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 9

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NO. 1:15-CV-00399
SANDRA LITTLE COVINGTON, et al.,
Plaintiffs,
v.
STATE OF NORTH CAROLINA, et al.
Defendants.

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LEGISLATIVE DEFENDANTS’
RESPONSE TO SPECIAL
MASTER’S DRAFT REPORT

INTRODUCTION
Legislative defendants continue to object to the irregular and inappropriate process
the Court has adopted in this case. The Court, and therefore, the special master, lack
jurisdiction over the districts enacted by the legislature on August 31, 2017 (“2017
plans”) because the legislature fully complied with this Court’s judgment and the case is
now moot.
In any event, none of the special master’s proposed districts should be adopted
until the Court explains how all of the districts challenged by plaintiffs in their objections
(“Subject Districts”) fail to remedy constitutional violations and gives North Carolina an
opportunity to either correct them or seek appellate review.1

1

The process adopted by the Court for the appointment of the special master violates
Rule 53, Fed. R. Civ. P., and the constitutional sovereignty of the State of North Carolina,
including its legislature. Legislative defendants incorporate by reference all of their prior
objections related to the appointment of Professor Persily as special master. D.E. 204.
Legislative defendants renew their request to conduct a deposition or voir dire of the
special master to examine the apparent conflicts raised by legislative defendants in prior
briefing.

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Indeed, absent a definitive ruling from the Court explaining how and why the 2017
Senate Districts 21 and 28 and House Districts 21 and 57 fail to remedy federal
constitutional violations found by the Court, the special master has been left to speculate
on the criteria that the Court might ultimately approve for redrawing these districts.
While it is not completely clear what specific criteria the special master followed because
they have not been articulated, it appears that the special master has engaged in racial
sorting to establish districts with racial targets for black voting age population (“BVAP”)
without citing or developing any evidence of legally significant racially polarized voting
that might otherwise justify the use of race.2 Because the special master has considered
race—without justification or standard articulated by the Court or by him—in the
drawing of his districts, those proposed districts—not the Subject Districts—are racial
gerrymanders.
The special master should also recommend that the 2017 plans’ changes to House
Districts 36, 37, 40, and 41 in Wake County and House District 105 in Mecklenburg
County not be enjoined by the Court. Neither the Court nor the special master has

2

The Supreme Court has made clear that a record must include evidence of statistically
significant racially polarized voting in a specific geographic area before race can be
considered in drawing a district encompassing that area. Cooper v. Harris, 137 S.Ct.
1455, 1471 (2017) (“Harris”). Indeed, in Harris the Supreme Court held that even though
the record before the North Carolina General Assembly contained expert reports
documenting statewide racially polarized voting, the evidence wasn’t sufficiently “local”
enough to justify the State’s consideration of race in drawing specific districts. Id. and
n.5. Here, the special master does not even have evidence of statewide racially polarized
voting before him, much less evidence of statistically significant racially polarized voting
in the districts that he created employing racial sorting. If the State’s record evidence in
Harris was insufficient to support the use of race in redistricting, certainly the complete
dearth of any such evidence before the special master prevents him from considering it.
2

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jurisdiction to consider state constitutional claims made against the State of North
Carolina, nor may the Court defer addressing the issue of its jurisdiction, once asserted,
while it conducts an analysis of the merits of those claims. But, in any case, the special
master has modified these districts based upon an erroneous interpretation of the North
Carolina Constitution apparently adopted by the Court. Nothing under federal law would
prevent the North Carolina General Assembly from adopting completely new, statewide
districting plans at any time – much less changing “non-adjoining” districts whose shape
and location were directly caused by the placement of the illegal districts. Whether any
such action would violate the North Carolina Constitution is a question reserved to the
Supreme Court of North Carolina and should not be decided by the special master or the
Court.
1.

This case is moot.

As previously explained by legislative defendants, this matter is moot and if
plaintiffs want to pursue additional claims, they must file a new lawsuit. “[A]n actual
controversy must be extant at all stages of review, not merely at the time the complaint is
filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). “A case is
moot when the issues presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)
(quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). Here, the Court has
enjoined the use of the 2011 legislative plans and those plans will not be used. Moreover,

3

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the legislature has now enacted new plans for the 2018 elections. There is therefore
nothing left for the Court or the special master to do.3
Similarly, plaintiffs no longer have a concrete stake in the outcome of the case
because they face no realistic threat of injury from the 2011 legislative plans.

To

maintain a live case or controversy:
[t]he parties must continue to have a “personal stake in the outcome” of the
lawsuit. . . . . This means that, throughout the litigation, the plaintiff “must
have suffered, or be threatened with, an actual injury traceable to the
defendant and likely to be redressed by a favorable judicial decision.”
Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Continental Bank Corp., 494
U.S. 472, 477–78 (1990)). For this reason, the doctrine of mootness is often characterized
as “the doctrine of standing set in a time frame: The requisite personal interest that must
exist at the commencement of the litigation (standing) must continue throughout its
existence (mootness).” Arizonans for Official English, 520 U.S. at 68 n.22; cf. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992) (explaining that Article III standing
requires the plaintiff to identify “a concrete and imminent invasion of a legally protected
3

The so-called “objections” filed by plaintiffs do not change this result. While the
Court has the authority ultimately to enjoin some or all of the 2017 plans, it may only do
so in the context of an actual live case or controversy between the parties, which does not
exist absent a new lawsuit. Of course, a new lawsuit would permit the parties to engage
in discovery and develop a factual record that the Court is preventing through the
irregular process it has adopted in this case.
Moreover, plaintiffs have not cited any authority for the proposition that filing
“objections” to a new redistricting plan may substitute for a live case or controversy
created by a new lawsuit. Of course, had the Court (improperly) taken it upon itself to
draw districts in the first instance, such authority would have been exercised under the
case or controversy that previously existed between the parties. However, now that the
legislature has adopted new plans to replace the 2011 plans, the case filed by plaintiffs
over those plans is moot. See Stephenson v. Bartlett, 358 N.C. 219, 595 S.E.2d 112
(2004) (“Stephenson III”).
4

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interest that is neither conjectural nor hypothetical”); Ashwander v. Tennessee Valley
Authority, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“The Court will not pass
upon the validity of a statute upon complaint of one who fails to show that he is injured
by its operation.”). Because the claims asserted by all plaintiffs are directed at legislation
that has now been repealed and replaced, plaintiffs cannot demonstrate that they are
likely to be harmed by the challenged redistricting plans. Plaintiffs’ inability to identify
any threat of injury deprives them of a concrete stake in the outcome of this case,
rendering the case moot and divesting this Court of subject matter jurisdiction.
2.

It is an abuse of discretion for the special master to propose a plan
before a final ruling on the constitutionality of the Subject Districts
and without giving the General Assembly a chance to remedy any
allegedly unlawful districts.

The special master should recommend to the Court that no districts be drawn by
the special master or adopted by the Court until: (1) the Court makes a definitive ruling
that explains why any of the specific subject districts are illegal; and (2) gives the State
an opportunity to either remedy these new illegalities or seek appellate review.
First, it is inappropriate for the Court to authorize the special master to ask the
legislative defendants to comment on, or propose revisions of, districts drawn by the
special master when the legislative defendants do not themselves speak for the entire
General Assembly. The General Assembly speaks for itself through legislation it enacts
on a majority-rule basis. A few members of the legislature, even if they are leaders, are
not authorized to state how the entire legislature would vote on, or amend, draft districts
proposed by a law professor. The General Assembly spoke with one voice on August 31,

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2017 when it adopted the 2017 plans, and those plans are the plans supported by the
General Assembly.
In any event, it is inappropriate for the special master, or a Court, to fashion a
remedy before a legal violation has been found. It is axiomatic in our legal system that a
remedy may not be fashioned until a legal violation has been found. That settled order of
operations exists not just because there is no entitlement to a remedy until a wrong has
been proven, but because “the scope of the remedy is determined by the nature and extent
of the constitutional violation.” Milliken v. Bradley, 418 U.S. 717, 745 (1974). A
remedy is “[t]he means of enforcing a right or preventing or redressing a wrong.”
Remedy, Black’s Law Dictionary (10th ed. 2014). A remedy, by its nature, thus cannot
be crafted without first identifying the wrong to which it is addressed.
Basic examples illustrate this commonsense principle: judges do not issue
provisional sentences before a defendant is found guilty; juries do not make provisional
damages awards before adjudicating liability; and courts do not craft provisional
remedies before finding a constitutional violation.4 Those kinds of anticipatory remedial
proceedings are alien to our legal system not only because of the presumption of
innocence that applies across all legal contexts, but also because of the fundamental
unfairness that would result from forcing a defendant to expend resources helping to craft
an anticipatory judicial remedy for a wrong that has not even been proven to exist.

4

To be sure, courts may impose temporary remedies during the pendency of litigation,
see, e.g., Fed. R. Civ. P. 65; Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008),
but that is quite different from anticipatorily crafting a remedy that will be imposed only
in the event liability is later found.
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The principle that a defendant may not be forced to help craft a judicial remedy for
a violation that has not yet been found holds particular force in the redistricting context.
The Supreme Court has repeatedly admonished that “reapportionment is primarily the
duty and responsibility of the State through its legislature or other body, rather than of a
federal court.” Chapman v. Meier, 420 U.S. 1, 27 (1975); accord Perry v. Perez, 565
U.S. 388, 392 (2012); League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 414
(2006) (plurality opinion); Miller v. Johnson, 515 U.S. 900, 915 (1995). Accordingly,
courts have no business drawing maps (or empowering special masters to do so) unless
and until the State’s own maps have been adjudicated invalid, or “an intervening event—
most commonly … a census—renders the current plan unusable.” Perry, 565 U.S. at
392.
Even then, if the State itself is “fully prepared to adopt a [districting] plan” in time
for the next regularly scheduled election should its existing plan be invalidated, it is the
obligation of the judiciary to give the State the opportunity to do so. Growe v. Emison,
507 U.S. 25, 37 (1993). Only “when the governmental body is unable or unwilling to
fulfill its legislative duties” does it become “the ‘unwelcome obligation’ of the court to
devise and impose a plan” of its own. Ramos v. Koebig, 638 F.2d 838, 844 (5th Cir.
1981) (emphasis added) (citation omitted).
Indeed, most of the time judicial intervention occurs when the legislature has
failed to enact a remedial plan by a court-imposed deadline. See, e.g., Personhuballah v.
Alcorn, 155 F. Supp. 3d 552, 555-56 (E.D. Va. 2016) (district court appointed special
master after Virginia General Assembly “convened but failed to act”); Larios v. Cox, 306
7

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F. Supp. 2d 1212, 1213 (N.D. Ga. 2004) (district court appointed special master after
Georgia General Assembly proved “unable to meet [court-imposed] deadline”); Jackson
v. Nassau Cty. Bd. of Supervisors, 157 F.R.D. 612, 614-15 (E.D.N.Y. 1994) (district
court appointed special master after “deadlock and consequential failure” of Nassau
County Board of Supervisors to recommend redistricting plan).

Beyond that, such

intervention has occurred only in the rare instance when there is no time for the
legislature to convene and enact a new plan before the next election, see, e.g., Rodriguez
v. Pataki, 207 F.Supp.2d 123, 124-25 (S.D.N.Y. 2002) (district court appointed special
master because “the ‘eleventh hour’ is upon us, if indeed it has not already passed”);
Beens v. Erdahl, 336 F.Supp. 715, 719 (D. Minn. 1972) (district court appointed special
masters after state legislature adjourned “and was not scheduled to reconvene until after
the 1972 general elections”).
Moreover, even in the rare instance when a district court is compelled to draw
maps itself, the Supreme Court has made abundantly clear that the Court does not possess
some freewheeling power to “substitute[] its own concept of ‘the collective public good’
for the [State] Legislature’s determination of which policies serve ‘the interests of [its]
citizens.’” Perry, 565 U.S. at 396. Instead, the Court’s task is to draw “maps that
comply with the Constitution and the Voting Rights Act, without displacing legitimate
state policy judgments with the court’s own preferences.”

Id. (emphasis added).

Accordingly, while a court must “take care not to incorporate into the interim plan any
legal defects in the state plan,” it may not go beyond that and “modify” aspects of the
plan that do not suffer from “any legal flaw.” Id.
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A fortiori, a court may not draw new maps (or empower a special master to do so)
before even finding a violation to remedy.5

Indeed, drawing remedial maps in the

absence of an adjudicated or admitted problem with the existing maps is a recipe for
precisely the kind of constitutional disaster that Perry is supposed to prevent. After all, a
court cannot ensure that it is confining itself to its assigned task of remedying “legal
defects in the state plan,” id., if it does not first identify what the legal defects are.
Drawing remedial maps in the absence of an adjudicated or acknowledged wrong to
remedy is therefore bound to devolve into an impermissible effort to “displac[e]
legitimate state policy judgments with the court's own preferences.” Id.
The Court did not and could not identify any authority that supports the flawed
approach the special master is now working under. Instead, the Court cited Reynolds v.
Sims, 377 U.S. 533, 585-87 (1964), which it described in a parenthetical as “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.” D.E.
206 at 4. That is a plainly inaccurate description of Reynolds, which actually forecloses
the district court’s one-chance-only rule.
In Reynolds, the district court announced in April 1962 that the state’s districting
plan—which had not been adjusted since 1901—was invalid. Id. at 545. By July 1962,
5

Perry involved an unusual circumstance in which the district court was forced to draw
interim maps in the absence of an adjudicated legal violation because the intervening
census concededly had “render[ed] the current plan unusable,” but the State’s newly
enacted plan had not yet gained preclearance under Section 5 of the Voting Rights Act
from the separate district court that was conducting the preclearance proceedings. Id. at
342. Obviously, no comparable circumstances exist here, as the district court itself has
the power to determine the validity of the 2017 plans anytime it chooses to do so.
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the legislature still had not enacted any remedial plan for the upcoming November 1962
election; instead, it had enacted only two alternative reapportionment plans that would
“take effect for the 1966 elections.” Id. at 543 (emphasis added). The district court was
thus faced with the unwelcome task of deciding what districts should govern the 1962
election. The court concluded that it could not use either of the plans drawn for the 1966
elections because both contained fatal defects. Id. at 546-51. So the court combined “the
best parts” of the two “as a temporary and provisional measure” for the 1962 election
only—a solution that the Supreme Court approved, noting that the district court had
“properly refrained from acting … until the Alabama Legislature had been given an
opportunity to remedy the admitted discrepancies” itself. Id. at 586-87. Thus, as to the
1962 election, Reynolds stands only for the proposition (undisputed here) that a district
court may impose temporary districts when a state legislature is given a reasonable
opportunity to redistrict but fails to timely act.
More important here is Reynolds’ discussion of the 1966 election, which plainly
forecloses the existence of any one-chance-only rule. If there really was such a rule, then
the state legislature had already wasted its one chance by enacting the two alternative
plans that the district court and the Supreme Court held “constitutionally invalid.” Id. at
568-69. But instead of holding that the district court was now free to impose its own plan
for the 1966 election, the Supreme Court made clear that the state had a sovereign right to
try again, and that the district court could intervene only if the “Legislature fail to enact a
constitutionally valid, permanent apportionment scheme.” Id. at 587.

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Reynolds thus serves only to reinforce the rule that district courts may impose
court-drawn maps only in the truly rare circumstance when, after a state’s own plan has
been adjudicated or admitted legally deficient, the State is unwilling or unable to produce
a remedial map—i.e., only when “a last-minute federal-court rescue” is the only option.
Growe, 507 U.S. at 37. Indeed, legislative defendants are aware of no other redistricting
case in which a district court has taken upon itself, over the objection of the State, the
“unwelcome obligation” of imposing court-drawn maps, Connor v. Finch, 431 U.S. 407,
415 (1977), when the legislature concededly stands ready and willing to do so itself. The
Court’s outright refusal to give the legislature a chance to remedy any perceived
deficiencies in the 2017 plan itself is therefore entirely unprecedented—presumably
because it is impossible to reconcile with the Supreme Court’s repeated admonishments
that “reapportionment is primarily the duty and responsibility of the State.” Chapman,
420 U.S. at 27.
The Court essentially asked the special master for an advisory opinion prior to
making any findings on liability. As legislative defendants have argued previously, this
is at best an improper delegation of authority to the special master under Rule 53, Fed. R.
Civ. P. Regardless, the special master should assist the Court by explaining why none of
the Subject Districts violate the federal constitution. In the alternative, the special master
should request the Court to first make a final judgment concerning the 2017 plan and then
give defendants an opportunity to cure these new defects or seek appropriate appellate
review.

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3.

The Court’s direction to the special master to modify House Districts
36, 37, 40, 41, and 105 is based upon an incorrect interpretation of
North Carolina’s State Constitution and constitutes a new claim not
previously alleged over which the Court and the special master lack
jurisdiction.

The special master should advise the Court that no changes should be made in
House Districts 36, 37, 40, and 41 in Wake County and House District 105 in
Mecklenburg County. See D.E. 204, Legislative Defendants’ Opposition to Appointment
of Nathaniel Persily as Special Master, at 6. The Court has directed the special master to
revise these districts based upon a new claim, not previously raised in any pleadings, that
these districts violate N.C. Const. art. IV §§ 3(4) and 5(4). Neither the Court nor the
special master have jurisdiction to consider these claims. Pennhurst State Sch. and Hosp.
v. Holderman, 465 U.S. 89, 117 (1984); Ala. Legislative Black Caucus v. Ala., No. 12CV-691 (July 27, 2015) (Doc. 265) (reaffirming holding that court lacked subject matter
jurisdiction to decide whether a state complied with its own state constitution in creating
a redistricting plan). Moreover, this jurisdictional question having been raised, it is
fundamental error for the Court to conduct merits proceedings, such as the special
master’s district drawing, as to this state-law issue without first deciding subject matter
jurisdiction. Sinochem Int’l Co. v. Malay Int’l Shipping Corp., 549 U.S. 422, 430-31
(2007) (“[A] federal court has leeway ‘to choose among threshold grounds for denying
audience to a case on the merits’” but “[d]ismissal short of reaching the merits means that
the court will not ‘proceed at all’ to an adjudication of the cause”).
Besides lacking−and needing to first rule on− jurisdiction to consider this state law
claim, the Court’s interpretation of these constitutional processes is erroneous. Both of
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these sections of the North Carolina Constitution state that legislative districts “shall
remain unaltered until the return of another decennial census . . . “ N.C. Const. art. II §§
3(3) and 5(1). Read literally, this provision would bar the State from drawing any
districts even those declared illegal by a federal court. But of course state constitutional
law obligates the Supreme Court of North Carolina to harmonize the State Constitution
with all federal requirements. Stephenson v. Bartlett, 355 N.C. 354, 368-70, 562 S.E.2d
377, 388-89 (2002) (“Stephenson I”). The General Assembly has also exercised broad
discretion to revise district plans found illegal by federal courts and the federal courts
have acknowledged this broad discretion. Gingles v. Edmiston, 590 F.Supp. 345, 377-84
(E.D.N.C. 1984), aff’d in part and rev’d in part sub nom., Thornburg v. Gingles, 478
U.S. 30 (1986).
Neither the plaintiffs nor the Court cite any precedent to support their novel
construction of the North Carolina Constitution that would allow the General Assembly
to change illegal districts and districts that adjoin illegal districts, but not allow the
General Assembly to modify districts that do not adjoin illegal districts. It is obvious
from a review of the 2017 plans that the General Assembly’s location and construction of
all of the 2017 districts in Wake and Mecklenburg Counties was the result of the way the
General Assembly constructed the districts found to be illegal. For example, to comply
with the equal population requirements of the North Carolina Constitution, “nonadjoining” districts had to be based in part on divided precincts because precincts were
divided in both the illegal districts and the districts that adjoined illegal districts. Further,
the shapes and locations of the non-adjoining districts were directly caused by the
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location of the illegal districts because of the General Assembly’s then-understanding
that majority-black districts had to be created before any other districts in both Wake and
Mecklenburg Counties. Stephenson I, 355 N.C. at 383, 562 S.E.2d at 397. This created a
domino effect on all districts within Wake and Mecklenburg Counties of the placement
and location of the majority-black districts that have now been declared unconstitutional.
Finally, the Court’s erroneous construction of the North Carolina Constitution
violates several principles of State law regarding the proper interpretation of the State
Constitution.

The North Carolina Supreme Court has often said that “[e]very

presumption favors the validity of a statute. It will not be declared invalid unless its
unconstitutionality be determined beyond reasonable doubt.” Baker v. Martin, 330 N.C.
331, 334, 410 S.E.2d 887, 889 (1991) (quoting Gardner v. Reidsville, 269 N.C. 581, 595,
153 S.E.2d 139, 150 (1967)). This is so because the acts of the legislature are effectively
the acts of the people. State ex rel. Martin, 325 N.C. 438, 448-49, 385 S.E.2d 473, 478
(1989). See also Pope v. Easley, 354 N.C. 544, 546, 556 S.E.2d 265, 267 (2001) (The
legislative power rests “with the people and is exercised through the General Assembly,
which functions as the arm of the electorate).
An act of the people’s elected representatives is thus an act of the people and is
presumed valid unless it conflicts with the Constitution.”) (citation omitted) (emphasis
added)). “[I]f there is any doubt as to the Legislature’s power to act in any given case,
the doubt should be resolved in favor of the Legislature’s action.” Baker, 330 N.C. at
338, 410 S.E.2d at 891 (citations omitted).

The 2017 legislative districts must be

presumed as satisfying North Carolina law unless it can be shown beyond a reasonable
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doubt that the subject districts exceed an express limitation of legislative power contained
in the Constitution. Indeed, it is well established that “a court will not adjudge an act of
the Legislature invalid, unless its violation of the Constitution is . . . clear, complete, and
unmistakable”. Kornegay v. City of Goldsboro, 180 N.C. 441, 445, 105 S.E. 187, 189
(1920) (citations omitted) (emphasis added).

“And, as between two permissible

interpretations, that should always be adopted which will uphold the law.” Id. (citations
omitted).

This is because the “propriety, wisdom, and expediency of legislation is

exclusively a legislative question” and there is no ground for judicial interference “unless
the act . . . is unmistakably in excess of legislative power.” Id. (citations omitted)
(emphasis added). Under these mandates of state law, there is no basis for the special
master to recommend to the Court that the subject non-adjoining districts in Wake and
Mecklenburg Counties be replaced by the versions proposed by the special master.
4.

The special master has improperly engaged in racial sorting to create
districts with a mechanical target of black voting age population
between 39% and 43.6%.

In its order of November 1, 2017, the Court authorized the special master to
“consider data identifying the race of individuals or voters to the extent necessary to
ensure that his plan cures the unconstitutional racial gerrymanders and otherwise
complies with federal law.” D.E. 206 at 9. In so doing, the Court not only preemptively
usurped the legislature’s power to remedy any deficiencies in the 2017 plan, but
empowered the special master to draw remedial maps that will not abide by the Supreme
Court’s command to “take guidance from the State’s recently enacted plan in drafting an
interim plan.” Perry, 565 U.S. at 393. Nowhere is this clearer than in the legislature’s
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policy decision not to consider race. We are aware of no precedent supporting the
proposition that a legislature must consider race when enacting districts to replace illegal
racial gerrymanders. The only legitimate reason for a legislature to consider race relates
to a state’s potential liability under Section 2 of the Voting Rights Act. But, there is no
authority that obligates a state to draw new districts either based upon race or designed to
avoid future Section 2 claims.
Of course a state can elect to run the risk of using race to draw districts to avoid
potential Section 2 liability. But a state may do so only where there is a strong basis in
evidence that the minority group is geographically compact and in sufficient numbers to
constitute a majority in a single member district, is politically cohesive, and there is
evidence of legally significant racially polarized voting. Harris, 137 S.Ct. at 1470-1471;
Bartlett v. Strickland, 556 U.S. 1, 8-11 (2009). There is no authority for using race to
draw Section 2 districts with a majority black voting age population absent the presence
of legally significant racially polarized voting. This is the heart of the Court’s prior
decision in this case. Further, in the absence of Section 5, there is no authority for the
State or a special master to sort voters based upon race to create districts with less than
50% BVAP. Georgia v. Ashcroft, 529 U.S. 461, 491-92 (Kennedy, J., concurring).
Yet racial sorting is exactly what the Court authorized the special master to do
when it directed him to “consider data identifying the race of individuals or voters to the
extent necessary to ensure that his plan cures the unconstitutional racial gerrymanders
. . . .” D.E. 206 at 8, 9. Respectfully, legislative defendants believe this instruction was
erroneous and an improper delegation of authority to the special master prior to any final
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ruling by the Court explaining why each of the Subject Districts is unconstitutional. The
Court did not explain to the parties or the special master how Senate Districts 21 and 28
and House Districts 21 and 57 remain racial gerrymanders or fail to cure federal
constitutional violations. Instead, the Court expressed concerns – without explaining
them – that those districts “preserve the core shape of the unconstitutional district, divide
counties and municipalities along racial lines, and are less compact than their benchmark
version.” No explanation or evidence was cited by the Court to support these “concerns,”
as they relate to any of those four districts.
Nor did the Court explain how 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.” D.E. 206 at 2. There is no precedent for this
holding. It cannot be reconciled to the General Assembly’s use of incumbency and
political data to create the 1997 version of North Carolina’s Twelfth Congressional
District. This district retained most of the population centers found in the illegal 1992
Twelfth Congressional District and was intentionally designed to elect a Democratic
candidate and protect a Democratic incumbent. Yet the 1997 Twelfth Congressional
District was affirmed by the Supreme Court even though – unlike the 2017 legislative
districts – it did not follow traditional districting principles other than political affiliation.
Easley v. Cromartie, 532 U.S. 234 (2000); Hunt v. Cromartie, 526 U.S. 541, 551 (“Our
prior decisions have made clear that a jurisdiction may engage in constitutional political
gerrymandering, even if it so happens that the most loyal Democrats happen to be black
Democrats and even if the state was conscious of that fact.”)

It is difficult if not

17

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impossible to reconcile this Court’s ruling that the General Assembly’s consideration of
incumbency “perpetuated the impermissible use of race” given the holding in Cromartie
affirming a district that was based solely on political criteria.
As disadvantaged as the special master is by the Court’s failure to explain how any
specific Subject District fails to cure the federal constitutional remedies, the special
master candidly stated that his proposed districts are “attempts to remedy the suspected
constitutional infirmity by removing any residuum of racial predominance that may have
been expressed in the 2017 configuration of that district.” D.E. 213 at p. 5 (emphasis
added). The special master exacerbated the Court’s lack of guidance to the parties by
giving only a “summary explanation of the principles that guided” the creation of his
proposed districts. D.E. 213 at 1. The special master conceded that “greater detail as to
the plan’s compliance with applicable law” and a “more complete explanation of the
rationale” for his plans would only be provided after the parties commented on the plans
without that information. In this sense, the special master is simply perpetuating the
Court’s legal error in not disclosing the evidence relied upon by the Court and how that
evidence applied to the Subject Districts before forcing the legislative defendants to
comment on the special master’s premature draft plans.
In any event, leaving aside the question of what constitutes an acceptable or
unacceptable “racial residuum” – an issue that has not yet been explained by the Court –
it is clear that one of the steps taken by the special master was to sort voters by race – to
decrease the BVAP in his proposed districts to a mechanically targeted range between
39% and 43%.
18

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The legislature clearly did not consider a target range for the “right” percentage of
BVAP to include in each district. Instead, the General Assembly adopted a criterion that
race should not be considered in constructing the 2017 districts. And, unlike the 2011
redistricting process (where the legislature required VRA districts to have at least 50%
BVAP based on its understanding of the extent of legally sufficient racially polarized
voting) the percentage BVAP in each of the 2017 Subject Districts was the natural result
of non-racial criteria used by the General Assembly to draw them. Ala. Legislative Black
Caucus v. Ala., 135 S.Ct. 1257, 1270 (2015) (plaintiffs must prove that the legislature
subordinated traditional districting principles including respect for political subdivisions,
incumbency, and political affiliation to race); Bush v. Vera, 517 U.S. 952, 967 (1996)
(where traditional redistricting principles are followed they cannot be said to have been
“subordinated to race.”)
In contrast to the legislature’s decision that race should not be considered, the
special master apparently has attempted to remove the “residuum” of “racial
predominance” by reducing the BVAP in the Subject Districts to a range of 39% to 43%.
This was expressly authorized by the Court, which allowed the special master to engage
in racial sorting so long as the percentage BVAP hits a target that might be more
acceptable to the Court.
There is no precedent for authorizing racial sorting as a remedy for “correcting”
allegedly racially gerrymandered districts.

Nor is there any precedent to support a

finding that the BVAP in the enacted districts is “too much” of a “residuum” but that the
BVAP in the special master’s proposed districts is “just right.” It defies precedent to
19

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express a “concern” about racial predominance where race was not used to draw the
districts and the districts were instead obviously based upon whole counties, whole
precincts, municipal lines, and incumbency protection.

The only rational way to

understand the Court’s “concern” is that the special master has been directed to sort
voters because of their race to create districts with lower BVAP and which allegedly bear
less of a resemblance to the challenged districts. That is certainly how it appears the
special master has interpreted the concern, and in doing so he, like the Court, has not
articulated any standard other than referencing a nebulous “residuum.” Such standards,
which amount to no standards at all, will lead to the federal judiciary judging racial
“beauty contests” much like the Supreme Court has warned against in assessing the
geographic appearance of districts. Bush, 517 U.S. at 977.
CONCLUSION
The process under which the special master is proceeding is irregular and
inappropriate. It defies precedent, ignores state sovereignty, and imposes race-based
redistricting on the State against its will. Unless and until the Court issues a final ruling
on the constitutionality of the Subject Districts, the special master should propose in his
report to the Court the districts as drawn in 2017 by the North Carolina General
Assembly.

20

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This 17th day of November, 2017.
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
/s/ Phillip J. Strach
Phillip J. Strach
N.C. Bar No. 29456
Michael D. McKnight
N.C. Bar No. 36932
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Phone: [phone]
Facsimile: [phone]
Email:[e-mail]
Attorneys for Legislative Defendants

21

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CERTIFICATE OF SERVICE
I hereby certify that on this 17th day of November, 2017, I have served the
foregoing LEGISLATIVE DEFENDANTS’ RESPONSE TO SPECIAL MASTER’S
DRAFT REPORT with the Clerk of the Court using the CM/ECF system which will
send notification of such filing to the following:
Edwin M. Speas, Jr.
Carolina P. Mackie
Poyner Spruill LLP
P.O. Box 1801 (27602-1801)
301 Fayetteville St., Suite 1900
Raleigh, NC 27601
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

Anita S. Earls
Allison J. Riggs
Southern Coalition for Social Justice
1415 Highway 54, Suite 101
Durham, NC 27707
[e-mail]
[e-mail]
Attorneys for Plaintiffs

Alexander McC. Peters
Senior Deputy Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27602
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
/s/ Phillip J. Strach
Phillip J. Strach
N.C. Bar No. 29456
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]
32056372.1

22

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NO. 1:15-CV-00399
SANDRA LITTLE COVINGTON, et al.,
Plaintiffs,
v.
STATE OF NORTH CAROLINA, et al.
Defendants.

)
)
)
)
)
)
)
)
)
)

LEGISLATIVE DEFENDANTS’
RESPONSE TO PLAINTIFFS’
PROPOSED MODIFICATIONS
TO SPECIAL MASTER’S DRAFT
PLAN

INTRODUCTION
Plaintiffs’ requested modifications to the special master’s draft plans demonstrate
why the legislature’s 2017 plans should be adopted by the special master and the Court.
The special master should submit to the Court the enacted 2017 plans and, at a minimum,
reject plaintiffs’ proposed political modifications to his plans.
The modifications that plaintiffs’ request highlight how the Court has substituted
its policy choices for those of the legislature. The legislature chose not to use race in
drawing the 2017 plans; the Court has placed the special master in the position of making
the predominant criterion in his map the drawing of districts to a particular racial quota.
In addition, the legislature adopted a policy preference of using election data to ensure
that incumbents of both parties were drawn into districts they could potentially win. The
Court instructed the special master not to use election data (D.E. 206 at 7) and limited the
non-pairing of incumbents to a “distinctly subordinate consideration” to other criteria
(D.E. 206 at 7).

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In following the Court’s criteria, the special master’s draft plan apparently causes
political problems for numerous Democratic incumbents. Plaintiffs now seek political
relief for those political problems. As legislative defendants have explained previously,
however, all line-drawing in redistricting has political consequences, even when the
mapdrawer purportedly uses only “nonpartisan” criteria. That is why the Constitution
commits this task to the political branches and the Supreme Court has repeatedly
affirmed that it must be performed by those who are politically accountable, not
unelected judges or special masters. In adopting its incumbency protection criteria, the
legislature established a policy designed to avoid the very problem plaintiffs’ legislative
allies are now faced with. If the special master is going to follow the State’s policy
preferences, then he should recommend the enacted 2017 plans to the Court. At a
minimum, the special master should reject the political modifications requested by
plaintiffs.
1.

The State’s policy preferences have been displaced.

The special master’s draft plans, and the plaintiffs’ response to them, offer a stark
picture of how many of the State’s redistricting policies have been negated by the Court
in favor of its preferences. The legislature adopted a criterion expressly declining to
consider race in the drawing of districts, but the Court has allowed the special master to
consider race anyway.1 As a result of the legislature’s race-neutral approach, the black

1

The legislature’s decision not to draw race-based districts required it to re-group the
counties under the county grouping requirements of Stephenson v. Bartlett, 355 N.C. 354,
562 S.E.2d 377 (2002) and Dickson v. Rucho, 368 N.C. 481, 781 S.E.2d 404 (2015). The
2

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voting age population (“BVAP”) of House Districts 21 and 57 and Senate Districts 21
and 28 were randomly distributed, from a low of 42.34% to a high of 60.75%. Unlike the
legislature’s plans, these districts in the special master’s plan are in a narrow range of
39% to 43% BVAP. In order to draw districts within this range, the special master often
had to sacrifice other redistricting policies followed by the State. For instance, the
special master split numerous precincts in House District 21, gave less consideration to
the Greensboro municipal lines in House District 57 and Senate District 28, moved House
District 61 to the center of Greensboro (thereby creating less compact districts in
Greensboro),2 and gave less consideration to the Fayetteville municipal lines in Senate
District 21.3
More importantly, in service of his predominant goal of eliminating any alleged
“residuum” of race from the legislature’s plans,4 which resulted in adherence to an
apparent target BVAP between 39% and 43%, the special master’s version of these
Court instructed the special master to use the county groupings adopted by the legislature.
(D.E. 206 at 6)
2
In moving House District 61 from suburban Greensboro to central Greensboro, the
special master negated the legislature’s policy choice to create a suburban district that
followed city lines. By doing so, the special master was also apparently able to achieve a
racial target of 39% to 43% in the three districts he drew in the center of Greensboro,
most dramatically in House District 61, in which the special master ramped up the BVAP
from 11.47% in the 2017 plan to 41.64% in his draft plan.
3
In Cumberland County, the special master also made a different policy choice than the
legislature related to Senate Districts 19 and 21. For unknown reasons, the special master
removed a precinct containing most of Fort Bragg that the legislature had placed in
Senate District 19 and placed it into Senate District 21 instead.
4
To the extent the special master is referring to an alleged “residuum” of race in the 2017
plans from the 2011 version of the districts, it is unclear why the 2011 plans have any
relevance to the special master’s work. Absent a Section 5 preclearance requirement, the
baseline plans for analysis are the 2017 plans enacted by the legislature. The 2017 plans
stand or fall on their own as to any alleged racial gerrymandering.
3

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districts shifted some of the core of the districts to other locations in the county. The
effect of this in Guilford was to double-bunk Representative Quick and Representative
Hardister in House District 59; Representative Harrison and Representative Blust in
House District 61; and Senator Wade and Senator Robinson in Senate District 27. In
Wake County, the special master’s effort to comply with the Court’s ruling on a state
constitutional issue caused the double-bunking of Representative Ball and Representative
Martin in House District 49.
Under the 2017 plans, no double-bunking occurs that was not required by
following state county-grouping constitutional requirements. Moreover, incumbents of
both parties were drawn into districts in which the 2016 incumbents had a reasonable
chance of being elected (based on prior election results). Under the Supreme Court’s
most recent pronouncements on these issues, the legislature’s criteria should have been
followed. The Supreme Court has made abundantly clear that the Court does not possess
some freewheeling power to “substitute[] its own concept of ‘the collective public good’
for the [State] Legislature’s determination of which policies serve ‘the interests of [its]
citizens.’” Perry v. Perez, 565 U.S. 388, 396 (2012). Instead, the Court’s task is to draw
“maps that comply with the Constitution and the Voting Rights Act, without displacing
legitimate state policy judgments with the court’s own preferences.”

Id. (emphasis

added). Accordingly, while a court must “take care not to incorporate into the interim
plan any legal defects in the state plan,” it may not go beyond that and “modify” aspects
of the plan that do not suffer from “any legal flaw.” Id. To date, neither the Court nor
the special master have explained any specific “legal flaw” in the State adopting
4

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protection of incumbents as a redistricting criterion, or any other “legal flaw” at all for
that matter. The cases cited by the Court recognize that fact. (D.E. 206 at 8 (citing Wyche
v. Madison Par. Police Jury, 769 F.2d 265, 268 (5th Cir. 1985) (noting that “the
protection of incumbents” is a factor that is “appropriate in the legislative development of
an apportionment plan”))
2.

The special master should reject plaintiffs’ requested political relief.

The Court and the special master having displaced the legislature’s chosen policy
preferences, it is not surprising that the draft plans would pair incumbents and have other
political ramifications.

The Supreme Court has repeatedly noted that it would be

“mindless” to think that districting can ever be a neutral process. As explained by the
Court:
Politics and political consideration are inseparable from districting
and apportionment. The political profile of a State, its party registration,
and voting records are available precinct by precinct, ward by ward. These
subdivisions may not be identical with census tracts but, when overlaid on a
census map, it requires no special genius to recognize the political
consequences of drawing a district line along one street rather than another.
It is not only obvious, but absolutely unavoidable, that the location and
shape of districts may determine the political complexion of the area.
District lines are rarely neutral phenomena. They can well determine what
district will be predominantly Democratic, predominantly Republican, or
make a close race likely. Redistricting may put incumbents against one
another or make very difficult the election of the most experienced
legislator. The reality is that districting inevitably has and is intended to
have substantial political consequences.
It may be suggested that those who redistrict and reapportion should
work with census, not political, data and achieve population equity without
regard for political impact. But the politically mindless approach may
produce, whether intended or not, the most grossly gerrymandered results;
and, in any case, it is most unlikely that the political impact of such a plan
would remain undiscovered by the time it was proposed or adopted, in
which event the results would be both known and, if not changed, intended.
5

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Davis v. Bandemer, 478 U.S. 109, 128-29 (1986) (quoting Gaffney v. Cummings, 412
U.S. 735, 752-53 (1973)) (emphasis added).
The self-evident fact that there is no such thing as a politically neutral district line
has been repeatedly recognized by the Supreme Court and its Justices. Bandemer, 478
U.S. at 129 n.10 (‘“The key concept to grasp is that there are no neutral lines for
legislative districts . . . every line drawn aligns partisans and interest blocs in a particular
way different from putting the line in some other place.’”) (citation omitted); Vieth v.
Jubelirer, 541 U.S. 267, 302-09 (2004) (criteria such as contiguity and compactness are
not politically neutral) (Kennedy, J., concurring in judgment) (citations omitted); Id. at
343 (“the choice to draw a district line one way, not another, always carries some
consequence for politics, save in a mythical state with voters of every political identity
distributed in an absolutely growing uniformity) (Souter, Ginsburg, J. J., dissenting); Id.
at 359 (in a system of single-member districts the use of traditional districting principles
is rarely, if ever, politically neutral) (Breyer, J., dissenting).
Plaintiffs now ask the special master to rescue some incumbents but not others.
All of the incumbents for whom plaintiffs seek relief are Democrats. Plaintiffs do not
seek relief for any affected Republican incumbents.5

Plaintiffs’ political motivations

have already been recognized and rejected by the Court. (D.E. 206 at 2 (“The Court is
concerned that, among other things, some of the districts proposed by the Plaintiffs may
5

While Democratic Representative Quick is double-bunked with Republican
Representative Hardister, plaintiffs seek to move Representative Quick out of a district
that is more likely to elect a Republican candidate and into an adjoining district that is
more likely to elect a Democratic candidate.
6

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be the result of impermissible political considerations.”)) These requests should be
rejected.
First, the Court instructed the special master that non-pairing of incumbents should
be a “distinctly subordinate consideration” in his plans. Plaintiffs do not offer any nonpolitical justification for their request to un-pair the Democratic incumbents for whom
they seek relief. Un-pairing these incumbents cannot be justified as a state redistricting
policy because the state’s policy was to draw separate districts in which the incumbents
had a reasonable opportunity to be elected.

Justifying plaintiffs’ modifications by

referencing the State’s criteria would not only violate that criteria, it would amount to
cherry-picking incumbents who benefit from the criteria in favor of one political party.
Next, plaintiffs’ proposed modifications would, by their own admission, violate
other traditional redistricting criteria. For instance, placing Representative Quick into an
adjoining House district would require the special master to either split a new precinct or
make his existing district less compact. (D.E. 216 at 2-3) In Wake County, plaintiffs
propose re-splitting a precinct that had not been split by the special master. (D.E. 216 at
3-4)

In requesting that Democratic Representatives Ball and Martin be un-paired,

plaintiffs reduce several of the compactness scores in multiple districts.6 (D.E. 216 at 4-

6

Moreover, the population ripples created by plaintiffs’ proposed changes in Wake
County illustrate why eliminating the racial gerrymandering found in the 2011 districts
necessarily requires the legislature to have the ability to change all of the districts within
any given county grouping, including a single-county grouping such as Wake County.
As demonstrated by plaintiffs’ requested change to House District 40, the population
ripple in changing a district affects more than just “adjoining” districts. Plaintiffs’
proposed change to House District 40 overpopulates adjoining House District 49.
Removing population from House District 49 requires changing a district that did not
7

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5)

Given the lack of any non-political reason justifying plaintiffs’ proposed

modifications, the special master should certainly not violate neutral criteria to further a
political outcome. In protecting incumbents, the special master should “take guidance
from the State’s recently enacted plan in drafting an interim plan,”

Perry, 565 U.S. at

393, and submit the State’s 2017 plans.
CONCLUSION
Plaintiffs’ requested modifications and the special master’s proposed plans
demonstrate why the legislature’s 2017 plans should be adopted by the special master and
the Court. If the special master is going to follow the state’s policy preferences, then he
should recommend the enacted 2017 plans to the Court. At a minimum, the special
master should reject plaintiffs’ proposed political modifications.

originally adjoin House District 40. Plaintiffs’ claim that the “obvious” choice to receive
the extra population is House District 34 (D.E. 216 at 4) but it would be just as legitimate
for a legislature to choose a different non-adjoining district to receive the population
caused by the change to House District 40. In this respect, the Court’s mandate to the
special master not to change districts that did not adjoin unconstitutional districts is a
substitution of the Courts’ policy preference for the legislature’s preference, under the
guise of state law.
8

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This 21st day of November, 2017.
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
/s/ Phillip J. Strach
Phillip J. Strach
N.C. Bar No. 29456
Michael D. McKnight
N.C. Bar No. 36932
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Phone: [phone]
Facsimile: [phone]
Email:[e-mail]
Attorneys for Legislative Defendants

9

Case 1:15-cv-00399-TDS-JEP Document 218 Filed 11/21/17 Page 9 of 10

CERTIFICATE OF SERVICE
I hereby certify that on this 21st day of November, 2017, I have served the
foregoing

LEGISLATIVE

DEFENDANTS’

RESPONSE

TO

PLAINTIFFS’

PROPOSED MODIFICATIONS TO SPECIAL MASTER’S DRAFT REPORT with
the Clerk of the Court using the CM/ECF system which will send notification of such
filing to the following:
Edwin M. Speas, Jr.
Carolina P. Mackie
Poyner Spruill LLP
P.O. Box 1801 (27602-1801)
301 Fayetteville St., Suite 1900
Raleigh, NC 27601
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

Anita S. Earls
Allison J. Riggs
Southern Coalition for Social Justice
1415 Highway 54, Suite 101
Durham, NC 27707
[e-mail]
[e-mail]
Attorneys for Plaintiffs

Alexander McC. Peters
Senior Deputy Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27602
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
/s/ Phillip J. Strach
Phillip J. Strach
N.C. Bar No. 29456
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]
32072076.1

10

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