HARRIS et al v. MCCRORY et al

Filing 142

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)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
________________________________
DAVID HARRIS, CHRISTINE
BOWSER, and SAMUEL LOVE,
Plaintiffs,
v.
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.

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Case No. 1:13-cv-949

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.”
(1989).

Richmond v. J.A. Croson Co., 488 U.S. 469, 491

For good reason.

Racial classifications are, after

all, “antithetical to the Fourteenth Amendment, whose ‘central
purpose’ was ‘to eliminate racial discrimination emanating from

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)).
pernicious

embodiments

of

racial

Quotas are especially

stereotypes

because

they

threaten citizens’ “‘personal rights’ to be treated with equal
dignity and respect.”
Laws

that

constitutionally
scrutiny;

J.A. Croson Co., 488 U.S. at 493.

classify
suspect

racially

citizens
and

based

therefore

gerrymandered

on

subject

districting

to

schemes

different, even when adopted for benign purposes.
2

race

are
strict

are

no

Shaw II, 517

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

violation.

aware

of

race

poses

See Shaw II, 517 U.S. at 905.

“dominant
lines

being

and

does

controlling”

strict

scrutiny

consideration
apply.

no

constitutional

Only when race is the
in

Id.;

drawing

see

also

district
Easley

v.

Cromartie, 532 U.S. 234, 241 (2001) (Cromartie II).
This
Carolina
violation
Amendment.

case

challenges

congressional
of

the

the

constitutionality

districts

Equal

as

Protection

racial

Clause

of

of

two

North

gerrymanders
the

in

Fourteenth

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
3

that race predominated in both CD 1 and CD 12 and that the
defendants

have

failed

to

establish

that

redistricting satisfies strict scrutiny.
holds

that

the

general

its

race-based

Accordingly, the Court

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.

4

I.
A.
The

North

Carolina

Constitution

requires

decennial

redistricting of the North Carolina Senate and North Carolina
House

of

Representatives,

requirements.

subject

to

several

specific

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

Rights Act of 1965 (“VRA”).

must

comply

with

the

Voting

“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

U.S.C. § 10304.
5

under

section

5,

52

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.”
occurs

when,

political

52 U.S.C. § 10301(a).

based

process

on

the

results

A section 2 violation

totality
minority

in

of

circumstances,

“members

hav[ing]

the
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.
130,

131-32

(1976).

By

Beer v. United States, 425 U.S.

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
6

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.”
874, 883 (1994).

Holder v. Hall, 512 U.S.

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

abridging the right to vote on account of race or color.”

or

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.
7

As a result

of the invalidation of the coverage formula under section 4,
North

Carolina

is

no

longer

obligated

preclearance requirements of section 5.1

to

comply

with

the

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.

BVAP fell below 50 percent.

Between 1997 and 2011, the

The BVAP stood at 46.54 percent,

for example, for the plan in place from 1997 to 2001.
110.

Pls.’ Ex.

After the 2000 census, the general assembly enacted the

2001 Congressional Redistricting Plan (now referred to as the
“benchmark”

or

“benchmark

plan”)

that

increasing the BVAP to 47.76 percent.

redrew

CD

1,

modestly

Pls.’ Ex. 111.

The BVAP of former CD 12 mirrored that of former CD 1.
Initially

in

“maximization”

1991,
policy

to
—

comply

with

requiring

1

the

DOJ’s

then-existing

majority-minority

districts

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.

8

wherever possible — CD 12 was drawn with a BVAP greater than 50
percent.
Supreme

Pls.’ Ex. 72.
Court’s

After years of litigation and the U.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.
The

general

assembly

thus

determined

that

Pls.’ Ex. 110.

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”).
2001

benchmark

percent.

version

of

CD

12

reflected

a

BVAP

of

The
42.31

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.
prevailed

with

Indeed, African-American preferred candidates
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.
Butterfield

has

represented

that

Id.

district

Representative G.K.
since

2004.

Id.

Meanwhile, in CD 12, Congressman Mel Watt won every general
election in CD 12 between 1992 and 2012.
9

Id.

He never received

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

independently

House

appointed

of

Representatives

redistricting

and

Senate

committees.

Each

committee was responsible for recommending a plan applicable to
its own chamber, while the two committees jointly were charged
with

preparing

Representatives

a

redistricting

North

Carolina

plan

for

the

districts.

U.S.

Senator

House
Rucho

of
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).

10

Senator

Rucho

and

Representative

Lewis

engaged

redistricting counsel and a political consultant.

private

Specifically,

Senator Rucho and Representative Lewis engaged the law firm of
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (“Ogletree”) as
their private redistricting counsel.
engaged

Dr.

Thomas

Hofeller,

In December 2010, Ogletree

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.
588:1-2 (Hofeller).

Trial Tr. 577:1-23; 587:14-25;

Dr. Hofeller was the “principal architect”

of the 2011 Congressional Redistricting Plan (as well as the
state senate and house plans).
Senator

Rucho

and

Id. 586:13-15.

Representative

Lewis

were

the

sole

sources of instruction for Dr. Hofeller regarding the design and
construction
(Hofeller).

of

congressional

maps.

See

Trial

Tr.

589:3-19

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
11

to

the

preparation

of

the

congressional maps.
589:13

Trial Tr. 48:23-25; 49:1-5 (Blue); 588:3-

(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
Representative
describing,
instructed

June
Lewis

among
Dr.

joint

July

released

other

Hofeller

congressional map.
2011,

and

a

things,
to

2011,

Senator

series
the

follow

of

public

criteria
in

Rucho

drawing

and

statements

that

they

the

had

proposed

As Senator Rucho explained at the July 21,

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

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
12

in

their

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.
Ex. 67.

Pls.’

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

13

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.”
On

July

28,

congressional
drawn

at

Lewis.
2011)

and

the

2011,

the

legislative

direction

of

general
plans,

Senator

assembly
which

Rucho

Dr.
and

Id.

enacted

the

Hofeller

had

Representative

ECF No. 125 ¶ 5; see Session Law 2011-403 (July 28,
(amended

by

(Nov. 7, 2011)).

curative

legislation,

Session

Law

2011-414

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.
Following

Pls.’ Exs. 106-107.
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.

14

D.
1.
Two sets of plaintiffs challenged the 2011 Congressional
Redistricting

Plan

gerrymandering.

in

state

court

for

illegal

racial

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,

plaintiffs’

the

court

issued

a

decision

denying

the

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.
that

race

was

not

the

With regard to CD 12, the court held
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.
15

Dickson v.

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).
North

Carolina

Supreme

Court

On December 18, 2015, the

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

African–American

voters

requirements
into

North

as

a

pretext

Carolina’s

to

pack

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
16

the defendants from conducting elections for the U.S. House of
Representatives

based

on

Congressional Districts.
Because

the

constitutionality

the

2011-enacted

and

Twelfth

Id. at 19.

plaintiffs’
of

First

the

action

“challeng[ed]

apportionment

of

the

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 posttrial 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

quotations and citations omitted).

U.S.

at

911-12

(internal

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.”
I, 509 U.S. at 649.

17

Shaw

In a racial gerrymander case, the “plaintiff’s burden is to
show,

either

shape

and

through

circumstantial

demographics

legislative

purpose,

motivating

the

number

voters

of

or

that

more
race

legislature’s
within

direct
was

without

to
a

of

a

district’s

evidence

the

decision

or

Miller, 515 U.S. at 916.

evidence

going

predominant
place

a

to

factor

significant

particular

district.”

“To make this showing, a plaintiff

must prove that the legislature subordinated traditional raceneutral

districting

principles,

including

but

not

limited

to

compactness, contiguity, and respect for political subdivisions
or communities defined by actual shared interests, to racial
considerations.”
testimony

by

Id.

the

Public statements, submissions, and sworn

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

demonstrate

applies
that

strict
its

scrutiny,

districting

and

legislation

tailored to achieve a compelling interest.”
920.

“the

State
is

must

narrowly

Miller, 515 U.S. at

If race did not predominate, then only rational-basis

review applies.

18

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

compromised.

and

12.

Shaw

See

CD

And,

II,

517

that

U.S.

floor

at

could

907

not

(“Race

was

be
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

redistricting
insofar

as

factor

principles
they

Accordingly,

did

the

Court

motivating

significant
district.”

decisions

number

are

not

of

that

within

if

with

“race

legislature’s
voters

made,

considered,

interfere

holds

the

are

and
at

this
was

all,

without

solely

quota.

the

decision
or

traditional

predominant

to
a

Id.

place

a

particular

Miller, 515 U.S. at 916.

Because race predominated, the state must demonstrate that
its

districting

decision

is

narrowly
19

tailored

to

achieve

a

compelling interest.

Even if the Court assumes that compliance

with the VRA is a compelling state interest, attempts at such
compliance

“cannot

justify

challenged

district

was

race-based

not

districting

reasonably

where

necessary

under

constitutional reading and application” of federal law.
921; see also Bush, 517 U.S. at 977.

the
a

Id. at

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
20

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

. . . to racial considerations.”

districting

principles

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,”

traditional principles have been subordinated to race.

such

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.”
This

presumption

“requires

courts

to

exercise

Id. at 916.
extraordinary

caution in adjudicating claims that a State has drawn district
lines

on

the

basis

of

race.”
21

Id.

Such

restraint

is

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,”

Supp. 1174, 1207 (D.S.C. 1996).
however,

when

the

evidence

Smith

v.

Beasley,

946

F.

This presumption must yield,

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

legislative

extraordinary

records,

public

amount

of

statements,

direct

evidence

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 50percent-plus-one-person minimum floor, see Shaw II, 517 U.S. at
907, the quota operated as a filter through which all linedrawing

decisions

“[S]ometimes

it

had

wasn’t

to

pass.

possible

As
to

Dr.

adhere

Hofeller

stated,

to

of

some

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
22

draw the district as majority-BVAP].”
(Hofeller) (emphasis added).
that

race

necessarily

Indeed.

Trial Tr. 626:19-627:1
The Court therefore finds

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,
Pls.’

Ex.

and

140,

at

we

fulfill

30:2-4

those

(July

27,

requirements”);
2011

House

see

also

Testimony

of

Lewis) (Representative Lewis stating that CD 1 “was drawn with
race as a consideration, as is required by the [VRA]”); Trial
23

Tr.

57:24-58:6

with

Senator

(Blue)
Rucho

(Senator

in

which

Blue,

describing

Senator

Rucho

conversation

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

Rucho

and

. . . .”).
b.
The

public

Representative

statements
Lewis

also

released
reflect

by
their

Senator

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.
e.g.,

Defs.’

Ex.

5.11

at

2

(June

17,

(July

2011

See,

Joint

Public

Statement);

Pls.’

Ex.

67

at

3-4

Statement);

Pls.’

Ex.

68

at

3

Statement).

Further, in its preclearance submission to the DOJ,

(July

1,

2011

Joint

Public

19,

2011

Joint

Public

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.”
at

12;

see

also

id.

at

13

(“Under

the

enacted

Pls.’ Ex. 74
version

of

District 1, the . . . majority African-American status of the
24

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.
I

was

to

draw

that

Id. 480:21-481:1 (“My understanding was
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. 610:38 (“[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”).
25

The

Court

is

underpopulated;

it

sensitive
is

not

to

the

fact

in

dispute

that
that

CD

was

1

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

principles is a “special” inquiry:

raced-neutral

redistricting

“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

district.

less

heavily

African-American

areas

from

the

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
26

districts,

and

that it manipulated district lines to exploit unprecedentedly
detailed

racial

application

data

of

–

together

strict

weigh

scrutiny.”

in

favor

(emphasis

of

the

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

increased

correctly.”
from

47.76

Id.

621:7.

percent,

the

The
BVAP

BVAP
in

substantially

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-oneperson BVAP.

See Trial Tr. 621:13-622:19 (Hofeller).

This is

the very definition of a racial quota.
d.
The

Supreme

longstanding.

Court’s

skepticism

of

racial

quotas

is

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
27

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

strict scrutiny is therefore triggered.”).3

motivation

and

The Court recently

has cautioned against “prioritizing mechanical racial targets
above

all

other

districting

criteria”

Alabama, 135 S. Ct. at 1267, 1272–73.
Alabama

did

not

decide

whether

the

in

redistricting.

Although the Court in
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

2

to

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.

28

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

Congressman
District.”).

divisions

Butterfield’s

were

prompted

majority

black

by

the

First

creation

of

Congressional

Dr. Hofeller further testified that he did not use

mathematical measures of compactness in drawing CD 1.
129 (Hofeller Dep. 44:19-45:12).

Pls.’ Ex.

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).

29

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
Findings of Fact, ECF No. 138 at 74.

The defendants, however,

proffer no evidence to support such a contention.

Id.

nothing

CD

in

the

record

that

remotely

Defs.’

suggests

There is
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

[district].”).

the
It

12th
cannot

District
seriously

as
be

. . .

a

disputed

political
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.

30

e.
Even if the Court assumes, arguendo, that this is a “mixedmotive suit” - in which a state’s conceded goal of “produc[ing]
majority-minority
particularly

districts”

incumbency

is

accompanied

protection”

-

by

“other

race

can

goals,
be

the

predominant factor in the drawing of a district without the
districting revisions being “purely race-based.”
at

959

(emphasis

omitted).

Indeed,

the

Bush, 517 U.S.

Supreme

Court

has

observed that “partisan politicking” may often play a role in a
state’s

redistricting

legislature

addressed

refute

fact

the

consideration.”

process,
these

that

race

but

interests
was

the

the

fact

[need]

“[t]hat

not

in

legislature’s

the

any

way

predominant

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
U.S.

played
at

962

an

important

(finding

boundary-drawing

predominant

racial

role”);

purpose

Bush,

where

517

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.”).
31

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.”
907.

Shaw II, 517 U.S. at

When a legislature has “relied on race in substantial

disregard of customary and traditional districting practices,”
such

traditional

principles

have

been

subordinated

Miller, 515 U.S. at 928 (O’Connor, J., concurring).
record is unequivocally clear:

to

race.

Here, the

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

32

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

Nevertheless,

direct

even

considered

evidence

in

indicating

redistricting.

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
direct

not

evidence

as

robust

as

supporting

in

the

CD

Senator

legislative

Rucho
goal.

and
In

June

is

that

nevertheless
race

17,

Lewis
2011,

reflect
statement,

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
33

was

the

Public statements released

Representative
their

there

conclusion

predominant factor in drawing CD 12.
by

1,

this
for

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,

of

“Because

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

population found in the current Twelfth District.”
Ex. 67 at 5 (emphasis added).

voting

age

Pls.’ Tr.

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
34

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 AfricanAmerican 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.

35

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 majorityminority district be created—a concern that the U.S. Supreme
Court

handily

rejected

in

Miller,

when

it

maximization policy, see 515 U.S. at 921–24.

repudiated

the

The discussion of

CD 12 in the DOJ submission concludes, “Thus, the 2011 version
maintains,

and

community’s

ability

District 12.”

in

fact
to

increases,

elect

their

Pls.’ Ex. 74 at 15.

the

African-American

candidate

of

choice

in

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.”
36

Trial Tr. 108:23-109:1 (Watt).
Senator

Rucho

seemed

Congressman Watt sensed that

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 AfricanAmerican 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
statements

argue

to

that

Congressman

Senator
Watt,

Rucho

citing

never

made

Senator

Rucho

such
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

witnesses and being present throughout the trial.

as

defense

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

and

ability

to

observe

firsthand
37

Congressman

Watt

his

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:
BVAP increased from 43.77 percent to 50.66 percent.
106-107.
a

the

Pls.’ Exs.

This correlates closely to the increase in CD 1.

consistent

and

whopping

increase

makes

it

clear

Such

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.”

“serpentine

Miller,

district

515

[that]

U.S.
has

at
been

913.
dubbed

geographically compact district in the Nation.”

CD

12
the

is

a

least

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.

6

Pls.’ Ex. 17, Expert

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.’
38

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.
measure.

Id.

A score of .071 is low by any

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.
have

no

Id. 658:3-5; see also id. at 528:1 (Hofeller) (“I

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.
we’re in agreement.”).

So, obviously,

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.
129 (Hofeller Dep. 45:3-7).

Pls.’ Ex.

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.

39

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.
Cromartie

I,

526

U.S.

See Cromartie II, 532 U.S. at 258;
at

551-52

(“Evidence

that

blacks

constitute even a supermajority in one congressional district
while

amounting

district

will

to

less

not,

by

than

a

itself,

plurality
suffice

in
to

a

neighboring

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
40

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. 496:1013, 15-22 (“It really wasn’t about -- totally about the 12th
District.

It

was

about

what

surrounding districts. . . .

effect

it

was

having

on

the

[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
Using Maptitude,7 Dr.

at all when creating the new districts.

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,

7

one

vote,”

Software commonly used in redistricting.
(Ansolabehere).

41

id.

526:3-8

Trial Tr. 343:14

(Hofeller); see also id. at 496:4-5 (“[T]he thematic was based
on

the

two-party

McCain.”);

id.

presidential

at

662:1-17

vote

(stating

in

2008

that

only

Obama
one

versus
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.”
(emphasis added).

Id. at 608:23–24, 644:12-13

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
42

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

rationalization

than

not
an

race
initial

was
aim

series of emails presented at trial.

8

more
is

also

of

a

post-hoc

supported

by

a

Written by counsel for

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.

43

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
efforts
intent

to

Plan.”

reflect

for

the

See
what

I

Pls.’
have

congressional

Ex.
been

13.

“Here

is

about

legislative

told

plans.

Please

send

my

me

best

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

Ansolabehere.

of

the

plaintiffs’

experts,

Drs.

Peterson

and

At trial, Dr. Peterson opined that race “better
44

accord[ed] with” the boundary of CD 12 than did politics, based
on his “segment analysis.”
id. 220:16-18, 25.

Trial Tr. 211:21-24 (Peterson); see

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
analyses.
studies

of

Democrats

for

a

total

of

Id. at 213:24-214:2, 219:5, 9-11.

supported

the

political

twelve

segment

Four of the twelve

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

explained by race and not party.”

plan

“can

be

only

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
45

he understood the Supreme Court’s finding and explained why in
this

situation

he

believed

nonetheless preferable:

that

using

registration

data

was

registration data was a good indicator

of voting data and it “allowed [him] to get down to [a deeper]
level of analysis.”
Moreover,

Trial Tr. 309:7-8, 349:2-3 (Ansolabehere).

Defendants

themselves

appear

to

have

considered

registration data at some point in the redistricting process:
in

their

July

Representative

19,

2011,

Lewis

statement,

consider

Democrats,

Republicans,

and

districts.

the

Senator

numbers

unaffiliated

of

voters

Rucho

and

registered
across

all

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

Corp., 429 U.S. 252, 266 (1977))).

v.

Metro.

Hous.

Dev.

The defendants’ argument

that Dr. Peterson’s analysis is “of little to no use” to the
Court,

as

he

“did

not

and

could
46

not

conclude”

that

race

predominated, Defs.’ Proposed Findings of Fact, ECF No. 138, at
77 (emphasis omitted), is unavailing in this regard.
The

defendants

predominated,
which

“the

the

contend

plaintiffs

legislature

that,
must

could

to

show

have

show

that

“alternative

achieved

its

race

ways”

in

legitimate

political objectives” that were more consistent with traditional
districting principles and that resulted in a greater racial
balance.
Findings

Cromartie II, 532 U.S. at 258; see Defs.’ Proposed
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

considerations

together

predominated,”

abundantly

clear

correlative

with

redistricting
boundaries
behavior.”

. . .

that

because
Id.

id.

race,

politics,

process:
of

[did]

race

Here,

indeed

Redistricting

than
is

that

racial

evidence

generally
predominate

legislature

rather

show
the

although

did

“the

not

drew

makes
highly

in

District

the
12’s

because

of

political

inherently

a

political

process; there will always be tangential references to politics
in

any

beast.

redistricting—that

is,

after

all,

the

nature

of

the

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.
47

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.

48

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.
920.

Miller, 515 U.S. at

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.

551

Sch.

v.

Seattle

Sch.

Dist.

No.

1,

U.S.

701,

720

12

is

(2007).
The

Court’s

straightforward.
Court

with

a

strict-scrutiny

analysis

for

CD

The defendants completely fail to provide this
compelling

state

interest

assembly’s use of race in drawing CD 12.

for

the

general

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

49

CD 12 is an unconstitutional racial gerrymander in violation of
the Equal Protection Clause of the Fourteenth Amendment.9
The

defendants

do,

interests for CD 1:
the

“results”

however,

point

to

two

compelling

the interest in avoiding liability under

test

of

VRA

section

2(b)

“nonretrogression” principle of VRA section 5.

and

the

Although the

Supreme Court has yet to decide whether VRA compliance is a
compelling

state

interest,

it

has

purposes of subsequent analyses.

assumed

as

much

for

the

See, e.g., Shaw II, 517 U.S.

at 915 (“We assume, arguendo, for the purpose of resolving this
suit,

that

compelling

compliance

with

interest. . . .”);

§ 2

[of

Bush,

the

517

VRA]

U.S.

at

could
977

be

a

(“[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.

50

of

a

majority-minority

district

necessary to comply with the VRA.

–

CD

1

-

was

reasonably

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

representatives.”

voters

to

elect

their

preferred

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[.]”
U.S.C. § 10301(a).

52

“Vote dilution claims involve challenges to

methods of electing representatives - like redistricting or atlarge

districts

-

as

having

minorities’ voting strength.”

the

effect

of

diminishing

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
51

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

circumstances.
however,

determined

Court
test

does

unless

not
the

establish three preconditions.
v.

Strickland,

requirements

the

totality

Gingles, 478 U.S. at 43-46.

the

circumstances

by

556

are

U.S.

reach

the

Under Gingles,

the

challenging

of

totality-of-the-

party

is

able

to

Id. at 50-51; see also Bartlett
1,

21

preconditions,

(2009)

consistent

(“[T]he
with

the

Gingles
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.

“strong

basis

The
in

general
evidence”

assembly,
for

therefore,

finding

that

conditions for section 2 liability are present:
52

must
the

have

a

threshold

“first, ‘that

[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

. . .

candidate.’”

usually

to

defeat

the

minority’s

preferred

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
specifically
Generalized

bloc

must

voting
be

assumptions

. . .

proved.”
about

never
Shaw

the

can
I,

be

509

“prevalence

assumed,
U.S.

of

at

653.

racial

bloc

voting” do not qualify as a “strong basis in evidence.”
517

U.S.

at

994

(O’Connor,

J.,

analysis must be specific to CD 1.
1265.

concurring).

but

Bush,

Moreover,

the

See Alabama, 135 S. Ct. at

Thus, evidence that racially polarized voting occurs in

pockets of other congressional districts in North Carolina does
53

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

anywhere [in the state].”

a

majority-minority

district

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 polarizedvoting 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.
639:21-25 (Hofeller).

Trial Tr.

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.’”
507 U.S. at 40 (quoting Gingles, 478 U.S. at 51).

Growe,
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),
54

ECF No. 76, at 2, 8.
the inquiry.

This admission, in the Court’s view, ends

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”

Defs.’ Findings of Fact, ECF No. 138 at 93.

North

Carolina.

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

premise:
to

without

asserting

the

existence

of

a

necessary

that the white majority was actually voting as a bloc

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
55

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

established,
remedy.”

district”).

there

neither

“Unless
has

been

[this]

a

wrong

point[]
nor

can

[is]
be

a

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

10

The

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
56

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.
Gingles

factor,

As the defendants fail to meet the third

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.

57

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

nonretrogression.”

gerrymandering
Shaw

I,

509

in
U.S.

the
at

name

654–55.

of
“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

particular numerical minority percentage.”

to

maintain

a

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?”
evidence

that

the

general

Id. at 1274.

assembly

asked

There is no

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.

58

While the Court “do[es] not insist that a legislature guess
precisely

what

Department

percentage

might

reduction

eventually

find

a

to

court
be

or

the

Justice

retrogressive,”

the

legislature must have a “strong basis in evidence” for its use
of racial classifications.

Id. at 1273–74.

Supreme

it

Court

legislature

noted

to

that

“rel[y]

would

heavily

upon

be
a

Specifically, the

inappropriate
mechanically

for

a

numerical

view as to what counts as forbidden retrogression.”

Id. at

1273.

general

That

is

precisely

what

occurred

here:

the

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 votingage population in CD 1, African-American preferred candidates
easily and repeatedly won reelection under earlier congressional
plans, including the 2001 benchmark plan.
59

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.
prevailed

with

Indeed, African-American preferred candidates
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
complying
concluding

augmentation”
could

with
that

not

be

section

5

the

of

the

narrowly
because

increase

to

BVAP.

Id.

tailored

to

there
a

was

50.9%

Such
the

“no

goal

basis

an
of
for

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
60

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

augmentation

of

CD

show

no

basis

1’s

BVAP

to

for

52.65

concluding
percent

was

that

an

narrowly

tailored when the district had been a safe district for AfricanAmerican 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
61

the

appropriate

“determine
districts.”

and

remedy.
order

Plaintiffs
a

valid

have

plan

Compl., ECF No. 1 at 19.

requested

for

new

that

we

congressional

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.
practicable,

to

As such, it is “appropriate, whenever

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.”
courts

must

give

Id. at 540.

legislatures

at

Under North Carolina law,
least

two

defects identified in a redistricting plan.

weeks

to

remedy

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
62

entry of this opinion to remedy the unconstitutional districts.
In

accordance

should have

with

the

well-established

first

redistricting plan,

opportunity

see,

e.g.,

precedent

to

Wise,

create

a

U.S.

437

that

a

state

constitutional
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

Redistricting Plan,
establish

that

scrutiny,

the

Redistricting
North

Carolina

district plan.

this

of

Carolina's

2011

Congressional

and because the defendants have
race-based

Court
Plan

North

is

General

finds

redistricting
that

the

unconstitutional,
Assembly

to

draw

satisfies

2011
and
a

failed

will
new

to

strict

Congressional
require

the

congressional

A final judgment accompanies this opinion.
SO ORDERED.

63

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

legislatures
fundamental

has

in

become

drawing

principle

of

the

tool

of

congressional
the

representative has nearly vanished.
choose their voters.
64

voters

choice

for

boundaries,
choosing

state
the
their

Instead, representatives

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

commission,
muster.

an

an

independent

action

that

Ariz.

State

See

congressional

recently

passed

Legislature

redistricting
constitutional

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

favored the majority party.
persuaded

the

Congressional

Virginia
District

to

boundaries

in

a

manner

that

For example, in 1788, Patrick Henry
legislature
force

Henry’s

Madison to run against James Monroe.
65

to

remake
political

its
foe

Fifth
James

Madison won in spite of

this,

but

Elbridge

the

Gerry

game

playing

signed

a

had

bill

begun.

In

redistricting

1812,

Governor

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,

default

gerrymandering

has

been

the

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

mapping their way to victory.
Legislature,

supra,

however,

on

a

house-by-house

basis,

As was seen in Arizona State

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.
circuitous

route

from

Charlotte

to

Indeed, CD 12 runs its
Greensboro

and

beyond

--

thanks in great part to a state legislature then controlled by
66

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

districts.

and

located

in

separate

federal

judicial

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

philosophically rather than legally wrong.

that

is

As has been seen in

Arizona, it is left to the people of the state to decide whether
they

wish

to

select

their

representatives

representatives

select
67

or

have

their
them.

OSTEEN, JR., District Judge, concurring in part and dissenting
in part:
I concur with the majority in finding that Plaintiffs have
met

their

burden

drawing

of

(“CD 1”)

and

of

North

proving

that

Carolina’s

that

Defendants

race

First
have

predominated

Congressional

failed

to

show

in

the

District
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.

majority

in

that

However,
I

find

I

that

respectfully
Plaintiffs

dissent

have

not

from
met

the

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

Amendment.

a

“flagrant”

violation

of

the

Fourteenth

The majority opinion makes clear that bad faith is
68

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.
at

16:20-25.)

Nevertheless,

I

wish

to

emphasize

evidence does not suggest a flagrant violation.
legislature’s

redistricting

efforts

(Trial Tr.

reflect

that

the

Instead, the
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
69

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 decades70

old

data

and

prohibitions.

eradicated

practices”

yet

had

expanded

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.
Trial

Brief

(Doc.

109)

at

7.)

Instead,

I

(See Pls.’

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
Justice.

5

and

receiving

preclearance

from

the

Department

of

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’
71

suggestion,

I

find

nothing

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.
Congressional

Districting

In 1991, North Carolina enacted a
Plan

with

district — the 1991 version of CD 1.
was

a

majority

single-race-black

a

single

majority-black

The 1991 version of CD 1
district

population and voting age population (”VAP”).

in

both

total

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 majorityminority district running from the southcentral to southeastern
region of the State.

Shaw II, 517 U.S. at 902, 912.

72

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

district

stretched

a

second
from

majority-minority

Mecklenburg

County

to

(CD

Forsyth

12)

and

Counties and then all the way into Durham County.

that

Guilford

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.
remanded

for

further

509 U.S. 630 (1993).

proceedings.

Id.

On

appeal

The case was
again

after

remand, in Shaw II, the Supreme Court again found that the 1992
73

version of CD 12 constituted a racial gerrymander.

517 U.S. at

906.
Following
Carolina
CD 12.

the

General

decision

Assembly

in

Shaw

enacted

II,

new

in

1997

versions

the

of

CD

North
1

and

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) (threejudge 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

(2000).

again

appealed,

Hunt

v.

Cromartie,

529

U.S.

1014

The Supreme Court reversed the district court, finding

that politics, not race, was the predominant motive for the

74

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”).
5,

“Congress

Zero

Deviation

2000

(Defs.’ Ex. 126, Tab

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 anypart 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

1

of

any

specific

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.
75

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
Year
1992
1994
1996
1998
2000
2002
2004
2006
2008
2010
A.

BVAP
53.34%
53.34%
53.34%
32.56%
43.36%
42.31%
42.31%
42.31%
42.31%
42.31%

Percent
of Vote
70.37%
65.80%
71.48%
55.95%
65.00%
65.34%
66.82%
67.00%
71.55%
63.88%

Candidate
Mel Watt
Mel Watt
Mel Watt
Mel Watt
Mel Watt
Mel Watt
Mel Watt
Mel Watt
Mel Watt
Mel Watt

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

76

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

Senator

Rucho

and

construction of the 2011 congressional maps.
Throughout
Representative

June
Lewis

and

July

released

of
a

2011,

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).)
77

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

(Guilford).”

by

Section

5

(Pls.’ Ex. 67 at 5.)

of

the

Voting

Rights

Act

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.”

through

several

from

(Id.)

iterations,

Rucho-Lewis

1

Although
CD

throughout

12

the

remained
the

proposed

map

went

largely

unchanged

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.)
78

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.
Trial Tr. at 645:4-20 (Dr. Hofeller:

(See

“[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
County

placing
into

CD

the
12

African-American
because

Guilford

population
County

jurisdiction under section 5 of the VRA.

was

of
a

Guilford
covered

(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.
79

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

Justice.

preclearance

submission

to

the

Department

of

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 “AfricanAmerican 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.”
The

preclearance

submission

further

stated

(Id. at 14.)

that

“the

2011

version [of CD 12] maintains and in fact increases the African
American

community’s

choice.”

(Id. at 15.)

ability

to

elect

their

candidate

of

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
80

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.
their

July

19,

2011

Joint

Statement,

Senator

Rucho

In
and

Representative Lewis stated that the version of CD 12 in RuchoLewis 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

81

Tr. at 491:2-493:13; Defs.’ Ex. 26.1 at 21-22, Maps 2 and 3.)5
The

co-chairs

Democratic

stated

district,

that

by

adjoining

competitive for Republicans.
Further,

Dr.

Hofeller

version

of

CD

2011

making

12

CD

12

districts

a

very

would

strong

be

more

(Id.)
testified

based

that

upon

whole

he

constructed

Voting

the

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.
496:5, 662:12-17.)

(Trial Tr. at 495:20-

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

support

when

for

the

he

constructed

conclusion

predominate over politics.
Although

Plaintiffs

the

that

district,
racial

providing

concerns

did

some
not

(Trial Tr. at 526:3-11.)
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.
82

black

VAP,

factor,

allegedly

Defendants

Democratic

voters

due

to

contend
in

the

the

that
2011

predominance

by

increasing

version

of

CD

of
the
12

race

as

a

number

of

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

6

counties

of

Cabarrus,

Rowan,

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.
83

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.
and

in

They note that, both in previous versions of CD 12
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
are

apparently

making

the

several times previously:

same

argument

the

State

Defendants
has

made

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

7

of

electoral

districts.

In comparison, the statewide percentage of Democrats who
are African-American is 41.38%.
(Defs.’ Ex. 62 at 83-84, F.F.
No. 173.)
84

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

system in which race no longer matters.”
657.

goal

of

a

political

Shaw I, 509 U.S. at

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.
can

be

shown

by

proving

that

a

district

Predominance

“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

rationale in drawing its district lines.
legislature
principles

subordinated
. . .

to

traditional

racial

and

controlling

. . . [and] that the

race-neutral

considerations”

districting

(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

factor in the decision on how to draw a district.
85

predominant

Such evidence

can

include

drawing

the

statements

by

redistricting

legislative
plan

and

officials

involved

preclearance

in

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.
can

show

that

traditional

Circumstantial evidence

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.
86

Shaw II, 517 U.S. at

915; Bush, 517 U.S. at 977.
that,

if

the

court

Defendants in this case contend

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
overcome

as
is

with
to

CD

show

1,
that

the

first

racial

hurdle

must

predominated

concerns

Plaintiffs

over

traditional criteria in the drawing of CD 12.

As stated above,

it is in this finding that I dissent from the majority.
Most
Plaintiffs
showing

importantly,
have

that

put

race

as

forth

was

compared
less,

the

to

and

primary

CD

1,

weaker,

motivating

I

find

direct
factor

that

evidence
in

the

creation of CD 12, and none that shows that it predominated over
factors.8

other

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.
87

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.”
532 U.S. at 254.

See

The Court in that case noted that while the

statement did reference race, it did not discuss the political
consequences

or

motivation

for

placing

Guilford County in the 12th district.

the

Id.

population

of

Here, while the

statement by the co-chairs does reference political consequences
88

(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

minority district).

907

(State

set

out

to

create

majority-

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
89

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.)
90

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
91

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.”
480:21-481:1.)

(See Trial Tr. at

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.
the

sorts

of

consciousness,

(Trial Tr. at 621:13-622:19.)

statements
of

race

that
and

show

are

predominance,

clearly

These are

rather

than

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 majorityminority district within CD 1.
Compared
statements

with

made

with

such

open

respect

expressions
to

CD

12

of

seem

intent,
to

be

the

more

a

description of the resulting characteristics of CD 12 rather
Guilford County to CD 12 was in and of itself predominantly
racial.
92

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

District

of
at

the
a

VRA],

black

we

have

voting

drawn

age

our

level

proposed

that

is

Twelfth

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 majorityminority

district,

statement
voting

reflects

age

was

I,
a

on

the

other

recognition

higher

in

the

hand,

of
new

the

conclude
fact

district

the

that

the

black

VAP

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
necessary.

of

Justice
However,

addressing
that

the

recognition

preclearance
does

not

issue

was

necessarily

reflect predominant, as opposed to merely significant, factors
in drawing the district.

93

Plaintiffs also point to circumstantial evidence, including
the

shape

testimony

of

the

from

district,

the

low

experts

who

contend

two

compactness
that

scores,

race,

and

and
not

politics, better explains the choices made in drawing CD 12.
As

regards

Defendants

point

the

district’s

out,

the

shape

and

redistricting

compactness,

co-chairs

were

as
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
otherwise

evidence
be,

given

of

racial

that

to

predominance

create

a

than

district

it

with

might
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
94

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 nonnegotiable racial goals.
Further,

when

(Trial Tr. at 233:17-234:3.)

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.
Ex.

122

at

113-15.)

Dr. Peterson’s
examining

the

report
intent

As
and

such,

even

testimony

behind

CD

12

crediting
are

in

of

that

(Defs.’

his

analysis,

little
they,

use

much

in
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

95

that

his

testimony

is

to

be

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.

assuming

the

(Trial
Supreme

Tr.

Court’s

at

307:4-308:9.)

admonishment

Even

about

the

without
use

of

registration data as less correlative of voting behavior than
actual

election

analysis

results

suffers

from

remains
a

accurate,

separate

flaw.

Dr.

Ansolabehere’s

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
the same analysis in Bethune-Hill v. Virginia State
Elections, Civil Action No. 3:14CV852, 2015 WL 6440332
Oct. 22, 2015), and that the three-judge panel in
rejected the use of his analysis. Id. at *41-42.
13

performed
Board of
(E.D. Va.
that case

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.
96

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.
because

Defendants

have

political

goals

on

election,

rather

than

the

explained
results

voter

of

that
the

registration,

they
2008
Dr.

However,

based

their

presidential
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.
97

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,

originally drawn.
factors

-

districts

the
and

and

was

extremely

non-compact

when

Therefore, absent some consideration of other
competitiveness

the

compactness

of
of

surrounding,

those

contiguous

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
98

were

“dominant

and

controlling” is a demanding one.
929.

In my opinion, Plaintiffs have not met that burden here as

to CD 12.
a

Plaintiffs’ direct evidence shows only that race was

factor

in

controlling”
Plaintiffs

how

CD

12

factor.

must

12

based

show

experts

do

Cromartie

on

not
II

correlates
attacking
legislature

a

for

their

the

of

explained,

in

with

have

must

is

data

address.
where

political

“dominant

and

evidence,

unexplainable

on

Here, Defendants explain

political

cases

the

circumstantial

district

specifically

district

not

Id. at 905.

use

even

could

drawn,

that

the

highly

was

As

grounds other than race.
CD

See Miller, 515 U.S. at 913,

that
As

racial

Plaintiffs’

the

Court

in

identification

affiliation,

Plaintiffs

show

“at

the

least

that

achieved

its

legitimate

the

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

districts and not increasing the black VAP.

As such, they have

not proven that politics was mere pretext in this case.
99

Republican

Finally,
Plaintiffs

mindful

to

of

prove

the

fact
the

“that

that

the

legislature

burden

is

on

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
otherwise.

principles
As

a

exist,

result,

as

the

here,

fact

supporting

that

certain

a

finding

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.

100