North Carolina v. Covington , 201 L. Ed. 2d 993 ( 2018 )

Cite as: 585 U. S. ____ (2018) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
NORTH CAROLINA, ET AL., APPELLANTS v.
SANDRA LITTLE COVINGTON, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF NORTH CAROLINA
No. 17–1364. Decided June 28, 2018
PER CURIAM.
This appeal arises from a remedial redistricting order
entered by the District Court in a racial gerrymandering
case we have seen before. The case concerns the redis-
tricting of state legislative districts by the North Carolina
General Assembly in 2011, in response to the 2010 census.
A group of plaintiff voters, appellees here, alleged that the
General Assembly racially gerrymandered their districts
when—in an ostensible effort to comply with the require-
ments of the Voting Rights Act of 1965—it drew 28 State
Senate and State House of Representatives districts com-
prising majorities of black voters. The District Court
granted judgment to the plaintiffs, and we summarily
affirmed that judgment. See Covington v. North Carolina,
316 F. R. D. 117 (MDNC 2016), summarily aff ’d, 581 U. S.
___ (2017).
At the same time, however, we vacated the District
Court’s remedial order, which directed the General As-
sembly to adopt new districting maps, shortened by one
year the terms of the legislators currently serving in the
gerrymandered districts, called for special elections in
those districts, and suspended two provisions of the North
Carolina Constitution. See North Carolina v. Covington,
581 U. S. ___, ___ (2017) (per curiam) (slip op., at 1–2).
The District Court ordered all of this, we noted, after
undertaking only the “most cursory” review of the equita-
ble balance involved in court-ordered special elections.
Id., at ___ (slip op., at 3). Having found that the District
2 NORTH CAROLINA v. COVINGTON
Per Curiam
Court’s discretion “ ‘was barely exercised,’ ” we remanded
the case for further remedial proceedings. Ibid. (quoting
Winter v. Natural Resources Defense Council, Inc., 555
U. S. 7, 27 (2008)).
On remand, the District Court ordered the General
Assembly to draw remedial maps for the State House and
State Senate within a month, and to file those maps in the
District Court for approval. The General Assembly com-
plied after directing its map drawers to, among other
things, make “[r]easonable efforts . . . to avoid pairing
incumbent members of the House [and] Senate” and not to
use “[d]ata identifying the race of individuals or voters” in
the drawing of the new districts. 283 F. Supp. 3d 410,
417–418 (MDNC 2018) (per curiam). The plaintiffs filed
objections to the new maps. They argued that four legisla-
tive districts—Senate Districts 21 and 28 and House
Districts 21 and 57—still segregated voters on the basis of
race. The plaintiffs also objected to the General Assem-
bly’s decision to redraw five State House districts situated
in Wake and Mecklenburg Counties. They argued that
those five districts “did not violate the [U. S.] Constitution,
[and] did not abut a district violating the [U. S.] Constitu-
tion.” Id., at 443. Thus, they contended, the revision of
the borders of those districts constituted mid-decade redis-
tricting in violation of the North Carolina Constitution.
See Art. II, §5(4); Granville County Commr’s v. Ballard, 69
N. C. 18, 20–21 (1873).
After some consideration of these objections, the District
Court appointed a Special Master to redraw the lines of
the districts to which the plaintiffs objected, along with
any nonadjacent districts to the extent “necessary” to
comply with districting criteria specified by the District
Court. App. to Juris. Statement 106–107. Those criteria
included adherence to the “county groupings” used by the
legislature in its remedial plan and to North Carolina’s
“Whole County Provision as interpreted by the North
Cite as: 585 U. S. ____ (2018) 3
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Carolina Supreme Court.” Id., at 108. The District Court
further instructed the Special Master to make “reasonable
efforts to adhere to . . . state policy objectives” by creating
relatively compact districts and by avoiding split munici-
palities and precincts. Id., at 108–109. The District Court
also permitted the Special Master to “adjust district lines
to avoid pairing any incumbents who have not publicly
announced their intention not to run in 2018” and to
“consider data identifying the race of individuals or voters
to the extent necessary to ensure that his plan cures the
unconstitutional racial gerrymanders.” Id., at 109–111.
Upon receipt of the Special Master’s report, the District
Court sustained the plaintiffs’ objections and adopted the
Special Master’s recommended reconfiguration of the state
legislative maps. See 283 F. Supp. 3d, at 414. With re-
spect to Senate Districts 21 and 28 and House Districts 21
and 57, the District Court found that those districts, as
redrawn by the legislature, “retain[ed] the core shape” of
districts that it had earlier found to be unconstitutional.
Id., at 436; see id., at 439, 440, 441–442. The District
Court noted, for instance, that the legislature’s remedial
plan for Senate District 21 copied the prior plan’s
“horseshoe-shaped section of the city of Fayetteville,”
which “include[d] Fayetteville’s predominantly black
[voting districts] and blocks and exclude[d] Fayetteville’s
predominantly white [voting districts] and blocks.” Id., at
436. Although the defendants explained that the new
district was designed to “ ‘preserve the heart of Fayette-
ville,’ ” the District Court found that they had “fail[ed] to
provide any explanation or evidence as to why ‘preserving
the heart of Fayetteville’ required the exclusion of numer-
ous majority-white precincts in downtown Fayetteville
from the remedial district.” Ibid. (alterations omitted).
Likewise, the District Court found that the legislature’s
remedial version of Senate District 28, though it “encom-
passe[d] only a portion of [the city of] Greensboro,” never-
4 NORTH CAROLINA v. COVINGTON
Per Curiam
theless “encompasse[d] all of the majority black [voting
districts] within Greensboro,” while “exclud[ing] predomi-
nantly white sections of Greensboro,” and “reach[ing] out
of Greensboro’s city limits to capture predominantly
African-American areas in eastern Guilford County.” Id.,
at 438. By choosing to preserve the shape of the district’s
“ ‘anchor’ ” in eastern Greensboro, the District Court found,
the General Assembly had “ensured that the district
would retain a high [black voting age population], thereby
perpetuating the effects of the racial gerrymander.” Id., at
438–439.
The District Court made similar findings with respect to
the legislature’s remedial House Districts 21 and 57.
House District 21, it found, “(1) preserve[d] the core shape
of . . . the previously unconstitutional district, (2) in-
clude[d] all but one of the majority-black [voting districts]
in the two counties through which it [ran], (3) divide[d] a
municipality and precinct along racial lines, [and] (4) ha[d]
an irregular shape that corresponde[d] to the racial make-
up of the geographic area.” Id., at 439–440. In light of
this and other evidence, the District Court concluded that
House District 21 “continue[d] to be a racial gerrymander.”
Id., at 440. House District 57, the District Court found,
likewise inexplicably “divide[d] the city of Greensboro
along racial lines,” id., at 442, and otherwise preserved
features of the previously invalidated 2011 maps. The
District Court thus concluded that the General Assembly’s
remedial plans as to those districts were unconstitutional.
Ibid.
The District Court then sustained the plaintiffs’ remain-
ing objection that several House districts in Wake and
Mecklenburg Counties had been redrawn unnecessarily in
violation of the North Carolina Constitution’s prohibition
on mid-decade redistricting. See id., at 443 (citing Art. II,
§5(4)). The court reasoned that the prohibition “pre-
clude[d] the General Assembly from engaging in mid-
Cite as: 585 U. S. ____ (2018) 5
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decade redistricting” except to the extent “required by
federal law or a judicial order.” 283 F. Supp. 3d, at 443. It
noted further that, “[w]hen a court must draw remedial
districts itself, this means that a court may redraw only
those districts necessary to remedy the constitutional
violation,” ibid. (citing Upham v. Seamon, 456 U. S. 37,
40–41 (1982) (per curiam)), and that “Upham requires
that a federal district court’s remedial order not unneces-
sarily interfere with state redistricting choices,” 283
F. Supp. 3d, at 443. This remedial principle informed the
District Court’s conclusion that “the General Assembly
[had] exceeded its authority under [the District Court’s
remedial] order by disregarding the mid-decade redistrict-
ing prohibition,” since the legislature had failed to “put
forward any evidence showing that revising any of the five
Wake and Mecklenburg County House districts challenged
by Plaintiffs was necessary to remedy the racially gerry-
mandered districts in those two counties.” Id., at 444.
Finally, the District Court adopted the Special Master’s
recommended replacement plans for the districts to which
the plaintiffs had objected. In adopting those recommen-
dations, the District Court turned away the defendants’
argument that they were built on “specific . . . quota[s]” of
black voters in each reconstituted district. Id., at 448–
449. The District Court instead credited the Special Mas-
ter’s submission that his “ ‘remedial districts were drawn
not with any racial target in mind, but in order to maxim-
ize compactness, preserve precinct boundaries, and respect
political subdivision lines,’ ” and that the remedial map
was the product of “ ‘explicitly race-neutral criteria.’ ” Id.,
at 449. The District Court directed the defendants to
implement the Special Master’s recommended district
lines and to conduct elections accordingly.
The defendants applied to this Court for a stay of the
District Court’s order pending appeal. We granted a stay
with respect to implementation of the Special Master’s
6 NORTH CAROLINA v. COVINGTON
Per Curiam
remedial districts in Wake and Mecklenburg Counties, but
otherwise denied the application. See 583 U. S. ___
(2018). The defendants timely appealed directly to this
Court as provided under 28 U. S. C. §1253. We have
jurisdiction, and now summarily affirm in part and re-
verse in part the order of the District Court.
* * *
The defendants first argue that the District Court
lacked jurisdiction even to enter a remedial order in this
case. In their view, “[w]here, as here, a lawsuit challenges
the validity of a statute,” the case becomes moot “when the
statute is repealed.” Juris. Statement 17. Thus, according
to the defendants, the plaintiffs’ racial gerrymandering
claims ceased to exist when the North Carolina General
Assembly enacted remedial plans for the State House and
State Senate and repealed the old plans.
The defendants misunderstand the nature of the plain-
tiffs’ claims. Those claims, like other racial gerrymander-
ing claims, arise from the plaintiffs’ allegations that they
have been “separate[d] . . . into different districts on the
basis of race.” Shaw v. Reno, 509 U. S. 630, 649 (1993).
Resolution of such claims will usually turn upon “circum-
stantial evidence that race for its own sake, and not other
districting principles, was the legislature’s dominant and
controlling rationale in drawing” the lines of legislative
districts. Miller v. Johnson, 515 U. S. 900, 913 (1995).
But it is the segregation of the plaintiffs—not the legisla-
ture’s line-drawing as such—that gives rise to their
claims. It is for this reason, among others, that the plain-
tiffs have standing to challenge racial gerrymanders only
with respect to those legislative districts in which they
reside. See Alabama Legislative Black Caucus v. Ala-
bama, 575 U. S. ___, ___ (2015) (slip op., at 6). Here, in
the remedial posture in which this case is presented, the
plaintiffs’ claims that they were organized into legislative
Cite as: 585 U. S. ____ (2018) 7
Per Curiam
districts on the basis of their race did not become moot
simply because the General Assembly drew new district
lines around them. To the contrary, they argued in the
District Court that some of the new districts were mere
continuations of the old, gerrymandered districts. Be-
cause the plaintiffs asserted that they remained segre-
gated on the basis of race, their claims remained the subject
of a live dispute, and the District Court properly retained
jurisdiction.
Second, the defendants argue that the District Court
erred when it “conclu[ded] that the General Assembly
engaged in racial gerrymandering by declining to consider
race.” Juris. Statement 20. They assert that “there is no
dispute that the General Assembly did not consider race at
all when designing the 2017 [remedial plans]—not as a
predominant motive, a secondary motive, or otherwise,”
and that such “undisputed fact should have been the end
of the plaintiffs’ racial gerrymandering challenges.” Id., at
21–22.
This argument suffers from the same conceptual flaws
as the first. While it may be undisputed that the 2017
legislature instructed its map drawers not to look at race
when crafting a remedial map, what is also undisputed—
because the defendants do not attempt to rebut it in their
jurisdictional statement or in their brief opposing the
plaintiffs’ motion to affirm—is the District Court’s de-
tailed, district-by-district factfinding respecting the legis-
lature’s remedial Senate Districts 21 and 28 and House
Districts 21 and 57.
That factfinding, as discussed above, turned up suffi-
cient circumstantial evidence that race was the predomi-
nant factor governing the shape of those four districts.
See, e.g., 283 F. Supp. 3d, at 436. As this Court has previ-
ously explained, a plaintiff can rely upon either “circum-
stantial evidence of a district’s shape and demographics or
more direct evidence going to legislative purpose” in prov-
8 NORTH CAROLINA v. COVINGTON
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ing a racial gerrymandering claim. Miller, supra, at 916.
The defendants’ insistence that the 2017 legislature did
not look at racial data in drawing remedial districts does
little to undermine the District Court’s conclusion—based
on evidence concerning the shape and demographics of
those districts—that the districts unconstitutionally sort
voters on the basis of race. 283 F. Supp. 3d, at 442.
Third, the defendants argue that the District Court
abused its discretion by arranging for the Special Master
to draw up an alternative remedial map instead of giving
the General Assembly—which “stood ready and willing to
promptly carry out its sovereign duty”—another chance at
a remedial map. Juris. Statement 33. Yet the District
Court had its own duty to cure illegally gerrymandered
districts through an orderly process in advance of elec-
tions. See Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per
curiam). Here the District Court determined that “provid-
ing the General Assembly with a second bite at the apple”
risked “further draw[ing] out these proceedings and poten-
tially interfer[ing] with the 2018 election cycle.” 283
F. Supp. 3d, at 448, n. 10. We conclude that the District
Court’s appointment of a Special Master in this case was
not an abuse of discretion.
Neither was the District Court’s decision to adopt the
Special Master’s recommended remedy for the racially
gerrymandered districts. The defendants argue briefly
that the District Court’s adoption of that recommendation
was error because the Special Master’s remedial plan was
“expressly race-conscious” and succeeded in “compel[ling]
the State to employ racial quotas of plaintiffs’ choosing.”
Juris. Statement 34–35. Yet this Court has long recog-
nized “[t]he distinction between being aware of racial
considerations and being motivated by them.” Miller,
supra, at 916. The District Court’s allowance that the
Special Master could “consider data identifying the race of
individuals or voters to the extent necessary to ensure
Cite as: 585 U. S. ____ (2018) 9
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that his plan cures the unconstitutional racial gerryman-
ders,” App. to Juris. Statement 111, does not amount to a
warrant for “racial quotas.” In any event, the defendants’
assertions on this question make no real attempt to coun-
ter the District Court’s agreement with the Special Master
that “ ‘no racial targets were sought or achieved’ ” in draw-
ing the remedial districts. 283 F. Supp. 3d, at 449.
All of the foregoing is enough to convince us that the
District Court’s order should be affirmed insofar as it
provided a court-drawn remedy for Senate Districts 21
and 28 and House Districts 21 and 57. The same cannot
be said, however, of the District Court’s actions concerning
the legislature’s redrawing of House districts in Wake and
Mecklenburg Counties. There the District Court proceeded
from a mistaken view of its adjudicative role and its
relationship to the North Carolina General Assembly.
The only injuries the plaintiffs established in this case
were that they had been placed in their legislative dis-
tricts on the basis of race. The District Court’s remedial
authority was accordingly limited to ensuring that the
plaintiffs were relieved of the burden of voting in racially
gerrymandered legislative districts. See DaimlerChrysler
Corp. v. Cuno, 547 U. S. 332, 353 (2006). But the District
Court’s revision of the House districts in Wake and Meck-
lenburg Counties had nothing to do with that. Instead,
the District Court redrew those districts because it found
that the legislature’s revision of them violated the North
Carolina Constitution’s ban on mid-decade redistricting,
not federal law. Indeed, the District Court understood
that ban to apply unless such redistricting was “required
by federal law or judicial order.” 283 F. Supp. 3d, at 443.
The District Court’s enforcement of the ban was thus
premised on the conclusion that the General Assembly’s
action was not “required” by federal law.
The District Court’s decision to override the legislature’s
remedial map on that basis was clear error. “[S]tate legis-
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latures have primary jurisdiction over legislative reappor-
tionment,” White v. Weiser, 412 U. S. 783, 795 (1973)
(internal quotation marks omitted), and a legislature’s
“freedom of choice to devise substitutes for an apportion-
ment plan found unconstitutional, either as a whole or in
part, should not be restricted beyond the clear commands”
of federal law, Burns v. Richardson, 384 U. S. 73, 85
(1966). A district court is “not free . . . to disregard the
political program of ” a state legislature on other bases.
Upham, 456 U. S., at 43. Once the District Court had
ensured that the racial gerrymanders at issue in this case
were remedied, its proper role in North Carolina’s legisla-
tive districting process was at an end.
The order of the District Court is affirmed in part and
reversed in part.
It is so ordered.
Cite as: 585 U. S. ____ (2018) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
NORTH CAROLINA, ET AL. v. SANDRA
LITTLE COVINGTON, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF NORTH CAROLINA
No. 17–1364. Decided June 28, 2018
JUSTICE THOMAS, dissenting.
I do not think the complicated factual and legal issues in
this case should be disposed of summarily. I would have
set this case for briefing and oral argument. I respectfully
dissent.