Dickson v. Rucho , 367 N.C. 542 ( 2014 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 201PA12-2
MARGARET DICKSON, ALICIA CHISOLM, ETHEL CLARK, MATTHEW A.
McLEAN, MELISSA LEE ROLLIZO, C. DAVID GANTT, VALERIA TRUITT,
ALICE GRAHAM UNDERHILL, ARMIN JANCIS, REBECCA JUDGE, ZETTIE
WILLIAMS, TRACEY BURNS-VANN, LAWRENCE CAMPBELL, ROBINSON O.
EVERETT, JR., LINDA GARROU, HAYES McNEILL, JIM SHAW, SIDNEY E.
DUNSTON, ALMA ADAMS, R. STEVE BOWDEN, JASON EDWARD COLEY,
KARL BERTRAND FIELDS, PAMLYN STUBBS, DON VAUGHAN, BOB
ETHERIDGE, GEORGE GRAHAM, JR., THOMAS M. CHUMLEY, AISHA DEW,
GENEAL GREGORY, VILMA LEAKE, RODNEY W. MOORE, BRENDA
MARTIN STEVENSON, JANE WHITLEY, I.T. (“TIM”) VALENTINE, LOIS
WATKINS, RICHARD JOYNER, MELVIN C. McLAWHORN, RANDALL S.
JONES, BOBBY CHARLES TOWNSEND, ALBERT KIRBY, TERRENCE
WILLIAMS, NORMAN C. CAMP, MARY F. POOLE, STEPHEN T. SMITH,
PHILIP A. BADDOUR, and DOUGLAS A. WILSON
v.
ROBERT RUCHO, in his official capacity only as the Chairman of the North
Carolina Senate Redistricting Committee; DAVID LEWIS, in his official capacity
only as the Chairman of the North Carolina House of Representatives
Redistricting Committee; NELSON DOLLAR, in his official capacity only as the
Co-Chairman of the North Carolina House of Representatives Redistricting
Committee; JERRY DOCKHAM, in his official capacity only as the Co-Chairman
of the North Carolina House of Representatives Redistricting Committee; PHILIP
E. BERGER, in his official capacity only as the President Pro Tempore of the
North Carolina Senate; THOM TILLIS, in his official capacity only as the Speaker
of the North Carolina House of Representatives; THE STATE BOARD OF
ELECTIONS; and THE STATE OF NORTH CAROLINA
NORTH CAROLINA STATE CONFERENCE OF BRANCHES OF THE NAACP,
LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, DEMOCRACY
NORTH CAROLINA, NORTH CAROLINA A. PHILIP RANDOLPH INSTITUTE,
REVA McNAIR, MATTHEW DAVIS, TRESSIE STANTON, ANNE WILSON,
SHARON HIGHTOWER, KAY BRANDON, GOLDIE WELLS, GRAY NEWMAN,
YVONNE STAFFORD, ROBERT DAWKINS, SARA STOHLER, HUGH
STOHLER, OCTAVIA RAINEY, CHARLES HODGE, MARSHALL HARDY,
MARTHA GARDENHIGHT, BEN TAYLOR, KEITH RIVERS, ROMALLUS O.
MURPHY, CARL WHITE, ROSA BRODIE, HERMAN LEWIS, CLARENCE
ALBERT, EVESTER BAILEY, ALBERT BROWN, BENJAMIN LANIER,
GILBERT VAUGHN, AVIE LESTER, THEODORE MUCHITENI, WILLIAM
HOBBS, JIMMIE RAY HAWKINS, HORACE P. BULLOCK, ROBERTA
DICKSON ET AL. V. RUCHO ET AL.
Opinion of the Court
WADDLE, CHRISTINA DAVIS-McCOY, JAMES OLIVER WILLIAMS,
MARGARET SPEED, LARRY LAVERNE BROOKS, CAROLYN S. ALLEN,
WALTER ROGERS, SR., SHAWN MEACHEM, MARY GREEN BONAPARTE,
SAMUEL LOVE, COURTNEY PATTERSON, WILLIE O. SINCLAIR, CARDES
HENRY BROWN, JR., and JANE STEPHENS
v.
THE STATE OF NORTH CAROLINA; THE NORTH CAROLINA STATE BOARD
OF ELECTIONS; THOM TILLIS, in his official capacity as Speaker of the North
Carolina House of Representatives; and PHILIP E. BERGER, in his official
capacity as President Pro Tempore of the North Carolina Senate
Appeal pursuant to N.C.G.S. § 120-2.5 from orders entered on 6 February
2012 and 8 July 2013 by a three-judge panel of the Superior Court, Wake County
appointed by the Chief Justice under N.C.G.S. § 1-267.1. Heard in the Supreme
Court on 6 January 2014.
Poyner Spruill LLP, by Edwin M. Speas, Jr., John W. O’Hale, and Caroline P.
Mackie, for Dickson plaintiff-appellants; and Southern Coalition for Social
Justice, by Anita S. Earls and Allison Riggs, and Tin Fulton Walker & Owen,
PLLC, by Adam Stein, for NC NAACP plaintiff-appellants.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Thomas A. Farr and
Phillip J. Strach, for legislative defendant-appellees; and Roy Cooper,
Attorney General, by Alexander McC. Peters, Special Deputy Attorney General,
for all defendant-appellees.
Jenner & Block LLP, by Paul M. Smith, pro hac vice, Jessica Ring Amunson,
pro hac vice, and Michelle R. Singer, pro hac vice; and Smith Moore
Leatherwood LLP, by Mark Anderson Finkelstein and Matthew Nis Leerberg,
for Election Law Professors Guy-Uriel Charles, Gilda R. Daniels, Lani
Guinier, Samuel Issacharoff, Justin Levitt, Janai S. Nelson, Spencer Overton,
Richard H. Pildes, and Franita Tolson, amici curiae.
H. Jefferson Powell for North Carolina Law Professors Michael Curtis, Walter
Dellinger, William P. Marshall, and H. Jefferson Powell, amici curiae.
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Opinion of the Court
Terry Smith, pro hac vice, and Ferguson, Chambers & Sumter, P.A., by
Geraldine Sumter, for North Carolina Legislative Black Caucus, amicus
curiae.
EDMUNDS, Justice.
Following the 2010 Decennial Census, the General Assembly of North
Carolina enacted redistricting plans for the North Carolina Senate and House of
Representatives, and for the North Carolina districts for the United States House of
Representatives. Plaintiffs challenge the legality of these plans, arguing that they
violate the constitutions of the United States and of North Carolina, controlling
federal statutes, and applicable decisions of the Supreme Court of the United States
and the Supreme Court of North Carolina. The three-judge panel reviewing the
plans unanimously concluded that the General Assembly applied traditional and
permissible redistricting principles to achieve partisan advantage and that no
constitutional violations resulted. After a careful and exhaustive review of the
record in this case and the pertinent law, we conclude that, as to the twenty-six
districts deliberately drawn to comply with the federal Voting Rights Act of 1965,
the trial court erred when it applied strict scrutiny prematurely. However,
plaintiffs were not prejudiced because even if strict scrutiny is not appropriate,
these districts survive this most demanding level of review. As to the remaining
challenged districts, we affirm the ruling of the trial court.
I. Procedural Background
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Opinion of the Court
The Constitution of North Carolina requires decennial redistricting of the
North Carolina Senate and North Carolina House of Representatives, subject to
several specific requirements. The General Assembly is directed to revise the
districts and apportion Representatives and Senators among those districts. N.C.
Const. art. II, §§ 3, 5. Similarly, consistent with the requirements of the
Constitution of the United States, the General Assembly establishes North
Carolina’s districts for the United States House of Representatives after every
decennial census. U.S. Const. art. I, §§ 2, 4; 2 U.S.C. §§ 2a, 2c (2012).
Following the census conducted with a date of 1 April 2010, leaders of the
North Carolina House of Representatives and the North Carolina Senate
independently appointed redistricting committees. Each committee was responsible
for recommending a plan applicable to its own chamber, while the two committees
jointly were charged with preparing a redistricting plan for the United States House
of Representatives North Carolina districts. These committees sought information
and suggestions from numerous sources, including the North Carolina Legislative
Black Caucus and the North Carolina delegation to the United States Congress. In
addition, these committees solicited input from various constituencies; invited
public comment and conducted public hearings in multiple counties, including
twenty-four of the forty counties then covered by section 5 of the Voting Rights Act
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Opinion of the Court
of 1965 (hereinafter “the Voting Rights Act” or “VRA”);1 heard both lay and expert
testimony regarding such matters as racially polarized voting; solicited and received
advice from the University of North Carolina School of Government; commissioned
reports from independent experts to fill gaps in the evidence; and considered
written submissions.
The General Assembly convened on 25 July 2011 to deliberate the
redistricting plans drawn by the House and Senate committees. That same day,
alternative maps were submitted by leaders of the Democratic Party and by the
Legislative Black Caucus. On 27 July, the General Assembly ratified the 2011
North Carolina Senate redistricting plan and the 2011 plan for the federal House of
Representatives districts. On 28 July, the General Assembly ratified the 2011
North Carolina House of Representatives redistricting plan. On 2 September 2011,
the three plans were submitted to the United States Department of Justice for
preclearance under section 5 of the Voting Rights Act, and preclearance was
received on 1 November 2011.2 Also on 2 September, a suit seeking preclearance
was filed in the United States District Court for the District of Columbia. That
action was dismissed on 8 November 2011.
1 Effective 1 September 2014, section 5 of the VRA is codified at 52 U.S.C.S. § 10304
(LexisNexis 2014). Section 5 previously was codified at 42 U.S.C.S. § 1973c.
2 Because a software glitch caused the State’s initial submission to the Department
of Justice to be incomplete, the General Assembly enacted curative statutes on 7 November
2011. These statutes were precleared on 8 December 2011.
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Opinion of the Court
On 3 November 2011, Margaret Dickson and forty-five other registered voters
filed a complaint, seeking to have the three redistricting plans declared invalid on
both constitutional and statutory grounds. These plaintiffs filed an amended
complaint on 12 December 2011. On 4 November 2011, the North Carolina State
Conference of Branches of the NAACP joined by three organizations and forty-six
individuals filed a complaint seeking similar relief. These plaintiffs filed an
amended complaint on 9 December 2011. Following the filing of the original
complaints, the Chief Justice of the Supreme Court of North Carolina appointed a
panel of three superior court judges to hear these actions, pursuant to N.C.G.S. § 1-
267.1. On 19 December 2011, the three-judge panel (“the trial court”) consolidated
both cases for all purposes.
On 6 February 2012, the trial court allowed in part and denied in part
defendants’ motion to dismiss. Plaintiffs filed a motion for partial summary
judgment on 5 October 2012, and defendants filed a motion for summary judgment
on 10 December 2012. The trial court heard arguments on these motions on 25 and
26 February 2013.
While a ruling on the motions for summary judgment was pending, the trial
court issued an order determining that genuine issues of material fact existed as to
two issues that could not be resolved by summary judgment. Accordingly, the court
ordered a trial on these two issues, which it identified as:
A. Assuming application of a strict scrutiny standard
and, in considering whether the Enacted Plans were
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Opinion of the Court
narrowly tailored, was each challenged Voting Rights
Act (“VRA”) district drawn in a place where a remedy
or potential remedy for racially polarized voting was
reasonable for purposes of preclearance or protection
of the State from vote dilution claims under the
Constitution or under § 2 of the VRA?
B. For six specific districts (Senate Districts 31 and 32,
House Districts 51 and 54 and Congressional Districts
4 and 12 – none of which is identified as a VRA
district), what was the predominant factor in the
drawing of those districts?
The court conducted the trial on 4 and 5 June 2013. On 8 July 2013, the trial
court issued its unanimous “Judgment and Memorandum of Decision” denying
plaintiffs’ motion for partial summary judgment and entering summary judgment
for defendants on all remaining claims. Plaintiffs entered timely notice of appeal
pursuant to N.C.G.S. § 120-2.5.
II. Plaintiffs’ Federal Claims
We begin by considering plaintiffs’ claims brought under federal law. If a
redistricting plan does not satisfy federal requirements, it fails even if it is
consistent with the law of North Carolina. See U.S. Const. art. VI, § 2; N.C. Const.
art. I, § 3. Plaintiffs argued first to the trial court, and now to us, that the
redistricting plans violate the Equal Protection Clause of the Fourteenth
Amendment to the Constitution of the United States because they impermissibly
classify individuals based upon their race. In other words, plaintiffs contend that
the redistricting plans constitute impermissible racial gerrymandering that has
denied them equal protection under the law.
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Opinion of the Court
A. Standards Applicable upon Review
A court considering allegations of racial gerrymandering first must determine
the appropriate standard of review. Strict scrutiny, the highest tier of review,
applies “when the classification impermissibly interferes with the exercise of a
fundamental right or operates to the peculiar disadvantage of a suspect class.”
White v. Pate, 308 N.C. 759, 766, 304 S.E.2d 199, 204 (1983) (citations omitted).
“Race is unquestionably a ‘suspect class,’ ” Phelps v. Phelps, 337 N.C. 344, 353, 446
S.E.2d 17, 23 (1994), and if a court finds that race is the “predominant, overriding
factor” behind the General Assembly’s plans, the plans must satisfy strict scrutiny
to survive, Miller v. Johnson, 515 U.S. 900, 920, 115 S. Ct. 2475, 2490, 132 L. Ed. 2d
762, 782 (1995). “Under strict scrutiny [review], a challenged governmental action
is unconstitutional if the State cannot establish that it is narrowly tailored to
advance a compelling governmental interest.” Stephenson v. Bartlett, 355 N.C. 354,
377, 562 S.E.2d 377, 393 (2002) (hereinafter “Stephenson I”) (citation omitted). If,
on the other hand, the plans are not predominantly motivated by improper racial
considerations, the court defaults to the rational basis test. See Nordlinger v. Hahn,
505 U.S. 1, 10, 112 S. Ct. 2326, 2331, 120 L. Ed. 2d 1, 12 (1992) (“[U]nless a
classification warrants some form of heightened review because it jeopardizes
exercise of a fundamental right or categorizes on the basis of an inherently suspect
characteristic, the Equal Protection Clause requires only that the classification”
satisfy rational basis review.). Under rational basis review, “[t]he general rule is
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Opinion of the Court
that legislation is presumed to be valid and will be sustained if the classification
drawn by the statute is rationally related to a legitimate state interest.” City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S. Ct. 3249, 3254, 87
L. Ed. 2d 313, 320 (1985) (citations omitted).
A party challenging a redistricting plan has the burden of establishing that
race was the predominant motive behind the state legislature’s action. Miller, 515
U.S. at 916, 115 S. Ct. at 2488, 132 L. Ed. 2d at 779-80. In Miller, the Supreme
Court stated that
[t]he plaintiff’s burden is to show, either through
circumstantial evidence of a district’s shape and
demographics or more direct evidence going to legislative
purpose, that race was the predominant factor motivating
the legislature’s decision to place a significant number of
voters within or without a particular district. To make
this showing, a plaintiff must prove that the legislature
subordinated traditional race-neutral districting
principles, including but not limited to compactness,
contiguity, and respect for political subdivisions or
communities defined by actual shared interests, to racial
considerations. Where these or other race-neutral
considerations are the basis for redistricting legislation,
and are not subordinated to race, a State can “defeat a
claim that a district has been gerrymandered on racial
lines.”
Id. (quoting Shaw v. Reno, 509 U.S. 630, 647, 113 S. Ct. 2816, 2827, 125 L. Ed. 2d
511, 529 (1993) (hereinafter “Shaw I”)).
As a court considers which standard of review is appropriate, it should be
mindful of the Supreme Court’s observation that “courts must ‘exercise
extraordinary caution in adjudicating claims that a State has drawn district lines on
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Opinion of the Court
the basis of race.’ ” Easley v. Cromartie, 532 U.S. 234, 242, 121 S. Ct. 1452, 1458,
149 L. Ed. 2d 430, 443 (2001) (hereinafter “Cromartie II”) (quoting Miller, 515 U.S.
at 916, 115 S. Ct. at 2488, 132 L. Ed. 2d at 779 (emphasis added)). At least three
factors lie behind this admonition. First, in light of the interplay detailed below
between the Fourteenth Amendment, which virtually forbids consideration of race,
and the VRA, which requires consideration of race, the Supreme Court has
acknowledged that the existence of legislative consciousness of race while
redistricting does not automatically render redistricting plans unconstitutional.
Miller, 515 U.S. at 916, 115 S. Ct. at 2488, 132 L. Ed. 2d at 779 (“Redistricting
legislatures will, for example, almost always be aware of racial demographics; but it
does not follow that race predominates in the redistricting process.”); see also Shaw
I, 509 U.S. at 646, 113 S. Ct. at 2826, 125 L. Ed. 2d at 528 (“[T]he legislature always
is aware of race when it draws district lines . . . . That sort of race consciousness
does not lead inevitably to impermissible race discrimination.”). Second, the
Supreme Court has recognized the importance of States’ own traditional districting
principles, holding that States can adhere to them without being subject to strict
scrutiny so long as those principles are not subordinated to race. Bush v. Vera, 517
U.S. 952, 978, 116 S. Ct. 1941, 1961, 135 L. Ed. 2d 248, 269 (1996) (plurality).
Finally, the Supreme Court has accepted that some degree of deference is due in
light of the difficulties facing state legislatures when reconciling conflicting legal
responsibilities. Id. at 1038, 116 S. Ct. at 1991, 135 L. Ed. 2d at 308 (Stevens,
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Opinion of the Court
Ginsburg & Breyer, JJ., dissenting); see also Page v. Va. State Bd. of Elections, No.
3:13cv678, 2014 WL 5019686, at *6-7 (E.D. Va. Oct. 7, 2014) (determination by
three-judge court in accordance with 52 U.S.C.S. § 10304(2)) (recognizing that
redistricting is “possibly ‘the most difficult task a legislative body ever undertakes’ ”
(citation omitted)).
A court’s determination of the predominant motive underlying a redistricting
plan is factual in nature. Hunt v. Cromartie, 526 U.S. 541, 549, 119 S. Ct. 1545,
1550, 143 L. Ed. 2d 731, 740 (1999) (hereinafter “Cromartie I” (citations omitted)).
Factual findings are binding on appeal if not challenged at trial or on appeal, e.g.,
Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991), or if supported
by competent evidence found by the trial judge, e.g., In re Estate of Trogdon, 330
N.C. 143, 147-48, 409 S.E.2d 897, 900 (1991). Conclusions of law are reviewed de
novo. E.g., N.C. Farm Bureau Mut. Ins. Co. v. Cully’s Motorcross Park, Inc., 366
N.C. 505, 512, 742 S.E.2d 781, 786 (2013) (citation omitted). Here, of the thirty
challenged House, Senate, and Congressional districts, the trial court concluded
that twenty-six were predominantly motivated by race and thus subject to strict
scrutiny review. The trial court concluded that the remaining four challenged
districts were not predominantly motivated by race and thus were subject to
rational basis review. We consider each group in turn.
B. The VRA Districts
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Opinion of the Court
We turn first to the twenty-six districts that the trial court subjected to strict
scrutiny. As to these districts, the trial court reached two significant conclusions.
First, the court unanimously found that “it is undisputed that the General
Assembly intended to create 26 of the challenged districts to be ‘Voting Rights Act
districts’ ” that would include a Total Black Voting Age Population of at least fifty
percent. This unchallenged finding of fact is binding on us. Koufman, 330 N.C. at
97, 408 S.E.2d at 731. The trial court then reached a second unanimous conclusion
that drawing such districts “necessarily requires the drafters of districts to classify
residents by race,” that the “shape, location and racial composition of each VRA
district was predominantly determined by a racial objective,” and that the process of
creating such districts resulted in “a racial classification sufficient to trigger the
application of strict scrutiny as a matter of law.” Although this second
determination by the trial court is neither purely factual nor purely legal, we are
mindful that federal precedent cited above instructs that the General Assembly’s
consideration of race to the degree necessary to comply with section 2 does not rise
to the level of a “predominant motive” as a matter of course. Accordingly, before
reviewing the trial court’s application of strict scrutiny, we believe it necessary to
review its conclusion as to the General Assembly’s predominant motive.
1. Predominant Motive
The challenges faced by the General Assembly while redistricting are easy to
express but persistently difficult to resolve. The Fourteenth Amendment, by
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Opinion of the Court
guaranteeing equal protection for all citizens regardless of race, virtually prohibits
consideration of race during redistricting. U.S. Const. amend. XIV, § 1. Yet the
Voting Rights Act, passed “to help effectuate the Fifteenth Amendment’s guarantee
that no citizen’s right to vote shall ‘be denied or abridged . . . on account of race,
color, or previous condition of servitude,’ ” Voinovich v. Quilter, 507 U.S. 146, 152,
113 S. Ct. 1149, 1154-55, 122 L. Ed. 2d 500, 510 (1993) (alteration in original)
(citations omitted), specifically requires consideration of race. For instance, section
2 “prohibits the imposition of any electoral practice or procedure that ‘results in a
denial or abridgement of the right of any citizen . . . to vote on account of race or
color.’ ” Id. at 152, 113 S. Ct. at 1155, 122 L. Ed. 2d at 510 (quoting 42 U.S.C. §
1973(a) (alteration in original) (effective 1 September 2014, recodified as 52
U.S.C.S. § 10301(a) (LexisNexis 2014)). At the same time, the General Assembly
must ensure that each district complies with federal and state “one-person, one-
vote” standards, see N.C. Const. art. II, §§ 3(1), 5(1); Reynolds v. Sims, 377 U.S. 533,
565-66, 84 S. Ct. 1362, 1383-85, 12 L. Ed. 2d 506, 529-30 (1964); Baker v. Carr, 369
U.S. 186, 207-08, 82 S. Ct. 691, 705, 7 L. Ed. 2d 663, 680 (1962) and that, to the
greatest extent allowed under federal law, the redistricting plans comply with the
Whole County Provision of our state constitution, Stephenson I, 355 N.C. at 382-84,
562 S.E.2d at 395-97. Moreover, the Supreme Court of the United States has
acknowledged other legitimate considerations, such as compactness, contiguity, and
respect for political subdivisions, see Miller, 515 U.S. at 916, 115 S. Ct. at 2488, 132
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L. Ed. 2d at 780; Shaw I, 509 U.S. at 646, 113 S. Ct. 2826, 125 L. Ed. 2d at 528;
Reynolds, 377 U.S. at 578, 84 S. Ct. at 1390, 12 L. Ed. 2d at 537; political
advantage, see Cromartie I, 526 U.S. at 551, 119 S. Ct. at 1551, 143 L. Ed. 2d at 741;
and accommodation of incumbents, see Karcher v. Daggett, 462 U.S. 725, 740, 103 S.
Ct. 2653, 2663, 77 L. Ed. 2d 133, 147 (1983). Thus, “[t]he courts, in assessing the
sufficiency of a challenge to a districting plan, must be sensitive to the complex
interplay of forces that enter a legislature’s redistricting calculus.” Miller, 515 U.S.
at 915-16, 115 S. Ct. at 2488, 132 L. Ed. 2d at 779.
Despite this cat’s cradle of factors facing the General Assembly, the trial
court found that no factual inquiry was required regarding the General Assembly’s
predominant motivation in forming the twenty-six VRA districts beyond the
General Assembly’s concession that the districts were drafted to be VRA-compliant.
In light of the many other considerations potentially in play, we do not believe that
this concession established that race ipso facto was the predominant motive driving
the General Assembly. Because of the trial court’s truncated findings of fact on this
issue, we do not know which other factors may have influenced the creation and
shape of these twenty-six districts and the extent of any such influence. As a result,
we do not know whether race fairly can be described as the predominant factor in
the formation of these districts and whether, in turn, strict scrutiny was the
appropriate standard of review. Moreover, in future cases such an assumption—
that deliberate creation of VRA-compliant districts equates to race as the
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predominant motive in creating the districts—may well shortcut the fact-finding
process at which trial courts excel, resulting in scanty records on appeal.
Accordingly, we hold that the trial court erred in concluding as a matter of law that,
just because the twenty-six districts were created to be VRA-compliant, the General
Assembly was motivated predominantly by race.
Nonetheless, this error is not fatal and does not invalidate the trial court’s
order. A similar scenario played out in Cromartie I, in which the courts reviewed
the General Assembly’s creation of North Carolina’s Twelfth Congressional District.
526 U.S. at 543, 119 S. Ct. at 1547, 143 L. Ed. 2d at 736. The plaintiffs filed suit in
federal court, arguing that the district was the result of an unconstitutional racial
gerrymander. Id. at 544-45, 119 S. Ct. at 1548, 143 L. Ed. 2d at 737. The three-
judge panel of the United States District Court heard arguments pertaining to
pending motions, but did not conduct an evidentiary hearing. Id. at 545, 119 S. Ct.
at 1548, 143 L. Ed. 2d at 737. The panel majority, finding that the General
Assembly used race-driven criteria in drawing the district and that doing so
violated the Equal Protection Clause of the Fourteenth Amendment, granted the
plaintiffs’ motion for summary judgment and entered an injunction. Id. On appeal,
the Supreme Court reversed, finding that the General Assembly’s motivation in
drawing district lines is a factual question that, when contested, should not be
resolved by summary judgment. 526 U.S. at 549, 553, 119 S. Ct. at 1550, 1552, 143
L. Ed. 2d at 740, 742.
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The posture of the litigants here is distinguishable because plaintiffs, unlike
their counterparts in Cromartie I, lost at summary judgment and are the appealing
party. However, even if we were to follow Cromartie I’s lead and reverse, plaintiffs
could gain nothing on remand. The basis for our reversal would be that the trial
court erred in applying strict scrutiny before making adequate findings of fact. As
the trial court noted in its order, if defendants’ plans survived strict scrutiny, they
would surely survive a less rigorous review. On the other hand, if the trial court on
remand found facts and determined once more that strict scrutiny is proper, the
panel has already conducted its analysis under that standard. Although the dissent
argues that the case should be remanded for additional findings, the record on
which it would base those findings—which we have reviewed in detail—would not
have changed. As a result, reversing and remanding to the trial court to make
findings of fact and conclusions of law would achieve nothing but delay. See e.g.,
N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6, 89 S. Ct. 1426, 1430 n.6, 22
L. Ed. 2d 709, 715 n.6 (1969) (plurality) (stating that, when reviewing an agency
decision that was based upon an incorrect standard, “it would be useless to remand”
because “[t]here is not the slightest uncertainty” that the outcome would remain
unchanged). Accordingly, as we review the voluminous record and the trial court’s
exhaustive analysis, we will proceed on the presumption that strict scrutiny is
appropriate and apply that standard as we review the trial court’s analysis. If these
plans survive strict scrutiny, they survive rational basis review.
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2. Compelling Governmental Interest
We begin this analysis by considering the factors that defendants contend
constitute a “compelling governmental interest.” See Stephenson I, 355 N.C. at 377,
562 S.E.2d at 393 (citation omitted). Defendants argue that the General Assembly
drafted the twenty-six districts both to avoid liability under section 2 of the VRA
and to obtain preclearance under section 5 of the VRA by avoiding retrogression,
which has been defined as “a change in voting procedures which would place the
members of a racial or language minority group in a less favorable position than
they had occupied before the change with respect to the opportunity to vote
effectively.” Id. at 363-64, 562 S.E.2d at 385 (citations omitted). Defendants’ brief
acknowledges that three principles guided the General Assembly: (1) Compliance
with the Whole County Provision of the Constitution of North Carolina, as set out in
Stephenson I and Stephenson v. Bartlett, 357 N.C. 301, 582 S.E.2d 247 (2003)
(hereinafter “Stephenson II”); (2) Where possible, establishment of VRA districts
having a Total Black Voting Age Population above fifty percent, in accord with
Pender County v. Bartlett, 361 N.C. 491, 649 S.E.2d 364 (2007) (hereinafter “Pender
County”), aff’d sub nom. Bartlett v. Strickland, 556 U.S. 1, 129 S. Ct. 1231, 173 L.
Ed. 2d 173 (2009) (hereinafter “Strickland”) (plurality); and (3) Exploration of “the
possibility of establishing a sufficient number of VRA legislative districts to provide
African American voters with rough proportionality in the number of VRA districts
in which they have a reasonable opportunity to elect their candidates of choice.”
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Although the Supreme Court of the United States has never held outright
that compliance with section 2 or section 5 can be a compelling state interest, the
Court has issued opinions that expressly assumed as much. To be specific, the
Supreme Court in Shaw v. Hunt assumed arguendo that compliance with section 2
could be a compelling state interest, 517 U.S. 899, 915, 116 S. Ct. 1894, 1905, 135 L.
Ed. 2d 207, 225 (1996) (hereinafter “Shaw II”), and adopted a similar approach in
Miller, where the issue was the State’s desire to comply with section 5 of the Voting
Rights Act, 515 U.S. at 921, 115 S. Ct. at 2490-91, 132 L. Ed. 2d at 783. In addition,
the Supreme Court has observed that “deference is due to [States’] reasonable fears
of, and to their reasonable efforts to avoid, § 2 liability.” Vera, 517 U.S. at 978, 116
S. Ct. at 1961, 135 L. Ed. 2d at 269 (plurality). The trial court here, footnoting
several federal cases addressing the issue, stated that “[i]n general, compliance with
the Voting Rights Act can be a compelling governmental interest.” Faced squarely
with the issue, we agree with the trial court. The Equal Protection Clause of the
Fourteenth Amendment requires equal treatment regardless of race, while the
Voting Rights Act requires consideration of race. Because the Constitution of the
United States trumps any federal statute, a State’s efforts to comply with the
Voting Rights Act creates tension with the Fourteenth Amendment. Any violation
of the latter triggers strict scrutiny, mandating that the State demonstrate a
compelling interest. Because the Supreme Court of the United States and the
United States Congress have indicated without ambiguity that they expect States to
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comply with the Voting Rights Act, state laws passed for the purpose of complying
with the Act must be capable of surviving strict scrutiny, indicating that such
compliance is a compelling state interest.3 This analysis applies equally to a State’s
efforts to comply with sections 2 and 5 of the Voting Rights Act.
Moreover, the General Assembly’s desire to comply with the Voting Rights
Act is justifiable for other reasons. Holding elections is a core State function,
fundamental in a democracy. Establishing voting districts is an essential
component of holding elections. In doing so, a State is subject to federal mandates
in addition to those found in the Voting Rights Act and the Fourteenth Amendment,
such as the “one-person, one-vote” requirement. Stephenson I, 355 N.C. at 363-64,
383, 562 S.E.2d at 384-85, 397. A determination that the State does not have a
compelling interest in complying with federal mandates would invite litigation by
those claiming that the State could never satisfy the requirements of strict scrutiny,
undermining the General Assembly’s efforts to create stable districts between
censuses and citizen expectations that existing election districts are valid. On a
level no less practical, we also assume that North Carolina, and all States for that
matter, would prefer to avoid the expense and delay resulting from litigation.
3 “If compliance with § 5 were not a compelling state interest, then a State could be
placed in the impossible position of having to choose between compliance with § 5 and
compliance with the Equal Protection Clause.” League of United Latin Am. Citizens v.
Perry, 548 U.S. 399, 518, 126 S. Ct. 2594, 2667, 165 L. Ed. 2d 609, 694 (2006) (hereinafter
“LULAC”) (Scalia, J., Thomas, J., Roberts, C.J. & Alito, J., dissenting in part).
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Accordingly, we hold that compliance with sections 2 and 5 of the Voting Rights Act
may be a compelling state interest.
We next consider whether compliance with either section 2 or section 5
constitutes a compelling state interest under the facts presented here. Those goals
may reach the level of a compelling state interest if two conditions are satisfied.
First, the General Assembly must have identified past or present discrimination
with some specificity before it could turn to race-conscious relief. Shaw II, 517 U.S.
at 909, 116 S. Ct. at 1902, 135 L. Ed. 2d at 221 (citing City of Richmond v. J.A.
Croson Co., 488 U.S. 469, 504, 109 S. Ct. 706, 727, 102 L. Ed. 2d 854, 889 (1989)).
Second, before acting, the General Assembly must also have “had ‘a strong basis in
evidence’ ” on which to premise a conclusion that the race-based remedial action
was necessary. Id. at 910, 116 S. Ct. at 1903, 135 L. Ed. 2d at 222 (quoting Wygant
v. Jackson Bd. of Educ., 476 U.S. 267, 277, 106 S. Ct. 1842, 1849, 90 L. Ed. 2d 260,
271 (1986) (plurality)).
a. Compelling Interest Under Section 2 of the Voting Rights Act
Before we turn our attention to consideration of individual districts, we
consider the application of section 2 of the VRA in the instant case. “The essence of
a § 2 claim is that a certain electoral law, practice, or structure interacts with social
and historical conditions to cause an inequality in the opportunities enjoyed by
black and white voters to elect their preferred representatives.” Thornburg v.
Gingles, 478 U.S. 30, 47, 106 S. Ct. 2752, 2764, 92 L. Ed. 2d 25, 44 (1986); see 52
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U.S.C.S. §§ 10301-10702 (LexisNexis 2014). The question of voting discrimination
vel non, including vote dilution, is determined by the totality of the circumstances.
Gingles, 478 U.S. at 43-46, 106 S. Ct. at 2762-64, 92 L. Ed. 2d at 42-44 (discussing
section 2(b) of the VRA, now codified at 52 U.S.C.S. § 10301(b)). However, under
Gingles, a reviewing court does not reach the totality of circumstances test unless
the challenging party is able to establish three preconditions, id. at 50-51, 106 S. Ct.
at 2766-67, 92 L. Ed. 2d at 46-47. First, a “minority group must be able to
demonstrate that it is sufficiently large and geographically compact to constitute a
majority in a single-member district.” Id. at 50, 106 S. Ct. at 2766, 92 L. Ed. 2d at
46. Second, the minority group must “show that it is politically cohesive.” Id. at 51,
106 S. Ct. at 2766, 92 L. Ed. 2d at 47. Finally, the minority group must “be able to
demonstrate that the majority votes sufficiently as a bloc to enable it . . . usually to
defeat the minority’s preferred candidate.” Id. at 51, 106 S. Ct. at 2766-67, 92 L.
Ed. 2d at 47. Although Gingles dealt with multi-member districts, the same
preconditions must be met when a claim of vote dilution is made regarding a single-
member district. Growe v. Emison, 507 U.S. 25, 40-41, 113 S. Ct. 1075, 1084, 122 L.
Ed. 2d 388, 403-04 (1993); see also Johnson v. De Grandy, 512 U.S. 997, 1006-07,
114 S. Ct. 2647, 2654-55, 129 L. Ed. 2d 775, 788 (1994).
Unlike cases such as Gingles, in which minority groups use section 2 as a
sword to challenge districting legislation, here we are considering the General
Assembly’s use of section 2 as a shield. Defendants argue that, because the Gingles
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test considers race, the State has a compelling interest in preemptively factoring
race into its redistricting process to ensure that its plans would survive a legal
challenge brought under section 2. To establish that this state interest is
legitimate, defendants must show a strong basis in evidence that the possibility of a
section 2 violation existed at the time of the redistricting. See Shaw II, 517 U.S. at
910, 916, 116 S. Ct. at 1903, 1905-06, 135 L. Ed. 2d at 222, 225-26. However,
because this inquiry addresses only the possibility of a section 2 violation, and
because a totality of the circumstances inquiry is by its nature fact-specific,
defendants’ evidence need only address “the three Gingles preconditions” to
establish a compelling governmental interest. See Vera, 517 U.S. at 978, 116 S. Ct.
at 1961, 135 L. Ed. 2d at 269 (citing Growe, 507 U.S. at 40, 113 S. Ct. at 1084, 122
L. Ed. 2d at 403-04).
Thus, to establish a compelling interest in complying with section 2 when the
redistricting plans were developed, the legislature at that time must have had a
strong basis in evidence that the Total Black Voting Age Population in a
geographically compact area was fifty percent plus one of the area’s voting
population. Such evidence would satisfy the first Gingles precondition. Pender
Cnty., 361 N.C. at 503, 649 S.E.2d at 372. In addition, a strong basis in evidence of
racially polarized voting in that same geographical area would satisfy the second
and third preconditions set out in Gingles. LULAC, 548 U.S. at 427, 126 S. Ct. at
2615, 165 L. Ed. 2d at 637 (majority). Against this background, we consider the
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trial court’s application of these standards in discerning whether defendants here
could legitimately claim a compelling interest in complying with section 2.
The trial court’s order included several extensive appendices. In the body of
the order, the trial court described the legislative record that existed when the
plans were enacted, then referred to Appendix A, where this information was
presented in detail. Appendix A, titled “Findings of Fact Relevant to the Issue of
Racial Polarization in Specific Locations where Voting Rights Act Districts were
Placed in the Enacted Plans,” is incorporated by reference into the trial court’s
order.
Appendix A is broken into three parts. Part I, titled “General Findings of
Fact,” opens with a summary of the background of the case, then notes results of
recent elections. For instance, the trial court observed that all African-American
incumbents elected to the North Carolina General Assembly or the United States
Congress in 2010 were elected in districts that were either majority African-
American or majority-minority coalition districts. In addition, no African-American
candidate elected in 2010 was elected from a majority white crossover district, and
two African-American incumbent state senators running in majority white districts
were defeated in that election. No African-American candidate for the United
States Congress was elected in a majority white district between 1992 and 2010,
while from 2004 through 2010, no African-American candidate was elected to office
in a statewide partisan election.
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In this Part I of Appendix A, the court also considered an academic study of
racially polarized voting conducted by Ray Block, Jr., Ph.D. This study, prepared
for the Southern Coalition of Social Justice, is titled “Racially Polarized Voting in
2006, 2008, and 2010 in North Carolina State Legislative Contests.” Dr. Block
employed Justice Brennan’s conclusion in Gingles that racially polarized voting
occurs when there is a consistent relationship between the race of the voter and the
way in which that person votes, and found that such a relationship existed in the
areas examined. He added that he also found evidence that “majority-minority
districts facilitate the election of African American candidates.” The court
determined that Dr. Block’s study provided “substantial evidence regarding the
presence of racially polarized voting in almost all of the counties[4] in which the
General Assembly enacted the 2011 VRA districts.”
Nevertheless, the trial court observed that the North Carolina General
Assembly identified a few limitations in Dr. Block’s study. For instance, the study
did not pinpoint the percentage of white voters in majority African-American or
majority-minority districts who voted for the candidate of choice of African-
American voters. In addition, his study could analyze a legislative election only
when the African-American candidate had opposition. As a result, the General
Assembly commissioned Thomas L. Brunell, Ph.D. to prepare a supplementary
4 These counties were Beaufort, Bertie, Chowan, Craven, Cumberland, Durham,
Edgecombe, Gates, Guilford, Granville, Greene, Halifax, Hertford, Hoke, Jones, Lenoir,
Martin, Mecklenburg, Nash, Northampton, Pasquotank, Perquimans, Pitt, Robeson,
Sampson, Scotland, Vance, Wake, Warren, Washington, Wayne, and Wilson.
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report. Dr. Brunell’s study, titled “Report on Racially Polarized Voting in North
Carolina,” examined the forty North Carolina counties covered by section 5 of the
Voting Rights Act, plus Columbus, Duplin, Durham, Forsyth, Jones, Mecklenburg,
Richmond, Sampson, Tyrrell, Wake, and Warren Counties. Dr. Brunell found
“statistically significant racially polarized voting” in fifty of these fifty-one counties.
The trial court made additional findings of fact in Part I of Appendix A that
we believe would be pertinent to a Gingles totality of circumstances test and that,
by extension, indicate a strong basis in evidence that the Gingles preconditions
existed. At the beginning of the redistricting process, the General Assembly noted
that North Carolina had been ordered to create majority African-American districts
as a remedy for section 2 violations in Bertie, Chowan, Edgecombe, Forsyth, Gates,
Halifax, Martin, Mecklenburg, Nash, Northampton, Wake, Washington, and Wilson
Counties. See Gingles v. Edmisten, 590 F. Supp. 345, 365-66, 376 (E.D.N.C. 1984),
aff’d in part, rev’d in part sub nom., Thornburg v. Gingles, 478 U.S. at 80, 106 S. Ct.
at 2782, 92 L. Ed. 2d at 65. Faculty at the North Carolina School of Government
advised the chairs of the General Assembly’s redistricting committees that North
Carolina is still bound by the holding in Gingles. In addition, the United States
District Court noted on remand from the decision in Cromartie I that the parties
there had stipulated that legally significant racially polarized voting was present in
North Carolina’s First Congressional District. Cromartie v. Hunt, 133 F. Supp. 2d
407, 422-23 (E.D.N.C. 2000), rev’d, Cromartie II, 532 U.S. 234, 121 S. Ct. 1452, 149
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L. Ed. 2d 430. The trial court found that consideration of race in the construction of
the First District was reasonably necessary to protect the State from liability under
the Voting Rights Act. Id. at 423. This finding by the trial court was not appealed
and thus is not affected by the holding in Cromartie II and remains good law.
In addition, the trial court found as fact that the documents submitted by
plaintiffs included a law review article prepared by an attorney for the North
Carolina NAACP. Anita S. Earls et al., Voting Rights in North Carolina 1982-2006,
17 S. Cal. Rev. L. & Soc. Just. 577 (2008). The court observed that this article “also
provided evidence of racially polarized voting as alleged or established in voting
rights lawsuits filed in many of the counties[5] in which 2011 VRA districts were
enacted.” The court added as a finding of fact that no witness testified that racial
polarization had disappeared either statewide or in those areas in which the
General Assembly previously had created VRA districts.
In Part II of Appendix A, the trial court conducted an individualized analysis
of each of the VRA districts created by the General Assembly in 2011. Generally,
each finding of fact relates to one district. While four of the findings of fact deal
with more than one district, in each such instance those districts are situated
within the same county. Each finding of fact in this Part II follows a similar
pattern. The finding of fact begins with data that explain how the information in
5The article included references to cases involving the following counties: Beaufort,
Bladen, Cumberland, Duplin, Forsyth, Franklin, Granville, Halifax, Lenoir, Montgomery,
Pasquotank, Person, Pitt, Richmond, Sampson, Scotland, Tyrrell, Vance, Wayne, and
Washington.
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Part I of the Appendix applies to the district under examination. The finding of fact
lists the counties included in the district, along with that district’s Total Black
Voting Age Population. This information is pertinent to the first Gingles
precondition, that the minority group is able to demonstrate that it is sufficiently
large and geographically compact to constitute a majority in a single-member
district. See Pender Cnty., 361 N.C. at 503, 649 S.E.2d at 372 (discussing Gingles,
478 U.S. at 50, 106 S. Ct. at 2766, 92 L. Ed. 2d at 46). Subsequent sections of each
finding of fact set out how racially polarized voting was found in many of the
counties contained within the district or districts, under either Dr. Block’s analysis
or Dr. Brunell’s analysis, or both. This information is pertinent to both the second
and third Gingles preconditions: that the minority group is politically cohesive and
that the majority votes sufficiently as a bloc to enable it usually to defeat the
minority’s preferred candidate. LULAC, 548 U.S. at 427, 126 S. Ct. at 2615, 165 L.
Ed. 2d at 637. Additional information in the finding of fact conveys how many
counties within the district or districts are affected by Gingles or Cromartie II, or
both. This information is useful in determining the totality of circumstances.
Plaintiffs have not challenged any of the trial court’s findings of fact relating
to the twenty-six VRA districts, and thus those findings are binding on appeal.
Koufman, 330 N.C. at 97, 408 S.E.2d at 731. The trial court’s findings of fact
indicate that each of the challenged districts had a Total Black Voting Age
Population exceeding fifty percent, thus satisfying the first Gingles precondition.
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See Pender Cnty., 361 N.C. at 503, 649 S.E.2d at 372. The facts found by the trial
court also indicate that the maps are sufficient to satisfy the second and third
Gingles preconditions, as each district demonstrates racially polarized voting
according to Dr. Brunell’s analysis. See LULAC, 548 U.S. at 427, 126 S. Ct. at 2615,
165 L. Ed. 2d at 637. Although Dr. Block’s analysis did not cover some of the
counties in some of the challenged districts, where the two studies overlapped, they
reached the same conclusions.
Moreover, the trial court made additional findings of fact, recited above, that
would be relevant to the Gingles totality of circumstances test for twenty-two of the
challenged VRA districts.6 Specifically, of the twenty-six VRA districts challenged
here, fifteen include counties lying within the area where the Gingles court found
section 2 violations; nine include counties lying within the area which the parties in
the Cromartie litigation stipulated to have racially polarized voting; and thirteen
included counties that were subject to various section 2 lawsuits filed between 1982
and 2006 in which plaintiffs alleged or established racially polarized voting.7 While
we assume from the Supreme Court’s language in Vera, 517 U.S. at 978, 116 S. Ct.
at 1960-61, 135 L. Ed. 2d at 269, that satisfaction of the Gingles preconditions is
sufficient to trigger a State’s compelling interest in avoiding section 2 liability, we
6The districts not affected by this evidence are Senate 28, House 29, House 31, and
House 57.
7 The only districts not affected by at least one of these three pieces of evidence are
Senate 28, House 29, House 31, and House 57.
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believe that this additional evidence, while pertaining to only some of the covered
districts, is consistent with and reinforces the trial court’s conclusions of law.
Based upon the totality of this evidence, we are satisfied that the trial court
correctly found that the General Assembly identified past or present discrimination
with sufficient specificity to justify the creation of VRA districts in order to avoid
section 2 liability. See Shaw II, 517 U.S. at 909, 116 S. Ct. at 1902, 135 L. Ed. 2d at
221. In addition, we see that the General Assembly, before making its redistricting
decisions, had a strong basis in evidence on which to reach a conclusion that race-
based remedial action was necessary for each VRA district. Id. at 910, 116 S. Ct. at
1903, 135 L. Ed. 2d at 222. Accordingly, we conclude that the trial court’s findings
of fact as to these VRA districts support its conclusion of law that defendants
established a compelling state interest in creating districts that would avoid
liability under section 2 of the Voting Rights Act.
b. Compelling Governmental Interest under Section 5 of the Voting Rights
Act
As noted above, forty of North Carolina’s one hundred counties were covered
by section 5 at the time of redistricting. This section, which prevents retrogression,
forbids “[a]ny voting qualification or prerequisite to voting, or standard, practice, or
procedure with respect to voting that has the purpose of or will have the effect of
diminishing the ability of any citizens of the United States on account of race or
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color . . . to elect their preferred candidates of choice.” 52 U.S.C.S. § 10304(b).8
Section 5 requires preclearance, either by the United States Department of Justice
or by a three-judge panel of the United States District Court for the District of
Columbia, of any election procedure that is different from that in force on the
relevant coverage date. See Perry v. Perez, ___ U.S. ___, ___, 132 S. Ct. 934, 939,
181 L. Ed. 2d 900, 904 (2012) (per curiam) (citing Nw. Austin Mun. Util. Dist. No.
One v. Holder, 557 U.S 193, 198, 129 S. Ct. 2504, 2509, 174 L. Ed. 2d 140, 147
(2009)). The Supreme Court has left no doubt, however, that in fashioning its
redistricting plans, a State must comply with the substantive requirements of
section 5, not merely obtaining preclearance from the Department of Justice.
Miller, 515 U.S. at 922, 115 S. Ct. at 2491, 132 L. Ed. 2d at 783. As the Supreme
Court intimated in Miller, the Department of Justice is not infallible, so courts have
“an independent obligation in adjudicating consequent equal protection challenges
to ensure that the State’s actions are narrowly tailored to achieve a compelling
interest.” Id. Section 5 does not “give covered jurisdictions carte blanche to engage
in racial gerrymandering in the name of nonretrogression. A reapportionment plan
would not be narrowly tailored to the goal of avoiding retrogression if the State
went beyond what was reasonably necessary to avoid retrogression.” Shaw I, 509
U.S. at 655, 113 S. Ct. at 2831, 125 L. Ed. 2d at 534.
8 This statute no longer applies in North Carolina. Shelby Cnty. v. Holder, ___ U.S.
___, 133 S. Ct. 2612, 186 L. Ed. 2d 651 (2013).
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We concluded above that compliance with section 5 is a compelling state
interest. Turning then to the facts of this case, we take into account the evidence
recited above in our discussion regarding the State’s concern about possible section
2 liability. In addition, the appendices to the trial court’s order indicate that all of
North Carolina Senate Districts 5, 21, and 28, and all of North Carolina House
Districts 5, 7, 12, 24, 42, and 57, are in counties covered by section 5. Also, section 5
covers most of the territory contained in United States Congressional District One,
Senate Districts 4 and 20, and House Districts 21, 32, and 48. Moreover, all of the
twenty-six challenged districts contain areas that previously have been part of
majority-minority districts. As a result of their connection with counties covered
under section 5, these districts may become subject to nonretrogression analysis.
Georgia v. Ashcroft, 539 U.S. 461, 479, 123 S. Ct. 2498, 2511, 156 L. Ed. 2d 428, 451
(2003) (“[I]n examining whether the new plan is retrogressive, the inquiry must
encompass the entire statewide plan as a whole. Thus, while the diminution of a
minority group’s effective exercise of the electoral franchise in one or two districts
may be sufficient to show a violation of § 5, it is only sufficient if the covered
jurisdiction cannot show that the gains in the plan as a whole offset the loss in a
particular district.” (internal citations omitted)). Accordingly, we conclude from the
totality of the evidence that a history of discrimination justified the General
Assembly’s concern about retrogression and compliance with section 5. We further
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conclude that the General Assembly had a strong basis in evidence on which to
reach a conclusion that race-based remedial action was necessary.
3. Narrow Tailoring
Having determined that defendants had a compelling interest both in
avoiding section 2 liability and in avoiding retrogression under section 5, we now
consider whether the redistricting was sufficiently narrowly tailored to advance
those state interests as to the twenty-six districts created to comply with the Voting
Rights Act. See Stephenson I, 355 N.C. at 377, 562 S.E.2d at 393. In the context of
redistricting,
the “narrow tailoring” requirement of strict scrutiny
allows the States a limited degree of leeway in furthering
such interests [as VRA compliance]. If the State has a
“strong basis in evidence” for concluding that creation of a
majority-minority district is reasonably necessary to
comply with § 2, and the districting that is based on race
“substantially addresses the § 2 violation,” it satisfies
strict scrutiny.
Vera, 517 U.S. at 977, 116 S. Ct. at 1960, 135 L. Ed. 2d at 268 (internal citations
omitted). Thus, while a State does not have a free hand when crafting districts with
the intent of avoiding section 2 liability, the Supreme Court has acknowledged that
“[a] § 2 district that is reasonably compact and regular, taking into account
traditional districting principles such as maintaining communities of interest and
traditional boundaries, may pass strict scrutiny without having to defeat rival
compact districts designed by plaintiffs’ experts in endless ‘beauty contests.’ ” Id. at
977, 116 S. Ct. at 1960, 135 L. Ed. 2d at 269.
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As discussed above, the trial court found that the General Assembly designed
each of the challenged districts to consist of a Total Black Voting Age Population
exceeding fifty percent of the total voting age population in that district. We have
held that doing so is permissible as a method of addressing potential liability under
section 2. Pender Cnty., 361 N.C. at 503, 649 S.E.2d at 372. Unlike redistricting
plans that have been faulted for setting arbitrary thresholds for Total Black Voting
Age Population, see, e.g., Page, 2014 WL 5019686, at *6 (citing and quoting Smith v.
Beasley, 946 F. Supp. 1174, 1207 (D.S.C.) (1996)), the target of fifty percent plus one
of the Total Black Voting Age Population chosen by North Carolina’s General
Assembly is consistent with the requirements of the first Gingles precondition.
Nevertheless, because section 2 limits the use of race in creating remedial districts
by allowing race to be considered only to the extent “reasonably necessary” for
compliance, the question arises whether the percentages of Total Black Voting Age
Population in each of North Carolina’s challenged districts are higher than
“reasonably necessary” to avoid the risk of vote dilution. See Vera, 517 U.S. at 979,
116 S. Ct. at 1961, 135 L. Ed. 2d at 269.
The Total Black Voting Age Population percentage ranges from a low of
50.45% to a high of 57.33% in the twenty-six districts in question. However, the
average Total Black Voting Age Population of the challenged districts is only
52.28%. Twenty-one of the twenty-six districts have Total Black Voting Age
populations of less than 53%, and only two of these districts, Senate 28 and House
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24, exceed 55% Total Black Voting Age Population. We are mindful that a host of
other factors were considered in addition to race, such as the Whole County
Provision of the Constitution of North Carolina, protection of incumbents, one-
person, one-vote requirements and partisan considerations. As a result, we are
satisfied that these districts are sufficiently narrowly tailored. They do not classify
individuals based upon race to an extent greater than reasonably necessary to
comply with the VRA, while simultaneously taking into account traditional
districting principles.
Plaintiffs argue that creating districts with a Total Black Voting Age
Population percentage exceeding fifty percent constitutes impermissible racial
packing, citing Vera, 517 U.S. at 983, 116 S. Ct. at 1963, 135 L. Ed. 2d at 272;
Missouri v. Jenkins, 515 U.S. 70, 88, 115 S. Ct. 2038, 2049, 132 L. Ed. 2d 63, 80
(1995); and Shaw I, 509 U.S. at 655, 113 S. Ct. at 2831, 125 L. Ed. 2d at 534.
Plaintiffs also argue that districts with a Total Black Voting Age Population
exceeding fifty percent are not automatically necessary because minority voters in
crossover and coalition districts have elected candidates of their choice where the
Total Black Voting Age Population was between forty and fifty percent. However,
this Court previously has considered, but declined to adopt, similar arguments.
Pender Cnty., 361 N.C. at 502-04, 649 S.E.2d at 371-73. We concluded in that case
that applying a bright line rule—that the presence of more than fifty percent of the
Total Black Voting Age Population satisfied the first Gingles prong—was logical
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and gave the General Assembly “a safe harbor for the redistricting process.” Id. at
505, 649 S.E.2d at 373.
Although the burden is upon the State under strict scrutiny, the parties
challenging the redistricting must also make a showing.
In a case such as this one where majority-minority
districts (or the approximate equivalent) are at issue and
where racial identification correlates highly with political
affiliation, the party attacking the legislatively drawn
boundaries must show at the least that the legislature
could have achieved its legitimate political objectives in
alternative ways that are comparably consistent with
traditional districting principles. That party must also
show that those districting alternatives would have
brought about significantly greater racial balance.
Cromartie II, 532 U.S. at 258, 121 S. Ct. at 1466, 149 L. Ed. 2d at 453. Here, when
the evidence is undisputed that racial identification correlates highly with party
affiliation, plaintiffs have failed to meet this obligation. The General Assembly’s
plans fall within the safe harbor provisions of Pender County while respecting, to
the extent possible, the Whole County Provision, as mandated by Stephenson I. In
contrast, plaintiffs’ proposals would effectively invite the type of litigation over
section 2 claims envisioned in Pender County, see 361 N.C. at 505-06, 649 S.E.2d at
373, while failing to provide for the legitimate political goals pursued by the
General Assembly in its plans.
We are aware of the Supreme Court’s warning that “if there were a showing
that a State intentionally drew district lines in order to destroy otherwise effective
crossover districts, that would raise serious questions under both the Fourteenth
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and Fifteenth Amendments.” Strickland, 556 U.S. at 24, 129 S. Ct. at 1249, 173 L.
Ed. 2d at 190 (plurality) (citations omitted). In addressing this possibility, we note
that the average Total Black Voting Age Population in the twenty-six VRA districts
is 52.28% of the total voting age population. This figure indicates that minority
voters were moved out of crossover districts only to the extent necessary to meet
Pender County’s safe harbor provision, while simultaneously pursuing other
legitimate political goals, including those mentioned above. Where racial
identification correlates highly with party affiliation, placing additional Democratic
voters in districts that already vote Democratic is not forbidden as long as the
motivation for doing so is not primarily racial. See Cromartie I, 526 U.S. at 551-52,
119 S. Ct. at 1551, 143 L. Ed. 2d at 741. Accordingly, we conclude that plaintiffs
have failed to demonstrate improper packing or gerrymandering based upon race.
4. Proportionality
Finally, because plaintiffs challenge the General Assembly’s consideration of
proportionality, the trial court analyzed whether the legislature used
proportionality in the enacted plans improperly to “link[ ] the number of majority-
minority voting districts to minority members’ share of the relevant population.”
See De Grandy, 512 U.S. at 1014, 114 S. Ct. at 2658 n.11, 129 L. Ed. 2d at 792 n.11.
The trial court found as fact that “the General Assembly acknowledges that it
intended to create as many VRA districts as needed to achieve a ‘roughly
proportionate’ number of Senate, House and Congressional districts as compared to
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the Black population in North Carolina,” adding that each VRA district had to be at
least fifty percent African-American in voting age population. The trial court
specifically found that the General Assembly’s enacted plans
endeavored to create VRA districts in roughly the same
proportion as the ratio of Black population to total
population in North Carolina. In other words, because
the 2010 census figures established that 21% of North
Carolina’s population over 18 years of age was ‘any part
Black,’ the corresponding rough proportion of Senate
seats, out of 50 seats, would be 10 seats, and hence 10
VRA Senate districts. Likewise, of the 120 House seats,
21% of those seats would be roughly 25 House seats, and
hence 25 VRA districts.
Based on these and other findings, the trial court concluded that “the General
Assembly had a strong basis in evidence for concluding that ‘rough proportionality’
was reasonably necessary to protect the State from anticipated liability under § 2 of
the VRA and ensuring preclearance under § 5 of the VRA.”
Plaintiffs now argue that this conclusion is erroneous as a matter of law
because racial proportionality is neither a compelling governmental interest nor a
requirement of the VRA. They contend that, because “[t]he VRA was not designed
to guarantee majority-minority voting districts, but to guarantee that the processes,
procedures, and protocols would be fair and free of racial discrimination,” the
legislature’s redistricting was based upon an unconstitutional premise. Plaintiffs
contend that, by focusing on proportionality at the statewide level, the General
Assembly necessarily predetermined how many VRA districts to draw without first
considering where potential liability existed for section 2 violations. Plaintiffs
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maintain that, as a result, the General Assembly’s process sought “ ‘outright racial
balancing,’ ” which is “patently unconstitutional” under such cases as Fisher v.
University of Texas at Austin, ___ U.S. ___, ___, 133 S. Ct. 2411, 2419, 186 L. Ed. 2d
474, 486 (2013), Parents Involved in Community Schools v. Seattle School District
No. 1, 551 U.S. 701, 729-30, 127 S. Ct. 2738, 2757, 168 L. Ed. 2d 508, 529 (2007)
(plurality), and Grutter v. Bollinger, 539 U.S. 306, 330, 123 S. Ct. 2325, 2339, 156 L.
Ed. 2d 304, 333 (2003), and thus can neither be required by section 2 nor constitute
a compelling state interest.
The VRA provides that “nothing in this section establishes a right to have
members of a protected class elected in numbers equal to their proportion in the
population.” 52 U.S.C.S. § 10301(b). Consistent with this proviso, the Supreme
Court has repeatedly held that proportionality does not provide a safe harbor for
States seeking to comply with section 2. LULAC, 548 U.S. at 436, 126 S. Ct. at
2620, 165 L. Ed. 2d at 642 (citing De Grandy, 512 U.S. at 1017-21, 114 S. Ct. at
2660-62, 129 L. Ed. 2d at 794-97). Such a rule “would be in derogation of the
statutory text and its considered purpose . . . and of the ideal that the Voting Rights
Act of 1965 attempts to foster,” De Grandy, 512 U.S. at 1018, 114 S. Ct. at 2660, 129
L. Ed. 2d at 795, and could allow “the most blatant racial gerrymandering . . . so
long as proportionality was the bottom line,” id. at 1019, 114 S. Ct. at 2661, 129 L.
Ed. 2d at 796. Even so, the Court has also held that proportionality can be an
element of the “totality of circumstances” test under Gingles. Id. at 1000, 114 S. Ct.
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at 2651, 129 L. Ed. 2d at 784. When considered in this manner, the Court has
instructed that the “probative value assigned to proportionality may vary with other
facts” and “[n]o single statistic provides courts with a shortcut to determine whether
a set of single-member districts unlawfully dilutes minority voting strength.” Id. at
1020-21, 114 S. Ct. at 2661-62, 129 L. Ed. 2d at 797; see also LULAC, 548 U.S. at
436, 126 S. Ct. at 2620, 165 L. Ed. 2d at 642.
In light of these standards, the record here demonstrates that the General
Assembly did not use proportionality improperly to guarantee the number of
majority-minority voting districts based on the minority members’ share of the
relevant population. We believe that such an effort, seeking to guarantee
proportional representation, proportional success, or racial balancing, would run
afoul of the Equal Protection Clause. See De Grandy, 512 U.S. at 1017-22, 114 S.
Ct. at 2658-62, 129 L. Ed. 2d at 794-98. Instead, the General Assembly considered
rough proportionality in a manner similar to its prophylactic consideration of the
Gingles preconditions, as a means of inoculating the redistricting plans against
potential legal challenges under section 2’s totality of the circumstances test.
Proportionality was not a dispositive factor, but merely one consideration of many
described in the materials and other contributions from numerous organizations,
experts, and lay witnesses. The General Assembly’s consideration of rough
proportionality was merely a means of avoiding voter dilution and potential section
2 liability, not an attempt to trade “the rights of some minority voters under § 2 . . .
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off against the rights of other members of the same minority class.” Id. at 1019, 114
S. Ct. at 2661, 129 L. Ed. 2d at 796. Accordingly, we conclude that this factor does
not constitute grounds for a violation of section 2.
Thus, with regard to the VRA districts, we hold that, while the General
Assembly considered race, the trial court erred by concluding prematurely that race
was the predominant factor motivating the drawing of the districts without first
performing adequate fact finding. However, because we held above that the trial
court correctly found that each of the twenty-six districts survives strict scrutiny,
we need not remand the case for reconsideration under what may be a less
demanding standard of review.
C. Non-VRA districts
We now turn to the four districts that the trial court found were not drawn as
VRA districts but which were challenged by plaintiffs as being the result of racial
gerrymandering. These were the Fourth and Twelfth Congressional Districts,
North Carolina Senate District 32, and North Carolina House District 54.
The trial court made numerous specific findings of fact as to whether race
was the General Assembly’s predominant motive in drafting these districts. For
example, the court found that race was not a factor in drawing Congressional
District Twelve, Congressional District Four, and House District 54. In fact, the
record indicates that the drafters of these three districts did not consider racial
data. The trial court found that political goals were a factor in drawing
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Congressional Districts Twelve and Four, and that protection of incumbents was a
factor in drawing Congressional District Twelve and House District 54. The trial
court found that the drafting of Senate District 32 was compelled by the need to
comply with the population distribution requirements set out in Stephenson I. In
addition, the drafters were instructed to comply with Cromartie II in drawing
Congressional District Twelve and Congressional District Four, and with Gingles in
Senate District 32. The drafters considered the Whole County Provision of the
North Carolina Constitution in drawing Senate District 32 and House District 54.
Based on these findings, the trial court determined that the “shape, location and
composition” of each of these districts was dictated not only by such factors as a
desire to avoid liability under section 2 of the Voting Rights Act and attaining
preclearance under section 5 of that Act, but also by other “equally dominant
legislative motivations,” such as complying with the North Carolina Constitution,
equalizing population among districts, protecting incumbents in both parties, and
fashioning districts “that were more competitive for Republican candidates than the
plans used in past decades or any of the alternative plans.”
Once the trial court found that race was not a predominant motive in
drafting these four districts, it applied the rational basis test. Under this test, a
court considers whether the drawing of the districts bears “ ‘some rational
relationship to a conceivable legitimate governmental interest.’ ” Rhyne v. K-Mart
Corp., 358 N.C. 160, 180, 594 S.E.2d 1, 15 (2004) (quoting Texfi Indus., Inc. v. City
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of Fayetteville, 301 N.C. 1, 11, 269 S.E.2d 142, 149 (1980) (emphasis added)).
Concluding that “the General Assembly has articulated a reasonably conceivable
state of facts, other than a racial motivation, that provides a rational basis for
creating the non-VRA districts,” the trial court found that plaintiffs’ challenge to
these districts failed.
Plaintiffs argue to us that the trial court erred in its findings of fact and
conclusions of law regarding Congressional District Twelve and North Carolina
Senate District 32, contending that race manifestly was the predominant factor in
the construction of these districts. As detailed above, the trial court found both
racial and non-racial motivations, with neither category predominant. When a trial
court sits without a jury, “the trial court’s findings of fact have the force and effect
of a jury verdict and are conclusive on appeal if there is competent evidence to
support them, even though the evidence could be viewed as supporting a different
finding.” Bailey v. State, 348 N.C. 130, 146, 500 S.E.2d 54, 63 (1998) (citation
omitted). Although plaintiffs argue that the evidence cited by the trial court was
pretextual and implausible and contend that we should consider and be persuaded
by other evidence more favorable to their position that was also presented to the
trial court, plaintiffs do not contend that the evidence credited and cited by the trial
court was not competent.
We conclude that the trial court did not err either in its determination that
the rational basis test was appropriate or in its application of that test to the
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evidence it credited. The Supreme Court of the United States has recognized that
compliance with federal law, incumbency protection, and partisan advantage are all
legitimate governmental interests. See Shaw I, 509 U.S. at 654, 113 S. Ct. at 2830,
125 L. Ed. 2d at 533 (compliance with federal law); Karcher, 462 U.S. at 740, 103 S.
Ct. at 2663, 77 L. Ed. 2d at 147 (incumbency protection); Cromartie I, 526 U.S. at
551, 119 S. Ct. at 1551, 143 L. Ed. 2d at 741 (partisan interests). In light of this
authority and the trial court’s findings of fact, we agree that plaintiffs failed to
establish that race was the dominant factor in drafting these districts and conclude
that the trial court’s application of the rational basis test was appropriate. The
court’s findings of fact support its conclusions of law. The General Assembly’s
actions in creating these districts were rationally related to all its expressed goals.
Accordingly, we affirm the trial court as to these non-VRA districts.
III. Plaintiffs’ State Claims
We now consider plaintiffs’ claims brought under state law. Plaintiffs argue
that the trial court erred when it failed to find that the enacted Senate and House
plans violate the Whole County Provision of the North Carolina Constitution.
Article II, Section 3(3) of the Constitution of North Carolina provides that “[n]o
county shall be divided in the formation of a senate district,” while Article II,
Section 5(3) contains a similar provision with regard to each representative district.
These prohibitions against dividing counties in the creation of General Assembly
districts collectively are called the Whole County Provision.
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The tension between the Whole County Provision and federal requirements is
apparent. In 1983, a three-judge panel of the United States District Court for the
Eastern District of North Carolina held that the Whole County Provision was
unenforceable anywhere in the State. Cavanagh v. Brock, 577 F. Supp. 176, 181-82
(E.D.N.C. 1983). However, this Court subsequently rejected Cavanagh’s analysis
and held that the Whole County Provision remained enforceable to the extent that
it could be harmonized with federal law. Stephenson I, 355 N.C. at 374, 562 S.E.2d
at 391. As a result, the Whole County Provision remains in effect but must
accommodate both the one-person, one-vote mandate and the requirements of the
VRA. Since the Constitution of North Carolina provides that each senator and each
representative shall represent “as nearly as may be” an equal number of
inhabitants, N.C. Const. art. II, §§ 3(1), 5(1), the former federal requirement is met
by definition. Thus, we consider plaintiffs’ contentions that the challenged House
and Senate districts violate the Whole County Provision, as harmonized with the
VRA.
This Court has set out nine criteria for ensuring that House and Senate
districts satisfy both the Whole County Provision and the Voting Rights Act.
Stephenson I, 355 N.C. at 383-84, 562 S.E.2d at 396-97. These criteria may be
summarized as follows: First, “legislative districts required by the VRA shall be
formed” before non-VRA districts. Id. at 383, 562 S.E.2d at 396-97. Second, “[i]n
forming new legislative districts, any deviation from the ideal population for a
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legislative district shall be at or within plus or minus five percent” to ensure
“compliance with federal ‘one-person, one-vote’ requirements.” Id. at 383, 562
S.E.2d at 397. Third, “in counties having a . . . population sufficient to support the
formation of one non-VRA legislative district,” “the physical boundaries” of the non-
VRA district shall “not cross or traverse the exterior geographic line of ” the county.
Id. Fourth, “[w]hen two or more non-VRA legislative districts may be created
within a single county,” “single-member non-VRA districts shall be formed within”
the county, “shall be compact,” and “shall not traverse” the county’s exterior
geographic line. Id. Fifth, for non-VRA counties that “cannot support at least one
legislative district,” or counties “having a non-VRA population pool” that, “if divided
into” legislative “districts, would not comply with” one-person, one-vote
requirements, the General Assembly should combine or group “the minimum
number of whole, contiguous counties necessary to comply with the at or within plus
or minus five percent ‘one-person, one-vote’ standard. Within any such contiguous
multi-county grouping, compact districts shall be formed, consistent with the [one-
person, one-vote] standard, whose boundary lines do not cross or traverse the
‘exterior’ line of the multi-county grouping.” 355 N.C. at 383-84, 562 S.E.2d at 397.
“[T]he resulting interior county lines created by any such groupings may be crossed
or traversed in the creation of districts within said multi-county grouping but only
to the extent necessary to comply with the at or within plus or minus five percent
‘one-person, one-vote’ standard.” Id. at 384, 562 S.E.2d at 397. Sixth, “only the
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smallest number of counties necessary to comply with the at or within plus or
minus five percent ‘one-person, one-vote’ standard shall be combined.” Id. Seventh,
“communities of interest should be considered in the formation of compact and
contiguous [legislative] districts.” Id. Eighth, “multi-member districts shall not be”
created “unless it is established that such districts are necessary to advance a
compelling governmental interest.” Id. Ninth, “any new redistricting plans
. . . shall depart from strict compliance with” these criteria “only to the extent
necessary to comply with federal law.” Id.
In their discussion of the Whole County Provision, plaintiffs contend that the
test of a plan’s compliance with Stephenson I’s fifth and sixth criteria is the number
of counties left undivided. They argue that the current plan violates Stephenson I
because it divides counties and traverses county lines to an unnecessary extent. In
support of their argument, plaintiffs submit charts indicating that their suggested
“House Fair and Legal” plan results in five fewer divided counties and six fewer
county line traversals than the enacted House plan, while maintaining the same
number of groupings. Similarly, plaintiffs’ charts indicate that their suggested
“Senate Fair and Legal” plan divides five fewer counties and contains eleven fewer
traversals of county lines than the enacted Senate plan.
Defendants respond that plaintiffs have misinterpreted the requirements of
Stephenson I. According to defendants, Stephenson I is satisfied by minimizing the
number of counties contained within each multi-county grouping. In other words, a
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Opinion of the Court
proper plan maximizes the number of possible two-county groupings before going on
to create three-county groupings, maximizes the number of possible three-county
groupings before creating four-county groupings, and so on. Defendants argue that
plaintiffs have misread Stephenson I because, under Stephenson I, divisions of
counties and traversals of county lines are relevant only if plaintiffs’ alternative
maps are comparable to the State’s maps in terms of the number of counties within
each grouping. In support of its argument, the State provides charts showing that
the enacted House and Senate plans result in a greater number of groupings that
contain fewer counties, as compared with the various proposed alternative plans, all
of which create groupings that contain more counties than the enacted plans. To
illustrate, the enacted House district plan contains eleven groupings consisting of
one county and fifteen groupings consisting of two counties. The closest comparable
alternative plan proposed by plaintiffs, House Fair and Legal, also contains eleven
groupings consisting of one county but only nine groupings consisting of two
counties. Similarly, while both the enacted Senate plan and plaintiffs’ proposed
Senate Fair and Legal contain one grouping consisting of one county and eleven
groupings consisting of two counties, the enacted plan contains four districts
consisting of three counties while Senate Fair and Legal contains only three
groupings consisting of three counties.
While we are conscious of the efforts of the litigants to interpret Stevenson I’s
requirements faithfully, after careful review of our opinions in Stephenson I and
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Opinion of the Court
Pender County, we are satisfied that defendants’ interpretation is correct.
Stephenson I’s fifth factor states that, when combining two or more counties to
comply with the one-person, one-vote standard, “the requirements of the WCP are
met by combining or grouping the minimum number of whole, contiguous counties
necessary” for compliance. 355 N.C. at 384, 562 S.E.2d at 397. Only after these
groupings have been established does Stephenson I state that “the resulting interior
county lines . . . may be crossed or traversed . . . only to the extent necessary to
comply with the . . . ‘one-person, one-vote’ standard.” Id. Thus, the process
established by this Court in Stephenson I and its progeny requires that, in
establishing legislative districts, the General Assembly first must create all
necessary VRA districts, single-county districts, and single counties containing
multiple districts. Thereafter, the General Assembly should make every effort to
ensure that the maximum number of groupings containing two whole, contiguous
counties are established before resorting to groupings containing three whole,
contiguous counties, and so on. As shown by the charts provided by defendants,
plaintiffs have not produced an alternative plan that better complies with a correct
reading of Stephenson I’s fifth and sixth factors than the plans enacted by the
General Assembly. Because the enacted plans result in groupings containing fewer
whole, contiguous counties than do any of plaintiffs’ plans, we need not discuss the
number of counties divided or county lines traversed.
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In addition, the maps that plaintiffs employ to support their arguments
regarding the Whole County Provision are not helpful because they are premised
upon a flawed understanding of our holding in Pender County. In that case, we held
that the first Gingles precondition can be shown only where the minority population
is fifty percent plus one of the Total Black Voting Age Population. Pender Cnty.,
361 N.C. at 502, 649 S.E.2d at 371 (The “minority group must constitute a
numerical majority of the voting population in the area under consideration before
Section 2 of the VRA requires the creation of a legislative district to prevent dilution
of the votes of that minority group.”). Here, as did the plaintiffs in Pender County,
see id. at 502-03, 649 S.E.2d at 371-72, plaintiffs argue that we should adopt a
standard that allows VRA requirements to be satisfied by other forms of minority
districts, such as coalition and crossover districts. Not only is plaintiffs’ argument
inconsistent with our holding in Pender County, this flawed approach adversely
affects the first step of the process required by Stephenson I, the formation of VRA
districts. As a result, plaintiffs’ maps are distorted ab initio and the distortion is
compounded at each subsequent step. Consequently, even if plaintiffs’ proposed
alternative plans were comparable to the enacted plans in terms of the number and
composition of county groupings, their incompatibility with Pender County means
that they cannot serve as an adequate basis for comparison with the enacted plans.
Plaintiffs have also compared the General Assembly’s enacted plans with
earlier redistricting plans approved in North Carolina. However, those plans were
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Opinion of the Court
tailored to a particular time and were based upon then-existing census numbers
and population concentrations. The requirement that the State maintain its one-
person, one-vote standard as populations shift makes comparisons between current
and previous districting plans of limited value. The utility of prior plans is further
diminished by subsequent clarifications of the legal standards in effect when these
earlier plans were promulgated. See, e.g., Pender Cnty., 361 N.C. at 503-04, 649
S.E.2d at 372 (explaining the requirements of the first Gingles precondition). As a
result, no meaningful comparisons can be made in this case.
Separately, plaintiffs argue that this Court should consider the purported
lack of compactness of the districts created by the General Assembly and the harm
resulting from splitting precincts. While these are valid considerations and may be
evidence of other legal infirmities, neither constitutes an independent legal basis for
finding a violation, and we are unaware of any justiciable standard by which to
measure these factors.
Finally, plaintiffs argue that the enacted plans violate the “Good of the
Whole” clause found in Article I, Section 2 of the Constitution of North Carolina.
We do not doubt that plaintiffs’ proffered maps represent their good faith
understanding of a plan that they believe best for our State as a whole. However,
the maps enacted by the duly elected General Assembly also represent an equally
legitimate understanding of legislative districts that will function for the good of the
whole. Because plaintiffs’ argument is not based upon a justiciable standard, and
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because acts of the General Assembly enjoy “a strong presumption of
constitutionality,” Pope v. Easley, 354 N.C. 544, 546, 556 S.E.2d 265, 267 (2001) (per
curiam) (citation omitted), plaintiffs’ claims fail.
We agree with the unanimous three-judge panel that the General Assembly’s
enacted plans do not violate plaintiffs’ constitutional rights. We hold that the
enacted House and Senate plans satisfy state and federal constitutional and
statutory requirements. Accordingly, we affirm the trial court.
AFFIRMED.
Justice HUNTER did not participate in the consideration or decision of this
case.
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Justice BEASLEY concurring in part and dissenting in part.
I agree with the majority’s holding with respect to plaintiffs’ challenge under
the “Good of the Whole” Clause in Article I, Section 2 of the Constitution of North
Carolina. Nonetheless, because the twenty-six VRA districts at issue and two of the
four non-VRA districts were created in direct contradiction to federal and state
provisions, this Court should vacate the trial court’s judgment and remand the
matter to the lower court for proper findings of fact and conclusions of law. I
therefore respectfully dissent. Furthermore, there are several points of error, any of
which would warrant vacating and remanding. With respect to the VRA districts,
the record supports the trial court’s conclusions that the VRA districts were drawn
with race as the predominant motive and that strict scrutiny applies. Contrary to
the conclusions reached by the trial court and the majority, however, these districts
fail strict scrutiny. With respect to the non-VRA districts, the trial court’s findings
do not support its conclusions that race was not the predominant motive for the
drafting of Senate District 32 and Congressional District 12. Because the shape and
composition of invalid districts necessarily affect other districts, the redistricting
plan at issue violates the Whole County Provisions set forth in Article II, Sections
3(3) and 5(3) of the Constitution of North Carolina.
I.
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
Though this honorable Court wishes to achieve finality in this appeal, the
citizens of this state would be better served by this Court if we held our usual
course and vacated and remanded the case to the trial court for proper findings of
fact and conclusions of law based upon a correct interpretation of the law. I
disagree with the majority’s assertion that doing so “would achieve nothing but
delay” because “the panel has already conducted its analysis under th[e] [strict
scrutiny] standard.” In its analysis the trial court incorrectly stated and applied the
standard. At a minimum, proper findings, once made, would better illuminate
defendants’ actions in view of the appropriate constitutional tests and would
provide a better basis for proper review by this Court, potential consideration by the
Supreme Court of the United States, and assessment by the citizens of North
Carolina of our General Assembly’s actions and this Court’s decision.
In reaching its conclusions, the trial court misapplied precedent from this
Court and the Supreme Court of the United States. The majority compounds the
error by ignoring altogether the trial court’s explicit findings of fact and by too
generously characterizing the General Assembly’s enacted plan. The majority’s
departure from this Court’s usual course of adherence to our settled principles of
appellate review could create a stain of suspicion among the citizens of the state
regarding the actions of their elected officials and bodies of government—both
legislative and judicial. See, e.g., State v. Carter, 322 N.C. 709, 722, 370 S.E.2d 553,
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DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
560 (1988) (“[W]e regard the crucial matter of the integrity of the judiciary . . . to be
[a] paramount consideration[ ].”).
II.
Contrary to the majority’s opinion, the trial court correctly concluded that
strict scrutiny applies; however, the trial court incorrectly articulated the standard
and therefore improperly applied its findings of fact to the standard. Of particular
concern is the trial court’s finding that the General Assembly’s use of “rough
proportionality” as a redistricting “benchmark” survives strict scrutiny. This
misstep is fatal to the VRA districts and consequently affects the legitimacy of non-
VRA districts drawn in view of the Whole County Provisions. Although this Court
should vacate and remand for reconsideration in light of correct principles, the
majority attempts to cure the trial court’s errors and prematurely affirm an
incomplete and incorrect judgment. As stated above, it would be impractical to
vacate and remand piecemeal because the invalidity of at least one House, Senate,
or Congressional district would necessarily compromise the shape and composition
of the remaining districts in the affected group or groups.
A.
It is well established that “all laws that classify citizens on the basis of race,
including racially gerrymandered districting schemes, are constitutionally suspect
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DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
and must be strictly scrutinized.” Hunt v. Cromartie, 526 U.S. 541, 546, 119 S. Ct.
1545, 1548-49, 143 L. Ed. 2d 731, 737-38 (1999) (“Cromartie I”) (citations omitted).
“This is true whether or not the reason for the racial classification is benign or the
purpose remedial.” Shaw v. Hunt, 517 U.S. 899, 904-05, 116 S. Ct. 1894, 1900, 135
L. Ed. 2d 207, 218 (1996) (“Shaw II”) (citations omitted). Yet, “[a]pplying
traditional equal protection principles in the voting-rights context is ‘a most delicate
task’ . . . because a legislature may be conscious of the voters’ races without using
race as a basis for assigning voters to districts.” Id. at 905, 116 S. Ct. at 1900, 135
L. Ed. 2d at 218 (quoting Miller v. Johnson, 515 U.S. 900, 905, 115 S. Ct. 2475,
2483, 132 L. Ed. 2d 762, 772 (1995)). Only “when race becomes the ‘dominant and
controlling’ consideration” is the right to equal protection jeopardized. Id. (quoting
Miller, 515 U.S. at 913, 115 S. Ct. at 2486, 132 L. Ed. 2d at 777).
The burden to make this showing falls to the plaintiff:
The plaintiff’s burden is to show, either through
circumstantial evidence of a district’s shape and
demographics or more direct evidence going to legislative
purpose, that race was the predominant factor motivating
the legislature’s decision to place a significant number of
voters within or without a particular district. To make
this showing, a plaintiff must prove that the legislature
subordinated traditional race-neutral districting
principles, including but not limited to compactness,
contiguity, and respect for political subdivisions or
communities defined by actual shared interests, to racial
considerations.
Miller, 515 U.S. at 916, 115 S. Ct. at 2488, 132 L. Ed. 2d at 779-80.
-4-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
If the plaintiff satisfies this initial burden of production, the redistricting
legislation “cannot be upheld unless it satisfies strict scrutiny, [the] most rigorous
and exacting standard of constitutional review.”9 Id. at 920, 115 S. Ct. at 2490, 132
L. Ed. 2d at 782. Once strict scrutiny review is triggered, the burden shifts to the
State to “show not only that its redistricting plan was in pursuit of a compelling
state interest, but also that ‘its districting legislation is narrowly tailored to achieve
[that] compelling interest.’ ” Shaw II, 517 U.S. at 908, 116 S. Ct. at 1902, 135 L. Ed.
2d at 220-21 (alteration in original) (quoting Miller, 515 U.S. at 920, 115 S. Ct. at
2490, 132 L. Ed. 2d at 782).
Here, while acknowledging the fact-intensive nature of the examination into
whether race was the predominant factor motivating the legislature’s redistricting
decision, the trial court believed that it was “able to by-pass this factual inquiry” for
the twenty-six VRA districts:
The Plaintiffs collectively challenge as racial
gerrymanders 9 Senate, 18 House and 3 U.S.
Congressional districts created by the General Assembly
in the Enacted Plans. Of those 30 challenged districts, it
is undisputed that the General Assembly intended to
create 26 of the challenged districts to be “Voting Rights
Act districts” [hereinafter “VRA districts”] and that it set
9 “If, however, [the] plaintiff[ ] cannot show that race was the ‘predominant factor’ to
which traditional districting principles were ‘subordinated,’ and thus cannot meet the
threshold for triggering strict scrutiny, it follows that the facially neutral classification (the
electoral district) will be subject, at most, to rational basis review.” Quilter v. Voinovich,
981 F. Supp. 1032, 1050 (N.D. Ohio 1997) (citing Miller, 515 U.S. at 915-16, 115 S. Ct. at
2488, 132 L. Ed. 2d at 779-80), aff’d, 523 U.S. 1043, 118 S. Ct. 1358, 140 L. Ed. 2d 508
(1998).
-5-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
about to draw each of these VRA districts so as to include
at least 50% Total Black Voting Age Population
[hereinafter “TBVAP”]. Moreover, the General Assembly
acknowledges that it intended to create as many VRA
districts as needed to achieve a “roughly proportionate”
number of Senate, House and Congressional districts as
compared to the Black population in North Carolina. To
draw districts based upon these criteria necessarily
requires the drafters of districts to classify residents by
race so as to include a sufficient number of black voters
inside such districts, and consequently exclude white
voters from the districts, in an effort to achieve a desired
racial composition of >50% TBVAP and the desired “rough
proportionality.” This is a racial classification.
(footnote call numbers omitted). Accordingly, the trial court “conclude[d] . . . that in
drawing [the] VRA districts . . . [,] the shape, location and racial composition of each
VRA district was predominantly determined by a racial objective and was the result
of a racial classification sufficient to trigger the application of strict scrutiny as a
matter of law.”
The majority explains that
[b]ecause of the trial court’s truncated findings of fact [as
to whether race was “the General Assembly’s
predominant motivation in forming the twenty-six VRA
districts”], we do not know which other factors may have
influenced the creation and shape of these twenty-six
districts and the extent of any such influence. As a result,
we do not know whether race fairly can be described as
the predominant factor in the formation of these districts
and whether, in turn, strict scrutiny was the appropriate
standard of review.
-6-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
The majority then analyzes the case as if strict scrutiny applies. This Court should
remand for the trial court to clarify the full basis for its conclusion that plaintiffs
have met their burden to show that race was the predominant factor. The record
provides substantial evidence and the Supreme Court of the United States provides
clear guidance on this point. Furthermore, as discussed below, the trial court’s
subsequent findings with regard to proportionality inescapably lead to the
conclusion that race was the predominant factor, thereby requiring strict scrutiny.
Plaintiffs and amici point to evidence showing that State Senator Robert
Rucho and State Representative David Lewis, the respective chairs of the Senate
and House Redistricting Committees, instructed Dr. Thomas Hofeller, the “chief
architect” of the redistricting plans, to draw the plans to provide “substantial
proportional[ity]” between the percentage of the state’s population that is Black and
the percentage of districts that would be majority Black. Dr. Hofeller was also told
to “draw a 50% plus one district wherever in the state there is a sufficiently compact
black population” to do so. The public statements released by Senator Rucho and
Representative Lewis also reflect these legislative goals, saying that, in order to
comply with VRA section 2, the VRA districts are designed to provide Black voters
with “substantial proportionality” and “must be established with a BVAP of 50%
plus one.” As stated particularly well by the amici election law professors, this
“undisputed, direct evidence” demonstrates the legislature’s intent to “creat[e] a
certain number of majority-minority districts and then pack[ ] the maximum
-7-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
number of black voters possible into the districts.”10 This evidence and the
arguments advanced by plaintiffs and amici underscore the trial court’s error in
“by-pass[ing] [its] factual inquiry.”
The Supreme Court of the United States has found similar evidence to be
sufficient to trigger strict scrutiny of the redistricting plans. See, e.g., Bush v. Vera,
517 U.S. 952, 958-59, 116 S. Ct. 1941, 1951-52, 135 L. Ed. 2d 248, 257 (1996)
(plurality) (explaining that strict scrutiny applies when race is “the predominant
factor” in a legislature’s redistricting plan) (citation, emphasis, and quotation marks
omitted); Id. at 1002, 116 S. Ct. at 1974, 135 L. Ed. 2d at 286 (Thomas & Scalia, JJ.,
concurring in the judgment) (explaining that Texas’s admission that “it
intentionally created majority-minority districts” to comply with the VRA was
“enough to require application of strict scrutiny in this suit”); Shaw II, 517 U.S. at
906, 116 S. Ct. at 1901, 135 L. Ed. 2d at 219 (applying strict scrutiny after “fail[ing]
to see how” a court could “reach[ ] any conclusion other than that race was the
predominant factor in” the General Assembly’s drawing of redistricting lines when
10 “Packing” is one means of diluting minority voting strength. For example, “[a]
minority group . . . might have sufficient numbers to constitute a majority in three districts.
So apportioned, the group inevitably will elect three candidates of its choice, assuming the
group is sufficiently cohesive. But if the group is packed into two districts in which it
constitutes a super-majority, it will be assured only two candidates.” Voinovich v. Quilter,
507 U.S. 146, 153-54, 113 S. Ct. 1149, 1155, 122 L. Ed. 2d 500, 511 (1993). In contrast to
packing, minority voting strength may also be diluted by what is known as “cracking”: “A
politically cohesive minority group that is large enough to constitute the majority in a
single-member district has a good chance of electing its candidate of choice, if the group is
placed in a district where it constitutes a majority. Dividing the minority group among
various districts so that it is a majority in none may prevent the group from electing its
candidate of choice . . . .” Id. at 153, 113 S. Ct. at 1155, 122 L. Ed. 2d at 511.
-8-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
the State admitted that its “overriding” purpose was to obtain preclearance from
DOJ (citation, emphasis, and quotation marks omitted)); Miller, 515 U.S. at 919,
115 S. Ct. at 2490, 132 L. Ed. 2d at 781 (concluding that Georgia’s express desire to
obtain preclearance was “powerful evidence that the legislature subordinated
traditional districting principles to race when it ultimately enacted a plan creating
three majority-black districts” and thus strict scrutiny applied). Accordingly, in
view of Vera, Shaw II, and Miller, the trial court in this case correctly concluded
that strict scrutiny is the appropriate level of review to apply to the enacted plans.
Nonetheless, the trial court improperly applied the standard. In its decision
the trial court states that if plaintiffs meet the threshold burden of establishing that
“race was the overriding consideration behind a redistricting plan,”
the state then has the burden of “producing evidence that
the plan’s use of race is narrowly tailored to further a
compelling state interest, and the plaintiffs bear the
ultimate burden of persuading the court either that the
proffered justification is not compelling or that the plan is
not narrowly tailored to further it.” Shaw v. Hunt, 861 F.
Supp. 408, 436 (E.D. N.C. 1994).
In support of this proposition, the trial court quotes the district court’s decision in
Shaw II. In Shaw II, however, the Supreme Court of the United States reversed
the trial court and, in doing so, held that under strict scrutiny, “North Carolina . . .
must show not only that its redistricting plan was in pursuit of a compelling state
interest, but also that ‘its districting legislation is narrowly tailored to achieve
-9-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
[that] compelling interest.’ ” 517 U.S. at 908, 116 S. Ct. at 1902, 135 L. Ed. 2d at
220-21 (alteration in original) (emphasis added) (quoting Miller, 515 U.S. at 920,
115 S. Ct. at 2490, 132 L. Ed. 2d at 782). This language from Shaw II clearly places
the burden of proof on the State once strict scrutiny is triggered.
This conclusion is bolstered by the Supreme Court’s earlier statement in
Miller that, “[t]o satisfy strict scrutiny, the State must demonstrate that its
districting legislation is narrowly tailored to achieve a compelling interest.” 515
U.S. at 920, 115 S. Ct. at 2490, 132 L. Ed. 2d at 782 (emphasis added) (citations
omitted). More recently, in the affirmative action context, the Supreme Court has
been more explicit on this point: Under strict scrutiny, “it remains at all times the
[government]’s obligation to demonstrate, and the Judiciary’s obligation to
determine” that the challenged action is narrowly tailored to achieve a compelling
governmental interest. Fisher v. Univ. of Tex. at Austin, ___ U.S. ___, ___, 133 S.
Ct. 2411, 2420, 186 L. Ed. 2d 474, 486-87 (2013) (emphasis added).
Here the trial court attempted to distinguish Fisher on the ground that the
General Assembly is entitled to some degree of deference given that redistricting is
“an inherently political process.” The Supreme Court, however, has declined to
defer to political decision makers and apply something less than strict scrutiny to
race-based classifications:
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DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
But we have refused to defer to state officials’ judgments
on race in . . . areas where those officials traditionally
exercise substantial discretion. For example . . . . in the
redistricting context, despite the traditional deference
given to States when they design their electoral districts,
we have subjected redistricting plans to strict scrutiny
when States draw district lines based predominantly on
race.
Johnson v. California, 543 U.S. 499, 512, 125 S. Ct. 1141, 1150, 160 L. Ed. 2d 949,
962-63 (2005) (citations omitted); accord Parents Involved in Cmty. Schs. v. Seattle
Sch. Dist. No. 1, 551 U.S. 701, 744, 127 S. Ct. 2738, 2766, 168 L. Ed. 2d 508, 539
(2007) (plurality) (explaining that “deference is fundamentally at odds with our
equal protection jurisprudence” and that courts “put the burden on state actors to
demonstrate that their race-based policies are justified” (citations and quotation
marks omitted)). Moreover, to whatever extent the legislature may be entitled to
deference, that “limited degree of leeway in furthering [its] interests” in complying
with the VRA relates to whether the State has met its burden of establishing “the
‘narrow tailoring’ requirement of strict scrutiny.” Vera, 517 U.S. at 977, 116 S. Ct.
at 1960, 135 L. Ed. 2d at 268 (plurality). Nonetheless, the State is not relieved of
“the burden to prove ‘that the reasons for any [racial] classification [are] clearly
identified and unquestionably legitimate.’ ” Fisher, ___ U.S. at ___, 133 S. Ct. at
2419, 186 L. Ed. 2d at 485 (alterations in original) (emphasis added) (quoting City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 505, 109 S. Ct. 706, 728, 102 L. Ed. 2d
854, 889 (1989)).
-11-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
Thus, the trial court’s misunderstanding and misapplication of the strict
scrutiny analytical framework should warrant this Court’s vacating the trial court’s
decision and remanding for reconsideration in light of correct principles. See id. at
___, 133 S. Ct. at 2421, 186 L. Ed. 2d at 488 (remanding after determining that the
trial court and court of appeals misapplied strict scrutiny standard to enable
challenged admissions policy to “be considered and judged under a correct
analysis”). Failure to apply properly the operative constitutional test is, in itself, a
sufficient basis for overturning the trial court’s decision. See id.
B.
I turn next to address the invalidity of the twenty-six VRA districts. In view
of the appropriate strict scrutiny standard, assuming that the state had a
compelling interest in avoiding liability under VRA section 2 and obtaining
preclearance under VRA section 5,11 and assuming that the factors set forth in
Thornburg v. Gingles are met, the trial court’s findings with respect to
proportionality do not support its ultimate conclusion that the redistricting plans
pass strict scrutiny. Therefore, this Court should vacate and remand regarding the
twenty-six VRA districts.
11 The United States Supreme Court has repeatedly assumed without deciding that
compliance with the VRA can be a compelling state interest in the strict scrutiny context,
but the Court has not expressly decided the issue. See Shaw II, 517 U.S. at 915, 116 S. Ct.
at 1905, 135 L. Ed. 2d at 225 (“We assume, arguendo, for the purpose of resolving this suit,
that compliance with § 2 could be a compelling interest . . . .”); Miller, 515 U.S. at 921, 115
S. Ct. at 2490-91, 132 L. Ed. 2d at 782 (assuming that satisfying “the Justice Department’s
preclearance demands” can be a compelling interest).
-12-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
In Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986),
the Supreme Court set forth three “necessary preconditions” for a vote-dilution
claim brought under VRA section 2: the minority group must be able to
demonstrate that (1) it is “sufficiently large and geographically compact to
constitute a majority in a single-member district”; (2) it is “politically cohesive”; and
(3) the majority votes “sufficiently as a bloc to enable it . . . usually to defeat the
minority’s preferred candidate.” Id. at 50-51, 106 S. Ct. at 2766-67, 92 L. Ed. 2d at
46-47 (citations omitted). “In a § 2 case, only when a party has established the
Gingles requirements does a court proceed to analyze whether a violation has
occurred based on the totality of the circumstances.” Bartlett v. Strickland, 556
U.S. 1, 11-12, 129 S. Ct. 1231, 1241, 173 L. Ed. 2d 173, 182 (2009) (plurality)
(citations omitted). “While . . . proportionality is not dispositive in a [districting
challenge], it is a relevant fact in the totality of circumstances to be analyzed . . . .”
Johnson v. De Grandy, 512 U.S. 997, 1000, 114 S. Ct. 2647, 2651, 129 L. Ed. 2d 775,
784 (1994).
Here, in considering whether the General Assembly’s plan was narrowly
tailored, the trial court reviewed, inter alia, defendants’ Memorandum of Law in
Support of their Motion for Summary Judgment. Defendants’ Memorandum states:
[d]efendants freely admit three principles followed by
them in drawing the enacted legislative plans:
....
-13-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
3. that the General Assembly would explore the
possibility of establishing a sufficient number of VRA
legislative districts to provide African-American voters
with rough proportionality in the number of VRA
districts in which they have reasonable opportunity to
elect their candidates of choice.
Defendants further state that they “increased the number of VRA districts to
provide African American voters with rough proportionality in the number of
districts in which they can elect candidates of choice.”
After reviewing defendants’ Memorandum and other materials, the trial
court entered its judgment explaining the General Assembly’s use of proportionality
in redrawing its district plans as follows:
The undisputed evidence establishes that the
General Assembly, in drafting the Enacted Plans,
endeavored to create VRA districts in roughly the same
proportion as the ratio of Black population to total
population in North Carolina. In other words, because
the 2010 census figures established that 21% of North
Carolina’s population over 18 years of age was “any part
Black,” the corresponding rough proportion of Senate
seats, out of 50 seats, would be 10 seats, and hence 10
VRA Senate districts. Likewise, of the 120 House seats,
21% of those seats would be roughly 25 House seats, and
hence 25 VRA districts.
The General Assembly, in using “rough
proportionality” as a benchmark for the number of VRA
districts it created in the Enacted Plans, relies upon
Supreme Court precedent that favorably endorses “rough
proportionality” as a means by which a redistricting plan
can provide minority voters with an equal opportunity to
elect candidates of choice. League of United Latin Am.
Citizens v. Perry, 548 U.S. 399, 429-30 (2006) [hereinafter
LULAC]; Shaw II, 517 U.S. at 916 n.8; De Grandy, 512
-14-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
U.S. at 1000. In De Grandy, the Supreme Court said that
“no violation of § 2 can be found . . . , where, in spite of
continuing discrimination and racial bloc voting, minority
voters form effective voting majorities in a number of
districts roughly proportional to the minority voters’
respective shares in the voting-age population.” 512 U.S.
at 1013-1015. Where a State’s election districts reflect
substantial proportionality between majority and
minority populations, the Supreme Court explained, such
districts would “thwart the historical tendency to exclude
[the minority population], not encourage or perpetuate it.”
Id. at 1014. It is reasonable for the General Assembly to
rely upon this unequivocal holding of the Supreme Court
in drafting a plan to avoid § 2 liability. When the
Supreme Court says “no violation of § 2 can be found”
under certain circumstances, prudence dictates that the
General Assembly should be given the leeway to seek to
emulate those circumstances in its Enacted Plans.
(ellipsis in original) (emphases added) (footnote call number omitted). The trial
court concluded that achieving rough proportionality was “not inconsistent with the
General Assembly’s obligation to narrowly tailor the plans under strict scrutiny.”
Although the trial court correctly cited the holding in De Grandy, the case does not
support the trial court’s conclusion.
In De Grandy the Florida legislature drew majority-minority districts roughly
proportionate in number to the minorities’ share of the total Florida population.
While the Supreme Court held that such redistricting did not violate VRA section 2,
the Court explicitly rejected the state’s proposed rule that “rough proportionality”
would always immunize the state from VRA section 2 liability, stating:
-15-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
[W]e reject the safe harbor rule because of . . . a tendency
to promote and perpetuate efforts to devise majority-
minority districts even in circumstances where they may
not be necessary to achieve equal political and electoral
opportunity. Because in its simplest form the State’s rule
would shield from § 2 challenge a districting scheme in
which the number of majority-minority districts reflected
the minority’s share of the relevant population, the
conclusiveness of the rule might be an irresistible
inducement to create such districts. It bears recalling,
however, that for all the virtues of majority-minority
districts as remedial devices, they rely on a
quintessentially race-conscious calculus aptly described as
the “politics of second best.”
Id. at 1019-20, 114 S. Ct. at 2661, 129 L. Ed. 2d at 796 (citation omitted); see also id.
at 1025, 114 S. Ct. at 2664, 129 L. Ed. 2d at 799 (O’Connor, J., concurring)
(Proportionality, while “always relevant,” is “never itself dispositive.”). Further,
“the most blatant racial gerrymandering in half of a county’s single-member
districts would be irrelevant under § 2 if offset by political gerrymandering in the
other half, so long as proportionality was the bottom line.” Id. at 1019, 114 S. Ct. at
2661, 129 L. Ed. 2d at 796 (majority) (citations omitted). Thus, the Supreme Court
admonished that an “inflexible rule” permitting the use of rough proportionality as
a safe harbor “would run counter to the textual command of § 2, that the presence
or absence of a violation be assessed ‘based on the totality of circumstances.’ The
need for such ‘totality’ review springs from the demonstrated ingenuity of state and
local governments in hobbling minority voting power . . . .” Id. at 1018, 114 S. Ct. at
2660, 129 L. Ed. 2d at 795 (citations omitted).
-16-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
A state legislature is thus required to determine whether each majority-
minority district is reasonably necessary to afford minorities equal political and
electoral opportunity. See League of United Latin Am. Citizens v. Perry, 548 U.S.
399, 437, 126 S. Ct. 2594, 2620-21, 165 L. Ed. 2d 609, 643 (2006) (explaining that
“proportionality” may not “displace” the “intensely local appraisal” of each
challenged district (internal quotation marks omitted) (quoting Gingles, 478 U.S. at
79, 106 S. Ct. at 2781, 92 L. Ed. 2d at 65)). Here, however, defendants’ public
statements undermine their adherence to the applicable standards and demonstrate
the central role proportionality played in the 2011 redistricting plan. On 17 June
2011, defendants announced a public hearing on the matter, in which defendants
sought redistricting plans with a sufficient number of majority-minority districts to
provide substantial proportionality. Defendants recommended “that each plan
include a sufficient number of majority African American districts to provide North
Carolina’s African American citizens with a substantially proportional and equal
opportunity to elect their preferred candidate of choice.” Defendants explained that
“proportionality for the African American citizens in North Carolina means the
creation of 24 majority African American House districts and 10 majority Senate
districts. . . . Unlike the 2003 benchmark plans, the Chairs’ proposed 2011 plans
will provide substantial proportionality for North Carolina’s African American
citizens.”
-17-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
Notwithstanding, based on its misreading of De Grandy, the trial court cites
approvingly defendants’ use of proportionality as the “benchmark” for creating the
enacted plan—beginning with proportionality as the goal and then working
backwards to achieve that goal. Similarly, the trial court reasoned: “When the
Supreme Court says ‘no violation of § 2 can be found’ under certain circumstances,
prudence dictates that the General Assembly should be given the leeway to seek to
emulate those circumstances in its Enacted Plans.” (quoting De Grandy, 512 U.S.
at 1000, 114 S. Ct. at 2651, 129 L. Ed. 2d at 784). But this is precisely what the
Supreme Court rejected in De Grandy: proportionality is relevant as a means to an
end (compliance with the VRA), but it is not an end in itself and it does not—
contrary to the trial court’s reasoning—provide a safe harbor for redistricting plans
premised on race. The trial court’s misunderstanding of the applicable law
permeates its analysis of the narrow tailoring requirement and leads it incorrectly
to conclude that defendants’ use of proportionality as an end is constitutionally
permissible.
The majority states that “the trial court analyzed whether the legislature
used proportionality in the enacted plans improperly to ‘link[ ] the number of
majority-minority voting districts to minority members’ share of the relevant
population.’ ” (alteration in original) (citation omitted). After setting forth various
standards and principles, the majority summarily concludes that “the record here
demonstrates that the General Assembly did not use proportionality improperly to
-18-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
guarantee the number of majority-minority voting districts based on the minority
members’ share of the relevant population.” The majority is only able to draw this
conclusion by ignoring the trial court’s determination—based upon “the undisputed
evidence”—that the General Assembly used proportionality as a “benchmark.” The
majority’s conclusion becomes more confusing when the majority states, “We believe
that such an effort, seeking to guarantee proportional representation, proportional
success, or racial balancing, would run afoul of the Equal Protection Clause.” (citing
De Grandy, 512 U.S. at 1017-22, 114 S. Ct. at 2660-62, 129 L. Ed. 2d at 794-98). I
agree “that such an effort . . . would run afoul of the Equal Protection Clause,” and
it does here. In view of defendants’ public statements, defendants’ Memorandum of
Law to the trial court, the undisputed evidence before the trial court, and the trial
court’s unqualified finding that the legislature used proportionality as a
“benchmark” for its redistricting plans, the majority’s attempt to explain otherwise
is unconvincing and runs afoul of the United States Supreme Court’s warnings in
De Grandy.
By characterizing the General Assembly’s consideration of race as a
“prophylactic consideration” used “as a means of inoculating the redistricting plans
against potential legal challenges under section 2’s totality of the circumstances
test,” the majority compounds the trial court’s error and purports to establish the
use of race as a legislative safe harbor in derogation of the clear prohibition against
such use set forth by the Supreme Court of the United States. De Grandy, 512 U.S.
-19-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
at 1018-20, 114 S. Ct. at 2660-61, 129 L. Ed. 2d at 795-97. In light of these errors,
this Court should vacate the trial court’s order and remand the case for
reconsideration under a correct understanding of the law.
C.
With respect to the four non-VRA districts, plaintiffs challenge the trial
court’s determination that “race was not the predominant motive in the creation of”
Senate District 32 and Congressional District 12. “The legislature’s motivation is
itself a factual question,” Cromartie I, 526 U.S. at 549, 119 S. Ct. at 1550,143 L. Ed.
2d at 740, and a trial court’s findings resolving factual issues in a nonjury trial are
binding on appeal “if there is competent evidence to support them, even though the
evidence could be viewed as supporting a different finding,” Stephenson v. Bartlett,
357 N.C. 301, 309, 582 S.E.2d 247, 252 (2003) (“Stephenson II”) (citation and
quotation marks omitted).
i.
Looking first at Senate District 32, plaintiffs contend that the trial court’s
findings actually undermine its conclusion that strict scrutiny does not apply
because the districts are not race-based. The trial court found the following
relevant facts:
204. As was true under the 2000 Census, under
the 2010 Census there is insufficient TBVAP in Forsyth
-20-
DICKSON V. RUCHO
Beasley, J., concurring in part and dissenting in part
County to draw a majority-TBVAP Senate district in
Forsyth County. However, because of concerns regarding
the State’s potential liability under § 2 and § 5, Dr.
Hofeller was instructed by the redistricting chairs to base
the 2011 Senate District 32 on the 2003 versions of
Senate District 32.
....
207. The first version of Senate District 32 that
was released by the General Assembly had a TBVAP of
39.32%. Subsequently, the SCSJ plan was released. Its
version of District 32 was located in a three-county and
three-district group (Forsyth, Davie, Davidson). The
SCSJ District 32 had a TBVAP of 41.95%. The SCSJ
District 32 was a majority-minority coalition district with
a non-Hispanic white population of 43.18%.
208. The redistricting chairs were concerned that
any failure to match the TBVAP % found in the SCSJ
District 32 could potentially subject the state to liability
under § 2 or § 5 of the VRA. Therefore, Dr. Hofeller was
instructed by the Redistricting Chairs to re-draw the
State’s version of Senate District 32 so that it would at
least equal the SCSJ version in terms of TBVAP.
As discussed above, the Supreme Court of the United States has held that when
redistricting plans drawn in an attempt to preempt VRA section 2 litigation or
obtain VRA section 5 preclearance are predominantly race-based, such plans attract
strict scrutiny. See Vera, 517 U.S. at 959, 116 S. Ct. at 1951-52, 135 L. Ed. 2d at
257; Shaw II, 517 U.S. at 906-07, 116 S. Ct. at 1901, 135 L. Ed. 2d at 219-20; Miller,
515 U.S. at 920, 115 S. Ct. at 2490, 132 L. Ed. 2d at 782.
The trial court acknowledged that compliance with the VRA was a motivating
factor behind the enacted plans, but concluded that “comply[ing] with the Whole
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Beasley, J., concurring in part and dissenting in part
County Provision, . . . equaliz[ing] population among the districts, . . . protect[ing]
incumbents, and . . . satisfy[ing] the General Assembly’s desire to enact
redistricting plans that were more competitive for Republican candidates” were
“equally dominant legislative motivations.” Notwithstanding, in the section of its
fact-finding order addressing Senate District 32, the trial court made no findings
regarding these other considerations. While the evidence might support such a
conclusion, the trial court’s actual findings do not. Accordingly, this Court should
vacate and remand on the issue of whether race was the predominant motivation
behind the shape, location, and composition of Senate District 32.
ii.
With respect to Congressional District 12, the trial court’s findings belie a
fundamental problem with redistricting, particularly in North Carolina, the
importance of which cannot be overstated. In Easley v. Cromartie, 532 U.S. 234,
121 S. Ct. 1452, 149 L. Ed. 2d 430 (2001), the Supreme Court of the United States
observed that “racial identification correlates highly with political affiliation” in
North Carolina. Id. at 258, 121 S. Ct. at 1466, 149 L. Ed. 2d at 453. As such, the
plaintiffs in that case “ha[d] not successfully shown that race, rather than politics,
predominantly account[ed] for” the shape, location, and composition of the 1997
version of Congressional District 12. Id. at 257, 121 S. Ct. at 1466, 149 L. Ed. 2d at
453. Because race and politics historically have been and currently remain
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Beasley, J., concurring in part and dissenting in part
intertwined in North Carolina, I cannot escape my conviction that politics are a
pretext for this excruciatingly contorted race-based district. Therefore, the trial
court incorrectly concluded that “the shape, location and composition of [this
district] . . . included equally dominant legislative motivations . . . to protect
incumbents[ ] and to . . . enact redistricting plans that were more competitive for
Republican candidates.” To allow this serpentine district, which follows the I-85
corridor between Mecklenburg and Guilford Counties, to be drafted for political
advantage is a proxy for racial disenfranchisement and effectively creates a “magic
words” threshold. Upholding this district’s tortured construction creates an
incentive for legislators to stay “on script” and avoid mentioning race on the record,
and in this instance, it is disingenuous to suggest that race is not the predominant
factor. As such, this Court should vacate and remand as to Congressional District
12.
iii.
With respect to House District 54 and Congressional District 4, the trial court
also found that race was not the predominant motivating factor. Plaintiffs do not
contest these determinations, and they are binding on appeal. Koufman v.
Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). As stated above, however,
because the shapes and compositions of the four non-VRA districts are necessarily
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Beasley, J., concurring in part and dissenting in part
affected by the VRA districts, it would be impossible to vacate and remand
piecemeal.
D.
With respect to the Whole-County Provisions (“WCP”), plaintiffs contend that
the trial court erred in concluding that the enacted house and senate plans do not
violate the provisions of the state constitution, which dictate that “[n]o county shall
be divided in the formation of a senate district,” N.C. Const. art. II, § 3(3), and “[n]o
county shall be divided in the formation of a representative district,” id. art. II, §
5(3). In Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002) (“Stephenson
I”), this Court construed the WCP in light of federal law and “mandated that in
creating legislative districts, counties shall not be divided except to the extent
necessary to comply with federal law, including the ‘one-person, one-vote’ principle
and the VRA.” Stephenson II, 357 N.C. at 309, 582 S.E.2d at 251-52 (citing
Stephenson I, 355 N.C. at 363-64, 562 S.E.2d at 384-85). To ensure complete
compliance with federal law and to provide maximum enforcement of the WCP, this
Court “outlined in Stephenson I the following requirements that must be present in
any constitutionally valid redistricting plan:”
[1.] . . . [T]o ensure full compliance with federal
law, legislative districts required by the VRA shall be
formed prior to creation of non-VRA districts. . . . In the
formation of VRA districts within the revised redistricting
plans on remand, we likewise direct the trial court to
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Beasley, J., concurring in part and dissenting in part
ensure that VRA districts are formed consistent with
federal law and in a manner having no retrogressive
effect upon minority voters. To the maximum extent
practicable, such VRA districts shall also comply with the
legal requirements of the WCP, as herein established . . . .
[2.] In forming new legislative districts, any
deviation from the ideal population for a legislative
district shall be at or within plus or minus five percent for
purposes of compliance with federal “one-person, one-
vote” requirements.
[3.] In counties having a 2000 census population
sufficient to support the formation of one non-VRA
legislative district . . . , the WCP requires that the
physical boundaries of any such non-VRA legislative
district not cross or traverse the exterior geographic line
of any such county.
[4.] When two or more non-VRA legislative districts
may be created within a single county, . . . single-member
non-VRA districts shall be formed within said county.
Such non-VRA districts shall be compact and shall not
traverse the exterior geographic boundary of any such
county.
[5.] In counties having a non-VRA population pool
which cannot support at least one legislative district . . .
or, alternatively, counties having a non-VRA population
pool which, if divided into districts, would not comply with
the . . . “one-person, one-vote” standard, the requirements
of the WCP are met by combining or grouping the
minimum number of whole, contiguous counties necessary
to comply with the at or within plus or minus five percent
“one-person, one-vote” standard. Within any such
contiguous multi-county grouping, compact districts shall
be formed, consistent with the at or within plus or minus
five percent standard, whose boundary lines do not cross
or traverse the “exterior” line of the multi-county grouping;
provided, however, that the resulting interior county lines
created by any such groupings may be crossed or
traversed in the creation of districts within said multi-
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Beasley, J., concurring in part and dissenting in part
county grouping but only to the extent necessary to
comply with the at or within plus or minus five percent
“one-person, one-vote” standard.
[6.] The intent underlying the WCP must be
enforced to the maximum extent possible; thus, only the
smallest number of counties necessary to comply with the
at or within plus or minus five percent “one-person, one-
vote” standard shall be combined[.]
[7.] . . . [C]ommunities of interest should be
considered in the formation of compact and contiguous
electoral districts.
[8.] . . . [M]ulti-member districts shall not be used
in the formation of legislative districts unless it is
established that such districts are necessary to advance a
compelling governmental interest.
[9.] Finally, we direct that any new redistricting
plans, including any proposed on remand in this case,
shall depart from strict compliance with the legal
requirements set forth herein only to the extent necessary
to comply with federal law.
Stephenson II, 357 N.C. at 305-07, 582 S.E.2d at 250-51 (alterations in original)
(quotation marks omitted) (quoting Stephenson I, 355 N.C. at 383-84, 562 S.E.2d at
396-97 (emphasis added)).
In view of my analysis concerning plaintiffs’ equal protection claim, the WCP
issue also warrants remanding the case because the General Assembly, in
attempting to comply with Stephenson I’s Rule 1, drew the VRA districts before
applying Rules 2 through 9. Because I conclude that the VRA districts are
unconstitutional, this Court should instruct the General Assembly to redraft its
redistricting plans. The unconstitutional VRA districts would necessarily affect the
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Beasley, J., concurring in part and dissenting in part
result of the General Assembly’s application of the rubric set forth in Stephenson I.
See Pender Cnty. v. Bartlett, 361 N.C. 491, 508-09, 649 S.E.2d 364, 375 (2007)
(concluding that a house district, created with the intent to comply with VRA
section 2, was not required by the VRA and thus “must be drawn in accordance with
the WCP and the Stephenson I requirements”), aff’d sub nom. Bartlett v. Strickland,
556 U.S. 1, 129 S. Ct. 1231, 173 L. Ed. 2d 173 (2009). As such, I would vacate and
remand on this issue.
E.
Having carefully considered the precedent established by the Supreme Court
of the United States, the decisions of this Court, and the record on appeal, it is
important to recognize that race can be used as a factor fairly, but it equally
important to emphasize that race must not be used punitively. To this end, it is
important to be cognizant of race, not only in view of the historical record of our
state and our nation, but also taking into account modern realities and future
possibilities. It is for this reason that I note my concern with the majority’s
statement that “no meaningful comparisons can be made” with “earlier redistricting
plans approved in North Carolina” because “those plans were tailored to a
particular time and were based upon then-existing census numbers and population
concentrations.” Some comparisons may be of limited value, but increasingly
sophisticated data processing and modes of visual representation may provide
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Beasley, J., concurring in part and dissenting in part
helpful comparisons among past, present, and proposed districts in view of past and
present population concentrations. It would be a disservice to North Carolina’s
citizens and our courts if the majority’s statements are read to foreclose without
qualification any meaningful comparisons with earlier approved plans.
III.
As discussed above, the trial court erred by making incomplete findings of
fact and conclusions of law. Further, even using the findings as made by the trial
court, the court’s judgment discloses several serious misapplications of law, which
led the court to erroneous conclusions of law. There can be no serious debate that
strict scrutiny applies in view of the General Assembly’s use of race as a benchmark
for measuring the redistricting plan. The VRA districts are fatally defective in view
of the legislature’s use of racial proportionality as a safe harbor, and the invalidity
of these districts necessarily renders invalid the entire plan under settled federal
constitutional standards announced by the Supreme Court of the United States.
Similarly, the trial court’s findings regarding the non-VRA districts do not support
its conclusions. Furthermore, these impermissibly racially gerrymandered districts
fail under the Whole County Provision of the North Carolina Constitution. For any
of these errors, this Court would do well to vacate and remand rather than
prematurely affirm a defective and ultimately undemocratic districting plan.
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Beasley, J., concurring in part and dissenting in part
Accordingly, I concur in that part of the majority’s opinion regarding
plaintiffs’ remaining state claims related to the “Good of the Whole” Clause in
Article I, Section 2 of the Constitution of North Carolina, and respectfully dissent
from those parts of the opinion affirming the trial court’s erroneous judgment.
Justice HUDSON joins in this opinion.
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