COVINGTON et al v. THE STATE OF NORTH CAROLINA et al
Filing
191
MEMORANDUM AND OPINION signed by Circuit Judge James A. Wynn, Jr., District Judge Thomas D. Schroeder and District Judge Catherine C. Eagles on 09/19/2017. (Coyne, Michelle)
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.
)
)
)
)
)
)
)
)
1:15CV399
MEMORANDUM OPINION
Circuit Judge James A. Wynn, Jr., wrote the opinion, in which
District Judge Thomas D. Schroeder and District Judge Catherine C.
Eagles joined:
Over two years ago, in May 2015, thirty-one registered North
Carolina voters (collectively, “Plaintiffs”) filed this action
alleging that the North Carolina General Assembly unjustifiably,
and therefore unconstitutionally, relied on race to draw dozens of
state legislative district lines.
Following a five-day trial,
during which the Court received testimony from two dozen witnesses
and reviewed more than 400 exhibits, Plaintiffs prevailed on their
claim that the challenged districting plans violated their rights
under the Equal Protection Clause of the Fourteenth Amendment.
Covington v. North Carolina (Covington I), 316 F.R.D. 117 (M.D.N.C.
2016).
That determination has since been summarily affirmed,
without dissent, by the Supreme Court of the United States.
Carolina v. Covington, 137 S. Ct. 2211 (2017) (mem.).
1
North
Now, nearly a year after this Court held the challenged
legislative districts unconstitutional and almost six years after
those districts were initially put in place—during which time North
Carolina has conducted three primary and three general elections
using racially discriminatory districting plans—Plaintiffs ask
this
Court
to
truncate
the
terms
of
legislators
serving
in
districts that must be redrawn and order a special election to
fill those seats with representatives elected under constitutional
districting plans.
We conclude that the widespread, serious, and longstanding
nature of the constitutional violation—among the largest racial
gerrymanders ever encountered by a federal court—counsels in favor
of granting Plaintiffs’ request.
Likewise, any intrusion on state
sovereignty associated with ordering the requested elections is
more than justified by the severity and scope of that violation
and its adverse impact on North Carolina voters’ right to choose—
and hold accountable—their representatives, especially since the
legislature took no action toward remedying the constitutional
violation for many weeks after affirmance of this Court’s order,
and the Legislative Defendants have otherwise acted in ways that
indicate they are more interested in delay than they are in
correcting this serious constitutional violation.
Notwithstanding
these
weighty
considerations
favoring
a
special election, we nonetheless conclude such an election would
2
not be in the interest of Plaintiffs and the people of North
Carolina. The compressed and overlapping schedule such an election
would entail is likely to confuse voters, raise barriers to
participation, and depress turnout, and therefore would not offer
the vigorously contested election needed to return to the people
of
North
Carolina
their
sovereignty.
Accordingly,
we
deny
under
the
Plaintiffs’ request.
We
recognize
that
legislatures
elected
unconstitutional districting plans have governed the people of
North Carolina for more than four years and will continue to do so
for more than two years after this Court held that the districting
plans amount to unconstitutional racial gerrymanders.
But at this
juncture, with only a few months before the start of the next
election cycle, we are left with little choice but to conclude
that a special election would not be in the interest of Plaintiffs
nor the people of North Carolina.
I.
Factual and Procedural Background
In early 2011, the North Carolina General Assembly set about
to conduct statewide redistricting to reflect new population and
demographic data following the most recent decennial census.
N.C. Const. art. II, §§ 3, 5.
See
As the appointed chairs of the
redistricting committees in their respective chambers, Senator
Robert Rucho and Representative David Lewis together led efforts
to craft and approve legislative districting maps for use in both
3
state and federal elections in North Carolina.
Covington I, 316
F.R.D. at 126. To that end, Representative Lewis and Senator Rucho
engaged the assistance of an outside expert, Dr. Thomas Hofeller,
who translated the legislators’ policy objectives into proposed
districting maps. Id. Apart from Representative Lewis and Senator
Rucho, no other legislators had a substantive role in drawing the
proposed maps.
Id.
Upon receiving the relevant census data, and without input
from
either
redistricting
committee,
proposed maps in the spring of 2011.
Hofeller
began
drawing
Id. at 126-27.
Under
instruction from Senator Rucho and Representative Lewis, Hofeller
first searched for
geographically compact minority population
centers and, where possible, drew district lines around those
population centers to construct majority-minority districts.
at 127.
Id.
Although the preferred candidates of African-American
voters were consistently successful in districts that were not
majority-minority
during
recent
election
cycles
prior
to
the
enactment of the 2011 districting plans, id. at 126, Senator Rucho
and Representative Lewis maintained (incorrectly) that Section 2
of the Voting Rights Act of 1965 necessitated creation of the new
majority-minority districts in their proposed maps, id. at 127.
As a result of this approach—which elevated race over other
widely
recognized
legitimate
districting
factors
such
as
contiguity and compactness—the number of majority-African-American
4
districts in the resulting state House map increased from nine to
thirty-two.
Id. at 126, 134, 137.
majority-African-American
districts
increased from zero to nine.
Similarly, the number of
in
the
state
Senate
map
Id. at 126.
Senator Rucho and Representative Lewis publicly released the
state House and Senate districting plans on July 12, 2011.
Id. at
127. The state Senate and House considered and adopted, with minor
modifications,
respectively.
the
Id.
proposed
maps
on
July
27
and
28,
2011,
Also on July 28, 2011, the General Assembly
adopted a revised congressional districting plan, which Hofeller
produced at the direction of Senator Rucho and Representative
Lewis.
Harris v. McCrory, 159 F. Supp. 3d 600, 608 (M.D.N.C.
2016), aff’d sub nom. Cooper v. Harris, 137 S. Ct. 1455 (2017).
Again
reflecting
the
legislators’
stated
desire
to
ensure
compliance with the Voting Rights Act, the 2011 congressional
districting map adopted by the General Assembly increased the
number of majority-minority districts from zero to two.
Id. at
608.
In sum, within three weeks and with minimal alteration, the
General Assembly considered and adopted districting plans that
significantly increased the number of majority-minority districts
in maps that would be used to conduct state and federal elections
in North Carolina from 2012 onward.
5
Soon after the General Assembly approved the maps, two groups
of North Carolina voters filed actions in state and federal court
alleging
that
numerous
legislative
districts
approved
by
the
General Assembly were unconstitutional racial gerrymanders, in
violation of the North Carolina and United States Constitutions.
See Harris, 159 F. Supp. 3d 600; Dickson v. Rucho, 766 S.E.2d 238
(N.C. 2014), vacated, 135 S. Ct. 1843 (2015) (mem.).
A separate
panel of this Court concluded that the two majority-minority
districts included in the state’s congressional districting plan
violated the Equal Protection Clause.
627.
Harris, 159 F. Supp. 3d at
The Supreme Court—by written opinion—subsequently agreed
that
the
majority-minority
districts
included
in
the
2011
congressional districting plan constituted racial gerrymanders in
violation of the Equal Protection Clause.
See Cooper, 137 S. Ct.
1455.
By contrast, the Supreme Court of North Carolina held that
both the federal and state districting plans satisfied all “state
and federal constitutional and statutory requirements.”
766 S.E.2d at 260.
States
unanimously
Dickson,
In April 2015, the Supreme Court of the United
vacated
the
state
court’s
ruling
without
opinion and remanded the case for reconsideration of the federal
constitutional and statutory questions presented.
Ct. 1843.
Dickson, 135 S.
On remand, the Supreme Court of North Carolina again
concluded that the state and federal districting plans complied
6
with federal law.
That decision was again unanimously vacated by
the Supreme Court of the United States in May 2017, Dickson v.
Rucho, 781 S.E.2d 404, 410-11 (N.C. 2015), vacated, 137 S. Ct.
2186 (2017) (mem.), and was reheard before the Supreme Court of
North Carolina on August 28, 2017.
In
the
meantime,
while
litigation
regarding
the
state’s
congressional districting plan proceeded, Plaintiffs initiated
this action in May 2015.
Covington I, 316 F.R.D. at 128.
Echoing
the earlier state-court action, Plaintiffs alleged that the 2011
state
legislative
districting
plans
constituted
racial
gerrymanders and thus violated their rights under the Fourteenth
Amendment of the U.S. Constitution.
No.
11.
To
remedy
this
alleged
First Am. Compl. at 2, ECF
constitutional
violation,
Plaintiffs sought an injunction barring further use of the 2011
maps and requiring the General Assembly to adopt constitutionally
adequate plans for use in any future elections.
Id. at 92–93.
Plaintiffs named as Defendants: (1) the State of North Carolina;
(2) Senator Rucho, Representative Lewis, President Pro Tempore of
the North Carolina Senate Philip E. Berger, and Speaker of the
North
Carolina
House
of
Representatives
Timothy
K.
Moore
(collectively, the “Legislative Defendants”); and (3) the North
7
Carolina State Board of Elections, as well as each of the five
members of that body (collectively, the “Board Defendants”).1
In
October
2015,
Plaintiffs
moved
for
a
preliminary
injunction barring the use of the challenged maps in the March
2016 statewide primary elections.
No.
23.
In
Plaintiffs
considering
conceded—that
Pls.’ Mot. Prelim. Inj., ECF
that
motion,
this
the
requested
Court
noted—and
injunction,
which
Plaintiffs sought less than a week before the candidate filing
deadline, would have delayed the impending 2016 election cycle by
months.
Order Den. Pls.’ Mot. Prelim. Inj. (Nov. 25, 2015) at 10,
ECF No. 39.
With a trial on Plaintiffs’ constitutional claims
scheduled to begin in April 2016, this Court held that the balance
of equities weighed against the requested injunction and, without
opining on the merits of Plaintiffs’ constitutional claims, denied
the motion.
Id.
Since this case was filed, the North Carolina General
Assembly passed legislation, over a gubernatorial veto, merging
the Board of Elections with the State Board of Ethics to create a
new State Board of Elections and Ethics Enforcement. 2017 N.C.
Sess. Laws 6. Currently, the putative State Board of Elections
and Ethics Enforcement has no members.
The Governor of North
Carolina has challenged the statute merging the two entities in
state court, alleging that it violates the North Carolina
Constitution’s Separation-of-Powers Clause, N.C. Const. Art. I,
sec. 6. That litigation is currently proceeding before the Supreme
Court of North Carolina.
See Cooper v. Berger, 801 S.E.2d 637
(N.C. 2017) (mem.).
1
8
A
week-long
trial
followed,
during
which
the
parties
presented testimony from many of the Plaintiffs; Senator Rucho and
Representative Lewis, as well as other state legislators involved
in the adoption of the challenged maps; and numerous expert
witnesses, including Hofeller and Plaintiffs’ own redistricting
experts.
On August 11, 2016, this Court unanimously concluded
that Defendants unjustifiably relied on race in drawing twentyeight majority-minority districts in the 2011 state legislative
districting plans, in violation of Plaintiffs’ rights under the
Equal Protection Clause of the Fourteenth Amendment.
316 F.R.D. at 176.
Covington I,
In reaching this conclusion, this Court
rejected Defendants’ claim that, based on the evidence considered
by
the
General
Assembly,
the
Voting
Rights
Act
construction of the new majority-minority districts.
Having
determined
that
the
existing
maps
required
Id.
violate
the
Constitution, this Court turned to consideration of an appropriate
remedy.
Id. at 176–77.
Although acknowledging that the existing
districting scheme had already caused “substantial stigmatic and
representational injuries” to Plaintiffs, this Court declined to
order injunctive relief prior to the impending November 2016
general election.
Id.
With the 2016 primary elections already
held under the challenged maps and Election Day less than three
months away, this Court “regrettably conclude[d]” that immediate
injunctive relief was impractical.
9
Id. at 177.
Nonetheless,
recognizing Plaintiffs’ entitlement to “swift injunctive relief,”
this Court barred the State of North Carolina from conducting any
further elections using the unconstitutional maps and ordered the
General Assembly to draw and enact, during its next legislative
session, new state House and Senate districting plans for use in
future elections.
After
Id. at 177.
reluctantly
allowing
a
third
general
election
to
proceed under an unconstitutional districting scheme, this Court
issued a final remedial order on November 29, 2016.
Covington v.
North Carolina (Covington II), No. 1:15-CV-399, 2016 WL 7667298
(M.D.N.C. Nov. 29, 2016), vacated, 137 S. Ct. 1624 (2017) (per
curiam).
This Court ordered the General Assembly to adopt new
districting plans by March 15, 2017, and required the State to
hold special primary and general elections using constitutionally
adequate maps no later than “late August or early September” and
“early November,” respectively. Id. at *2–3. The General Assembly
made no effort to draw and submit
plans
in
advance
of
the
March
constitutional redistricting
15,
2017
deadline.
Rather,
Defendants sought and obtained a stay of the remedial order pending
review of the merits of Plaintiffs’ constitutional claims in the
Supreme Court of the United States.
North Carolina v. Covington,
137 S. Ct. 808 (2017) (mem.).
On June 5, 2017, the Supreme Court summarily affirmed this
Court’s judgment that the existing House and Senate districting
10
plans violated Plaintiffs’ rights under the Fourteenth Amendment.
Covington, 137 S. Ct. 2211.
Although affirming this Court’s
determination on the merits of Plaintiffs’ constitutional claims,
the
Supreme
Covington,
Court
137
S.
vacated
Ct.
the
1624.
Court’s
final
Emphasizing
remedial
that
order.
“[r]elief
in
redistricting cases is ‘fashioned in the light of well-known
principles of equity,’” id. at 1625 (quoting Reynolds v. Sims, 377
U.S. 533, 585 (1964)), the Supreme Court explained that district
courts must therefore “undertake an ‘equitable weighing process’
to select a fitting remedy for” constitutional violations, id.
(quoting NAACP v. Hampton Cty. Election Comm’n, 470 U.S. 166, 183
n.36
(1985)).
The
Supreme
Court
further
underscored
that
determining whether to order a special election, in particular,
requires a “careful case-specific analysis”—an analysis that,
according
to
the
Supreme
Court,
this
performed in only a “cursory fashion.”
Court’s
remedial
order
Id. at 1626.
Acknowledging that it had not previously provided guidance to
district courts regarding “whether or when a special election may
be a proper remedy for a racial gerrymander,” the Supreme Court
then identified a nonexclusive list of “obvious considerations” to
guide
the
consideration
of
that
question.
Id.
at
1625–26.
Specifically, the Court explained that courts deciding whether to
order special elections to redress existing racial gerrymanders
should consider: (1) “the severity and nature of the particular
11
constitutional
judicial
violation”;
restraint
when
(2) “the
intruding
need
on
to
state
act
with
proper
sovereignty”;
and
(3) “the extent of the likely disruption to the ordinary processes
of governance if early elections are imposed.”
Id. at 1626.
The
Supreme Court remanded the case to permit this Court to fashion an
appropriate remedy in light of these and any other relevant
considerations.
Id.
Representing that they would not seek rehearing, Plaintiffs
filed a motion with the Supreme Court requesting that the Court
issue its mandate immediately, so as to allow this Court to begin
the
process
of
fashioning
a
remedy
as
quickly
as
possible.
Appellees’ Appl. Issuance Mandate Forthwith, North Carolina v.
Covington, 137 S. Ct. 1624 (2017) (per curiam) (No. 16–1023).
The
Supreme Court subsequently denied Plaintiffs’ motion to issue its
mandate immediately.
North Carolina v. Covington, 137 S. Ct. 2262
(2017) (mem.).
After obtaining jurisdiction on June 30, 2017, this Court
moved swiftly to receive briefing on and consider motions filed by
Plaintiffs
(1) to
set
deadlines
for
the
drawing
of
remedial
districting plans and (2) for an expedited evidentiary hearing
regarding both the timeline for drawing such remedial plans and
the need for a special election.
On July 27, 2017, this Court
held an evidentiary hearing on these issues, during which the
12
parties
introduced
evidence,
adduced
testimony
from
several
witnesses, and presented arguments.
In their briefing and arguments before this Court, the parties
agreed that this Court’s ruling rendered invalid much of the
existing state House and Senate districting maps.
Leg. Defs.’
Pos. Stat. at 8, ECF No. 161; Pls.’ Suppl. Br. on Remedies at 2,
ECF. No. 173.
In particular, although this Court’s order focused
on the boundaries of the twenty-eight majority-minority districts,
the parties agree that the inevitable effect of any remedial plan
on the lines of districts adjoining the twenty-eight districts—
coupled with the North Carolina Constitution’s requirement that
district lines not traverse county lines, unless such a traversal
is required by federal law, see Stephenson v. Bartlett, 562 S.E.2d
377, 396-98 (N.C. 2002)—means that the well over half of the state
House and Senate districts must be redrawn.
But Plaintiffs and
Legislative Defendants remain sharply divided as to when the
districts should be redrawn and whether a special election is
necessary to fully remedy the violation this Court identified in
August 2016.2
On the one hand, Plaintiffs ask this Court to order the State
to draw and enact constitutionally adequate districting plans in
State and Board Defendants took no position on Plaintiffs’
proposed remedies. Pos. Stat. by State of N.C. & State Bd. of
Elections at 2, ECF No. 162.
2
13
time to conduct special elections using those remedial plans in
March 2018.
Pls.’ Suppl. Br. on Remedies, ECF No. 173.
Under
Plaintiffs’ proposed schedule, the State would have until August
11, 2017, to draw remedial districting maps.
Remedies, Ex. 1, ECF No. 173-1.
Pls.’ Suppl. Br. on
A special primary election would
follow on Tuesday, December 5, 2017, and a special general election
would then be held on March 6, 2018.
Id.
By contrast, Legislative Defendants maintain that a special
election is not warranted because “[t]he constitutional violation,
at a minimum, is certainly ‘subject to rational disagreement’” and
a special election would cause severe disruption and
work a
substantial intrusion on state sovereignty. Leg. Defs.’ Pos. Stat.
at 8, 14, 20 (quoting Allen v. State Bd. of Elections, 393 U.S.
544, 572 (1969)).
In lieu of the requested special election,
Legislative Defendants proposed a schedule requiring the General
Assembly to enact remedial districting plans by November 15, 2017,
with revised plans then implemented for the first time during the
regularly scheduled 2018 election cycle.
Leg. Defs.’ Pos. Stat.
at 30–31.
In an order issued on July 31, 2017, this Court declined to
adopt Legislative Defendants’ proposed schedule and, instead,
ordered that the General Assembly enact remedial maps no later
than September 1, 2017.
Covington v. North Carolina (Covington
III), -- F. Supp. 3d. --, 2017 WL 3254098, at *3 (M.D.N.C. 2017).
14
The order further set forth that this Court would extend this
deadline to September 15, 2017, provided that the General Assembly
made
certain
showings
redistricting process.
regarding
the
public
nature
of
its
Id.
In the same order, this Court denied Plaintiffs’ request for
a special election, advising that this opinion would follow.
at *2.
Id.
As explained below, we conclude that, although the nature
of the longstanding constitutional violation in this case is severe
and infringes significantly on the rights of North Carolinians,
ordering a special election at this late date would disrupt the
processes of governance in ways detrimental to the people of North
Carolina.
II.
Analysis
In remanding this action for this Court to reconsider the
appropriate
remedy,
the
Supreme
Court
reiterated
its
settled
holding that “[r]elief in redistricting cases is ‘fashioned in the
light of well-known principles of equity.’”
Covington, 137 S. Ct.
at 1625 (quoting Reynolds, 377 U.S. at 585).
Several of these
“well-known principles,” id. (internal quotation marks omitted),
are particularly instructive in this matter.
Thus, we note the
established rule that “[o]nce a right and a violation have been
shown, the scope of a district court’s equitable powers to remedy
past wrongs is broad, for breadth and flexibility are inherent in
equitable remedies.”
Swann v. Charlotte-Mecklenburg Bd. of Educ.,
15
402 U.S. 1, 15 (1971).
In crafting such remedies, a court’s “task
is to correct, by a balancing of the individual and collective
interests, the condition that offends the Constitution.”
16.
Id. at
And, “[a]s with any equity case, the nature of the violation
determines the scope of the remedy.”
Id.
In the context of redistricting cases, the Supreme Court has
stated that “it would be the unusual case in which a court would
be justified in not taking appropriate action to insure that no
further elections are conducted under” a districting plan held
constitutionally invalid.
Reynolds, 377 U.S. at 585.
Despite
this general rule, however, there may be circumstances in which
“equitable considerations . . . justify a court in withholding the
granting
of
immediately
effective
relief”
from
the
injury
inflicted by a constitutionally infirm districting scheme.
Id.
In deciding whether to “award[] or withhold[] immediate relief, a
court is entitled to and should consider the proximity of a
forthcoming election and the mechanics and complexities of state
election laws,” as well as any potential “disruption of the
election process which might result from requiring precipitate
changes.”
Id.
As explained above, regarding the ordering of a special
election,
in
particular,
the
Supreme
Court
identified
three
factors courts should weigh in considering whether to order a
special election: (1) “the severity and nature of the particular
16
constitutional
judicial
violation”;
restraint
when
(2) “the
intruding
need
on
to
state
act
with
proper
sovereignty”;
and
(3) “the extent of the likely disruption to the ordinary processes
of governance if early elections are imposed.”
Ct. at 1626.
A.
We
Covington, 137 S.
We now turn to these three considerations.
Nature and Severity of the Constitutional Violation
begin
violation
at
by
assessing
issue:
the
the
nature
North
of
Carolina
the
constitutional
General
Assembly’s
unjustifiable reliance on race in drawing dozens of legislative
district
lines.
The
unconstitutional
districting
plans,
therefore, implicate both the right to vote and the Constitution’s
prohibition on state governments’ unjustified use of race-based
classifications.
Beginning with the right to vote, the Supreme Court has long
recognized that the “right to vote freely for the candidate of
one’s choice is of the essence of a democratic society.” Reynolds,
377 U.S. at 555.
government,
and
“As long as ours is a representative form of
our
legislatures
are
those
instruments
of
government elected directly by and directly representative of the
people, the right to elect legislators in a free and unimpaired
fashion is a bedrock of our political system.”
Id. at 562; see
also Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“It is beyond
cavil that ‘voting is of the most fundamental significance under
our constitutional structure.’” (quoting Ill. Bd. of Elections v.
17
Socialist Workers Party, 440 U.S. 173, 184 (1979))).
As the
Supreme Court has emphasized, “[o]ther rights, even the most basic,
are illusory if the right to vote is undermined.”
Wesberry v.
Sanders, 376 U.S. 1, 17 (1964); see also Reynolds, 377 U.S. at 567
(“To the extent that a citizen’s right to vote is debased, he is
that much less a citizen.”).
Accordingly, because the right to
vote is “preservative of all rights,” any infringement on that
right—including the General Assembly’s impermissible use of race
in
drawing the challenged plans—strikes at the heart of
the
substantive rights and privileges guaranteed by our Constitution.
See
Reynolds,
377
U.S.
at
562–63
(internal
quotation
marks
omitted).
Regarding the use of race in drawing district lines, Section
2(b) of the Voting Rights Act, enacted pursuant to Congress’s
authority to enforce the Fifteenth Amendment, requires states to
ensure
that
members
of
a
protected
class
do
not
have
“less
opportunity than other members of the electorate to . . . elect
representatives of their choice.”
52 U.S.C. § 10301(b); see also
Voinovich v. Quilter, 507 U.S. 146, 154 (1993).
To that end, a
state may rely on race in drawing district lines when it has “good
reasons to think that it would transgress the [Voting Rights] Act
if it did not draw race-based district lines.”
at 1464 (internal quotation marks omitted).
Cooper, 137 S. Ct.
Even when the Voting
Rights Act does not compel states to take race into account in
18
drawing district lines, the Supreme Court has recognized that
states have an important “interest in eradicating the effects of
past racial discrimination,” including through their districting
plans.
Shaw, 509 U.S. at 656.
In sum, state legislatures involved in the “delicate task” of
redistricting, see Miller, 515 U.S. at 905, can—and, in certain
circumstances, should—consider the impact of a districting plan on
minority groups, including groups of voters previously subject to
race-based discrimination.
And, in appropriate circumstances,
states may rely on race-conscious districting to protect the
interests
of
members
of
minority
groups
subject
to
past
discrimination.
Although race-conscious districting may be appropriate in
certain circumstances, the Supreme Court also has recognized that
reliance on race in districting “carr[ies] particular dangers.”
Shaw, 509 U.S. at 657 (1993).
animus or
Even when unaccompanied by explicit
discriminatory intent, legislative districting
that
unjustifiably relies on race has persistent and malignant effects
that extend well beyond the voting booth.
First,
reapportionment
plans
that
improperly
group
“individuals who belong to the same race, but who are otherwise
widely separated by geographical and political boundaries, and who
may have little in common with one another but the color of their
skin, bear[] an uncomfortable resemblance to political apartheid.”
19
Id. at 647.
By unjustifiably relying on race to sort voters, such
districting schemes “reinforce[] the perception that members of
the same racial group . . . think alike, share the same political
interests, and will prefer the same candidates at the polls.” Id.;
see also Miller v. Johnson, 515 U.S. 900, 911–12 (1995).
Second, beyond endowing such inherently suspect inferences
with
an
official
imprimatur,
society serious harm.”
racial
gerrymanders
Miller, 515 U.S. at 912.
“also
cause
As the Supreme
Court has explained, unjustifiably drawing districts based on race
encourages elected representatives “to believe that their primary
obligation is to represent only the members of [a particular
racial] group, rather than their constituency as a whole.”
509 U.S. at 648.
Shaw,
Such a message is “altogether antithetical to
our system of representative democracy,” id., raising the specter
that the electorate will be “balkanize[d] . . . into competing
racial factions” and threatening “to carry us further from the
goal of a political system in which race no longer matters,” id.
at 657; see also Miller, 515 U.S. at 912.
The harms attendant to unjustified race-based districting do
not end with the enactment of an unconstitutional districting
scheme.
Quite the opposite, these harms begin with the enactment
of unconstitutional maps; are inflicted again and again with the
use of those maps in each subsequent election cycle; and, by
putting
into
office
legislators
20
acting
under
a
cloud
of
constitutional illegitimacy, continue unabated until new elections
are held under constitutionally adequate districting plans.
It is
this serious and ongoing constitutional harm that this Court must
remedy.
See Ketchum v. City Council of City of Chi., 630 F. Supp.
551, 564 (N.D. Ill. 1985).
Legislative Defendants nonetheless assert that this factor
weighs
against
ordering
a
special
election
because
“[t]he
constitutional violation, at a minimum, is certainly subject to
rational disagreement.”
Leg. Defs.’ Pos. Stat. at 20 (internal
quotation marks omitted).
That is patently wrong.
There is no
“rational disagreement” as to whether the districting plans at
issue
in
this
unanimously
case
held
Constitution.
violated
that
the
the
Constitution.
challenged
districts
This
violate
Court
the
The Supreme Court affirmed that conclusion without
argument and without dissent.
And the Supreme Court unanimously
held
Representative
that
Senator
Rucho
and
Lewis
believed that the Voting Rights Act required
incorrectly
construction of
majority-minority districts, even when members of the minority
group historically had been able to elect the candidate of their
choice by forming a coalition with members of the majority, Cooper,
137 S. Ct. at 1468, 1470-72—precisely the same errant belief that
rendered unconstitutional the districting plans at issue here.
Thus, there is no disagreement between this Court’s and the Supreme
21
Court’s
conclusion
that
the
challenged
districts
are
unconstitutional racial gerrymanders.
Having established the serious nature of the constitutional
violation and attendant harm at issue, we turn next to the relative
severity of that violation in this case.
Regarding the geographic
scope of the violation, Defendants unjustifiably relied on race in
drawing dozens of district lines, stretching from North Carolina’s
northeastern coast to its southern Piedmont.
Due to the wide
geographic dispersion of the unconstitutional lines—as well as the
North Carolina Constitution’s dictate that district boundaries not
cross county lines unless required by federal law—the parties agree
that the boundaries of as many as 116 House and Senate districts
need to be redrawn.
6.
Leg. Defs.’ Pos. Stat. at 8–9; Pls.’ Stat. at
All told, the unconstitutional racial gerrymanders identified
by this Court and affirmed by the Supreme Court impact nearly 70%
of the House and Senate districts, touch over 75% of the state’s
counties, and encompass 83% of the State’s population—nearly 8
million people.
See Defs.’ Mem. Opp. Pls.’ Mot. Add. Relief, Ex.
1 (Decl. of Dr. Thomas Hofeller) at 5–6, ECF No. 136-1; Pls.’ Stat.
at 5. Plaintiffs assert—and Legislative Defendants do not dispute—
that the districting plans
at issue
thus represent
the most
extensive unconstitutional racial gerrymander ever encountered by
a federal court.
22
Conceding the broad scope of their constitutional violation,
Legislative Defendants argue that the sheer number of districts
the
General
Assembly
must
redraw
to
cure
its
constitutional
violation weighs against compelling the State to conduct a special
election.
Leg. Defs.’ Pos. Stat. at 8–9.
Accepting Legislative
Defendants’ argument would be tantamount to concluding that the
more
widespread
the
constitutional
violation
and
the
more
pervasive the injurious effects of that violation, the less license
courts have to remedy that violation.
But the Supreme Court has
repeatedly held that “the nature of the violation determines the
scope of the remedy,” meaning
that the scope of permissible
remedies increases as the constitutional violation becomes more
extensive.
accept
See Swann, 402 U.S. at 16.
Legislative
Defendants’
Therefore, if we were to
argument
that
their
unconstitutional districting plans are “too big to remedy,” we
would provide a perverse incentive to state legislatures that
choose to engage in unjustified race-based districting to do so as
pervasively as possible so as to insulate their districting plans
from effective judicial relief.
Contrary
to
Legislative
Defendants’
position,
then,
we
conclude that the substantial number of legislative districts that
must be redrawn to remedy the sweeping constitutional violation
weighs in favor of ordering a special election.
23
In
addition
constitutional
to
having
violation
a
harms
broad
millions
geographic
of
scope,
the
individuals.
Of
course, Plaintiffs and other voters living in districts with lines
drawn based on race suffer most directly the injurious effects
attributable to the unconstitutional racial gerrymanders.
As the
Supreme Court has explained, the racial gerrymanders violated
these citizens’ constitutional right to enfranchisement untainted
by “impermissible racial stereotypes.”
Shaw, 509 U.S. at 647.
To
that end, in this case, numerous Plaintiffs testified to the
affront they experienced as a result of the challenged districting
scheme.
For instance, Plaintiff Sandra Covington told the court
that she felt “plucked out of [her] district and placed into
another district simply because of [her] race.”
Trial Tr. vol. II
(Apr. 12, 2016) at 102:19-23, ECF No. 110.
African-American
Plaintiffs described their surprise when they learned that they
had been separated from their white neighbors solely on the basis
of their race and recalled the uncomfortable associations with
past discrimination that this new affront brought to mind.
Trial
Tr. vol. I (Apr. 11, 2016) at 214:1-10, ECF No. 109 (testimony of
Rev. Julian Pridgen, summarizing the reaction of many African
Americans to the challenged maps as “the same stuff, new day” that
“contributes to a history of systematic racism and pain”).
During oral argument, Legislative Defendants sought to cabin
the harms of their constitutional violation to individuals in the
24
twenty-eight majority-minority districts.
See Hr’g Tr. (July 27,
2017) at 97:3-20, ECF No. 181 (“There are 28 illegal districts.
That’s only about 16 percent of the entire General Assembly. Those
28 districts . . . currently elect 28 African-American Democrats.
Every other district in that General Assembly is legal.”).
But
the Supreme Court has “consistently described a claim of racial
gerrymandering as a claim that race was improperly used in the
drawing of the
districts.”
boundaries of one or more
Ala. Legislative Black Caucus v. Alabama, 135 S. Ct.
1257, 1265 (2015) (first emphasis added).
sides.
specific electoral
Every boundary has two
And when, as here, a legislature shifts African Americans
to a district on one side of a boundary because of their race, it
also necessarily shifts non-African Americans to the adjacent
district on the other side of the boundary based on their race.
Accordingly, because “separat[ion of] citizens into different
voting districts on the basis of race” is the constitutional harm
attributable to racial gerrymandering, see Miller, 515 U.S. at
911-12, citizens who were drawn out of districts on the basis of
their race also suffer harm from the unconstitutional districting
plans, see id. at 916 (explaining that, to establish a racial
gerrymandering claim, a plaintiff must show that “race was the
predominant factor motivating the legislature’s decision to place
a significant number of voters within or without a particular
district” (emphasis added)).
25
And the harms of the far-reaching gerrymanders invalidated by
the Court are not limited to the eight million voters in districts
with lines drawn based on an unjustified consideration of race.
Rather, the districting plans adversely affect all North Carolina
citizens to the extent their representatives are elected under a
districting
plan
that
is
tainted
by
unjustified,
race-based
classifications.
At trial, Plaintiffs put forward testimony from numerous
elected
officials
gerrymanders
who
divided
explained
that
the
existing communities
challenged
racial
along racial lines,
disrupting their efforts to build coalitions of voters of all
races.
See, e.g., Trial Tr. vol. I (Apr. 11, 2016) at 80:9-25
(testimony
of
Sen.
Dan
Blue,
explaining
that
the
challenged
districting scheme suggested that “only black people will vote for
black candidates and whites will vote for white candidates”); id.,
vol. II (Apr. 12, 2016) at 12:9-13:2 (testimony of Sen. Angela
Bryant, explaining that the challenged scheme harmed the interests
of multiracial communities by
disrupting
existing multiracial
coalitions in favor of districts that paired minority communities
with no such existing ties).
constitutional
violation
at
In these ways, and many others, the
issue
here
infringed
on
voters’
“interest in having . . . representatives elected in accordance
with the Constitution.”
Personhuballah v. Alcorn, 155 F. Supp. 3d
552, 560-61 (E.D. Va. 2016).
This is an interest shared by all
26
North Carolinians—not just those who reside in districts with lines
drawn based on race.
Finally, regarding duration, as Plaintiffs rightly emphasize,
these harms have persisted for over six years, tainting three
separate election cycles and six statewide elections.
Even after
the Court deemed the existing maps unconstitutional, it granted
the State’s request to conduct the November 2016 general elections
using the invalidated maps due to the infeasibility of enacting
remedial districting plans and readying the State and its citizens
for an election under those plans in less than three-months’ time.
Covington I, 316 F.R.D. at 177. That this constitutional violation
has infected so many elections and deprived North Carolinians of
constitutionally adequate representation during numerous state
legislative sessions enhances its severity and supports imposing
a more robust remedy.
*
Taken
together,
the
*
effects
*
of
the
racial
gerrymanders
identified by the Court—and affirmed by the Supreme Court—are
widespread, serious, and longstanding.
Beyond the immediate harms
inflicted on Plaintiffs and other voters who were unjustifiably
placed within and without districts based on the color of their
skin, Plaintiffs—along with millions of North Carolinians of all
races—have lived and continue to live under laws adopted by a state
legislature elected from unconstitutionally drawn districts.
27
The
nature
and
severity
of
this
ongoing
constitutional
violation
counsel in favor of granting Plaintiffs’ request for a special
election.
B.
Judicial Restraint and State Sovereignty
A second factor the Supreme Court identified as relevant to
the Court’s determination regarding whether to order a special
election is “the need to act with proper judicial restraint when
intruding on state sovereignty.”
Covington, 137 S. Ct. at 1626.
Two considerations guide our analysis of this factor.
First, a “basic principle[] of our democratic system” is that
“sovereignty is vested in the people.”
See U.S. Term Limits, Inc.
v. Thornton, 514 U.S. 779, 793–94 (1995) (internal quotations
omitted).
sovereignty”
This democratic ideal of “[t]he people’s ultimate
predates
the
Founding
Declaration of Independence.
and
is
enshrined
in
the
Ariz. State Legislature v. Ariz.
Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2675 (2015).
The
North Carolina Constitution also expressly preserves inviolate the
“[s]overeignty of the people.” N.C. Const. art. I, § 2.
Because
the North Carolina Constitution vests “ultimate sovereignty . . .
in the people . . . they alone can say how they shall be governed.”
Jamison v. City of Charlotte, 80 S.E.2d 904, 915 (N.C. 1954).
Accordingly, we must assess any intrusion on state sovereignty
from the perspective of the people of North Carolina.
28
Second, the Fourteenth Amendment was “specifically designed
as
an
expansion
sovereignty.”
of
federal
power
and
an
intrusion
on
state
Gregory v. Ashcroft, 501 U.S. 452, 468 (1991)
(internal quotation marks omitted).
As a consequence, remedying
a state action that violates the Fourteenth Amendment almost always
entails some intrusion on state sovereignty.
Jordan, 415 U.S. 651, 667–68 (1974).
redistricting cases.
See Edelman v.
This is particularly true in
Because “state legislatures have primary
jurisdiction over legislative reapportionment,” White v. Weiser,
412 U.S. 783, 795 (1973) (internal quotation marks omitted),
remedying a state districting plan that violates the Fourteenth
Amendment necessarily entails judicial invasion of a sovereign
state function, see Reynolds, 377 U.S. at 584.
a
special
election
will,
to
some
degree,
Accordingly, that
intrude
on
state
sovereignty does not necessarily mean that this factor weighs
against ordering such an election.
Rather, a court must determine
whether a special election constitutes an undue intrusion on state
sovereignty
or,
put
differently,
whether
such
a
disproportionate to the constitutional violation.
remedy
is
With these
guiding principles in mind, we turn to whether the potential
intrusion on state sovereignty in this case weighs against ordering
a special election.
Legislative
Defendants
assert
that
ordering
a
special
election would harm sovereign state interests by “abrogat[ing] or
29
modif[ying]” a number of state laws, including: (1) provisions in
the North Carolina Constitution establishing two-year terms for
legislators and district residency requirements for legislative
candidates; (2) a North Carolina statute providing for filling
legislative vacancies arising through resignation or death by
gubernatorial appointment, N.C. Gen. Stat. § 163-11—a
Legislative
Defendants
maintain
amounts
to
a
statute
“sovereign
determination that special elections generally are not worth the
time and expense”; and (3) constitutional provisions providing for
two-year legislative sessions and allowing the General Assembly to
establish its own legislative schedule.
Leg. Defs.’ Pos. Stat. at
15-16.
We note that some of these alleged harms amount to either a
minimal intrusion on state sovereignty or no intrusion at all.
In
particular, a state statute governing the filling of occasional
legislative vacancies arising through resignation or death says
nothing about whether the people of North Carolina have concluded
that a special election is “not worth the time and expense” when
imposed
to
violation
remedy
of
a
widespread,
constitutionally
serious,
protected
and
voting
longstanding
rights.
And
because sovereignty lies with the people—and the various elected
officials and bodies to whom voters delegate their sovereignty by
virtue
of
a
lawfully
conducted
election—inconvenience
to
legislators elected under an unconstitutional districting plan
30
resulting from such legislators having to adjust their personal,
legislative,
or
campaign
schedules
to
facilitate
a
special
election does not rise to the level of a significant sovereign
intrusion.
That being said, a judicial order temporarily suspending
North Carolinians’ determination, enshrined in their Constitution,
that their state legislators should serve two-year terms does
amount to an intrusion on state sovereignty.3
In considering
whether this intrusion is disproportionate to the constitutional
violation at issue, we conclude that it is not unduly intrusive.
Rather, the serious and widespread nature of the constitutional
violation—and this Court’s previous exercise of judicial restraint
in declining to immediately remedy the constitutional violation—
We note that just as holding a special election would require
temporarily disregarding certain provisions in the North Carolina
Constitution, so too would allowing the challenged districting
plans to remain in place. In particular, under the “Whole County”
provision in the North Carolina Constitution, legislative district
lines should not traverse county lines unless such traversals are
required by federal law. See N.C. Const. art. II, §§ 3(3), 5(3);
Stephenson, 562 S.E.2d at 396-98. We concluded that the General
Assembly’s basis for disregarding the Whole County provision—that
the Voting Rights Act required the creation of majority-minority
districts—was not supported by the evidence considered by the
General Assembly when it adopted the districting plans. Covington
I, 316 F.R.D. at 124.
Accordingly, based on the evidence
considered by the General Assembly and presented to this Court,
federal law did not require disregarding the Whole County
provision.
3
31
substantially outweigh the intrusion associated with temporarily
shortening the terms of legislators elected in districts that must
be redrawn.
As previously explained, “[t]he scope of the remedy must be
proportional to the scope of the violation.”
Brown v. Plata, 563
U.S. 493, 531 (2011). Accordingly, a more pervasive constitutional
violation may justify—indeed, demand—a more intrusive remedy.
when
confronted
constitutional
with
widespread,
violations,
the
serious,
Supreme
and
Court
And
persisting
has
sanctioned
remedies that intrude significantly on state sovereignty.
See,
e.g., id. at 499-502 (approving district court order requiring
state to remedy Eighth Amendment violations attributable to prison
overcrowding,
including
through
the
construction
of
new
facilities, transfer of prisoners out of the state, or the early
release
Milliken
of
v.
prisoners
Bradley,
before
433
completion
U.S.
267,
of
281-89
their
(1977)
sentences);
(rejecting
challenge to district court order remedying de jure segregation in
Detroit school system, notwithstanding that the remedial order
imposed significant curricular, training, and testing requirements
that would have “a direct and substantial impact on the state
treasury”).
Along
those
lines,
in
cases
involving
unconstitutional
burdens on the right to vote, including racial gerrymandering,
numerous courts—including the Supreme Court—have concluded that
32
shortening the terms of elected officials and ordering a special
election
does
not
unduly
intrude
on
state
sovereignty,
particularly when the constitutional violation is widespread or
serious.
See, e.g., Hadnott v. Amos, 394 U.S. 358, 367 (1969);
Goosby v. Town Bd. of Town of Hempstead, 180 F.3d 476, 498 (2d
Cir. 1999); Griffin v. Burns, 570 F.2d 1065, 1079–80 (1st Cir.
1978); Bell v. Southwell, 376 F.2d 659, 665 (5th Cir. 1967); Large
v. Fremont Cty., No. 05-CV-0270, 2010 WL 11508507, at *15 (D. Wyo.
Aug. 10, 2010); United States v. Osceola Cty., 474 F. Supp. 2d
1254, 1256 (M.D. Fla. 2006); Smith v. Beasley, 946 F. Supp. 1174,
1212–13 (D.S.C. 1996); Clark v. Roemer, 777 F. Supp. 471, 484-85
(M.D. La. 1991); Williams v. City of Dallas, 734 F. Supp. 1317,
1318, 1415 (N.D. Tex. 1990); Ketchum, 630 F. Supp. at 565–68;
Tucker v. Burford, 603 F. Supp. 276, 279–80 (N.D. Miss. 1985);
Cosner v. Dalton, 522 F. Supp. 350, 364 (E.D. Va. 1981); Coal. for
Educ. in Dist. One v. Bd. of Elections of City of New York, 370 F.
Supp. 42, 58 (S.D.N.Y. 1974).
Here,
the
General
Assembly
unjustifiably,
and
therefore
unconstitutionally, drew 19 majority-minority House districts (out
of 120 House districts), and 9 majority-minority Senate districts
(out of 50 Senate districts),
and dozens of other districts
adjoining those majority-minority districts.
It is undisputed
that this violation requires redrawing nearly 70% of the state
House and Senate districts, affecting over 80% of the state’s
33
voters.
This
constitutes one of the
most widespread racial
gerrymanders ever held unconstitutional by a federal court and is
substantially more widespread than constitutional violations other
courts have concluded were sufficiently broad in scope to warrant
the imposition of a special election.
Compare, e.g., Smith, 946
F. Supp. at 1212–13 (ordering special election after finding 6 of
124 state house districts and 3 of 46 state senate districts
constituted racial gerrymanders); Ketchum, 630 F. Supp. at 565–68
(ordering special election in 7 of 50 aldermanic wards as remedy
for municipal districting plan that violated the Voting Rights
Act).
The
widespread
scope
of
the
constitutional
violation
at
issue—unjustifiably relying on race to draw lines for legislative
districts encompassing the vast majority of the state’s voters—
also
means
sovereignty.
that
the
districting
plans
intrude
on
popular
Because the vote is both the mechanism through which
the people delegate their sovereignty to elected officials and the
mechanism by which the people ensure that elected officials “have
‘an habitual recollection of their dependence on the people,’”
Ariz. State Legislature, 135 S. Ct. at 2677, “[a]n aspect of
sovereignty is the right of the people to vote for whom they wish,”
Thornton, 514 U.S. at 820; see also Powell v. McCormack, 395 U.S.
486, 540–41 (1969) (“[T]he true principle of a republic is, that
the
people
should
choose
whom
34
they
please
to
govern
them.”
(alteration
in
original)
(quoting
2
Debates
on
the
Federal
Constitution 257 (J. Elliot ed., 1876))). By unjustifiably relying
on race to distort dozens of legislative district lines, and
thereby potentially distort the outcome of elections and the
composition and responsiveness of the legislature, the districting
plans interfered with the very mechanism by which the people confer
their sovereignty on the General Assembly and hold the General
Assembly accountable.
In addition to the widespread nature of the constitutional
violation, we also note that this Court’s previous exercise of
judicial restraint weighs in favor of ordering a special election.
In
particular,
in
our
August
2016
opinion
finding
that
the
challenged districting plans violated the Fourteenth Amendment,
this Court declined to enjoin the use of the unconstitutional
districts in the impending November 2016 general election despite
recognizing that the “unconstitutional, challenged districts ha[d]
already
caused
Plaintiffs
representational injuries.”
substantial
stigmatic
and
Covington I, 316 F.R.D. at 176–77.
Because “requir[ing] the state of North Carolina to postpone its
2016
general
elections . . .
confusion,
inconvenience,
candidates,
and
election
would . . .
and
create
uncertainty
officials,”
the
considerable
among
Court
voters,
allowed
the
“elections to proceed as scheduled under the challenged plans,
despite their unconstitutionality.”
35
Id. at 177.
In other words,
over a year ago, this Court recognized that it was dealing with
“the unusual case in which a court would be justified in not taking
appropriate action to insure that no further elections [we]re
conducted under the invalid plan.”
Reynolds, 377 U.S. at 585
(emphasis added).
When, as here, courts have declined to immediately remedy an
unconstitutional districting plan due to a rapidly approaching
election, those courts have concluded that the balance of equities
favors later ordering a special election because “citizens are
entitled to have their rights vindicated as soon as possible so
that they can vote for their representatives under a constitutional
apportionment plan.”
Supp. at 364.
Smith, 946 F. Supp. at 1212; Cosner, 522 F.
We agree, and therefore conclude that this Court’s
exercise of judicial restraint in allowing the State to use the
unconstitutional districting plans in the 2016 elections weighs
heavily in favor of ordering a special election.
Legislative Defendants nonetheless argue that this factor
weighs
against
ordering
a
special
election
because
such
an
“election would at least cut th[e terms of legislators elected in
November 2016 to represent districts that must be redrawn] in half,
effectively
halving
Carolinians.”
the
voting
power
of
Leg. Defs.’ Pos. Stat. at 14.
millions
of
North
But the ordering of
a new election does not dilute the votes of citizens who voted in
an earlier constitutionally defective election.
36
See Griffin, 570
F.2d at 1079 n.14.
On the contrary, citizens who voted in the
earlier election “remain[] free to vote” in the special election.
Id.
And because “[t]he Constitution protects the right of all
citizens to democratic processes, not the right of any particular
candidate or voters to a certain result,” neither legislators nor
voters have a constitutionally—or even legally—cognizable interest
in
legislators
elected
in
unconstitutionally
drawn
retaining their seats for the full length of their term.
significantly,
this
argument
wholly
disregards
the
districts
Id.
More
rights
of
voters within and without the challenged districts who have had
their voting power unconstitutionally distorted based on race.
*
*
*
In sum, the widespread, severe, and longstanding nature of
the constitutional violations at issue justify the intrusion on
state sovereignty that a special election would entail.
That this
Court has already exercised restraint by delaying Plaintiffs the
relief to which they are entitled further indicates that a special
election would not amount to an undue federal intrusion on state
sovereignty.
C.
Disruption to the Ordinary Processes of Government
Having concluded that the first two factors weigh in favor of
ordering a special election, we now turn to the final factor: “the
extent of the likely disruption to the ordinary processes of
37
governance if early elections are imposed.”
Covington, 137 S. Ct.
at 1626.
In
analyzing
this
factor,
we
again
are
guided
by
the
foundational principle that “sovereignty itself remains with the
people, by whom and for whom all government exists and acts.”
Wo v. Hopkins, 118 U.S. 356, 370 (1886).
Yick
To that end, the North
Carolina Constitution provides that “[a]ll political power is
vested in and derived from the people; all government of right
originates from the people, is founded upon their will only, and
is instituted solely for the good of the whole.”
N.C. Const. art.
I, § 2; see also State Emps. Ass’n of N.C. v. N.C. Dep’t of State
Treasurer, 695 S.E.2d 91, 95 (N.C. 2010) (“Government agencies and
officials
exist
for
the
benefit
of
the
people . . . .”).
Accordingly, we must consider the “disruption to the ordinary
processes
of
governance,”
Covington,
137
S.
Ct.
at
1626,
attributable to a special election from the perspective of the
people—specifically,
constitutionally
North
adequate
Carolinians
who
representation
have
in
long
their
lacked
General
Assembly.
For this reason, we reject Legislative Defendants’ claim that
a special election would unduly disrupt the ordinary processes of
government
relationships
because
“legislators . . .
with
constituents”
their
and
have
established
legislators
“with
redrawn districts would have every incentive to neglect their
38
current constituents and focus their efforts on voters residing in
newly configured districts.”
Leg. Defs.’ Pos. Stat. at 9-10.
Contrary to Legislative Defendants’ position, we view shifting
legislators’
attention
unconstitutional
from
districts
to
the
constituents
constituents
in
in
their
constitutional
districts as, at least partially, remedying Plaintiffs’ injury and
benefitting the people of North Carolina.
In particular, because
legislators
the
will
focus
on
representing
interests
of
the
constituents in their new districts—rather than the districts we
held constituted unconstitutional racial gerrymanders—there is
less risk that the legislators will see their “primary obligation
[a]s to represent only the members of [a particular racial] group,
rather than their constituency as a whole.”
Shaw, 509 U.S. at
648.
Even
though
we
reject
Legislative
Defendants’
argument
regarding this alleged burden on legislators imposed by a special
election, we nonetheless conclude that a special election would
significantly
government.
interfere
with
the
ordinary
processes
of
state
We note that if the Court orders a special election,
county boards of election will execute at least five elections in
just over a twelve-month period: municipal elections during the
39
fall of 2017;4 a special primary election in December 2017; a
special general election in March 2018; a primary election in May
2018; and a general election in November 2018.
Hr’g Tr. (July 27,
2017) 50:3–18, 110:11–22; Pls.’ Suppl. Br. on Remedies, Ex. 1.
Plaintiffs’ witness George Gilbert, who served as Director of
Elections
for
Guilford
County
for
twenty-five
years,
could
recollect only one instance in which five elections were conducted
in a twelve-month period.
37:22-25, 38: 1-4.
Hr’g Tr. (July 27, 2017) 26:22-23,
The close succession during which voters would
be called upon to participate in both special and regularly
scheduled elections risks generating substantial voter confusion
and resulting low voter turnout, as voters may believe they need
only vote in state legislative elections once during a single
calendar year.
Beyond the large number of elections that would take place in
North Carolina over a short time frame, the insertion of a special
election
into
problematic
the
State’s
scheduling
election
overlaps.
calendar
Most
would
notably,
create
Plaintiffs’
According to the testimony of the Executive Director of the
State Board of Elections and Ethics Enforcement, Kim Westbrook
Strach, over ninety counties will hold municipal elections in
November 2017, with a smaller subset of counties conducting
municipal elections in both October and November 2017. Hr’g Tr.
(July 27, 2017) 50:3–22. Two municipalities and one county will
hold municipal elections in September, October, and November 2017.
Id.
4
40
proposed schedule contemplates that the special general election
for legislative candidates would occur on March 6, 2018.
Suppl. Br. on Remedies, Ex. 1.
deadline
for
individuals
Pls.’
The statutory candidate filing
planning
to
run
for
a
seat
in
the
legislature during the regularly scheduled November 2018 general
election falls between February 12 and 28, 2018.
Pos. Stat. by
State of N.C. & State Bd. of Elections, Ex. 1 (Decl. of Kim
Westbrook Strach) at 4, ECF No. 162-1.
As a practical matter,
Plaintiffs’ schedule would require legislative candidates to file
to run in the November 2018 general election before the March 2018
general special election takes place.
Candidates, therefore,
would in effect be required to run two simultaneous election
campaigns for the same seat.
That the same candidates would be
running for the same seats twice in a single calendar year—with
overlapping election schedules—would further confuse voters and
drive poor turnout.
We also note that Plaintiffs’ proposed schedule envisions
requiring the General Assembly to enact new districting maps by
August 11, 2017.
As we explained in our order establishing the
September 1, 2017, deadline for the General Assembly to draw
remedial maps—subject to a two-week extension if the General
Assembly
satisfied
certain
public
disclosure
conditions—
Plaintiffs’ proposed schedule would have allowed insufficient time
for the General Assembly to obtain and incorporate public input on
41
its redistricting criteria and draft districting plans, and to
engage in the robust debate and discussion necessary to enact plans
that fully remedy the constitutional violations.
2017 WL 3254098, at *2.
Covington III,
Although nothing stopped the General
Assembly from beginning the redistricting process earlier, we
nonetheless
concluded
that
allowing
the
legislature
time
to
solicit, receive, and incorporate public feedback on its criteria
and proposed plans would benefit all North Carolinians.
Additionally,
Plaintiffs’
proposed
schedule
Id.
would
have
allowed this Court less than two weeks to review—as we must—the
enacted
remedial
acceptable.”
1994).
plans
to
determine
if
they
are
“legally
Cane v. Worcester Cty., 35 F.3d 921, 927 (4th Cir.
“If the legislative body fails to respond or responds with
a legally unacceptable remedy, the responsibility falls on the
District Court to exercise its discretion in fashioning a near
optimal plan.”
Id. (internal quotation marks omitted).
We do not
believe that allowing such a short period for judicial review of
the enacted remedial plans would be in the best interests of
Plaintiffs or the people of North Carolina because it would not
provide this Court with adequate time to review the plans and, if
necessary, fashion alternative remedial plans.
Id. (explaining
that a legislatively proposed plan “is a legally unacceptable
remedy if it violates constitutional or statutory voting rights—
that is, if it fails to meet the same standards applicable to an
42
original challenge of an electoral scheme” (internal quotation
marks and alterations omitted)).
Because we provided the General Assembly with several more
weeks to enact new districting plans than Plaintiffs’ proposed
schedule contemplated—and reserved more time for this Court to
review those plans and, if necessary, impose our own remedial
plans—continuing to otherwise adhere to Plaintiffs’ timeline would
push back a special primary election to early 2018 and a special
general election to April 2018, at the earliest.
This delay would
lead to an even longer overlap between the two election cycles and
an even shorter period between the two general elections, further
increasing the harm to North Carolina voters.
In emphasizing the problems with Plaintiffs’ proposed special
election schedule, we do not mean to criticize Plaintiffs for
pursuing such relief.
ask—and
expect—the
On the contrary, Plaintiffs justifiably
judiciary
to
remedy
constitutional injuries as quickly as possible.
their
serious
And we recognize
that the procedural path of this case—with this Court obtaining
jurisdiction on the last day of June 2017, Certified Copy S. Ct.
J., ECF No. 158, without remedial districting plans in place—left
precious little time to provide such relief before the start of
the 2018 election cycle.
caused
by
overlapping
To avoid the significant disruption
and
compressed
election
cycles—while
allowing adequate time for the General Assembly to enact remedial
43
maps and for this Court to review those maps—this Court would have
to abbreviate the candidate filing period, the time for election
officials to prepare ballots, or the length of absentee or early
voting.
Plaintiffs reasonably do not seek to shorten these other
components of the election cycle, as doing so would require this
Court to ignore a number of state laws designed to protect voters
and the integrity of elections.
We note that the disruptions associated with Plaintiffs’
proposed schedule are significantly greater than they would have
been under the Court’s original special election schedule.
Under
that plan, there would not have been any overlap between the 2017
special elections and the filing period for the 2018 election, and
thus, the risk of voter confusion was smaller.
The Court’s
original schedule also gave the General Assembly plenty of time to
enact new districting plans and the Court sufficient time to review
those plans.
And it gave candidates time to decide whether to run
and then to prepare their campaigns.
the
legislature
significant
leeway
Additionally, the Court gave
in
scheduling
the
special
elections, providing it with the opportunity to hold the special
election in conjunction with some or all of the already-scheduled
municipal elections, thus reducing costs and increasing voter
participation.
In sum, at this late date, this Court cannot order
a special election without materially disrupting the districting
44
and electoral process in a manner that would harm all North
Carolinians, including Plaintiffs.
Plaintiffs and the NAACP, as amicus curiae, nonetheless argue
that the potential for disruption factor
weighs in favor of
ordering a special election because the Supreme Court’s summary
affirmance of this Court’s decision calls into question, as a
matter of state law, the authority of legislators elected in
unconstitutional districts to legislate.
Remedies at 5.
Pls.’ Suppl. Br. on
In particular, according to Plaintiffs, “officers
elected pursuant to an unconstitutional law are ‘usurpers’ and
their acts are absolutely void.”
Id. (quoting In re Pittman, 564
S.E.2d 899, 901 (N.C. Ct. App. 2002)).
Plaintiffs maintain that
because nearly 70% of the districts must be redrawn to remedy the
unconstitutional districting plans, the state Senate and House, as
currently composed, lack the power to act.
See id. at 5–8.
We agree with Plaintiffs that the absence of a legislature
legally empowered to act would pose a grave disruption to the
ordinary processes of state government.
But Plaintiffs cite no
authority from state courts definitively holding that a legislator
elected in an unconstitutionally drawn district is a usurper, nor
have we found any.
On the contrary, Plaintiffs concede that
whether the General Assembly, as currently composed, is empowered
to act is an unsettled question of state law.
See id. at 7.
Given
that this argument implicates an unsettled question of state law,
45
Plaintiffs and Amici’s argument is more appropriately directed to
North Carolina courts, the final arbiters of state law.
*
Although
any
*
decision
to
*
order
a
special
election
will
inevitably “disrupt[] . . . the ordinary processes of governance,”
Covington, 137 S. Ct. at 1626, in this case the disruption stands
to unduly harm North Carolina voters. Plaintiffs’ proposed special
election schedule would allow insufficient time to enact and review
remedial districting plans and would generate voter confusion and,
likely, poor voter turnout.
This would undermine one of the
primary goals this Court must pursue in crafting a remedy: putting
districting plans and election procedures in place that will allow
North
Carolinians
to
choose
their
constitutional districting plans.
representatives
under
Accordingly, this factor weighs
heavily against granting Plaintiffs’ requested special election.
D.
Equitable Balancing
In sum, “taking account of ‘what is necessary, what is fair,
and what is workable,’” id. at 1625 (quoting New York v. Cathedral
Acad., 434 U.S. 125, 129 (1977)), we must balance the widespread,
serious, and longstanding nature of the constitutional violation
at issue—a violation that infringes on North Carolinians’ right to
select their representatives—against the substantial disruption
Plaintiffs’
proposed
election
schedule
ordinary processes of state government.
46
would
impose
on
the
After carefully weighing
these competing factors, we conclude that “the individual and
collective
interests,”
id.
at
1626
(internal
quotation
marks
omitted), weigh in favor of denying Plaintiffs’ request for a
special election.5
We reach this conclusion because ordering a special election
would entail either unduly abbreviating the process for enacting
and reviewing new legislative districting plans, or ignoring a
number of state laws designed to protect voters and the integrity
of elections, or accepting the compressed, overlapping schedule
proposed by Plaintiffs—which would likely confuse voters, raise
barriers to participation, and depress turnout.
We believe that
pursuing any of these paths would not be in the best interests of
We recognize that, as the Supreme Court indicated,
additional considerations aside from the three discussed above may
bear on a court’s determination regarding the appropriateness of
ordering a special election as a remedy for a voting rights
violation.
Covington, 137 S. Ct. at 1626 (“We do not suggest
anything about the relative weight of these factors (or others),
but they are among the matters a court would generally be expected
to consider in its balancing of the individual and collective
interests at stake.” (internal quotation marks omitted)). These
additional considerations may include a state or municipal body’s
good or bad faith in drawing the challenged districts; the body’s
willingness, or lack thereof, to remedy the identified violation;
and any harm that will inure to voters if they must wait until
regularly scheduled elections to elect representatives under
lawful districting plans. Even taking additional considerations
like these into account, the Court concludes that a special
election would not, at this late date, be “a fitting remedy for
the legal violations [the Court] has identified.” Id. at 1625.
5
47
Plaintiffs or the people of North Carolina.
Rather, Plaintiffs
and North Carolinians are most likely to regain the representation
by constitutionally elected legislators that they have long been
denied
through
constitutional
a
vigorously
districting
plans,
contested
with
a
election,
fully
using
energized
and
engaged electorate.
III. Conclusion
For these reasons, and consistent with the Court’s Order dated
July 31, 2017, Plaintiffs’ request for a special election is
DENIED.
This the 19th Day of September, 2017.
/s/
James A. Wynn, Jr.
/s/
Thomas D. Schroeder
/s/
Catherine C. Eagles
48
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