COVINGTON et al v. THE STATE OF NORTH CAROLINA et al

Filing 140

ORDER signed by Judge James A. Wynn, Jr., Judge Thomas D. Schroeder, and Judge Catherine C. Eagles on 11/29/2016 re: Special Session of 2017. The defendants shall file new maps with the court within 7 days of passage. Within 7 days of passage the defendants shall file the documents as setout in this order. Plaintiffs may file any objections within 7 days of the filing of the redistricting plan with the court and defendants may respond 7 days thereafter. If the state fails to redistrict by March 15, 2017, Plaintiffs may file a proposed redistricting plan no later than March 17, 2017. The State of North Carolina shall hold special primary and general elections in the fall of 2017 as setout. (Coyne, Michelle) (Main Document 140 replaced on 11/30/2016 to reflect proper signature line for Judge Eagles.) (Powell, Gloria).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SANDRA LITTLE COVINGTON, et al.,
Plaintiffs,
v.
THE STATE OF NORTH CAROLINA, et al.,
Defendants.

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1:15-CV-399

ORDER
With
individual

this

lawsuit,

North

filed

in

Carolina

May

2015,

citizens,

the

plaintiffs,

challenged

the

constitutionality of nine state Senate districts and nineteen
state House of Representatives districts “as racial gerrymanders
in violation of the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.”
¶ 1, ECF No. 11.

First Am. Compl.

In an opinion filed on August 11, 2016, this

Court held that the challenged House and Senate Districts as drawn
in 2011 were unconstitutional and, without imposing a deadline,
directed the legislature to draw new districts.

Mem. Op., ECF No.

123; Order and J., ECF No. 125.
Because the Court’s Order finding racial gerrymandering was
entered on the eve of the November 2016 regular election, the Court
determined

that

the

2016

unconstitutional districts.

election

should

proceed

under

the

Mem. Op., 160-63, ECF No. 123.

The

Court enjoined the defendants from conducting any elections using

1 

the unconstitutional districts after November 2016.

Mem. Op., ECF

No. 123; Order and J., ECF No. 125.
The plaintiffs ask the Court to establish a deadline of
January

25,

2017,

for

the

legislature

to

pass

legislation

establishing new districts and to order a special election in 2017
using those districts, while the defendants ask the Court to allow
the

legislators

elected

in

the

unconstitutional

districts

to

continue to hold office until 2018. The Court ordered supplemental
briefing, Order, ECF No. 124, which is now complete.
The Court earlier concluded that the challenged districts
violate the equal protection rights of the plaintiffs and other
voters and that the plaintiffs are “entitled to swift injunctive
relief.”
to

Mem. Op. 163, ECF No. 123.

shorten

elections,

the
and

term
alter

of

existing

the

The Court has the authority
legislators,

residency

order

requirements

for

special
those

elections, because “[i]t is fundamental that state limitations—
whether constitutional, statutory or decisional—cannot bar or
delay relief required by the federal constitution.”

Butterworth

v. Dempsey, 237 F. Supp. 302, 306 (D. Conn. 1965) (per curiam);
see also Smith v. Beasley, 946 F. Supp. 1174, 1212-13 (D.S.C.
1996).
While special elections have costs, those costs pale in
comparison to the injury caused by allowing citizens to continue
to be represented by legislators elected pursuant to a racial
2 

gerrymander.

The

Court

recognizes

that

special

elections

typically do not have the same level of voter turnout as regularly
scheduled elections, but it appears that a special election here
could be held at the same time as many municipal elections, which
should increase turnout and reduce costs.

A special election in

the fall of 2017 is an appropriate remedy.
The plaintiffs contend that the deadline for the General
Assembly to draw remedial districts should be January 25, 2017.
Mem. in Supp. of Pls.’ Mot. for Additional Relief 2, ECF No. 133.
The defendants contend that the deadline should be May 1, 2017.
Defs.’ Mem. in Opp’n to Pls.’ Mot. for Additional Relief 2, ECF
No. 136.
To the extent that the defendants’ argument is based on the
fact that the plaintiffs’ proposed schedule would only give the
State two weeks to draw new districts, we reject that argument.
This Court’s order finding the current districts unconstitutional
was entered on August 15, 2016, and the State has already had over
three

months

to

work

on

a

redistricting

plan.

Nothing

has

prevented the State from holding hearings, commissioning studies,
developing evidence, and asking experts to draw proposed new
districts over this three month period.

Indeed, nothing prevented

the current legislature from complying with the Court’s order to
redistrict.

3 

Nevertheless, the current legislature has apparently decided
not to redistrict and to leave that task to the legislators just
elected under the unconstitutional racial gerrymander, who will
come into office in mid-January 2017.
11.1.

See N.C. Gen. Stat. § 120-

Although the new legislature might ordinarily be able to

accomplish redistricting in two weeks, we are sensitive to the
defendants’ concern that the large number of districts found to be
racial gerrymanders will render the redistricting process somewhat
more time-consuming.
That being said, the State’s proposed schedule does not build
in any time for the Court to make changes should the State’s new
districts be inadequate to remedy the constitutional violation.
Under the State’s proposed schedule, the State will have some eight
and a half months to redistrict, the plaintiffs will then have
seven days to review the new districts and object, and the Court
will

have

only

a

few

days

to

review

the

districts

and

any

objections before the Board of Elections needs to begin the work
necessary to hold elections in the fall.
The Court concludes that March 15, 2017, is a reasonable
deadline for allowing the State the opportunity to draw new
districts.

This gives the State a total of seven months from the

time the districts were held to be unconstitutional, which is
longer than it took the 2011 legislature to redistrict the entire
state;

even

if

all

the

work

is
4 

done

by

the

newly

elected

legislature, they will have some six weeks to accomplish the task.
This schedule also will allow the Court enough time to consider
whether the State has remedied its unconstitutional gerrymander
and to act if it does not.
Finally, the plaintiffs ask that the defendants provide the
Court and the plaintiffs with the information needed to evaluate
the constitutionality of the new districts.
Additional Relief, ECF No. 132 ¶ 3.
objected.

See Pls.’ Mot. for

The defendants have not

See Defs.’ Mem. in Opp’n, ECF No. 136.

It is ORDERED that:
1. The General Assembly of the State of North Carolina is
given the opportunity to draw new House and Senate district
plans for North Carolina House Districts 5, 7, 12, 21, 24,
29, 31, 32, 33, 38, 42, 43, 48, 57, 58, 60, 99, 102, and
107; and Senate Districts 4, 5, 14, 20, 21, 28, 32, 38,
and 40, through and until 5 p.m. on March 15, 2017.

The

defendants shall file the new maps with the Court within
seven days of passage.
2. Within seven days of passage, the defendants also shall
file:
a. transcripts

of

all

committee

hearings

and

floor

debates;
b. the “stat pack” for the enacted plans;
c. a description of the process the General Assembly
5 

followed in enacting the new plans, including the
identity of all participants involved in the process;
d. the criteria the General Assembly applied in drawing
the districts in the new plans, including the extent
to which race was a factor in drawing any district in
which

the

black

voting-age

population

(BVAP)

is

greater than 50%; and
e. as to any district intentionally drawn with a BVAP
greater than 50%, the factual basis upon which the
General Assembly concluded that the VRA obligated it
to draw the district at greater than 50% BVAP.
3. The plaintiffs may file any objections within seven days
of the filing of the redistricting plan with the Court.
The defendants may respond seven days thereafter.
4. If the State fails to redistrict by March 15, 2017, the
plaintiffs may file a proposed redistricting plan no later
than March 17, 2017.
5. The term of any legislator elected in 2016 and serving in
a House or Senate district modified by the General Assembly
under the redistricting plan shall be shortened to one
year.
6. Any citizen having established their residence in a House
or Senate district modified by the General Assembly under
the redistricting plan as of the closing day of the filing
6 

period for the 2017 special election in that district shall
be qualified to serve as Senator or Representative if
elected to that office notwithstanding the requirement of
Sections 6 and 7 of Article II of the North Carolina
Constitution,

which

provides

that

each

Senator

and

Representative, at the time of their election, shall have
resided “in the district for which he is chosen for one
year immediately preceding his election.”
7. The State of North Carolina shall hold special primary and
general elections in the fall of 2017, for the purpose of
electing new legislators in these districts and such other
districts

which

Paragraph 1.

are

redrawn

in

order

to

comply

with

The primary shall be held in late August or

early September and the general election shall be held in
early November, the specific dates to be determined by the
legislature or, should the legislature fail to act, by this
Court. Legislators so elected shall take office on January
2, 2017, and each legislator shall serve a one year term.

This 29th day of November, 2016.

/s/ James A. Wynn, Jr.

/s/ Thomas D. Schroeder

/s/ Catherine C. Eagles
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