basis for deviating
from ideal population by such margins “persuasive.”
Moreover,
Assembly
the
district
rationally
court
considered
held
the
that
Id. at 267.
“the
General
of
interest
communities
within Wake County’s urban areas and within Wake County’s rural
and
suburban
plans.
areas
in
adopting”
the
challenged
redistricting
Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at *40.
But the pertinent inquiry is not whether it was “rational” to
“consider”
communities
generally;
instead,
redistricting’s
of
the
deviations
interest
proper
more
in
adopting
inquiry
likely
is
than
not
the
whether
reflect
predominance of illegitimate reapportionment factors.
136 S. Ct. at 1307.
wrong
legal
standard
plans
the
the
Harris,
The district court plainly engaged the
in
its
analysis
of
this
factor.
But
because we rule on the basis of partisanship, we need go no
further of the regional favoritism issue.
D.
In addition to their federal constitutional one person, one
vote claim, Plaintiffs brought a similar North Carolina state
38
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claim.
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Pg: 39 of 59
Under the North Carolina Constitution, “[t]he right to
vote on equal terms in representative elections—a one-person,
one-vote
standard—is
a
fundamental
right.”
Blankenship
Bartlett, 681 S.E.2d 759, 762–63 (N.C. 2009).
analysis
of
the
state’s
“Equal
v.
A North Carolina
Protection
Clause
generally
follows the analysis of the Supreme Court of the United States
in interpreting the corresponding federal clause.”
Id. at 762.
If anything, North Carolina’s one person, one vote principle
applies with even more force than its federal counterpart.
See,
e.g., id. at 763 (deeming the one person, one vote principle
applicable in North Carolina’s election of superior court judges
even
though
person,
“federal
one-vote’
courts
standard
have
is
articulated
inapplicable
to
that
the
state
‘one-
judicial
elections”); Stephenson v. Bartlett, 562 S.E.2d 377, 397 (N.C.
2002)
(requiring
legislative
districts
minus five percent of ideal population).
to
be
within
plus
or
Accordingly, for the
same reasons that Plaintiffs succeed with their federal claim,
so, too, do they succeed with their North Carolina state one
person, one vote claim.
IV.
In addition to their one person, one vote claim, Plaintiffs
have also brought a racial gerrymandering claim regarding the
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Board of County Commissioners’ District 4. 12
Plaintiffs contend
that race predominated in determining the boundaries, shape, and
composition of that district without narrow tailoring to serve a
compelling state interest.
As explained below, the district
court did not commit clear error in rejecting this claim.
A.
To
successfully
electoral
district
challenge
under
the
the
constitutionality
Equal
Protection
of
Clause,
an
a
plaintiff must “show, either through circumstantial evidence of
a
district’s
going
to
factor
shape
legislative
motivating
significant
district.”
and
number
demographics
purpose,
the
of
that
or
race
legislature’s
voters
within
more
was
direct
the
decision
or
without
evidence
predominant
to
a
place
a
particular
Ala. Legislative Black Caucus v. Alabama, 135 S. Ct.
1257, 1267 (2015) (quotation marks and citation omitted).
Such
a
showing
requires
proof
that
“the
legislature
subordinated traditional race-neutral districting principles . .
. to racial considerations.”
Miller v. Johnson, 515 U.S. 900,
916
race-neutral
(1995).
Traditional
principles
include
“compactness, contiguity, and respect for political subdivisions
or
communities
defined
by
actual
12
shared
interests,”
id.,
Even though the corresponding School Board district is
identical, Plaintiffs in Wright made no such claim.
We, like
the district court, therefore do not address that issue.
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incumbency protection, and political advantage, Bush v. Vera,
517
U.S.
952,
964,
968
(1996).
And
evidence
that
such
traditional principles took a back seat to racial considerations
may include direct and circumstantial evidence of legislative
intent,
indications
that
a
district
was
non-negotiable,
shapes,
and
district
racial
lines
percentage
bizarre
that
or
within
non-compact
cut
through
geographic boundaries or election precincts.
a
given
district
traditional
See, e.g., Vera,
517 U.S. at 970-71; Miller, 515 U.S. at 917-18; Shaw v. Reno,
509 U.S. 630, 646–48 (1993).
If a plaintiff successfully shows racial predominance in
drawing the lines of a district, the court must apply “strictest
scrutiny,” Miller, 515 U.S. at 915, that is, it must determine
whether
the
design
of
the
challenged
district
was
narrowly
tailored to advance a compelling state interest—a burden the
state must bear, Shaw v. Hunt, 517 U.S. 899, 908 (1996).
If the
answer to that question is no, the district must be struck as
unconstitutional.
B.
In
district
contrast
to
court
did
its
not
one
person,
one
miscomprehend
vote
the
analysis,
applicable
the
law.
Accordingly, while we were “not bound by the clearly erroneous
standard” regarding the one person, one vote findings, Inwood
Labs., 456 U.S. at 855 n.15, the same cannot be said here.
41
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Here, we must affirm if “the district court’s account of the
evidence is plausible,” even if we are “convinced that we would
have decided the question of fact differently.”
TFWS, Inc. v.
Franchot, 572 F.3d 186, 196 (4th Cir. 2009) (quotation marks and
citation omitted).
While we might have decided this matter differently in the
first instance, we cannot say that the district court’s account
of the evidence is not plausible; it is.
district
court
considered
legislator
For example, the
comments
indicating
that
race was a consideration in the redistricting process, such as a
representative’s
observation
“that
at-large
electoral
systems
submerge the views of various minorities, ‘whether it’s racial,
gender, political, rural, urban or whatever.’”
Citizens Ass’n, 2016 WL 1060378, at *46.
evidence
the
fact
that
race
was
a
Raleigh Wake
While such comments
consideration
redistricting process, doing so is not unlawful.
in
the
See, e.g.,
Miller, 515 U.S. at 916 (“Redistricting legislatures will, for
example, almost always be aware of racial demographics; but it
does
not
follow
process.”).
that
race
predominates
in
the
redistricting
We cannot fault the district court for determining
that the comments here did not constitute direct evidence that
race predominated in the drawing of District 4, i.e., of racial
gerrymandering.
42
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Further,
advantage
in
may
the
be
racial
Pg: 43 of 59
gerrymandering
considered
a
context,
traditional
partisan
redistricting
criterion, and evidence that politics was the primary motivation
for the drawing of a district can defeat an allegation that race
predominated.
See, e.g., Cromartie, 532 U.S. at 257–58; Vera,
517 U.S. at 968.
The district court recognized this, noting
that the fact that District 4 is majority-minority “alone does
not
mean
that
the
General
Assembly
racially
gerrymandered
District 4,” Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at
*47, and that evidence supports the district’s having been drawn
with a focus on partisanship rather than race.
evaluating
the
expert
support
for
For example, in
Plaintiffs’
racial
gerrymandering claim, the district court noted that the expert’s
“partisan neutral” analysis did not help answer the question of
whether politics or race led to District 4’s boundaries.
Id.
Here, too, we cannot disagree.
In sum, even if we might have found otherwise in the first
instance,
it
was
determine
that
not
implausible
Plaintiffs
had
for
fallen
the
district
short
of
court
proving
to
that
traditional districting criteria were subordinated to race in
the drawing of District 4.
Accordingly, because the district
court’s analysis of Plaintiffs’ racial gerrymandering claim is
not clearly erroneous, we affirm on that issue.
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V.
For the reasons discussed above, we reverse the district
court’s
judgment
in
Defendant’s
person, one vote claims.
favor
as
to
Plaintiffs’
one
We remand with instructions to enter
immediately 13 judgment for Plaintiffs, granting both declaratory
relief and a permanent injunction, as to the one person, one
vote claims.
However, we affirm the district court’s judgment
for Defendant as to Plaintiffs’ racial gerrymander claim.
REVERSED AND REMANDED IN PART
AND AFFIRMED IN PART
13
We see no reason why the November 2016 elections should
proceed under the unconstitutional plans we strike down today.
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DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
With respect, I dissent from the majority’s holding that
the
district
protection
court
challenge
redistricting plans.
erred
to
in
twin
rejecting
Plaintiffs’
presumptively
equal
constitutional
Plaintiffs’ one person, one vote claim
rests on their contention that improper “partisanship” rendered
the challenged redistricting plans unconstitutional, even though
those plans have population deviations of less than 10%. 1
If
such a claim is justiciable, and it is not clear that it is, the
showing necessary to prove such a claim is extremely demanding.
The
Supreme
Court
explained
only
a
few
weeks
ago
that
challenges “will succeed only rarely, in unusual cases.”
v.
Ariz.
(2016).
1
Indep.
Redistricting
Comm’n,
136
S.
Ct.
such
Harris
1301,
1307
The challenge here, like that in Harris, is not that
In their amended complaint, Plaintiffs also alleged that
the plans impermissibly favored rural voters over urban voters.
At
trial,
however,
they
focused
on
assertedly
improper
“partisanship” and produced scant evidence that the State sought
to advantage rural over urban voters.
Plaintiffs did not even
offer evidence as to which districts they considered “urban” or
“rural.”
Their experts testified that assertedly illegitimate
“partisan” motivations, not regional favoritism, predominately
motivated the challenged plans.
Unsurprisingly, the district
court found that Plaintiffs “failed to prove” that either plan
“impermissibly favors suburban and rural voters over urban
voters or substantially dilutes the individual voting strength
of Wake County’s urban voters.” Raleigh Wake Citizens Ass’n v.
Wake Cty. Bd. of Elections, No. 5:15-CV-156-D, 2016 WL 1060378,
at *40 (E.D.N.C. Feb. 26, 2016). On appeal, Plaintiffs provide
no basis on which to disturb that finding.
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“unusual case.”
the
judgment
Pg: 46 of 59
For this reason, I would affirm in its entirety
of
the
district
court
rejecting
Plaintiffs’
challenges to the redistricting plans.
I.
The Equal Protection Clause requires a State to “make an
honest and good faith effort to construct [state legislative]
districts
.
practicable.”
.
.
as
nearly
of
equal
population
as
Reynolds v. Sims, 377 U.S. 533, 577 (1964).
is
But,
the Reynolds Court itself recognized that, in determining what
is “practicable,” the Constitution permits some deviations from
perfect
population
equality
when
justified
by
“legitimate
considerations incident to the effectuation of a rational state
policy.”
Id. at 579; accord Harris, 136 S. Ct. at 1306.
In a long line of cases decided in the wake of Reynolds,
the Court has held that districts, like those at issue here,
with
a
“maximum
population
presumptively constitutional.
deviation
under
10%”
are
See, e.g., Brown v. Thomson, 462
U.S. 835, 842 (1983); accord Harris, 136 S. Ct. at 1307 and
cases cited therein.
These “minor deviations from mathematical
equality do not, by themselves, make out a prima facie case of
invidious discrimination under the Fourteenth Amendment so as to
require justification by the State.”
46
Harris, 136 S. Ct. at 1307
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(quoting
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Pg: 47 of 59
v.
412
Gaffney
Cummings,
U.S.
735,
745
(1973))
(internal quotation marks omitted).
It was because of “the inherent difficulty of measuring and
comparing
factors
that
may
legitimately
account
for
small
deviations from strict mathematical equality” that the Supreme
Court recently reiterated that “attacks on deviations under 10%
will succeed only rarely, in unusual cases.”
at 1307.
Harris, 136 S. Ct.
To prevail on such claims, the Harris Court held that
a challenger “must show that it is more probable than not that a
deviation
of
less
than
10%
reflects
the
predominance
of
illegitimate reapportionment factors rather than the ‘legitimate
considerations’”
cases.
that
the
Court
had
identified
in
previous
Id.
In earlier cases the Supreme Court had identified numerous
“legitimate considerations” justifying a State’s reapportionment
plan.
Among them are a State’s valid interests in:
maintaining
the competitive balance among political parties, Gaffney, 412
U.S. at 752-53; accord Harris, 136 S. Ct. at 1306, avoiding
contests between incumbents as long as incumbents of one party
are not favored over those of another, Karcher v. Daggett, 462
U.S. 725, 740 (1983), and recognizing communities of interest,
Evenwel v. Abbott, 136 S. Ct. 1120, 1124 (2016).
Indeed, in
League of United Latin American Citizens v. Perry, the Supreme
Court characterized “avoiding the pairing of incumbents” as a
47
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“‘neutral’
Filed: 07/01/2016
redistricting
communities
of
principle[ ].”
Pg: 48 of 59
standard[
interest”
as
a
]”
and
“maintaining
“traditional
districting
548 U.S. 399, 412 (2006) (plurality opinion)
(“LULAC”); Id. at 433 (majority opinion).
Thus,
notwithstanding
Plaintiffs’
apparent
belief,
the
Court has expressly recognized that a redistricting plan can in
these
ways
legitimately
considerations.
constitutes
take
account
political
The Court has never suggested that doing so
reliance
on
an
“illegitimate
factor.”
Harris, 136 S. Ct. at 1307.
follows
from
the
considerations
fact
are
apportionment”
of
and
that
This approach necessarily
“[p]olitics
inseparable
so
reapportionment
“districting
from
and
political
districting
inevitably
has
intended to have substantial political consequences.”
and
and
is
Gaffney,
412 U.S. at 753.
If those attacking a redistricting plan prove that a State
has abused legitimate political considerations by systemically
over- or under-populating districts to benefit one party at the
expense another, then the challengers may be able to prevail as
they did in Larios v. Cox, 300 F. Supp. 2d 1320, 1325 (N.D.
Ga.),
aff’d,
542
heavily on Larios.
U.S.
947
(2004)
(mem.).
Plaintiffs
lean
Their reliance is misplaced.
First, Plaintiffs ignore the very different factual record
developed in that case.
In Larios, the challenged plan paired
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in the same district, and thus pitted against each other, 37 of
the 74 incumbent Republicans but only 9 of the 105 incumbent
Democrats.
300
F.
Supp.
2d
at
1326.
In
Larios,
Georgia
legislators admitted before the district court that they had
intentionally drawn legislative districts to favor incumbents of
one party over those of the other.
Id. at 1325.
Thus, in
Larios, the state legislators conceded that they had not made
the “good faith effort” to draw equal districts that Reynolds
requires.
In
The record in this case contains no such evidence.
addition
to
ignoring
the
very
different
evidentiary
record in Larios, Plaintiffs turn a blind eye to the Court’s
subsequent
treatment
explained
that
“addressing
Larios
political
equal-protection
opinion).
reserved
of
that
“does
case.
not
motivation
violation.”
In
give
as
548
a
LULAC,
clear
the
guidance”
justification
U.S.
at
Court
423
for
in
an
(plurality
And in Harris, the unanimous Supreme Court expressly
the
partisanship
question
at
issue
of
in
whether
Larios
illegitimate redistricting factor.”
2
the
even
sort
of
abusive
constitutes
“an
Harris, 136 S. Ct. at 1310. 2
Tellingly, the Court has never addressed the alternative
holding by the lower court in Larios invalidating the challenged
plans on the basis of regional favoritism.
That alternative
holding has little precedential or persuasive value given, as
the Supreme Court has explained, “a summary affirmance is an
affirmance of the judgment only,” not the rationale of the lower
court, which “should not be understood as breaking new ground.”
(Continued)
49
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Despite
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Plaintiffs’
foundations
of
Pg: 50 of 59
protestations
Larios
as
to
persuasive
the
contrary,
authority
rest
on
the
shaky
ground.
Equally
holding
in
constitute
significantly,
Harris
an
that,
Plaintiffs
even
illegitimate
if
factor,
take
no
notice
of
the
abusive
partisanship
did
those
challenging
the
redistricting plan before it had “not carried their burden.”
Id.
This holding is particularly significant given that the
Harris plaintiffs had made a much stronger evidentiary showing
than Plaintiffs do here.
For example, the Harris plaintiffs
offered direct evidence of a Republican-leaning district made
“more competitive” at the request of a Democratic redistricting
commissioner by “hyperpacking Republicans into other districts.”
Id.
at
1309
(internal
quotation
marks
omitted).
The
redistricting commission in Harris had overpopulated almost all
the
Republican-leaning
while
underpopulating
districts
in
almost
all
the
the
thirty-district
plan
Democratic-leaning
Mandel v. Bradley, 432 U.S. 173, 176 (1977). And invalidating a
redistricting plan because it allegedly favors “rural” or
“urban” voters would break new ground.
The Supreme Court has
never before or after Larios suggested that considering the
urban or rural characteristics of a district is an illegitimate
apportionment factor.
In fact, statements in several cases
suggest that these are the quintessential types of communities
of interest a State may consider when redistricting. See, e.g.,
Dusch v. Davis, 387 U.S. 112, 117 (1967).
50
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districts.
the
Filed: 07/01/2016
Id. at 1309-10.
district
court
Pg: 51 of 59
Even in the face of this evidence,
did
not
find
the
redistricting
unconstitutional -- and the Supreme Court agreed.
Furthermore,
in
explaining
its
rejection
plan
Id. at 1309.
of
the
Harris
plaintiffs’ claims, the Supreme Court distinguished Larios in
ways that apply with equal force here.
The Harris Court held
that in Larios, unlike in the case before it (and unlike in the
case at hand), “the district court found that those attacking
the plan had shown” that no legitimate factors explained the
deviations in the plan.
Id. at 1310 (emphasis added).
Harris Court explained:
that
illegitimate
inapposite
“It is appellants’ inability to show”
factors
here.”
The
Id.
predominated
Thus
the
“that
Court
makes
emphasized
[Larios]
and
re-
emphasized that those attacking a presumptively constitutional
redistricting
plan,
like
Plaintiffs
here,
must
prove
that
claims
are
illegitimate factors predominated.
In
sum,
even
if
abusive
partisanship
justiciable, and do provide the basis for a one person, one vote
claim, Plaintiffs had to prove at trial that the State relied on
this consideration in redistricting, and that this reliance took
precedence
over
all
legitimate
considerations,
including
maintaining political balance among political parties, avoiding
contests
between
incumbents
communities of interest.
of
both
parties,
and
recognizing
The State, on the other hand, did not
51
Appeal: 16-1270
need
Doc: 51
to
Filed: 07/01/2016
offer
constitutional
any
Pg: 52 of 59
justification
redistricting
for
its
presumptively
plans.
See,
e.g.,
factual
record
Harris,
136
S. Ct. at 1307.
A
fair
review
of
the
seems
to
me
to
demonstrate that, as in Harris, Plaintiffs here failed to meet
their burden and so, as the Supreme Court did in Harris, we
should affirm the district court’s rejection of their challenge. 3
II.
In attempting to meet their substantial burden, Plaintiffs
principally
rely
Dr. Jowei Chen.
created,
Dr.
redistricting
obtain
on
Chen
plans
districts
districts.
trial
testimony
of
their
expert,
On the basis of statistical models that he had
“Republican
numbered
the
opined
were
that
motivated
partisan
and
deviations
over
control
one
of
in
entirely
over
the
the
by
four
two
a
of
challenged
desire
the”
lettered
to
seven
super-
But, as the district court found, Dr. Chen’s model
3
The district court also rejected Plaintiffs’ one person,
one vote claim under the North Carolina Constitution.
Because
North Carolina courts “generally follow[ ] the analysis of the
Supreme Court of the United States” when interpreting the
State’s corresponding Equal Protection Clause, I would affirm
the district court’s finding that Plaintiffs failed to carry
their burden on their state law claims for the same reasons that
apply to their federal claims.
Blankenship v. Bartlett, 681
S.E.2d 759, 762 (N.C. 2009).
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simply does not prove either conclusion.
Dr. Chen’s analysis
suffers from two critical flaws.
First, in his model, Dr. Chen pegged the maximum tolerable
level of population deviation between districts at 2%.
In doing
so he held the State to a standard not required by law.
Of
course, a State must make a “good faith effort” to draw equal
districts.
Reynolds, 377 U.S. at 577.
But neutral factors may
cause population deviations well above 10% without running afoul
of the Constitution.
See, e.g., Mahan v. Howell, 410 U.S. 315,
328 (1973).
Moreover, Dr. Chen’s arbitrary 2% threshold seems
particularly
unwarranted
in
light
of
the
Supreme
Court’s
repeated characterization of deviations below 10% as “minor” and
its admonition that such minor deviations do not “substantially
dilute the weight of individual votes in the larger districts so
as
to
deprive
individuals
effective representation.”
in
these
districts
of
fair
and
White v. Regester, 412 U.S. 755, 764
(1973).
The second fatal flaw in Dr. Chen’s analysis is his failure
to look beyond what he considered to be the only four legitimate
or
“traditional”
districting
intact municipal
boundaries,
factors
intact
53
--
population
precincts,
and
equality,
geographic
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compactness. 4
Filed: 07/01/2016
Pg: 54 of 59
Dr. Chen ignored the many apolitical and political
factors States may consider during redistricting (like striking
a competitive balance among political parties, avoiding contests
among incumbents, and recognizing communities of interest), even
if pursuing these goals causes minor population deviations.
This
is
particularly
troubling
because
it
is
undisputed
that two of the legitimate districting factors Dr. Chen failed
to consider -- incumbency protection and grouping communities of
interest
parties
--
actually
stipulated
legislative
debate
to
and
motivated
the
the
accuracy
those
legislature
of
transcripts
here.
transcripts
reveal
of
that
The
the
state
legislators altered the district lines in the final version of
the School Board redistricting bill to protect two incumbents -one registered Democrat and one registered Republican.
Further,
the Democratic incumbent, Christine Kushner, testified at trial
that “Ms. Prickett, who is a registered Republican, had been
placed into a Democratic leaning district,” but “was moved out
4
Plaintiffs actually concede the limited reach of
Dr. Chen’s analysis, noting that his analysis “shows that the
partisanship of the enacted districts does not happen when
traditional
redistricting
criteria
are
followed.”
See
Plaintiffs’ Rep. Br. at 21 (emphasis added).
Of course, as
explained above, the Supreme Court has repeatedly recognized
numerous legitimate ‘redistricting criteria’ other than those
that Dr. Chen considers “traditional.”
And in LULAC, 548 U.S.
at 433, the Court expressly included “maintaining communities of
interest” among “traditional” redistricting criteria.
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Pg: 55 of 59
of that district and put into a Republican leaning district, and
I [Ms. Kushner] was switched out of District 2 into District 5,”
which
she
admitted
was
a
“more
favorable
district”
for
her.
Accommodating the legitimate interest in protecting incumbents
of
both
parties
had
a
demonstrable
impact
on
the
population
deviations across four of the seven numbered districts in the
plan.
District
underpopulated.
1
swung
from
2.76%
to
-0.41%
District 2 swelled from -4.19% underpopulated
to just -1.05% underpopulated.
overpopulated
overpopulated
to
-1.53%
District 5 dipped from 0.19%
underpopulated.
Finally,
District
6
grew from -0.14% underpopulated to 1.6% overpopulated.
Dr. Chen’s model does not in any way account for these
population
deviations.
As
a
result,
Dr.
Chen’s
view
that
nothing but improper “partisanship” could explain the population
deviations in the twin redistricting plans completely ignores
the undisputed impact that the legislative effort to protect the
two incumbents had on the plans.
In light of that omission, I
cannot agree that the district court clearly erred in concluding
that
Dr.
Chen’s
legislature
testimony
deviated
from
did
not
population
demonstrate
equality
only
that
the
for
the
predominant purpose of creating four safe Republican seats out
of seven.
Dr.
Chen
committed
the
same
sort
of
considering the two lettered super-districts.
55
analytic
error
in
One of the stated
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purposes for the super-districts was to improve representation
for
voters
in
rural
areas.
Without
challenging
the
State’s
consideration of communities of interest generally, Plaintiffs
argue
that
rationales
“[t]here
explain
is
why
no
possible
Super
way
District
people larger than Super District B.”
12.
that
A
needs
[the
to
stated]
be
44,117
Plaintiffs’ Rep. Br. at
According to Dr. Chen, again improper “partisanship” is the
only explanation.
And
again,
conclusion.
To
Dr.
be
Chen’s
sure,
model
the
State
does
not
support
this
could
have
overpopulated
District A, an area of the County that has historically voted
for Democratic candidates, to increase a Republican candidate’s
odds of winning in District B.
But the State also could have
deviated from population equality to group more urban areas in
District A based on their shared interests.
was
the
place,
purpose
and
interest.
of
for
having
course
it
the
This, after all,
super-districts
constitutes
a
clearly
See Evenwel, 136 S. Ct. at 1124.
in
the
first
valid
State
Or the State could
have had the dual motivation to accomplish both.
Dr. Chen’s
model tells us nothing about how grouping together communities
of
interest
excludes
any
motivated
the
consideration
legislature
of
consideration.
56
that
because
legitimate
it
a
priori
redistricting
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Plaintiffs’
meeting
their
considerations
remaining
burden
Pg: 57 of 59
evidence
of
proving
predominated
also
that
here.
falls
far
short
illegitimate
Plaintiffs’
of
partisan
expert
Anthony
Fairfax concluded that the legislature desired to “minimize the
Democratic performance” in certain districts by overpopulating
the “Democratic performing districts.”
That opinion rests on
his view that correlation between overpopulation and Democratic
performance
in
the
districts
legislative
intent
themselves.
The district court concluded that they do not.
--
in
i.e.,
and
that
of
the
itself
demonstrates
numbers
speak
for
The record here provides no basis for holding that finding
clearly erroneous.
Of the four districts assertedly favorable
or competitive for Democrats, three are overpopulated.
five
districts
assertedly
favorable
or
Of the
competitive
Republicans, only three are underpopulated by more than 1%.
for
One
of these three districts, District 2, is underpopulated by just
-1.05%.
Thus, the asserted correlation between population and
Democratic
performance
is,
to
say
the
least,
minimal.
This
minimal correlation limits the strength of any inference that
can be drawn.
Cf. Harris, 136 S. Ct. at 1309-10 (refusing to
infer predominance of illegitimate partisanship over a thirtydistrict plan where every district underpopulated by more than
1%
(nine
total)
overpopulated
by
favored
more
Democrats
than
57
1%
and
(twelve
every
total)
district
favored
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Filed: 07/01/2016
Republicans).
Pg: 58 of 59
At the very least, the district court did not
clearly err when it declined, as the Supreme Court did in Harris
in
the
face
of
stronger
evidence,
to
make
an
inference
of
unconstitutional motivation.
Plaintiffs also offered the lay testimony of members of the
state legislature who opposed the redistricting plans.
I agree
with the majority that the district court erred in categorically
rejecting
this
testimony
as
irrelevant.
But,
despite
this
error, the testimony does not move the needle far on the issue
of
intent
of
those
voting
to
adopt
the
redistricting
plans
because, to a person, Plaintiffs’ lay witnesses disclaimed any
knowledge of the sponsors’ motivations. 5
In
sum,
assertedly
predominant
redistricting
truly
faced
the
illegitimate
motivation
plans,
probative
tendered
with
of
conclusions
for
heavy
“partisanship”
the
Plaintiffs
legislative
that
burden
their
5
of
constituted
presumptively
failed
to
intent.
analyses
proving
offer
the
constitutional
any
Plaintiffs’
could
that
not
evidence
experts
support.
More probative are emails from Wake County Republican
Chairwoman Donna Williams to Republican members of the state
legislature and School Board.
Williams expressed concern that
the proposed map would not be sufficiently favorable to
Republicans to permit them to “take 5 of the 9 seats.” However,
the record does not contain requests for information or
responses
from
State
officials
or
any
indication
that
Ms. Williams’
lobbying
efforts
had
any
effect
on
the
legislation.
58
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Plaintiffs’
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remaining
evidence
Pg: 59 of 59
proved
little.
The
court refused to draw Plaintiffs’ preferred inference.
so, the court did not clearly err.
district
In doing
To the contrary, given the
weakness of Plaintiffs’ case, Defendants would have had strong
grounds to appeal had the district court ruled otherwise.
I would affirm the judgment of the district court in its
entirety.
59
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