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

Filing 220

SPECIAL MASTER'S RECOMMENDED PLAN AND REPORT issued by Nathaniel Persily on 12/1/2017. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13. (Powell, Gloria)

Exhibit 13

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
On August 11, 2016, this Court unanimously concluded that the Defendants
unjustifiably relied on race in drawing lines creating twenty-eight majority-minority
districts in the 2011 state legislative districting plans, in violation of the Plaintiffs’ rights
under the Equal Protection Clause of the Fourteenth Amendment. Covington v. North
Carolina, 316 F.R.D. 117, 176 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211 (2017) (mem.).
To remedy the constitutional violation, the North Carolina General Assembly enacted
proposed remedial plans on August 31, 2017. On September 15, 2017, the Plaintiffs filed
objections to three Senate districts and nine House districts created by the proposed
remedial plans. Thereafter, the Legislative Defendants filed a response to Plaintiffs’
objections. This Court held a hearing concerning the objections on October 12, 2017.
After careful review of the parties’ written submissions, arguments, and evidence,
the Court has serious concerns that 2017 Enacted Senate Districts 21 and 28 and 2017
Enacted House Districts 21 and 57 fail to remedy the identified constitutional violation.

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See id. at 146-47 (Senate District 21); id. at 147-48 (Senate District 28); id. at 155-56
(House District 21); id. at 163-64 (House District 57). Among other concerns, some or
all of the proposed remedial districts preserve the core shape of the unconstitutional
version of the district, divide counties and municipalities along racial lines, and are less
compact than their benchmark version. In some cases, the General Assembly’s use of
incumbency and political data in drawing its proposed remedial districts embedded,
incorporated, and perpetuated the impermissible use of race that rendered
unconstitutional the 2011 districts. The 2017 Enacted Districts do not appear to cure the
constitutional violations found as to 2011 Enacted House Districts 21 and 57 and Senate
Districts 21 and 28. The Court is concerned that, among other things, some of the
districts proposed by the Plaintiffs may be the result of impermissible political
considerations. See infra ¶ 2(h).
The Court further has serious concerns that the 2017 redrawing of 2011 Enacted
House Districts 36, 37, 40, and 41 in Wake County and House District 105 in
Mecklenburg County exceeded the authorization to redistrict provided in the Court’s
previous orders. None of these districts as enacted in 2011 was found to be an
unconstitutional racial gerrymander, nor do any of these districts adjoin such a district.
The Legislative Defendants have not provided any evidence that it was necessary to
redraw these districts in order to cure the constitutional violations found by the Court as
to 2011 House Districts 33 and 38 in Wake County or House Districts 99, 102, or 107 in
Mecklenburg County. Unless required by court order, the General Assembly was
prohibited by the North Carolina Constitution from redrawing these districts. N.C. Const.
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art. II §§ 3(4), 5(4). If these 2017 Enacted Districts cannot be used, it also becomes
impossible to use the other 2017 Enacted Districts in Mecklenburg and Wake Counties,
thus necessitating the redrawing of the 2011 unconstitutional districts – House Districts
33, 38, 99, 102, and 107 – and only such adjoining districts as are necessary to remedy
the violations found as to those districts. See Covington, 316 F.R.D. at 159-61 (House
Districts 33 and 38); id. at 164-66 (House Districts 99, 102, and 107); see also Cleveland
Cnty. Ass'n for Gov't by the People v. Cleveland Cnty. Bd. of Comm'rs, 142 F.3d 468, 477
(D.C. Cir. 1998) (per curiam) (“[I]f a violation of federal law necessitates a remedy
barred by state law, the state law must give way; if no such violation exists, principles of
federalism dictate that state law governs.” (emphasis added)).
Constitutionally adequate districts must be in place in time for the 2018 election,
and the Court finds it appropriate to appoint a Special Master to assist the Court in
drawing such districts, should the Court ultimately determine they are necessary. See
Doc. 202 at 2. After reviewing the Special Master’s report, and with the benefit of his
analysis, this Court will issue an order finally deciding whether the Plaintiffs’ objections
will be sustained and determining the districting plan to be used going forward. See
Personhuballah v. Alcorn, 155 F. Supp. 3d 552, 562-65 (E.D. Va. 2016) (relying on
special master report and remedial districting plan to assess proposed legislative remedial
plan); Order Appointing Special Master, Navajo Nation v. Ariz. Indep. Redistricting, Nos.
CV 02-0799, 02-0807 (D. Ariz. May 17, 2002) (appointing special master “to evaluate
evidence regarding proposed redistricting plans,” including remedial plan adopted by
state redistricting body, and to “assist the court in developing an appropriate plan”).
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In view of the fast-approaching filing period for the 2018 election cycle and the
specialized expertise necessary to draw district maps, the Court has previously given
notice of its intent to appoint Professor Nathaniel Persily as Special Master pursuant to
Federal Rule of Civil Procedure 53(a)(1)(C). See Doc. 202. The Court’s selected Special
Master has filed the affidavit required by Federal Rule of Civil Procedure 53(b)(3)(A).
Doc. 203.
The parties have had an opportunity to object to the Court’s selection of a Special
Master. The Legislative Defendants filed objections, Doc. 204, and the Plaintiffs have
responded. Doc. 205. The Court has considered those objections and overrules them.
The State is not entitled to multiple opportunities to remedy its unconstitutional districts.
See Reynolds v. Sims, 377 U.S. 533, 585-87 (1964) (affirming remedial districting map
drawn by a district court after district court found state legislature’s first proposed
remedial map failed to remedy constitutional violation). Additionally, the fastapproaching candidate filing deadline necessitates an expedited schedule. In light of the
need for an expedited schedule, the Court’s two notices of its intent to appoint a special
master, the first of which was issued approximately three weeks ago, provided the parties
with more than adequate notice and opportunity to be heard. It is comparable to the
timeline followed in similar cases. See Order, Personhuballah v. Alcorn, No. 3:13cv678,
Doc. No. 241 (E.D. Va. Sept 25, 2015) (appointing special master approximately three
weeks after first notifying parties of its intent to appoint special master); see also Order,
Personhuballah v. Alcorn, No. 3:13cv678, Doc. No. 207 (E.D. Va. Sept. 3, 2015)
(notifying parties of intent to appoint special master). The Legislative Defendants’
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specific objections to the identified Special Master are speculative and insubstantial, and
they have not made an alternative suggestion despite the Court’s invitation to do so.
Pursuant to Federal Rule of Civil Procedure 53, it is hereby ORDERED that:
1. Dr. Nathaniel Persily is appointed as a Special Master to submit a report and
proposed plans to remedy the unconstitutional racial gerrymander of 2011
Enacted Senate Districts 21 and 28 and House Districts 21, 33, 38, 57, 99, 102,
and 107 (hereinafter the “Subject Districts”), as more specifically identified in
this Court’s opinion in Covington v. North Carolina, 316 F.R.D. 117
(M.D.N.C. 2016), aff’d in relevant part, 137 S. Ct. 2211 (2017) (mem.). His
report is due no later than December 1, 2017.
2. In drawing remedial districts, the Special Master shall:
a. Redraw district lines for the Subject Districts and any other districts
within the applicable 2017 county grouping necessary to cure the
unconstitutional racial gerrymanders. As to House District 57, the
redrawn lines shall also ensure that the unconstitutional racial
gerrymanders in 2011 Enacted House Districts 58 and 60 are cured. As
to 2011 Enacted House Districts 33, 38, 99, 102, and 107, no 2011
Enacted House Districts which do not adjoin those districts shall be
redrawn unless it is necessary to do so to meet the mandatory
requirements set forth in Paragraphs 2(b) through 2(e) of this Order, and
if the Special Master concludes that it is necessary to adjust the lines of

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a non-adjoining district, the Special Master shall include in his report an
explanation as to why such adjustment is necessary.
b. Use the 2010 Federal Decennial Census Data;
c. Draw contiguous districts with a population as close as possible to
79,462 persons for the House Districts and 190,710 persons for the
Senate Districts, though a variance up to +/- 5% is permitted and
authorized if it would not conflict with the primary obligations to ensure
that remedial districts remedy the constitutional violations and
otherwise comply with state and federal law, would enhance compliance
with state policy as set forth in subsection (f) below, and would not
require redrawing lines for an additional district.
d. Adhere to the county groupings used by the General Assembly in the
2017 Enacted Senate and House Plans;
e. Subject to any requirements imposed by the United States Constitution
or federal law, comply with North Carolina constitutional requirements
including, without limitation, the Whole County Provision as interpreted
by the North Carolina Supreme Court.
f. Make reasonable efforts to adhere to the following state policy
objectives, so long as adherence to those policy objectives does not
conflict with the primary obligations of ensuring that remedial districts
remedy the constitutional violations and otherwise comply with state
and federal law:
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i. Split fewer precincts than the 2011 Enacted Districts;
ii. Draw districts that are more compact than the 2011 Enacted
Districts, using as a guide the minimum Reock (“dispersion”)
and Polsby-Popper (“perimeter”) scores identified by Richard
Pildes & Richard Neimi, Expressive Harms, “Bizarre Districts,”
and Voting Rights: Evaluating Election-District Appearances
After Shaw v. Reno, 92 Mich. L. Rev. 483 (1993); and
iii. Consider municipal boundaries and precinct lines.
g. After redrawing the districts, in view of the policy decision by the
General Assembly that efforts to avoid pairing incumbents are in the
interest of North Carolina voters, the Special Master may adjust district
lines to avoid pairing any incumbents who have not publicly announced
their intention not to run in 2018, but only to the extent that such
adjustment of district lines does not interfere with remedying the
constitutional violations and otherwise complying with federal and state
law. Additionally, the Special Master shall treat preventing the pairing
of incumbents as “a distinctly subordinate consideration” to the other
traditional redistricting policy objectives followed by the State. Ga.
State Conf. of NAACP v. Fayette Cty. Bd. of Comm’rs, 996 F. Supp. 2d
1353, 1363 (N.D. Ga. 2014) (collecting cases).
h. Except as authorized in Paragraph 2(g), the Special Master shall not
consider incumbency or election results in drawing the districts. See,
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e.g., Wise v. Lipscomb, 437 U.S. 535, 541 (1978) (noting that courts
lack “political authoritativeness” and must act “in a manner free from
any taint of arbitrariness or discrimination” in drawing remedial
districts) (quoting Connor v. Finch, 431 U.S. 408, 417 (1977)); Wyche
v. Madison Par. Police Jury, 769 F.2d 265, 268 (5th Cir. 1985) (“Many
factors, such as the protection of incumbents, that are appropriate in the
legislative development of an apportionment plan have no place in a
plan formulated by the courts.”); Wyche v. Madison Par. Police Jury,
635 F.2d 1151, 1160 (5th Cir. 1981) (noting that “a court is forbidden to
take into account the purely political considerations that might be
appropriate for legislative bodies”); Favors v. Cuomo, Docket No. 11–
cv–5632, 2012 WL 928216, at *18 (E.D.N.Y. Mar. 12, 2012), report
and recommendation adopted as modified, No. 11-cv-5632, 2012 WL
928223, at *6 (E.D.N.Y Mar. 19, 2012),; Molina v. Cty. of Orange, No.
13CV3018, 2013 WL 3039589, at *8 (S.D.N.Y. June 3, 2013),
supplemented, No. 13CV3018, 2013 WL 3039741 (S.D.N.Y. June 13,
2013), report and recommendation adopted, No. 13 CIV. 3018 ER,
2013 WL 3009716 (S.D.N.Y. June 14, 2013); Larios v. Cox, 306 F.
Supp. 2d 1214, 1218 (N.D. Ga. 2004); Balderas v. Texas, No.
6:01CV158, 2001 WL 36403750, at *4 (E.D. Tex. Nov. 14, 2001).
i. The Special Master may consider data identifying the race of
individuals or voters to the extent necessary to ensure that his plan cures
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the unconstitutional racial gerrymanders and otherwise complies with
federal law.
3. The Special Master may consider the plans submitted by the Plaintiffs and the
2017 Enacted plans as background. Because any remedy must be narrowly
tailored to address the harm, he further should use any 2017 Enacted Districts
within a relevant county grouping which do not abut or overlap with a Subject
District, except to the extent modification of such district is necessary to
comply with and meet the requirements of this Order. See Personhuballah,
155 F. Supp. 3d at 563 (discussing Supreme Court precedent and concluding
that in remedying a violation, the only districts which should be changed are
those that are “require[d]” to be changed). Any such decisions shall be
explained in his report. Otherwise, he shall draw his own plans using the
criteria set forth herein.
4. The Special Master is authorized to hire research and technical assistants and
advisors reasonably necessary to facilitate his work, who shall be reasonably
compensated by the State of North Carolina in the same way as the Special
Master. He is authorized to buy any specialized software reasonably necessary
to facilitate his work.
5. To facilitate the consideration of incumbency authorized by Paragraph 2(g),
the parties shall confer and, no later than November 8, 2017, shall file a Joint
Submission identifying incumbents covered by Paragraph 2(g) by name,
address, and date first elected.
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6. Upon request from the Special Master, the parties shall promptly make
available to the Special Master electronic copies of trial and hearing
transcripts, trial exhibits, motions, briefs, and evidentiary material otherwise
submitted to the Court. Such a request shall be communicated by way of an
email message to counsel of record for all parties.
7. The parties, including the North Carolina Legislative Analysis Division, shall
promptly respond to the best of their ability to any reasonable request by the
Special Master for supporting data or information as is reasonably necessary to
carry out his assignment. All such requests and responses shall be made by
email, with all counsel copied. Upon such a request, the requested party shall
respond promptly to the best of its ability. The Special Master may, but is not
required to, request briefs on such background matters as he would find
helpful. The Special Master is not authorized to take new evidence, absent
request to do so and approval from the Court.
8. The Special Master may, but is not required to, convene the parties for a
discussion about logistics, software, data, and other housekeeping or technical
issues, including whether it would or might save time or other resources to use
computers, software, data, or other facilities and materials controlled by the
State and to have technical assistance from a support person employed by the
State in the use of such materials. He may convene such a discussion upon
reasonable notice at a time and place and in a method convenient to him,
though if an in-person meeting or hearing is convened it shall occur in North
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Carolina. He shall advise the parties of the time and other details by way of an
email message to counsel of record for all parties.
9. If the Special Master determines that it would save time and otherwise
facilitate prompt completion of his work to use state technical resources and so
long as the parties consent to such use under terms which would not give the
State advance or ex parte knowledge of the Special Master’s work and which
would prevent the State from accessing such work or communicating with its
support employee about such work, the Court will entertain a request to
supplement this Order.
10. If time permits and the Special Master would find it helpful, he may publicly
release preliminary maps or plans and convene a hearing, meeting, or informal
conference to evaluate whether the preliminary maps meet the criteria set forth
herein or raise unanticipated problems. The Special Master shall advise the
parties of the time and other details by way of an email message to counsel of
record for all parties and shall file notice with the court. A transcript shall be
prepared of any such hearing, meeting, or conference, and, if it does not occur
in open court, be made available on the Court’s docket.
11. The Special Master is prohibited from engaging in any ex parte communication
with the parties or their counsel, except as specifically authorized by this
Order.
12. The Special Master is prohibited from discussing this matter with anyone else,
other than assistants or advisors he retains to complete his work, except as
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specifically authorized by this Order. Any assistants or advisors retained by
the Special Master may discuss the matter only with the Special Master.
13. The Special Master may communicate ex parte with the Clerk of Court, the
Clerk’s staff, and the Court about housekeeping, scheduling, and logistical
matters. If necessary to clarify or supplement these instructions, the Special
Master may communicate ex parte with the Court, provided he promptly
advises the parties that the communication has occurred and discloses any
material guidance he has received.
14. Pursuant to Rule 53(b)(2)(C), the Special Master shall maintain orderly files
consisting of all documents submitted to him by the parties and any written
orders, findings, and recommendations. All other materials relating to the
Special Master’s work should be preserved until relieved of this obligation by
the court. The Special Master shall preserve all datasets used in the
formulation of redistricting plans, and any drafts considered but not
recommended to the court, in their native format.
15. The Special Master’s final report shall contain:
a. At least one recommended redistricting plan for each Subject District;
b. For each county or county grouping encompassing a Subject District, a
color map showing the recommended remedial plan;
c. For each Subject District, an analysis (i) explaining the proposed
remedial plan and the recommendation of that plan over the 2017
Enacted Districts or the Plaintiffs’ proposed districts; (ii) covering any
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matters required elsewhere in this Order; and (iii) discussing any
criteria, issues, or questions which the Special Master believes may
arise or which will otherwise aid the Court;
d. A comparison of the Special Master’s districts with the related 2011 and
2017 Enacted Districts as to population deviations; compactness;
county, municipal, and precinct splits; incumbency pairing; Black
Voting Age Population; and any other relevant criteria; and
e. A “stat pack” for the recommended plans.
16. If any party believes the report should contain additional information, it shall
meet and confer with other parties and thereafter file an appropriate request no
later than November 6, 2017. In lieu of a brief in support, the request shall be
accompanied by a Joint Submission including the positions of all parties so that
responses will not be needed.
17. The Special Master shall file his report electronically on the Court’s CM/ECF
system. The Legislative Defendants shall promptly post the Special Master’s
report and supporting electronic files to its redistricting website.
18. The Court will review the report pursuant to Fed. R . Civ. P. 53(f).
19. If any party or non-party believes that one or more proposed districts set forth
in the Special Master’s report is legally unacceptable or otherwise should not
be adopted, specific objections must be filed within five business days. Any
response must be filed within three business days. Briefs are limited to 5000
words. Reply briefs limited to 2500 words may thereafter be filed within two
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business days. The Court anticipates scheduling a hearing on the report in
early January 2018. Fed. R. Civ. P. 53(f)(1).
20. The Court understands the candidate filing period to be from February 12 to
February 28, 2018. Doc. 162-1. If that is or becomes incorrect, the Defendant
State Board of Elections shall immediately advise the Court.
21. The Court may modify this order pursuant to Federal Rule of Civil Procedure
53(b)(4). The parties may seek to modify this order for good cause shown, but
no such motion shall be filed without meeting and conferring in person with all
other counsel. Absent agreement, the time to respond to such a motion is two
business days and no reply will be permitted.
Entered by the Court, this the 1st day of November, 2017.

_________________________________
FOR THE COURT

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