COMMON CAUSE V. RUCHO 777 Cite As 318 F.Supp.3D 777 (M.D.N.C

COMMON CAUSE v. RUCHO 777 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

dant seems to concede that this is a developing area of the law, and not a foreclosed COMMON CAUSE, et al., Plaintiffs, avenue for relief. He writes that the Texas v. courts have ‘‘not yet recognized’’ the tort, and presents the Court with no Texas case Robert A. RUCHO, in his official capaci- law that would prevent relief. (Reply at 1 ty as Chairman of the North Carolina (emphasis added).) So, as this is a develop- Senate Redistricting Committee for ing area of the law, see Restatement the 2016 Extra Session and Co-Chair- (Third) of Torts: Intentional Torts to Per- man of the Joint Select Committee on sons § 104 (Am. Law. Inst., Tentative Congressional Redistricting, et al., Draft No. 1, 2015), the Court will dismiss Defendants. the count without prejudice. It is not the League of Women Voters of North place of a federal court, particularly one in Carolina, et al., Plaintiffs, Maryland, to interfere with a developing body of state tort law in Texas. Therefore, v. ‘‘with an eye alert to TTT avoiding disre- Robert A. Rucho, in his official capacity gard of State law,’’ the Court will not as Chairman of the North Carolina prevent Plaintiff from trying his hand in a Senate Redistricting Committee for different court, or at a different time, if he the 2016 Extra Session and Co-Chair- so chooses. Guaranty Trust Co. of N.Y. v. man of the Joint Select Committee on York, 326 U.S. 99, 110, 65 S.Ct. 1464, 89 Congressional Redistricting, et al., L.Ed. 2079 (1945). Defendants. No. 1:16-CV-1026, No. 1:16-CV-1164 V. Conclusion United States District Court, Plaintiff may plead both battery and M.D. North Carolina. assault, and Texas courts recognize these Filed 08/27/2018 claims as two distinct torts. Plaintiff has sufficiently pled physical contact so as to Background: Non-profit organizations, state a claim for battery under Texas law. political party, and individual voters Accordingly, the Court will deny Defen- brought actions against state legislators, dant’s motion to dismiss with respect to alleging that North Carolina legislature’s Count I, and, as Plaintiff concedes that his remedial congressional redistricting plan fourth count is not yet recognized by Tex- was a partisan gerrymander in violation of as courts and asks that the Court dismiss Equal Protection Clause, First Amend- that Count without prejudice, the Court ment speech and associational rights, and will grant in part Defendant’s motion to Article I requirement that members of dismiss, dismissing Count IV, without House of Representatives be chosen by prejudice. ‘‘the People,’’ and in excess of State’s delegated authority under Article I’s Elections Clause to determine times, places, and manner of holding elections for members of Congress. After trial, a three-judge pan- , el of the District Court, Wynn, Circuit Judge, 279 F.Supp.3d 587, issued order finding that redistricting plan constituted partisan gerrymandering in violation of 778 318 FEDERAL SUPPLEMENT, 3d SERIES

Equal Protection Clause, First Amend- Osteen, Jr., District Judge, filed an opinion ment, and Article I, enjoined State from concurring in part and dissenting in part. conducting any further elections using the redistricting plan, and required drawing of 1. Constitutional Law O1461, 3635 new maps, and the District Court, 284 Election Law O161 F.Supp.3d 780, denied legislators’ motion A common thread runs through the to stay court’s order pending appeal to the restrictions on state election regulations Supreme Court. On direct appeal, the Su- imposed by Article I, the First Amend- preme Court vacated the judgment and ment, and the Equal Protection Clause: remanded for further consideration. the Constitution does not allow elected Holdings: On remand, the District Court, officials to enact laws that distort the mar- Wynn, Circuit Judge, held that: ketplace of political ideas so as to inten- (1) judicially manageable standard for ad- tionally favor certain political beliefs, par- judicating partisan gerrymandering ties, or candidates and disfavor others. claims existed, as required for justicia- U.S. Const. art. 1, § 2, cl. 1; U.S. Const. bility; art. 1, § 4, cl. 1; U.S. Const. Amends. 1, 14. (2) statewide evidence established legisla- 2. United States O217(2) ture’s predominant intent to subor- Article I preserves inviolate the right dinate the interests of non-Republican of ‘‘the People’’ to elect their Representa- voters and entrench Republican domi- tives in the House of Representatives, and nation of state’s congressional delega- therefore bars the States from enacting tion, as element for equal protection election regulations that dictate electoral claim; outcomes or favor or disfavor a class of (3) for 12 of 13 congressional districts, dis- candidates. U.S. Const. art. 1, § 2, cl. 1. trict-specific evidence established par- O tisan gerrymandering in violation of 3. Constitutional Law 1688 equal protection; The First Amendment prohibits election regulations that restrict the speech of (4) redistricting plan violated First some elements of society in order to en- Amendment protections of speech and hance the relative voice of others. U.S. association; Const. Amend. 1. (5) partisan gerrymandering in redistricting plan exceeded scope of State’s dele- 4. Constitutional Law O3635 gated authority under Elections Federal Courts O2104 Clause; The Equal Protection Clause embod- (6) partisan gerrymandering in redistrict- ies the foundational constitutional principle ing plan violated Article I grant of that the State must govern impartially, authority to ‘‘the People’’ to elect their treating its voters as standing in the same Representatives in the House of Rep- position, regardless of their political beliefs resentatives; and or party affiliation. U.S. Const. Amend. (7) district court could not rule out the 14. possibility of injunctive relief, even 5. Election Law O17 though primary election had been com- ‘‘Partisan gerrymandering,’’ the draw- pleted and general election was only a ing of legislative district lines to subor- few months away. dinate adherents of one political party and Ordered accordingly. entrench a rival party in power, strikes at COMMON CAUSE v. RUCHO 779 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) the heart of the foundational constitutional 10. Constitutional Law O1720 principle that the Constitution does not Partisan gerrymanders raise the spec- allow elected officials to enact laws that ter that the Government may effectively distort the marketplace of political ideas so drive certain ideas or viewpoints from the as to intentionally favor certain political marketplace. U.S. Const. Amend. 1. beliefs, parties, or candidates and disfavor others. 11. Election Law O17 See publication Words and Phrases States O27(3) for other judicial constructions and definitions. The belief of the majority party in a state legislature that electing members of 6. Constitutional Law O1720 the majority party is better than electing By intentionally ensuring that Repre- members of a minority party is not a sentatives from one party have a dispro- choice the Constitution allows legislative portionate voice in Congress, partisan ger- mapdrawers to make; rather, those who rymandering restricts the speech of some govern should be the last people to help elements of society, i.e., voters who do not support the policies embraced by the fa- decide who should govern. vored party, and enhances the relative 12. Election Law O40 voice of others, i.e., voters who support the The core principle of republican gov- favored party. U.S. Const. Amend. 1. ernment is that the voters should choose 7. Constitutional Law O3658(5) their representatives, not the other way Partisan gerrymandering, by favoring around. the viewpoints of one group of voters over O another, runs afoul of the Government’s 13. Federal Civil Procedure 103.2 constitutional duty under the Equal Pro- Article III’s ‘‘case’’ or ‘‘controversy’’ tection Clause to treat its voters as stand- requirement demands that a plaintiff dem- ing in the same position, regardless of onstrate standing, i.e., the plaintiff has their political beliefs or party affiliation. such a personal stake in the outcome of U.S. Const. Amend. 14. the controversy as to assure that concrete 8. Election Law O17 adverseness which sharpens the presentation of issues upon which the court so By intentionally seeking to entrench a favored party in power and make it diffi- largely depends for illumination of difficult cult, if not impossible, for candidates of constitutional questions. U.S. Const. art. parties supporting disfavored viewpoints to 3, § 2, cl. 1. prevail, partisan gerrymandering seeks not 14. Federal Civil Procedure O103.2 to advance a legitimate regulatory goal, Plaintiffs bear the burden of establish- but to suppress unpopular ideas or infor- ing their Article III standing. U.S. Const. mation or manipulate the public debate art. 3, § 2, cl. 1. through coercion rather than persuasion. O 9. Constitutional Law O1490 15. Federal Civil Procedure 103.2 The best test of truth is the power of Courts must assess a plaintiff’s Article the thought to get itself accepted in the III standing on a claim-by-claim basis, and competition of the market, and the people a plaintiff who has been subject to injuri- lose when the government is the one decid- ous conduct of one kind does not possess ing which ideas should prevail. U.S. by virtue of that injury the necessary Const. Amend. 1. stake in litigating conduct of another kind, 780 318 FEDERAL SUPPLEMENT, 3d SERIES

although similar, to which he has not been voted for Democratic candidates, each indi- subject. U.S. Const. art. 3, § 2, cl. 1. vidual plaintiff alleged that his or her dis- 16. Election Law O631 trict was cracked or packed and introduced district-specific evidence to support such When a plaintiff alleges that a legisla- allegations, and each individual plaintiff tive districting plan dilutes his vote on the identified at least one alternative redis- basis of partisanship, that harm arises, for purposes of Article III standing, from the tricting plan, with hypothetical districts, particular composition of the voter’s own that more effectively conformed to legisla- district, which causes his vote, having been ture’s non-partisan redistricting criteria packed or cracked, to carry less weight but nonetheless placed the individual plain- than it would carry in another, hypotheti- tiff in a district in which his or her vote cal district. U.S. Const. art. 3, § 2, cl. 1. would carry more weight. U.S. Const. art. 3, § 2, cl. 1; U.S. Const. Amend. 14. 17. Constitutional Law O3285 O In a racial gerrymandering case alleg- 20. Constitutional Law 923 ing the separation of voters into different Individual plaintiffs who supported districts on the basis of race, in violation of Democratic candidates, and who lived in equal protection, a plaintiff can establish congressional districts that elected the that the lines of her district were drawn on Democratic candidate in most recent gen- the basis of race through direct evidence of eral election, satisfied injury-in-fact ele- legislative intent, circumstantial evidence ment for Article III standing to bring par- of a district’s shape and demographics, or tisan gerrymandering challenge, alleging a mix of both. U.S. Const. Amend. 14. partisan vote dilution in violation of Equal Protection Clause, to Republican-con- 18. Constitutional Law O3285 trolled state legislature’s remedial con- A plaintiff in a racial gerrymandering gressional redistricting plan; individuals case alleging the separation of voters into alleged that based on packing, their candi- different districts on the basis of race can establish a burden on her Fourteenth dates of choice were elected by over- Amendment equal protection rights by in- whelming margins, thereby causing them troducing an alternative districting plan, to suffer dilutionary injury. U.S. Const. which conforms to a legislature’s legiti- Amend. 14. mate districting objectives and traditional 21. Constitutional Law O923 redistricting criteria, and under which the Individual plaintiffs who supported plaintiff’s vote would not have been diluted Democratic candidates, and who lived in based on her race. U.S. Const. Amend. congressional districts that either elected 14. Republicans in most recent general elec- 19. Constitutional Law O923 tion or which had elected Republicans un- Individual plaintiffs satisfied injury-in- der prior maps adopted by Democratic- fact element for Article III standing to controlled legislature, satisfied injury-in- bring partisan gerrymandering challenge, fact element for Article III standing to alleging partisan vote dilution in violation bring partisan gerrymandering challenge, of Equal Protection Clause, to Republican- alleging partisan vote dilution in violation controlled state legislature’s remedial con- of Equal Protection Clause, to Republican- gressional redistricting plan, where for controlled state legislature’s remedial con- each congressional district at least one in- gressional redistricting plan; individuals al- dividual plaintiff resided there, was regis- leged that their districts had been cracked, tered as a Democrat, and supported and and that if their votes had not been diluted COMMON CAUSE v. RUCHO 781 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

on basis of invidious partisanship and the State to affiliate in a political party and therefore their districts had not been carry out that organization’s activities and drawn so as to allow the Republican candi- objects. U.S. Const. Amend. 1. date to prevail by a safe margin, then the 26. Constitutional Law O803, 1480 elected officials, facing a close re-election race, might have been more responsive to The valued associational right under issues supported by Democratic voters, the First Amendment and the injury to it, and such voters would have had a better from partisan gerrymandering, are state- chance electing their preferred candidate wide, and so too is the relevant Article III in future elections. U.S. Const. Amend. standing requirement. U.S. Const. art. 3, 14. § 2, cl. 1; U.S. Const. Amend. 1. 22. Constitutional Law O923 27. Constitutional Law O803 Individual plaintiffs who testified that Individual plaintiffs, as state Demo- they believed that their vote in the most cratic party members, supporters, or recent general election was diluted by the workers, demonstrated non-dilutionary Republican-controlled state legislature’s First Amendment injuries to associational remedial congressional redistricting plan rights, satisfying injury-in-fact element for as a whole, rather than by the lines of Article III standing to bring partisan ger- their particular congressional district, did rymandering challenge to Republican-con- not satisfy the injury-in-fact element for trolled state legislature’s remedial con- Article III standing to bring partisan ger- gressional redistricting plan; individuals rymandering challenge alleging partisan testified to decreased ability to mobilize vote dilution in violation of Equal Protec- their party’s base, persuade independent tion Clause; individuals merely alleged voters to participate, attract volunteers, statewide injury based on shared interest raise money, and recruit candidates, and to in composition of state’s congressional del- adverse effects on their party’s ability to egation as a whole, rather than individual perform its core functions. U.S. Const. injury. U.S. Const. Amend. 14. art. 3, § 2, cl. 1; U.S. Const. Amend. 1. 23. Constitutional Law O1480, 1720 28. Constitutional Law O803 Partisan gerrymandering implicates First organizational plaintiff, which the First Amendment interest of not bur- engaged in statewide voter education, vot- dening or penalizing citizens because of their participation in the electoral process, er registration, and get-out-the-vote ef- their voting history, their association with forts, and second organizational plaintiff, a political party, or their expression of which advocated for redistricting reform political views. U.S. Const. Amend. 1. and legislation for non-partisan redistricting, demonstrated non-dilutionary First O 24. Constitutional Law 1465, 1466 Amendment injuries to associational Significant First Amendment concerns rights, satisfying injury-in-fact element for arise when a State purposely subjects a Article III standing to bring partisan ger- group of voters or their party to disfa- rymandering challenge to Republican-con- vored treatment. U.S. Const. Amend. 1. trolled state legislature’s remedial con- 25. Constitutional Law O1480 gressional redistricting plan; first plaintiff Partisan gerrymandering implicates alleged that due to lack of voter interest non-dilutionary First Amendment injuries attributable to the gerrymander, it had to associational rights, such as infringing difficulty in fulfilling its mission and in on the ability of like-minded people across providing opportunities for organization 782 318 FEDERAL SUPPLEMENT, 3d SERIES

members and other voters to interact with alleged dilutional injuries on district-by- candidates that were expected to win, and district basis, and their standing to assert second plaintiff alleged that the redistrict- claims under Elections Clause was also ing plan ran directly contrary to the non- supported by non-dilutional statewide inju- partisan approach to redistricting that it ries to plaintiffs’ First Amendment associ- and its members had long advocated. U.S. ational rights, including difficulty recruit- Const. art. 3, § 2, cl. 1; U.S. Const. ing candidates due to perceived lack of Amend. 1. competitiveness of elections, difficulty rais- 29. United States O217(2) ing money, and difficulty encouraging peo- The grant of power in Article I to ple to vote on account of widespread belief state legislatures to regulate congressional that electoral outcomes were a foregone elections is akin to an enumerated power conclusion. U.S. Const. art. 1, § 4, cl. 1; of Congress because any state authority to U.S. Const. art. 3, § 2, cl. 1; U.S. Const. regulate election to congressional offices Amend. 1. could not precede their very creation by the Constitution; accordingly, such power 33. Constitutional Law O2580 had to be delegated to, rather than re- The political question doctrine rests served by, the States. U.S. Const. art. 1, on the principle that certain disputes are § 4, cl. 1. not appropriate for or amenable to resolu- 30. United States O217(2) tion by the courts because they raise ques- The States may regulate the incidents tions constitutionally reserved to the politi- of congressional elections only within the cal branches. exclusive delegation of power under the 34. Federal Courts O2158 Elections Clause. U.S. Const. art. 1, § 4, cl. 1. A challenge to an alleged partisan gerrymander presents a justiciable case or 31. Election Law O47 controversy. U.S. Const. art. 3, § 2, cl. 1. United States O217(2) The Framers understood the Elec- 35. Election Law O17 tions Clause as a grant of authority to the Partisan gerrymanders are incompati- States to issue procedural regulations for ble with democratic principles. congressional elections, and not as a source of power to dictate electoral out- 36. Election Law O17 comes, to favor or disfavor a class of candi- Partisan gerrymandering represents dates, or to evade important constitutional an abuse of power that, at its core, evinces restraints. U.S. Const. art. 1, § 4, cl. 1. a fundamental distrust of voters, serving 32. Constitutional Law O803 the self-interest of the political parties at Election Law O631 the expense of the public good. Individual and organizational plain- 37. Election Law O17 tiffs alleged particularized injuries that satisfied injury-in-fact element for Article Partisan gerrymandering leads to a III standing to bring partisan gerryman- cascade of negative results: indifference to dering challenge under Elections Clause swing voters and their views, extreme po- asserting structural harm based on feder- litical positioning designed to placate the alism principles, with respect to Republi- party’s base and fend off primary chal- can-controlled state legislature’s remedial lenges, the devaluing of negotiation and congressional redistricting plan; plaintiffs compromise, and the impossibility of COMMON CAUSE v. RUCHO 783 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

reaching pragmatic, bipartisan solutions to change when they see legislative action as the nation’s problems. infringing on their rights. 38. United States O216(1) 43. States O27(3) Partisan gerrymandering of congres- A state legislature that is itself insu- sional districts constitutes a structural violated by virtue of an invidious gerryman- lation of Article I, which requires that der can enact additional legislation to re- members of the House of Representatives strict voting rights and thereby further be chosen by ‘‘the People,’’ and which, in cement its unjustified control of the organs the Elections Clause, delegates authority of both state and federal government. to States to determine the times, places, and manner of holding elections for mem- 44. Constitutional Law O1466, 1688 bers of Congress, because it insulates Rep- The Constitution sharply curtails re- resentatives from having to respond to the strictions on electoral speech and the right popular will, and instead renders them re- to vote because, in the republican form of sponsive to state legislatures or political democracy, elected representatives in pow- factions thereof. U.S. Const. art. 1, § 2, er have a strong incentive to enact legisla- cl. 1; U.S. Const. art. 1, § 4, cl. 1. tion or policies that preserve their position 39. United States O216(4) and those of their fellow partisans, at the Partisan gerrymandering amounts to expense of public interest. U.S. Const. a legislative effort to give some voters a Amend. 1. greater voice in choosing a Congressman 45. Constitutional Law O1687, 1688 than others, contrary to the republican Casting a vote and associating with a system put in place by the Framers. U.S. political party are among the most funda- Const. art. 1, § 2, cl. 1. mental forms of election-time speech. 40. Election Law O17 U.S. Const. Amend. 1. Partisan gerrymandering runs afoul of 46. Constitutional Law O1720 rights that are individual and personal in Partisan gerrymandering is no differ- nature, because it subverts the foundation- ent than legislative efforts to curtail other al constitutional principle that the State forms of election-time speech because in govern impartially, i.e., the State should both cases politicians have deep-seated in- treat its voters as standing in the same centives to bias the translation of votes position, regardless of their political beliefs into seats. U.S. Const. Amend. 1. or party affiliation. O 41. Constitutional Law O1466 47. Constitutional Law 1720 The Constitution leaves no room for Because partisan gerrymandering en- classification of people in a way that un- croaches on individuals’ right to engage in necessarily abridges the right to vote, be- election-time speech, including the right to cause other rights, even the most basic, vote, allegations of partisan gerrymander- are illusory if the right to vote is under- ing must be carefully and meticulously mined. scrutinized by the judiciary. U.S. Const. Amend. 1. 42. Election Law O17 A partisan gerrymander that is in- 48. Constitutional Law O2586 tended to and that likely has the effect of Because partisan gerrymandering tar- entrenching a political party in power un- gets voting rights, the judicial deference to dermines the ability of voters to effect the policy judgments of the political 784 318 FEDERAL SUPPLEMENT, 3d SERIES

branches animating the political question leaving citizens without any political reme- doctrine is inapplicable. dy for their constitutional harms. 49. Constitutional Law O2580 54. Constitutional Law O961 A textually demonstrable constitution- Long-standing, and even widespread, al commitment of authority to a coordinate historical practice does not immunize gov- branch provides the strongest basis for ernmental action from constitutional scru- treating a claim as a nonjusticiable political tiny, and that is particularly true when the question. legal bases for challenging the conduct 50. Constitutional Law O961 were unavailable at the time of the Found- When the Constitution preserves indi- ing. vidual rights, courts have an obligation to 55. Election Law O17 enforce those rights. There are certain purposes for which 51. United States O216(4, 5) a state redistricting body may take into The Elections Clause delegates pri- account political data or partisan consider- mary responsibility to state legislatures, or ations in drawing legislative district lines, other redistricting bodies established pur- such as avoiding the pairing of incumbents, suant to state law, to draw congressional seeking to create a districting plan that districts, but this assignment of election would achieve a rough approximation of regulation to political bodies does not con- the statewide political strengths of the template such bodies engaging in some Democratic and Republican parties, or re- degree of invidious partisan discrimination specting political subdivisions or maintain- in the regulation of elections, or that such ing communities of interest. efforts would be immune from judicial re- 56. United States O216(4) view as a nonjusticiable political question. Because the Elections Clause does U.S. Const. art. 1, § 4, cl. 1. not authorize state redistricting bodies to 52. United States O216(3) engage in partisan gerrymandering for There is a wide gulf between legisla- congressional districts, a judicially man- tive mapdrawers for congressional districts ageable framework for evaluating partisan taking into account political considerations gerrymandering claims need not distin- in drawing districting lines, as the Elec- guish an ‘‘acceptable’’ level of partisan tions Clause contemplates, and partisan gerrymandering from ‘‘excessive’’ partisan legislative mapdrawers seeking to subor- gerrymandering; rather, the framework dinate the interests of supporters of a rival should distinguish partisan gerrymander- party and entrench their fellow partisans ing from the results of legitimate district- in power. U.S. Const. art. 1, § 4, cl. 1. ing objectives, including those objectives that take into account political data or 53. Constitutional Law O961, 1461 permissible partisan considerations. U.S. Federal courts have the power to pro- Const. art. 1, § 4, cl. 1. tect the constitutional rights of individuals from legislative destruction, including the 57. Election Law O17 destruction of constitutional rights through A determination that electoral dis- discriminatory election regulations, and tricting violates the law, as a partisan ger- the need for judicial review is at its most rymander, must rest on a conclusion that urgent in such cases, because politicians’ political classifications, though generally incentives conflict with voters’ interests, permissible, were applied in an invidious COMMON CAUSE v. RUCHO 785 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

manner or in a way unrelated to any legiti- constitutional or statutory standard, but mate legislative objective. that does not mean courts must blindly 58. States O27(3) accept such analyses either, and to the A state legislative body may engage in contrary, in all cases courts play an essen- some degree of partisan gerrymandering, tial gatekeeping role in ensuring that an so long as it was not predominantly moti- expert analysis is sufficiently reliable. vated by invidious partisan considerations. Fed. R. Evid. 702. O 59. Constitutional Law O979 62. Evidence 584(1) Plaintiffs need not show that a partic- When the court serves as the finder of ular empirical analysis or statistical meas- fact, the court must carefully weigh empir- ure appears in the Constitution to estab- ical evidence and discount such evidence’s lish that a judicially manageable standard probative value if it fails to address the exists, as required for justiciability of con- relevant question, lacks rigor, is contra- stitutional claims challenging legislative dicted by more reliable and compelling districting; rather, plaintiffs must identify evidence, or is otherwise unworthy of sub- cognizable constitutional standards to gov- stantial weight. ern their claims, and provide credible evi- 63. Constitutional Law O979 dence that defendants have violated those Federal Courts O2158 standards. Judicially manageable standard for O 60. Constitutional Law 1480, 1720, adjudicating partisan gerrymandering 3658(5) claims existed, as required for justiciabili- O United States 216(4) ty, in action in which plaintiffs offered Plaintiffs, by offering empirical analy- empirical evidence, which was sophisticat- ses in their action asserting partisan ger- ed and which had its genesis in academic rymandering in violation of First Amend- research, in support of their challenge to ment, Equal Protection Clause, and Article state legislature’s remedial congressional I, were not seeking to improperly constitu- redistricting plan under First Amendment, tionalize any of the empirical analyses; in- Equal Protection Clause, and Article I, stead, they were properly arguing that even if plaintiffs’ partisan asymmetry those analyses provided evidence that the measures could not be applied in all states, state legislature’s remedial congressional their simulated maps allegedly failed to redistricting plan violated a number of take into account certain criteria on which well-established constitutional standards, state legislature relied, and several of the i.e., that the state legislature act impartially, not infringe the right to vote, not bur- analyses relied on hypothetical election re- den individuals based on the exercise of sults; those objections either were un- their rights to political speech and associa- founded or were insufficiently compelling tion, and not dictate electoral outcomes or to overcome the significant probative value interpose itself between the voters and of the analyses. U.S. Const. art. 1, § 2, cl. their representatives in Congress. U.S. 1; U.S. Const. art. 1, § 4, cl. 1; U.S. Const. Const. art. 1, § 2, cl. 1; U.S. Const. art. 1, Amends. 1, 14. § 4, cl. 1; U.S. Const. Amends. 1, 14. 64. Evidence O555.2 61. Evidence O555.2 Advances in statistical and empirical Courts are not foreclosed from consid- theory and application have the potential ering statistical analyses and social science to allow parties, experts, and amici to pro- theories as evidence of a violation of a vide courts with more rigorous and proba- 786 318 FEDERAL SUPPLEMENT, 3d SERIES

tive evidence, thereby decreasing the risk 69. United States O216(4) that courts will render a decision that later The basic aim of requiring single- proves to have rested on an errant empiri- member districting for the House of Rep- cal analysis, and consequently, it makes no resentatives is to achieve fair and effective practical or legal sense for courts to close representation for all citizens, and to that their eyes to new scientific or statistical end, the very essence of districting is to methods to prove or disprove claims prem- produce a different, and more politically ised on established legal standards. fair, result than would be reached with 65. Evidence O555.2 elections at large, in which the winning The Constitution does not require the party would take 100% of the legislative federal courts to act like Galileo’s Inquisi- seats. 2 U.S.C.A. § 2c. tion and enjoin consideration of new aca- 70. United States O216(4) demic research, and the knowledge gained The use of single-member districting, therefrom, simply because such research as opposed to elections at large, for the provides a new understanding of how to House of Representatives serves a number give effect to long-established governing of specific beneficial purposes: unlike at- principles. large electoral systems, which in politically 66. Evidence O584(1) divided states can lead to a wholesale When a variety of different pieces of change in the state’s congressional delega- evidence, empirical or otherwise, all point tion with only a small shift in votes be- to the same conclusion, courts have great- tween parties, single-member districting er confidence in the correctness of the systems maintain relatively stable legisla- conclusion because even if one piece of tures in which a minority party retains evidence is subsequently found infirm, oth- significant representation, single-member er probative evidence remains. districts diminish the need for coalition 67. United States O216(4) governments and thereby make it easier Court’s invalidation of state legisla- for voters to identify which party is re- ture’s remedial congressional redistricting sponsible for government decision-making plan, as an unconstitutional partisan gerry- and which rascals to throw out, and single- mander, did not impact state’s federal stat- member districts make it easier for a Rep- utory authority and obligation to draw a resentative to understand the interests of congressional redistricting plan using sin- her constituency and act on behalf of those gle-member districts; rather, court’s deci- interests because she serves a limited sion simply required that state legislature, group of constituents, rather than the en- in drawing congressional district lines, not tire state. 2 U.S.C.A. § 2c. seek to diminish or minimize the electoral 71. United States O216(4) power of voters who supported or were Partisan gerrymandering of House of likely to support candidates of a particular Representatives districts, not judicial over- party. 2 U.S.C.A. § 2c. sight of such gerrymandering, contravenes 68. United States O216(4) the purpose of single-member districting Judicial restriction of partisan gerry- because partisan gerrymandering is in- mandering advances the purpose behind tended not to achieve fair and effective single-member congressional districts, representation for all citizens, and not to rather than undermines it. 2 U.S.C.A. produce a more politically fair result. 2 § 2c. U.S.C.A. § 2c. COMMON CAUSE v. RUCHO 787 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

72. United States O216(4) nature, partisan vote dilution claims under In adopting single-member districting the Equal Protection Clause, like racial for the House of Representatives, Con- gerrymandering claims, must proceed on a gress did not intend to empower state district-by-district basis, and accordingly, legislatures to engage in partisan gerry- each of the elements of a partisan vote mandering. 2 U.S.C.A. § 2c. dilution claim must be satisfied for each 73. Constitutional Law O3658(5) district. U.S. Const. Amend. 14. Partisan gerrymandering runs afoul of 78. Constitutional Law O3040 the Equal Protection Clause because, by A plaintiff seeking relief under the seeking to diminish the electoral power of Equal Protection Clause must establish supporters of a disfavored party, a partisan gerrymander treats individuals who that a challenged official action can be support candidates of one political party traced to a discriminatory purpose. U.S. less favorably than individuals who sup- Const. Amend. 14. port candidates of another party. U.S. 79. Constitutional Law O3043 Const. Amend. 14. To establish a discriminatory purpose O 74. Constitutional Law 3285, 3330, or intent, as element for equal protection 3658(5) claim, a plaintiff need not show that the A legislative redistricting plan violates discriminatory purpose is express or ap- the Equal Protection Clause if it serves no pears on the face of the statute; rather, an purpose other than to favor one segment, invidious discriminatory purpose may often whether racial, ethnic, religious, economic, be inferred from the totality of the rele- or political, that may occupy a position of vant facts. U.S. Const. Amend. 14. strength, or to disadvantage a politically weak segment. U.S. Const. Amend. 14. 80. Constitutional Law O3040 75. Constitutional Law O3658(5) In determining whether an invidious In order to prove a prima facie parti- discriminatory purpose was a motivating san gerrymandering claim under the factor behind the challenged action, as ele- Equal Protection Clause, a plaintiff must ment for an equal protection claim, evi- show both (1) discriminatory intent and (2) dence that the impact of the challenged discriminatory effects. U.S. Const. action falls more heavily on one group than Amend. 14. another may provide an important starting point. U.S. Const. Amend. 14. 76. Constitutional Law O3658(3) If a legislative redistricting plan was 81. Constitutional Law O3043 enacted with discriminatory intent and re- Sometimes a clear pattern, unexplain- sulted in discriminatory effects, the plan able on grounds other than invidious dis- will nonetheless survive constitutional crimination in violation of the Equal Pro- scrutiny under the Equal Protection tection Clause, emerges from the effect of Clause if its discriminatory effects are at- the state action even when the governing tributable to the state’s political geography legislation appears neutral on its face, and or another legitimate redistricting objec- likewise, the historical background of the tive. U.S. Const. Amend. 14. decision may be probative of discriminato- 77. Constitutional Law O3658(1) ry intent, particularly if it reveals a series Because the injury giving rise to a of official actions taken for invidious pur- partisan vote dilution claim is personal in poses. U.S. Const. Amend. 14. 788 318 FEDERAL SUPPLEMENT, 3d SERIES

82. Constitutional Law O3040, 3043 relative to another. U.S. Const. Amend. The specific sequence of events lead- 14. ing up to decision challenged under the 86. Constitutional Law O3284 Equal Protection Clause may shed some light on the decisionmaker’s discriminato- A plaintiff bringing an equal protec- ry purposes, including whether the legislation claim alleging that a State has enacted tive process involved departures from the a particular voting scheme as a purposeful normal procedural sequence, and the legis- device to minimize or cancel out the voting lative or administrative history may be potential of racial or ethnic minorities need highly relevant, especially where there are not prove that the redistricting body’s in- contemporary statements by members of vidious purpose predominated. U.S. the decisionmaking body, minutes of its Const. Amend. 14. meetings, or reports. U.S. Const. Amend. 87. Constitutional Law O3658(5) 14. A plaintiff asserting a partisan gerry- 83. Constitutional Law O3658(5) mandering claim under the Equal Protec- A plaintiff in a partisan gerrymander- tion Clause must meet the heightened ing case cannot satisfy the discriminatory burden of showing invidiousness, i.e., the intent requirement for a claim under the legislative mapdrawer segregated voters Equal Protection Clause simply by proving on the basis of partisanship for the invidi- that the redistricting body intended to rely ous purpose of subordinating adherents of on political data or to take into account one political party and entrenching a rival political or partisan considerations; rather, party in power. U.S. Const. Amend. 14. the plaintiff must show that the redistrict- 88. Constitutional Law O3285 ing body intended to apply partisan classi- A plaintiff who has proven invidious fications in an invidious manner or in a racial gerrymandering, in an action under way unrelated to any legitimate legislative the Equal Protection Clause, need not objective. U.S. Const. Amend. 14. show that such gerrymandering has result- 84. Constitutional Law O3658(5) ed in discriminatory effects. U.S. Const. A plaintiff asserting a partisan gerry- Amend. 14. mandering claim satisfies the discriminato- O ry purpose or intent requirement for a 89. Election Law 17 claim under the Equal Protection Clause A principal constitutional concern with by introducing evidence establishing that partisan gerrymandering is that it insu- the state redistricting body acted with an lates legislators from popular will and ren- intent to subordinate adherents of one po- ders them unresponsive to portions of litical party and entrench a rival party in their constituencies. power. U.S. Const. Amend. 14. 90. Constitutional Law O3658(5) 85. Constitutional Law O3285 To prove entrenchment, in an action To state a prima facie case under the alleging partisan gerrymandering in viola- Equal Protection Clause of racial gerry- tion of equal protection, a plaintiff need mandering arising from separation of vot- not show that supporters of a disfavored ers into different districts, a plaintiff need party have been entirely ignored by their not show that a legislative mapdrawer seg- representatives and for years have been regated voters on the basis of race to frozen out of key aspects of the political disadvantage members of one racial group process; instead, a plaintiff must show that COMMON CAUSE v. RUCHO 789 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

the dilution of the votes of supporters of a plain language of ‘‘Partisan Advantage’’ disfavored party in a particular district, by criterion and use of past election results to virtue of cracking or packing, is likely to create a composite partisanship variable persist in subsequent elections such that indicating whether, and to what extent, a an elected representative from the favored particular precinct was likely to support a party in the district will not feel a need to Republican or Democratic candidate, em- be responsive to constituents who support pirical analyses of the plan, and discrimi- the disfavored party. U.S. Const. Amend. natory partisan intent motivating previous 14. plan in same decennial period, which plan 91. Constitutional Law O3658(5) was struck down as unconstitutional racial The justification prong for a partisan gerrymander, and which plan the legisla- gerrymandering claim under the Equal ture expressly sought to carry forward Protection Clause examines whether dis- with respect to partisan advantage. U.S. tricts’ discriminatory partisan effects are Const. Amend. 14. justified by a legitimate state districting 95. Constitutional Law O3658(1) interest or neutral explanation. U.S. When a single party exclusively con- Const. Amend. 14. trols the redistricting process, it should O 92. Constitutional Law 1040, 3658(1) not be very difficult to prove that the Once a plaintiff establishes a prima likely political consequences of the reap- facie case of partisan vote dilution in viola- portionment were intended, in an action tion of equal protection, the burden shifts asserting a partisan gerrymandering claim to the defendant to prove that a district’s under the Equal Protection Clause. U.S. or multiple districts’ discriminatory effects Const. Amend. 14. are attributable to a legitimate state inter- O est or other neutral explanation. U.S. 96. Constitutional Law 979 Const. Amend. 14. When a legislative districting plan is standard deviations from the mean in 93. Constitutional Law O3658(1) terms of the partisan composition of the Although partisan vote dilution claims delegation it produces, that amounts to under the Equal Protection Clause, like probative and reliable statewide evidence racial gerrymandering claims, must pro- that the plan rests on too much partisan- ceed on a district-by-district basis, plain- ship, for purposes of identifying a judicial- tiffs can rely on statewide evidence to prove their partisan vote dilution claims. ly manageable standard for evaluating a U.S. Const. Amend. 14. partisan gerrymandering claim, as required for justiciability of partisan vote O 94. Election Law 633(3) dilution claim under Equal Protection Statewide evidence established Re- Clause. U.S. Const. Amend. 14. publican-controlled state legislature’s pre- O dominant intent, in remedial congressional 97. Evidence 555.2 redistricting plan, to subordinate the inter- Purported criterion for Republican- ests of non-Republican voters and en- controlled state legislature’s remedial con- trench Republican domination of state’s gressional redistricting plan, requiring congressional delegation, as element for preservation of ‘‘cores’’ of districts in earli- partisan vote dilution claim under Equal er redistricting plan for the decennial, Protection Clause; evidence included facts which had been struck down as unconstitu- and circumstances surrounding drawing tional racial gerrymander, worked hand-in- and enactment of remedial plan, such as hand with legislature’s invidious partisan 790 318 FEDERAL SUPPLEMENT, 3d SERIES

objective, and thus, omission of the pur- acting a subsequent remedial congression- ported criterion, from analyses of two ex- al redistricting plan for the decennial, in pert witnesses for challengers, did not call action alleging partisan gerrymandering into question the persuasive force of the claim through partisan vote dilution in vio- results of their analyses, for purposes of lation of Equal Protection Clause; subse- challengers’ partisan gerrymandering quent plan expressly sought to carry for- claim asserting partisan vote dilution in ward the partisan advantage obtained by violation of Equal Protection Clause; by Republicans under the earlier plan, which preserving ‘‘cores’’ of districts in earlier had been struck down as an unconstitu- plan, the legislature perpetuated the parti- tional racial gerrymander. U.S. Const. san effects of a districting plan expressly Amend. 14. drawn to minimize the number of districts in which Democrats would have an oppor- 100. Constitutional Law O3658(3) tunity to elect a Democratic candidate. A governmental body need not seek to U.S. Const. Amend. 14. maximize partisan advantage during legis- 98. Evidence O555.2 lative redistricting in order to violate the Equal Protection Clause. U.S. Const. Purported criterion for Republican- Amend. 14. controlled state legislature’s remedial congressional redistricting plan, requiring di- 101. Constitutional Law O3658(5) vision of populous counties, worked hand- A state legislative redistricting body in-hand with legislature’s invidious parti- can engage in unconstitutional partisan san objective, and thus, omission of the gerrymandering, in violation of equal pro- purported criterion, from analyses of two tection, even if it complies with the tradi- expert witnesses for challengers, did not tional redistricting criterion of population call into question the persuasive force of equality. U.S. Const. Amend. 14. the results of their analyses, for purposes of challengers’ partisan gerrymandering 102. Election Law O633(3) claim asserting partisan vote dilution in Statewide evidence established dis- violation of Equal Protection Clause; divid- criminatory effects of Republican-con- ing populous counties effectively required trolled state legislature’s remedial con- ‘‘cracking’’ areas of Democratic strength gressional redistricting plan, as element because more populous counties tended to for partisan vote dilution claim under be Democratic whereas less populous Equal Protection Clause; evidence includ- counties tended to be Republican. U.S. ed results of state’s most recent congres- Const. Amend. 14. sional election, which was conducted using 99. Election Law O633(1) challenged plan, efficiency gap analysis, While typically it would be improper partisan bias analysis, and mean-median for a court to rely on evidence regarding a difference analysis which revealed that the different redistricting plan in finding that plan exhibited extreme partisan asymme- a redistricting body enacted a challenged try which was durable, two experts’ sim- plan with discriminatory intent, evidence ulation analyses, and results of two general regarding Republican-controlled state leg- elections using Republican-controlled state islature’s drawing and adoption of initial legislature’s initial congressional redistrict- congressional redistricting plan for the de- ing plan for the decennial, which had been cennial was relevant to showing Republi- struck down as an unconstitutional racial can-controlled state legislature’s invidious gerrymander, and the partisan effects of discriminatory intent in drawing and en- which the legislature expressly sought to COMMON CAUSE v. RUCHO 791 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

carry forward when it drew the challenged 106. Election Law O17 plan. U.S. Const. Amend. 14. Failure to comply with traditional re- 103. Constitutional Law O3658(5) districting criteria does not necessarily United States O216(4) prove that a redistricting plan amounts to an actionable partisan gerrymander. While expert witness for challengers to Republican-controlled state legislature’s 107. Election Law O17 13-district remedial congressional redis- Regardless of whether the efficiency tricting plan conceded that in the case of gap’s failure to encourage redistricting states with six or fewer congressional dis- bodies to draw legislative districting plans tricts it would be difficult if not impossible with competitive districts is desirable from to apply efficiency gap analysis, such anal- a policy perspective, that failure does not ysis provided evidence that the legisla- render the efficiency gap legally infirm, for ture’s 13-district plan violated governing purposes of proving partisan gerrymander- constitutional standard that a redistricting ing. body must not adopt a districting plan that 108. Constitutional Law O3658(5) intentionally subordinates the interests of O supporters of a disfavored party and en- United States 216(4) trenches a favored party in power, in ac- Discriminatory dilutionary effects of tion asserting partisan gerrymandering Republican-controlled state legislature’s through partisan vote dilution in violation remedial congressional redistricting plan, of Equal Protection Clause; the governing which plan was challenged as partisan ger- constitutional standard did not vary with rymander that violated Equal Protection the size of a state’s congressional delega- Clause through partisan vote dilution, tion. U.S. Const. Amend. 14. were not justified by a legislators’ proffered legitimate state districting interests 104. Constitutional Law O3658(1, 6) or by neutral explanations, i.e., state’s po- The Equal Protection Clause does not litical geography, which allegedly reflected entitle supporters of a particular party to natural packing of Democratic voters in representation in a state’s congressional urban centers, or legislature’s interest in delegation in proportion to their statewide protecting incumbents; state’s political ge- vote share, but to say that the Constitution ography did not explain the plan’s discrim- does not require proportional representa- inatory effects, and legislature could have tion is not to say that highly disproportion- achieved its interest in avoiding the pair- ate representation may not be evidence of ing of incumbents without drawing a plan a discriminatory effect, for purposes of an exhibiting the discriminatory effects of equal protection claim alleging partisan challenged plan. U.S. Const. Amend. 14. gerrymandering. U.S. Const. Amend. 14. 109. States O27(4.1) 105. Constitutional Law O3658(5) State redistricting bodies have a legit- If a legislative redistricting plan is imate interest, at least outside the remedi- drawn on a bipartisan basis or by a non- al context, in drawing legislative districts partisan body, a plaintiff asserting partisan so as to avoid pairing incumbents in a gerrymandering will be unable to establish single district. that it was drawn with discriminatory intent, and therefore the plan will pass con- 110. States O27(1) stitutional muster under the Equal Protec- Remedial legislative redistricting tion Clause. U.S. Const. Amend. 14. plans should not validate the very maneu- 792 318 FEDERAL SUPPLEMENT, 3d SERIES vers that were a major cause of the uncon- of voters into different districts on the stitutional districting. basis of race. U.S. Const. Amend. 14. 111. Constitutional Law O3285 114. Constitutional Law O3285 In a racial gerrymanding case under Although not a precondition to estab- the Equal Protection Clause, alleging the lishing a claim that an improper legislative separation of voters into different districts districting consideration predominated, a on the basis of race, the division of coun- plaintiff in a racial gerrymandering or parties, municipalities, or precincts can be tisan gerrymandering case under the probative that an improper motive pre- Equal Protection Clause can introduce an dominated, and if the legislature has split alternative districting plan or plans that communities of interest or grouped areas conform to traditional districting principles with fractured political, social, and eco- as effectively or more effectively than the nomic interests, that too may indicate that challenged plan, and in which the plaintiff’s an improper motive predominated. U.S. vote is not diluted on the basis of an Const. Amend. 14. impermissible consideration. U.S. Const. Amend. 14. 112. Constitutional Law O3285 The shape or appearance of a district 115. Election Law O633(3) may speak to whether an improper motive For 12 of 13 districts in Republican- predominated, in a racial gerrymandering controlled state legislature’s remedial con- case under the Equal Protection Clause, gressional redistricting plan, district-spe- alleging the separation of voters into dif- cific evidence established partisan gerry- ferent districts on the basis of race, and mandering through partisan vote dilution, although a district need not be oddly in violation of equal protection; evidence shaped in order to violate the Equal Pro- included alternative districting plans tection Clause, bizarreness may be persua- drawn by legislature’s mapdrawing expert, sive circumstantial evidence that race for which were comparable to challenged plan its own sake, and not other districting with regard to compliance with traditional principles, was the legislature’s dominant districting criteria, group of maps drawn and controlling rationale in drawing its by bipartisan group of retired state judges district line, and that is particularly true convened to act as simulated nonpartisan when demographic evidence reveals that a districting commission and directed to district’s bizarre lines coincide with the comply with traditional nonpartisan dis- historical voting patterns of the precincts tricting criteria, and thousands of comput- included in, or excluded from, the district. er-generated districting plans created by U.S. Const. Amend. 14. challengers’ experts, which conformed to and often more effectively advanced legis- 113. Constitutional Law O3285 lature’s non-partisan districting objectives. Although visually assessing legislative U.S. Const. Amend. 14. districts necessarily involves some subjective judgment, an eyeball approach or in- 116. Election Law O633(3) terocular test can be relied on to deter- For one of 13 districts in Republican- mine if a district’s shape is bizarre or controlled state legislature’s remedial con- irregular, which may speak to whether an gressional redistricting plan, despite com- improper motive predominated, in a racial pelling statewide evidence of cracking and gerrymandering case under the Equal packing, district-specific evidence did not Protection Clause, alleging the separation support claim of partisan gerrymandering COMMON CAUSE v. RUCHO 793 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) through partisan vote dilution, in violation 121. Constitutional Law O1507 of equal protection; challengers produced The First Amendment prohibits the no direct evidence that mapdrawers ex- government from favoring or disfavoring pressly sought to increase Republican vot- particular viewpoints, and, therefore, the ing strength in drawing either an earlier government must abstain from regulating version of district in original redistricting speech when the specific motivating ideolo- plan for the decennial, which plan was gy or the opinion or perspective of the struck down as unconstitutional racial ger- speaker is the rationale for the restriction. rymander, or in challenged plan, which U.S. Const. Amend. 1. sought to carry forward original plan’s O partisan advantage, challengers produced 122. Constitutional Law 1507 no evidence indicating that the district in At its most basic, the test for view- the remedial plan split municipalities or point discrimination in violation of the communities of interest along partisan First Amendment is whether within the lines, and original plan’s district had high- relevant subject category, the government er predicted Republican vote share. U.S. has singled out a subset of messages for Const. Amend. 14. disfavor based on the views expressed. U.S. Const. Amend. 1. 117. Constitutional Law O1480 O Partisan gerrymandering implicates 123. Constitutional Law 1018, 1507 First Amendment rights because political Viewpoint discrimination is presump- belief and association constitute the core of tively unconstitutional under the First the activities protected by the First Amendment, and therefore is subject to Amendment, and because the First strict scrutiny. U.S. Const. Amend. 1. Amendment operates as a vital guarantee 124. Constitutional Law O1720 of democratic self-government. U.S. By seeking to dilute the electoral Const. Amend. 1. speech of supporters of disfavored parties 118. Constitutional Law O1681 or candidates, partisan gerrymandering The First Amendment has its fullest runs afoul of the First Amendment’s prohi- and most urgent application to speech ut- bition on laws that disfavor a particular tered during a campaign for political office. group or class of speakers. U.S. Const. U.S. Const. Amend. 1. Amend. 1. 119. Constitutional Law O1460, 1466 125. Constitutional Law O1490 The First Amendment protects the The First Amendment prohibits laws right of individuals to associate for the that disfavor a particular group or class of advancement of political beliefs, and the speakers because by taking the right to right of qualified voters, regardless of speak from some and giving it to others, their political persuasion, to cast their the Government deprives the disadvan- votes effectively. U.S. Const. Amend. 1. taged person or class of the right to use speech to strive to establish worth, stand- 120. Constitutional Law O1720 ing, and respect for the speaker’s voice. By favoring one set of political beliefs U.S. Const. Amend. 1. over another, partisan gerrymanders implicate the First Amendment prohibition 126. Constitutional Law O1490, 1720 on viewpoint discrimination. U.S. Const. When, as is the case with a partisan Amend. 1. gerrymander, a restriction on one group of 794 318 FEDERAL SUPPLEMENT, 3d SERIES

speakers suggests an attempt to give one versely affected plaintiff’s constitutionally side of a debatable public question an ad- protected speech; and (3) a causal relation- vantage in expressing its views to the peo- ship exists between plaintiff’s speech and ple, the First Amendment is plainly of- defendant’s retaliatory action. U.S. Const. fended. U.S. Const. Amend. 1. Amend. 1. 127. Constitutional Law O1506 132. Constitutional Law O1461 Like viewpoint discrimination, govern- The First Amendment demands judi- mental actions that discriminate against a particular group or class of speakers are cial scrutiny of state election regulations subject to strict scrutiny for a First because regulations that govern the regis- Amendment violation. U.S. Const. tration and qualifications of voters, the Amend. 1. selection and eligibility of candidates, or the voting process itself inevitably affect, O 128. Constitutional Law 1720 at least to some degree, the individual’s By disfavoring a group of voters right to vote and his right to associate with based on their prior votes and political others for political ends. U.S. Const. association, partisan gerrymandering im- Amend. 1. plicates the First Amendment’s prohibition on burdening or penalizing individuals for 133. Constitutional Law O1461 engaging in protected speech. U.S. Const. Because States’ important regulatory Amend. 1. interests concerning elections are general- 129. Constitutional Law O1490 ly sufficient to justify reasonable, nondis- Under the First Amendment, the gov- criminatory restrictions, sliding-scale scru- ernment cannot penalize a person for en- tiny for a First Amendment violation is gaging in constitutionally protected speech applied to state election regulations. U.S. or associations, because such indirect regu- Const. Amend. 1. lation of speech would allow the govern- 134. Constitutional Law O1461 ment to produce a result which it could not command directly. U.S. Const. Amend. 1. A court considering a First Amend- ment challenge to a state election law must 130. Constitutional Law O1680, 1730, weigh the character and magnitude of the 1944, 1947 asserted injury to the rights protected by The First Amendment protection the First Amendment that the plaintiff against retaliation reflects the general seeks to vindicate against the precise in- principle that even when the law affords terests put forward by the State as justifi- the government the authority to make dis- cations for the burden imposed by its law, cretionary decisions like firing or promot- taking into consideration the extent to ing an employee or allowing public use of a which those interests make it necessary to governmental facility, the government may burden the plaintiff’s rights. U.S. Const. not exercise such discretion in a narrowly Amend. 1. partisan or political manner. U.S. Const. Amend. 1. 135. Constitutional Law O1461 131. Constitutional Law O1553 State election regulations that impose Three-prong test for retaliation in vio- a severe burden on associational rights are lation of First Amendment examines subject to strict scrutiny for a First whether: (1) plaintiff’s speech was protect- Amendment violation. U.S. Const. ed; (2) defendant’s retaliatory action ad- Amend. 1. COMMON CAUSE v. RUCHO 795 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

136. Constitutional Law O1461 pass First Amendment muster with re- If a state election regulation imposes spect to restriction of speech and associa- only modest burdens on associational tional rights. U.S. Const. Amend. 1. rights under the First Amendment, then 140. Constitutional Law O1480, 1720 the State’s important regulatory interests Assuming that intermediate scrutiny are generally sufficient to justify reason- is applicable, plaintiffs asserting a partisan able, nondiscriminatory restrictions. U.S. Const. Amend. 1. gerrymandering claim under the First Amendment must prove that: (1) the chal- O 137. Constitutional Law 1461, 1466 lenged districting plan was intended to In exercising their powers over elec- burden individuals or entities that support tions and in setting qualifications for vot- a disfavored candidate or political party; ers, the States may not infringe upon basic (2) the districting plan in fact burdened constitutional protections, including enact- the political speech or associational rights ing election laws that so impinge upon of such individuals or entities; and (3) a freedom of association as to run afoul of causal relationship exists between the gov- the First Amendment. U.S. Const. ernmental actor’s discriminatory motiva- Amend. 1. tion and the First Amendment burdens 138. Constitutional Law O1480, 1720 imposed by the districting plan. U.S. United States O216(4) Const. Amend. 1. Assuming that intermediate scrutiny 141. Constitutional Law O1480, 1720 was applicable, partisan gerrymandering, United States O216(4) in Republican-controlled state legislature’s Evidence that Republican-controlled remedial congressional redistricting plan, state legislature, in enacting remedial con- violated First Amendment protections of gressional redistricting plan, predominant- speech and association by discriminating ly intended to subordinate the interests of against a particular viewpoint, i.e., voters entities and voters who supported, or were who opposed the Republican platform and Republican candidates, by discriminating likely to support, non-Republican candi- against a particular group of speakers, i.e., dates established legislature’s intent to non-Republican candidates and voters who burden speech and associational rights, as supported non-Republican candidates, and element for partisan gerrymandering claim by using individuals’ votes in previous elec- under First Amendment. U.S. Const. tions to draw district lines that diluted the Amend. 1. votes of individuals likely to support non- 142. Election Law O633(3) Republican candidates, thereby imposing Evidence of chilling effects estab- burdens on such individuals based on their lished that Republican-controlled state leg- past political speech and association. U.S. islature’s remedial congressional redistrict- Const. Amend. 1. ing plan burdened speech and associational 139. Constitutional Law O1480, 1720 rights, as element for partisan gerryman- United States O216(4) dering claim under First Amendment; evi- Express partisan favoritism, through dence was presented that potential voters partisan gerrymandering in Republican- did not vote because they felt their vote controlled state legislature’s remedial con- did not count and that advocacy organiza- gressional redistricting plan, excluded it tions chose not to participate in congres- from the class of reasonable, politically sional races because they believed the neutral electoral regulations that would races were not competitive, that an organi- 796 318 FEDERAL SUPPLEMENT, 3d SERIES zation had difficulty fulfilling its mission of participation of some in order to enhance informing and engaging voters in process the relative influence of others. U.S. of voting and civic participation in govern- Const. Amend. 1. ment, and that it was extremely difficult for state’s Democratic party to raise funds, 148. Constitutional Law O1681 recruit strong candidates, expert testimo- Just as the government, under the ny confirmed the reasonableness of indi- First Amendment, may not altruistically viduals’ feeling that their votes did not equalize the relative ability of individuals count, and plan diluted electoral speech and groups to influence the outcome of and electoral power of non-Republican vot- elections, neither may the government ers. U.S. Const. Amend. 1. drown out the political speech of disfa- 143. Constitutional Law O1440, 1553 vored individuals and groups in order to In the context of First Amendment enhance the relative influence of others, retaliation claims, even when a challenged and that is particularly true in the republi- governmental action does not flatly prohib- can form of government adopted by the it protected speech or association, the ac- Framers, in which elected officials repre- tion nonetheless burdens First Amend- sent the interests of ‘‘the People’’ in mak- ment rights if it has a chilling effect or an ing governing decisions. U.S. Const. art. adverse impact on speech or associational 1, § 2, cl. 1; U.S. Const. Amend. 1. rights, and to constitute an actionable First Amendment burden, the chilling ef- 149. Constitutional Law O1465, 1466, fect or adverse impact must be more than 1687, 1688 de minimis. U.S. Const. Amend. 1. Even a slight burden on the speech or 144. Constitutional Law O1490 associational rights of a political party, an A governmental action chills speech if individual voter, or a discrete class of vot- it is likely to deter a person of ordinary ers can violate the First Amendment if not firmness from the exercise of First supported by a justification of commensu- Amendment rights. U.S. Const. Amend. rate magnitude. U.S. Const. Amend. 1. 1. 150. Election Law O633(3) 145. Constitutional Law O1440, 1490 For a First Amendment violation, any Evidence established causation ele- chilling effect on speech or associational ment for partisan gerrymandering claim rights must be objectively reasonable, but alleging that Republican-controlled state a claimant need not show he ceased those legislature’s remedial congressional redis- activities altogether to demonstrate an in- tricting plan burdened speech and associ- jury in fact. U.S. Const. Amend. 1. ational rights under First Amendment; evidence was presented that legislature’s 146. Constitutional Law O1490 discriminatory animus against non-Repub- The concept that government may re- lican voters, candidates, and parties, rath- strict the speech of some elements of soci- er than state’s political geography or any ety in order to enhance the relative voice other legitimate redistricting objective, of others is wholly foreign to the First chilled voters, candidates, and parties Amendment. U.S. Const. Amend. 1. from participating in political process and 147. Constitutional Law O1460 diluted the electoral power of supporters The First Amendment does not per- of non-Republican candidates. U.S. mit the government to restrict the political Const. Amend. 1. COMMON CAUSE v. RUCHO 797 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

151. Constitutional Law O1171 156. United States O217(2) In First Amendment retaliation cases, The States’ authority under the Elec- the causation element not only requires a tions Clause extends only to neutral provi- plaintiff to demonstrate retaliatory intent, sions as to the time, place, and manner of it also allows a governmental actor to es- congressional elections. U.S. Const. art. 1, cape liability if the actor demonstrates it § 4, cl. 1. would have taken the challenged action 157. Constitutional Law O1480, 3658(5) even in the absence of the protected con- United States O216(4) duct. U.S. Const. Amend. 1. Partisan gerrymandering in Republi- 152. Constitutional Law O1480, 1720 can-controlled state legislature’s remedial Under the causation prong for a parti- congressional redistricting plan exceeded san gerrymandering claim under the First scope of State’s delegated authority under Amendment, a challenged legislative redis- the Elections Clause, by disfavoring inter- tricting plan that burdens political speech ests of supporters of non-Republican can- and associational rights nonetheless passes didates or parties, by representing pro- First Amendment muster if legitimate Republican bias that violated other consti- state interests, unrelated to the redistrict- tutional provisions, including the First ing body’s intent to burden the rights of Amendment, the Equal Protection Clause, supporters of a disfavored party, justify and the Article I requirement that mem- the First Amendment burdens imposed by bers of the House of Representatives be the plan. U.S. Const. Amend. 1. chosen by ‘‘the People,’’ and by representing an impermissible effort to dictate elec- O 153. United States 217(2) toral outcomes and disfavor a class of can- The Elections Clause empowers the didates. U.S. Const. art. 1, § 2, cl. 1; U.S. States to promulgate regulations designed Const. art. 1, § 4, cl. 1; U.S. Const. to ensure that congressional elections are Amends. 1, 14. fair and honest and that some sort of order O rather than chaos accompanies the demo- 158. United States 217(1) cratic processes. U.S. Const. art. 1, § 4, The Elections Clause was intended to cl. 1. act as a safeguard against manipulation of electoral rules by politicians and factions in O 154. United States 217(2) the States to entrench themselves or place In exercising their powers, under their interests over those of the electorate, the Elections Clause, of supervision over with respect to congressional elections. congressional elections and in setting U.S. Const. art. 1, § 4, cl. 1. qualifications for voters, the States may 159. United States O216(4) not infringe upon basic constitutional Partisan gerrymandering in Republi- protections. U.S. Const. art. 1, § 4, cl. can-controlled state legislature’s remedial 1. congressional redistricting plan violated 155. United States O217(2) the Article I grant of authority to ‘‘the The Elections Clause does not serve People’’ to elect their Representatives in as a source of power for States to dictate the House of Representatives, by favoring electoral outcomes for congressional elec- supporters of Republican candidates over tions, to favor or disfavor a class of candi- supporters of non-Republican candidates, dates, or to evade important constitutional and by rendering Representatives respon- restraints. U.S. Const. art. 1, § 4, cl. 1. sive to the state legislature, which drew 798 318 FEDERAL SUPPLEMENT, 3d SERIES

their districts, rather than to the People. ments violated state Constitution by mis- U.S. Const. art. 1, § 2, cl. 1. leading voters regarding the nature of the 160. United States O217(2) amendments. U.S. Const. art. 1, § 2, cl. Neither the design of the Constitution 1; U.S. Const. art. 1, § 4, cl. 1; U.S. Const. nor sound principles of representative gov- Amends. 1, 14. ernment are consistent with the right or 163. States O27(10) power of a State to interfere with the direct line of accountability between the As a general rule, once a federal court United States House of Representatives concludes that a state legislative districting and the people who elect it. U.S. Const. plan violates the Constitution or federal art. 1, § 2, cl. 1. law, it should afford a reasonable opportu- 161. States O27(10) nity for the state legislature to meet con- Absent unusual circumstances, such as stitutional requirements by adopting a where an impending election is imminent substitute measure, rather than have the and a State’s election machinery is already federal court to devise its own plan. in progress, courts should take appropriate O action to insure that no further elections 164. States 27(10) are conducted under a State’s invalid legis- When a court finds a remedial state lative redistricting plan. legislative districting plan violates the 162. Injunction O1347 Constitution, courts generally do not af- United States O216(5) ford the legislature a second ‘‘bite-at-the- Even though state’s primary elections apple’’ to enact a constitutionally compliant had been held several months ago and the plan. general election was only a few months away, unusual circumstances existed, so that District Court could not rule out the possibility of injunctive relief to ensure that no further elections were conducted Benjamin W. Thorpe, Emmet J. Bondu- under Republican-controlled state legisla- rant, Jason J. Carter, Bondurant Mixson ture’s remedial congressional redistricting & Elmore, LLP, Atlanta, GA, Caroline P. plan, which was an unconstitutional parti- Mackie, Steven B. Epstein, Edwin M. san gerrymander; legislature had abol- Speas, Jr., Poyner Spruill, LLP, Raleigh, ished primary elections for several parti- NC, Gregory L. Diskant, Peter A. Nelson, san state offices, two months earlier the Patterson Belknap Webb & Tyler, New legislative defendants had represented to York, NY, for Plaintiffs. United States Supreme Court that altering state legislative districts at that time Alexander McClure Peters, James Ber- would cause only minimal disruption to nier, Jr., N.C. Department of Justice, Mi- ongoing election process notwithstanding chael Douglas McKnight, Phillip John that State had already conducted primary Strach, Thomas A. Farr, Ogletree Deakins election using challenged districts, and Nash Smoak & Stewart, P.C., Raleigh, state courts had indefinitely enjoined NC, for Defendants. State from preparing or finalizing ballots for general election on grounds that lan- Before WYNN, Circuit Judge, and guage adopted by legislature to describe OSTEEN, District Judge, and BRITT, two proposed state constitutional amend- Senior District Judge. COMMON CAUSE v. RUCHO 799 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

MEMORANDUM OPINION In these consolidated cases, two groups WYNN, Circuit Judge, wrote the of Plaintiffs allege that North Carolina’s opinion, in which BRITT, Senior District 2016 Congressional Redistricting Plan (the Judge, concurred. ‘‘2016 Plan’’) constitutes a partisan gerrymander in violation of Article I of the TABLE OF CONTENTS Constitution, the First Amendment, and I. BACKGROUNDTTT801 the Equal Protection Clause of the Four- teenth Amendment. After conducting a A. THE MODERN HISTORY OF REDISTRICT- four-day trial and carefully considering the ING IN NORTH CAROLINATTT801 parties’ evidence and briefing, this Court B. THE DRAWING OF THE 2016 awarded judgment in Plaintiffs’ favor on PLANTTT803 all of their claims and enjoined the State TTT C. PROCEDURAL HISTORY 810 from using the 2016 Plan in future elec- II. JURISDICTIONAL ARGU- tions. Common Cause v. Rucho, 279 MENTSTTT814 F.Supp.3d 587, 598 (M.D.N.C. 2018), vacat- A. STANDINGTTT814 ed sub nom. Rucho v. Common Cause, ––– 1. Equal Protection ClauseTTT815 U.S. ––––, 138 S.Ct. 2679, ––– L.Ed.2d 2. First AmendmentTTT828 –––– (2018) (mem.). On July 25, 2018, the 3. Article ITTT831 Supreme Court vacated that judgment, and remanded the case to this Court for B. JUSTICIABILITYTTT836 1. Governing LawTTT837 reconsideration in light of the Supreme 2. Legislative Defendants’ Arguments Court’s decision in Gill v. Whitford, ––– Against JusticiabilityTTT843 U.S. ––––, 138 S.Ct. 1916, ––– L.Ed.2d –––– (2018), which addressed what evi- III. EQUAL PROTECTIONTTT860 dence a plaintiff must put forward to es- TTT A. BACKGROUND LAW 861 tablish Article III standing to lodge a par- TTT 1. Discriminatory Intent 861 tisan vote dilution claim under the Equal 2. Discriminatory EffectsTTT864 Protection Clause. 3. Lack of JustificationTTT867 As further explained below, we conclude B. APPLICATIONTTT868 that, under the test set forth in Gill, at 1. Statewide EvidenceTTT868 least one Plaintiff registered to vote in 2. District-Specific EvidenceTTT923 each of the thirteen districts in the 2016 IV. FIRST AMENDMENTTTT923 Plan has standing to assert an Equal Pro- A. BACKGROUND LAWTTT924 tection challenge to each of those districts.

B. LEGAL STANDARD AND APPLICA- In particular, such Plaintiffs introduced ev- TIONTTT929 idence establishing that each of their dis- 1. Intent To Burden Speech and Asso- tricts is ‘‘packed or cracked’’ and, as a ciational RightsTTT929 result, that their votes ‘‘carry less weight 2. Burden on Speech and Associational than [they] would carry in another, hypo- RightsTTT930 thetical district.’’ Id. at 1931. We further 3. CausationTTT935 conclude that Gill did not call into question—and, if anything, supported—this V. ARTICLE ITTT935 Court’s previous determination that Plain- TTT A. BACKGROUND LAW 937 tiffs have standing to assert partisan ger- B. APPLICATIONTTT937 rymandering claims under Article I and VI. REMEDYTTT941 the First Amendment. 800 318 FEDERAL SUPPLEMENT, 3d SERIES

[1–4] As to the merits, a common tisan gerrymandering amounts to an effort thread runs through the restrictions on to dictate electoral outcomes by favoring state election regulations imposed by Arti- candidates of one party and disfavoring cle I, the First Amendment, and the Equal candidates of another. Thornton, 514 U.S. Protection Clause: the Constitution does at 833–34, 115 S.Ct. 1842. By intentionally not allow elected officials to enact laws ensuring that Representatives from one that distort the marketplace of political party have a disproportionate voice in Con- ideas so as to intentionally favor certain gress, it also ‘‘restrict[s] the speech of political beliefs, parties, or candidates and some elements of our society’’—voters who disfavor others. In particular, Article I do not support the policies embraced by preserves inviolate the right of ‘‘the Peo- the favored party—and ‘‘enhance[s] the ple’’ to elect their Representatives, and relative voice of others’’—voters who sup- therefore bars the States from enacting port the favored party. Buckley, 424 U.S. election regulations that ‘‘dictate electoral at 48–49, 96 S.Ct. 612. And by favoring the outcomes’’ or ‘‘favor or disfavor a class of viewpoints of one group of voters over candidates.’’ U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833–34, 115 S.Ct. another, it runs afoul of the Government’s 1842, 131 L.Ed.2d 881 (1995). Similarly, constitutional duty to ‘‘treat its voters as the First Amendment prohibits election standing in the same position, regardless regulations that ‘‘restrict the speech of of their political beliefs or party affilia- some elements of our society in order to tion.’’ Davis, 478 U.S. at 166, 106 S.Ct. enhance the relative voice of others.’’ 2797. Buckley v. Valeo, 424 U.S. 1, 48–49, 96 [8–10] Put differently, by intentionally S.Ct. 612, 46 L.Ed.2d 659 (1976) (per cu- seeking to entrench a favored party in riam). And the Equal Protection Clause power and make it difficult—if not impos- embodies the foundational constitutional sible—for candidates of parties supporting principle that the State must govern ‘‘impartially’’—that ‘‘the State should treat its disfavored viewpoints to prevail, partisan voters as standing in the same position, gerrymandering ‘‘seeks not to advance a regardless of their political beliefs or party legitimate regulatory goal, but to suppress affiliation.’’ Davis v. Bandemer, 478 U.S. unpopular ideas or information or manipu- 109, 166, 106 S.Ct. 2797, 92 L.Ed.2d 85 late the public debate through coercion (1986) (Powell, J., concurring in part and rather than persuasion.’’ Turner Broad. dissenting in part). That the framers of the Sys., Inc. v. F.C.C., 512 U.S. 622, 641, 114 Constitution and the Reconstruction S.Ct. 2445, 129 L.Ed.2d 497 (1994). But Amendments sought to protect this princi- ‘‘ ‘[t]he best test of truth is the power of ple through three different constitutional the thought to get itself accepted in the provisions only reinforces its centrality to competition of the market,’ and the people our democratic system. lose when the government is the one decid- [5–7] Partisan gerrymandering—‘‘the ing which ideas should prevail.’’ Nat’l drawing of legislative district lines to sub- Inst. of Family & Life Advocates v. Becer- ordinate adherents of one political party ra, ––– U.S. ––––, 138 S.Ct. 2361, 2375, ––– and entrench a rival party in power,’’ Ariz. L.Ed.2d –––– (2018) (emphasis added) State Legislature v. Ariz. Indep. Redis- (quoting Abrams v. United States, 250 tricting Comm’n, ––– U.S. ––––, 135 S.Ct. U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 2652, 2658, 192 L.Ed.2d 704 (2015)— (1919) (Holmes, J., dissenting) ). Partisan strikes at the heart of this foundational gerrymanders, therefore, ‘‘raise the spec- constitutional principle. By definition, par- ter that the Government may effectively COMMON CAUSE v. RUCHO 801 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

drive certain ideas or viewpoints from the ests of non-Republican voters not because marketplace.’’ Turner Broad., 512 U.S. at they believe doing so advances any demo- 641, 114 S.Ct. 2445 (internal quotation cratic, constitutional, or public interest, but marks omitted). because, as the chief legislative mapdrawer That is precisely what the Republican- openly acknowledged, the General Assem- controlled North Carolina General Assem- bly’s Republican majority ‘‘think[s] elect- bly sought to do here. The General Assem- ing Republicans is better than electing bly expressly directed the legislators and Democrats.’’ Ex. 1016, at 34:21–23. But consultant responsible for drawing the that is not a choice the Constitution allows 2016 Plan to rely on ‘‘political data’’—that legislative mapdrawers to make. Rather, is, past election results specifying whether, ‘‘those who govern should be the last peo- and to what extent, particular voting pre- ple to help decide who should govern.’’ cincts had favored Republican or Demo- McCutcheon v. Fed. Election Comm’n., cratic candidates, and therefore were likely 572 U.S. 185, 134 S.Ct. 1434, 1441–42, 188 to do so in the future—to draw a district- L.Ed.2d 468 (2014) (plurality op. of Rob- ing plan that would ensure Republican erts, C.J.). Indeed, ‘‘the core principle of candidates would prevail in the vast major- [our] republican government [is] that the ity of the State’s congressional districts, voters should choose their representatives, and would continue to do so in future not the other way around.’’ Ariz. State elections. Ex. 1007. And the Republican- Leg., 135 S.Ct. at 2677 (internal quotation controlled General Assembly achieved that marks omitted). Accordingly, and as fur- goal. As detailed below, the 2016 Plan led ther explained below, we conclude, with to Republican candidates prevailing by one narrow exception,2 that Plaintiffs pre- ‘‘safe’’ margins in the vast majority of the vail on all of their constitutional claims.3 State’s thirteen congressional districts. Put differently, the General Assembly’s Re- I. BACKGROUND publican majority ‘‘decid[ed] which ideas [w]ould prevail’’ in the State’s congression- A. THE MODERN HISTORY OF REDISTRICTING al elections. Becerra, 138 S.Ct. at 2375. In IN NORTH CAROLINA doing so, they deprived Democratic voters Over the last 30 years, North Carolina ‘‘of their natural political strength’’ by voters repeatedly have asked state and making it difficult for such voters to raise federal courts to pass judgment on the money, attract strong candidates, and mo- constitutionality of the congressional dis- tivate fellow party members and indepen- tricting plans drawn by their state legisla- dent voters to campaign and vote. Gill, 138 tors. The first such challenge involved a S.Ct. at 1938 (Kagan, J., concurring). redistricting plan adopted by the North [11, 12] Legislative Defendants 1 drew Carolina General Assembly after the 1990 a plan designed to subordinate the inter- census, which increased the size of North

1. Senator Robert Rucho, in his official capac- 2. As further explained below, we hold that ity as co-chair of the Joint Select Committee Plaintiffs failed to adduce sufficient evidence on Congressional Redistricting (the ‘‘Commit- to support their partisan vote dilution chal- tee’’); Representative David Lewis, in his offi- lenge under the Equal Protection Clause to cial capacity as co-chair of the Committee; District 5. See infra Part III.B.2.e. Timothy K. Moore, in his official capacity as Speaker of the North Carolina House of Rep- 3. This opinion constitutes our findings of fact resentatives; and Philip E. Berger, in his offi- and conclusions of law pursuant to Federal cial capacity as President Pro Tempore of the Rule of Civil Procedure 52(a)(1). North Carolina Senate. 802 318 FEDERAL SUPPLEMENT, 3d SERIES

Carolina’s congressional delegation from U.S. 899, 905–18, 116 S.Ct. 1894, 135 11 to 12 members. See Shaw v. Reno L.Ed.2d 207 (1996). In 1997, a politically (Shaw I ), 509 U.S. 630, 633–34, 113 S.Ct. divided General Assembly enacted a reme- 2816, 125 L.Ed.2d 511 (1993). When the dial plan expected to elect six Republican General Assembly set out to redraw the and six Democratic Representatives, ren- state’s congressional districts to incorpo- dering each party’s share of the state’s rate the new seat, the Department of Jus- congressional delegation proportional to its tice, pursuant to its ‘‘max-black’’ policy, share of the statewide vote in the most pushed for the creation of a second majori- recent congressional election. Cromartie v. ty-black district to augment, it maintained, Hunt, 133 F.Supp.2d 407, 412-13 the representation of the state’s African- (E.D.N.C. 2000), rev’d sub nom. Easley v. American voters in Congress. Id. at 635, Cromartie, 532 U.S. 234, 121 S.Ct. 1452, 113 S.Ct. 2816. In response, the General 149 L.Ed.2d 430 (2001); id. at 423-24 Assembly prepared a revised district map (Thornburg, J., dissenting). In 2001, after that included the majority-black First and several more years of litigation, the Su- Twelfth Districts (the ‘‘1992 Plan’’). Id. preme Court approved that remedial plan. Several dozen North Carolina voters, See Easley, 532 U.S. 234, 121 S.Ct. 1452 most of whom were Republican, challenged (holding that three-judge panel’s finding the 1992 Plan as a partisan gerrymander, that race constituted the predominant mo- in violation of the Equal Protection Clause, tivation in redrawing remedial districts the First Amendment, and Article I, Sec- was not supported by substantial evi- tion 2 of the United States Constitution. dence). Pope v. Blue, 809 F.Supp. 392, 394–95, Just as litigation regarding the 1992 397–98 (W.D.N.C. 1992), aff’d 506 U.S. 801, Plan came to an end, the results of the 113 S.Ct. 30, 121 L.Ed.2d 3 (1992). A divid- 2000 census entitled North Carolina to an- ed three-judge panel dismissed the action, other seat in Congress, and the General holding that the plaintiffs failed to ade- Assembly again set out to redraw the quately allege that the redistricting plan state’s congressional districts to include had a legally cognizable ‘‘discriminatory the additional seat. The resulting plan, effect’’ on any ‘‘identifiable political group,’’ which was adopted in 2001 (the ‘‘2001 under the standard set forth in the Su- Plan’’), was used in each of the State’s preme Court’s decision in Davis v. Ban- congressional elections between 2001 and demer, 478 U.S. 109, 127, 106 S.Ct. 2797, 2010. In all but one of these elections, the 92 L.Ed.2d 85 (1986) (plurality op.). Pope, party receiving more statewide votes for 809 F.Supp. at 397. their candidates for the House of Repre- Separately, a group of North Carolina sentatives also won a majority of the seats voters challenged the 1992 Plan as a racial in North Carolina’s congressional delega- gerrymander, in violation of the Equal tion (the only exception being the 2010 Protection Clause. Shaw I, 509 U.S. at 636- election, in which Republicans won 54 per- 37, 113 S.Ct. 2816. After several years of cent of votes statewide but only 6 of the 13 litigation, the Supreme Court held that the seats). Exs. 1021–25. Although the 2001 General Assembly’s use of race as the Plan did not include any majority-black predominant factor in drawing the second districts, black voters in the First and majority-black district in the 1992 Plan Twelfth Districts were consistently suc- violated the Equal Protection Clause, and cessful in electing their preferred candi- enjoined the use of that district in future dates. Harris v. McCrory, 159 F.Supp.3d elections. Shaw v. Hunt (Shaw II ), 517 600, 606–07 (M.D.N.C. 2016), aff’d sub COMMON CAUSE v. RUCHO 803 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

nom. Cooper v. Harris, ––– U.S. ––––, 137 Carolina, in particular, REDMAP sought S.Ct. 1455, 197 L.Ed.2d 837 (2017). Unlike to ‘‘[s]trengthen Republican redistricting the 1992 Plan, the 2001 Plan did not gener- power by flipping [state legislative] cham- ate significant federal litigation. Id. at 607. bers from Democrat to Republican con- B. THE DRAWING OF THE 2016 PLAN trol.’’ Ex. 2020. In 2010, for the first time in more than a Representative Lewis and Senator Ru- century, North Carolina voters elected Re- cho, both of whom are Republican, orally publican majorities in both the North Car- instructed Dr. Hofeller regarding the cri- olina Senate and the North Carolina teria he should follow in drawing the new House of Representatives, giving Republi- districting plan. Dep. of Thomas B. Hofel- cans exclusive control over the decennial ler (‘‘Hofeller Dep.’’) 20:7–19, Jan. 24, 2017, congressional redistricting process.4 See id. ECF Nos. 101-34, 110-1. According to Dr. at 607. The House of Representatives and Hofeller, Representative Lewis and Sena- Senate each established redistricting com- tor Rucho’s ‘‘primar[y] goal’’ in drawing mittees, which were jointly responsible for preparing a proposed congressional redis- the new districts was ‘‘to create as many tricting plan. Id. Representative David districts as possible in which GOP candi- Lewis, in his capacity as the senior chair of dates would be able to successfully com- the House Redistricting Committee, and pete for office.’’ Id. at 123:1–7. Senator Robert Rucho, in his capacity as In accordance with Representative Lew- senior chair of the Senate Redistricting is and Senator Rucho’s instructions, Dr. Committee, were responsible for develop- Hofeller testified that he sought ‘‘to mini- ing the proposed redistricting plan. Id. mize the number of districts in which Through private counsel, the committees Democrats would have an opportunity to engaged Dr. Thomas Hofeller, who had elect a Democratic candidate.’’ Id. at previously worked as the redistricting 127:19–22. In order to minimize the elec- coordinator for the Republican National toral opportunities of Democratic candi- Committee, to draw the new congressional dates, Dr. Hofeller used the results of past districting plan. Id. Concurrent with his statewide elections to predict whether a work on the 2011 North Carolina congres- particular precinct or portion of a precinct sional redistricting plan, Dr. Hofeller also was likely to vote for a Republican or served on a ‘‘redistricting team’’ estab- Democratic congressional candidate in fu- lished as part of the national Republican ture elections. See id. at 132:22–134:13, State Leadership Committee’s (‘‘RSLC’’) 159:20–160:12. According to Dr. Hofeller, Redistricting Majority Project, commonly referred to as ‘‘REDMAP.’’ Ex. 2015, at ‘‘past voting behavior,’’ as reflected in ¶ 13. According to RSLC, REDMAP ‘‘past election results,’’ is ‘‘the best pre- sought to elect Republican candidates to dictor of future election success.’’ Ex. 2037. state legislatures so that Republicans Past election data have become ‘‘the indus- would control such legislatures’ redistrict- try standard’’ for predicting the partisan ing efforts and thereby ‘‘solidify conserva- performance of a districting plan, he ex- tive policymaking at the state level and plained, because ‘‘as more and more voters maintain a Republican stronghold in the TTT register non-partisan or independent,’’ U.S. House of Representatives for the next party registration data have decreased in decade.’’ Id. at ¶ 10. With regard to North predictive value. Id.

4. Under the North Carolina Constitution, the tricting legislation. See N.C. Const. art. II, Governor lacks the authority to veto redis- § 22. 804 318 FEDERAL SUPPLEMENT, 3d SERIES

Using past election data to ‘‘draw maps state. Harris, 159 F.Supp.3d at 608. This that were more favorable to Republican goal worked hand-in-hand with the Gener- candidates,’’ Dr. Hofeller moved district al Assembly’s partisan objective because, lines ‘‘to weaken Democratic strength in as Legislative Defendants acknowledge, Districts 7, 8, and 11 TTT by concentrating ‘‘race and politics are highly correlated.’’ Democratic voting strength in Districts 1, Ex. 2043, at ¶ 120. Thus, Dr. Hofeller drew 4, and 12.’’ Ex. 2043, at 33–34. Additional- the map to further concentrate black vot- ly, according to Dr. Hofeller, ‘‘[t]he Gener- ers, who are more likely to vote for Demo- al Assembly’s goal [in 2011] was to in- cratic candidates, into District 1 and Dis- crease Republican voting strength in New trict 12, where Dr. Hofeller already was Districts 2, 3, 6, 7, and 13. This could only planning to concentrate Democratic voting be accomplished by placing all the strong strength. Harris, 159 F.Supp.3d at 607–09. Democratic [census voting districts As a result, the proportion of black voters 5 (‘‘VTDs’’) ] in either New Districts 1 or in those districts increased from 47.76 per- 4.’’ Hofeller Dep. 116:19–117:25; Ex. 2036, cent to 52.65 percent and from 43.77 per- at 4 (Dr. Hofeller averring that ‘‘[t]he Re- cent to 50.66 percent, respectively. Id. The publican strategy was to weaken Demo- General Assembly enacted the 2011 Plan cratic strength in Districts 7, 8, and 11; on July 28, 2011. Id. at 608. and to completely revamp District 13, con- verting it into a competitive GOP dis- North Carolina conducted two congres- trict.’’). Dr. Hofeller testified that to ‘‘im- sional elections using the 2011 Plan. In prove[ ] GOP voting strength’’ in Districts 2012, Republican candidates received a mi- 2 and 9, he ‘‘concentrat[ed] Democratic nority of the statewide vote (49%), Ex. voting strength in Districts 1, 4 and 12.’’ 3023, but won a supermajority of the seats Ex. 2036, at 4. Dr. Hofeller conceded that, in the State’s congressional delegation (9 by making these changes, the 2011 Plan of 13), Ex. 1020. In 2014, Republican candi- ‘‘diminished TTT [t]he[ ] opportunity to dates received 54 percent of the statewide elect a Democratic candidate in the dis- vote, and won 10 of the 13 congressional tricts in which [he] increased Republican seats. Ex. 1019. voting strength.’’ Hofeller Dep. 128:17–21. Meanwhile, voters living in the two ma- All told, Dr. Hofeller testified that he re- jority-black districts challenged the 2011 drew Districts 2, 3, 6, 7, 8, 9, 11, and 13 to Plan in both state and federal court, alleg- increase Republican voting strength in ing that lines for the two districts consti- those districts, and, to do so, he concen- tuted unconstitutional racial gerryman- trated Democratic voters in Districts 1, 4, ders. Harris, 159 F.Supp.3d at 609–10. and 12. The Supreme Court of North Carolina Claiming (incorrectly) that Section 2 of twice ruled that the 2011 Plan did not the Voting Rights Act required the cre- violate the state or federal constitution. ation of majority-black districts ‘‘where Dickson v. Rucho, 368 N.C. 481, 781 possible,’’ Representative Lewis and Sena- S.E.2d 404, 410–11 (2015), vacated, ––– tor Rucho also directed Dr. Hofeller to U.S. ––––, 137 S.Ct. 2186, 198 L.Ed.2d 252 draw two majority-black districts in the (2017) (mem.); Dickson v. Rucho, 367 N.C.

5. Counties in North Carolina draw precinct For the most part, precincts and VTDs in lines based on the latest census. The General North Carolina remain the same, although Assembly created VTDs on January 1, 2008, since January 1, 2008, some counties have defined by the precinct lines as they existed divided certain VTDs into multiple precincts. on that date. N.C. Gen. Stat. § 163-132.1B. COMMON CAUSE v. RUCHO 805 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

542, 766 S.E.2d 238 (2014), vacated, ––– again, Representative Lewis and Senator U.S. ––––, 135 S.Ct. 1843, 191 L.Ed.2d 719 Rucho did not reduce their instructions to (2015) (mem.). However, on February 5, Dr. Hofeller to writing. Lewis. Dep. 60:1– 2016, a three-judge panel presiding in the 13. In addition to directing Dr. Hofeller to U.S. District Court for the Middle District remedy the racial gerrymander, Represen- of North Carolina struck down Districts 1 tative Lewis and Senator Rucho again di- and 12 as unconstitutional racial gerry- rected Dr. Hofeller to use political data— manders and enjoined their use in future precinct-level election results from all elections. Harris, 159 F.Supp.3d at 627. statewide elections, excluding presidential Following argument, the Supreme Court elections, dating back to January 1, 2008— affirmed the Harris panel’s decision in its in drawing the remedial plan. Ex. 2043, at entirety. Cooper v. Harris, ––– U.S. ––––, ¶ 38; Lewis Dep. 162:24–163:7; Hofeller 137 S.Ct. 1455, 197 L.Ed.2d 837 (2017). Dep. 100:3–102:5, 180:10–16. Representa- With both chambers of the North Car- tive Lewis and Senator Rucho further in- olina General Assembly still controlled by structed Dr. Hofeller that he should use Republicans—and elected under one of the that political data to draw a map that most widespread racial gerrymanders ever would maintain the existing partisan make- confronted by a federal court, Covington v. up of the state’s congressional delegation, North Carolina, 316 F.R.D. 117, 124 which, as elected under the racially gerry- (M.D.N.C. 2016), aff’d ––– U.S. ––––, 137 mandered plan, included 10 Republicans S.Ct. 2211, 198 L.Ed.2d 655 (2017)—Rep- and 3 Democrats. Ex. 2043, at ¶ 38; Lewis resentative Lewis and Senator Rucho Dep. 162:24–163:7; Hofeller Dep. 175:19– again took charge of drawing the remedial 23, 178:14–20, 188:19–190:2. And Represen- districting plan. On February 6, 2016, Rep- tative Lewis and Senator Rucho instructed resentative Lewis once more engaged Dr. Dr. Hofeller ‘‘to change as few’’ of the Hofeller to draw the remedial plan. Dep. of district lines in the 2011 Plan as possible in Rep. David Lewis (‘‘Lewis Dep.’’) 44:2–4, remedying the racial gerrymander. Lewis Jan. 26, 2017, ECF Nos. 101-33, 108-3, 110- Dep. 75:25–76:2. 3, 110-4; see also Ex. 4061. Soon thereafter, Representative Lewis spoke with Dr. With these instructions, Dr. Hofeller Hofeller over the phone regarding the continued to prepare draft redistricting drawing of the new plan. Lewis Dep. plans on his personal computer. To achieve 44:12–24; Ex. 4061. Even before he spoke Representative Lewis and Senator Rucho’s with Representative Lewis, Dr. Hofeller partisan objectives—and in accordance had begun working on a remedial plan with his belief that ‘‘past voting data’’ best using redistricting software and data on predict future election results—Dr. Hofel- his personal computer. Hofeller Dep. ler drew the draft plans using an aggre- 130:2–9. gate variable he created to predict parti- On February 9, 2016, Representative san performance. For each census block, Lewis and Senator Rucho met with Dr. the variable compared the sum of the votes Hofeller at his home and provided him cast for Republican candidates in seven with more detailed oral instructions re- statewide races occurring between 2008 garding the criteria he should follow in and 2014 with the sum of the average total drawing the remedial plan. Ex. 4061; Lew- number of votes cast for Democratic and is Dep. 48:19-49:7; Dep. of Sen. Robert Republican candidates in those same races. Rucho (‘‘Rucho Dep.’’) 170:13-170:17, Jan. Exs. 1017, 2002, 2039, 2043 at ¶¶ 18, 47, 49, 25, 2017, ECF Nos. 101-32, 110-5. Once 50; Dep. of Thomas Hofeller, Vol. II (‘‘Ho- 806 318 FEDERAL SUPPLEMENT, 3d SERIES

feller Dep. II’’) 262:21–24, Feb. 10, 2017, aries of split counties were drawn using a ECF No. 110-2. composite percentage of seven statewide Dr. Hofeller testified that he used the political races.’’). averaged results from the seven elections In assigning a county, VTD, or precinct so as ‘‘to get a pretty good cross section of to a particular district, Dr. Hofeller also what the past vote had been,’’ Hofeller sought to preserve the ‘‘core’’ constituency Dep. 212:16–213:9, and ‘‘[t]o give [him] an of the districts in the 2011 Plan. Ex. 5001, indication of the two-party partisan char- at ¶ 31. Using his partisanship variable— acteristics of VTDs,’’ Hofeller Dep. II and in accordance with his effort to pre- 267:5–6. Dr. Hofeller explained that ‘‘he serve the ‘‘cores’’ of the districts in the had drawn numerous plans in the state of 2011 Plan—Dr. Hofeller drew, for exam- North Carolina over decades,’’ and in his ple, Districts 1, 4, and 12 to be ‘‘predomi- TTT ‘‘experience[,] the underlying political nantly Democratic,’’ as those districts had nature of the precincts in the state does been under the 2011 Plan. Hofeller Dep. not change no matter what race you use to 192:7–16. After drawing a draft plan, Dr. analyze it.’’ Ex. 2045, at 525:6–10; Hofeller Hofeller also would use his seven-election Dep. at 149:5–18. ‘‘So once a precinct is variable to assess the partisan perform- found to be a strong Democratic precinct, ance of the plan on a district-by-district it’s probably going to act as a strong Dem- basis and as a whole. Id. at 247:18–23; ocratic precinct in every subsequent elec- Hofeller Dep. II 283:15–19, 284:20–285:4. tion. The same would be true for Republi- Dr. Hofeller then would convey his assess- can precincts.’’ Ex. 2045, at 525:14–17; see ment of the partisan performance of each also Hofeller Dep. II at 274:9–12 (‘‘[I]ndi- district to Representative Lewis. Hofeller vidual VTDs tend to carry TTT the same Dep. II 290:17–25. characteristics through a string of elections.’’). The following day, February 10, 2016, When he drew district lines, Dr. Hofel- Dr. Hofeller met with Representative ler was constantly aware of the partisan Lewis and Senator Rucho and showed characteristics of each county, precinct, them several draft redistricting plans. Ru- and VTD. Displaying the partisanship vari- cho Dep. 31:16-31:18, 37:7-37:8. ‘‘Nearly ev- able on his computer screen by color-cod- ery time’’ he reviewed Dr. Hofeller’s draft ing counties, VTDs, or precincts to reflect maps, Representative Lewis assessed the their likely partisan performance, Ex. partisan performance of the 2016 Plan as a 5116, at ¶ 8, fig. 1; Hofeller Dep. 103:5– whole and each ‘‘individual voter dis- 105:24; Hofeller Dep. II 267:18–278:4, Dr. trict[ ]’’ using the results from North Car- Hofeller would use the partisanship varia- olina’s 2014 Senate race between Senator ble to assign a VTD ‘‘to one congressional Thom Tillis and former Senator Kay Ha- district or another,’’ Hofeller Dep. 106:23– gan, which was, in Representative Lewis’s 107:1, 132:14–20, and ‘‘as a partial guide’’ opinion, ‘‘the closest political race with in deciding whether and where to split equally matched candidates who spent VTDs or counties, id. at 203:4-5; see also about the same amount of money.’’ Lewis id. at 202:2-5; Hofeller Dep. II at 267:10- Dep. 63:9–64:17. Representative Lewis vis- 17. Dr. Hofeller further averred that parti- ited Dr. Hofeller’s house several more sanship considerations were the principal times over the next few days to review factor governing his placement of district additional draft remedial plans. On either lines within split counties. Ex. 5001, at 7–8 February 12 or February 13, Dr. Hofeller (‘‘For the most part, the internal bound- presented the near-final 2016 Plan to Rep- COMMON CAUSE v. RUCHO 807 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) resentative Lewis, which Representative number of persons in each congressional Lewis found acceptable. Id. at 77:7-20. Us- district shall be as nearly as equal as ing the results of the Tillis-Hagan race, practicable, as determined under the Representative Lewis concluded that the most recent federal decennial census. 2016 Plan would yield the ‘‘10-3 Republican Contiguity: Congressional districts shall advantage’’ the Chairs had intended. Id. at be comprised of contiguous territory. 128:29. Contiguity by water is sufficient. On February 12, 2016, the leadership of the North Carolina General Assembly ap- Political Data: The only data other than pointed Representative Lewis and Senator population data to be used to construct Rucho as co-chairs of a newly formed a congressional districts shall be election Joint Select Committee on Congressional results in statewide contests since Janu- Redistricting (the ‘‘Committee’’), com- ary 1, 2008, not including the last two prised of 25 Republican and 12 Democratic presidential contests. Data identifying legislators, to draw the remedial district the race of individuals or voters shall not plan. Ex. 2009. On February 15, 2016—two be used in the construction or consider- days after Dr. Hofeller completed drawing ation of districts in the 2016 Contingent the 2016 Plan—the co-Chairs held a public Congressional Plan. Voting districts hearing on the redistricting effort. Ex. (‘‘VTDs’’) should be split only when nec- 1004. Dr. Hofeller did not attend the public essary to comply with the zero deviation hearing. Rucho Dep. 55:4–6. The Commit- population requirements set forth above tee also solicited written comments regard- in order to ensure the integrity of politi- ing the redistricting efforts on its website. cal data. Id. at 55:10–23. Dr. Hofeller was not ap- Partisan Advantage: The partisan make- prised of any of the comments made at the up of the congressional delegation under public hearing or in the written submis- the enacted plan is 10 Republicans and 3 sions. Id. at 55:4–56:13. Because Dr. Hofel- Democrats. The Committee shall make ler finished drawing the 2016 Plan before reasonable efforts to construct districts the public hearing and the opening of the window for members of the public to sub- in the 2016 Contingent Congressional mit written comments, Hofeller Dep. Plan to maintain the current partisan 177:9–21, the 2016 Plan did not reflect any makeup of North Carolina’s congression- public input. al delegation. On February 16, 2016—three days after Twelfth District: The current General Dr. Hofeller, at Representative Lewis and Assembly inherited the configuration of Senator Rucho’s direction, had completed the Twelfth District from past General drawing the remedial maps, id.; Ex. 5001, Assemblies. This configuration was re- at ¶ 33—the Committee met for the first tained because the district had already time. At that meeting, Representative been heavily litigated over the past two Lewis and Senator Rucho proposed the decades and ultimately approved by the following criteria to govern the drawing of courts. The Harris court has criticized the remedial districts: the shape of the Twelfth District citing Equal Population: The Committee will its ‘‘serpentine’’ nature. In light of this, use the 2010 federal decennial census the Committee shall construct districts data as the sole basis of population for in the 2016 Contingent Congressional the establishment of districts in the 2016 Plan that eliminate the current configu- Contingent Congressional Plan. The ration of the Twelfth District. 808 318 FEDERAL SUPPLEMENT, 3d SERIES

Compactness: In light of the Harris tage’’ criterion, stating that ‘‘ingrain[ing]’’ court’s criticism of the compactness of the 10-3 advantage in favor of Republicans the First and Twelfth Districts, the was not ‘‘fair, reasonable, [or] balanced’’ Committee shall make reasonable efforts because, as recently as 2012, Democratic to construct districts in the 2016 Contin- congressional candidates had received gent Congressional Plan that improve more votes on a statewide basis than Re- the compactness of the current districts publican candidates. Id. at 49:16–50:5, and keep more counties and VTDs whole 50:14–22. In response, Representative as compared to the current enacted Lewis said that he ‘‘propose[d] that [the plan. Division of counties shall only be Committee] draw the maps to give a parti- made for reasons of equalizing popula- san advantage to 10 Republicans and 3 tion, consideration of incumbency and Democrats because [he] d[id] not believe political impact. Reasonable efforts shall it[ would be] possible to draw a map with be made not to divide a county into more 11 Republicans and 2 Democrats.’’ Id. at than two districts. 50:7–10. Democratic Committee members Incumbency: Candidates for Congress also expressed concern that the Partisan are not required by law to reside in a Advantage criterion would ‘‘bake in parti- district they seek to represent. Howev- san advantage that was achieved through er, reasonable efforts shall be made to the use of unconstitutional maps.’’ Id. at ensure that incumbent members of 62:1–3. In response, Representative Lewis Congress are not paired with another again reiterated that ‘‘the goal’’ of the incumbent in one of the new districts criterion ‘‘is to elect 10 Republicans and 3 constructed in the 2016 Contingent Democrats.’’ Id. at 62:18–19. Congressional Plan. That same day, Committee members Ex. 1007. No other criteria were discussed by the Committee or in legislative debate adopted, on a bipartisan basis, the Equal on the 2016 Plan. Population, Contiguity, Twelfth District, and Incumbency criteria. Id. at 14:16–18:3, Representative Lewis explained the re- 21:9–24:18, 91:17–94:17, 95:15–98:20. The lationship between the ‘‘Political Data’’ and remaining two criteria—Political Data and ‘‘Partisan Advantage’’ criteria as follows: Partisan Advantage—were adopted on the Partisan Advantage criterion ‘‘contem- plate[s] looking at the political data TTT party-line votes. Id. at 43:21–47:5, 67:2– and as you draw the lines, if you’re trying 69:23. Additionally, the Committee author- to give a partisan advantage, you would ized the chairmen to engage a consultant want to draw lines so that more of the to assist the Committee’s Republican lead- whole VTDs voted for the Republican on ership in drawing the remedial plan. Ex. the ballot than they did the Democrat.’’ 2003. Ex. 1005, at 57:10–16. And he further ex- Also on February 16, 2016, after receiv- plained that ‘‘to the extent [we] are going ing authorization to hire a redistricting to use political data in drawing this map, it consultant, Representative Lewis and Sen- is to gain partisan advantage.’’ Id. at 54. ator Rucho sent Dr. Hofeller an engage- Representative Lewis ‘‘acknowledge[d] ment letter, which Dr. Hofeller signed freely that this would be a political gerry- that same day. Ex. 2003. Upon his formal mander,’’ which he maintained was ‘‘not engagement, Dr. Hofeller downloaded the against the law.’’ Id. at 48:4–6. 2016 Plan, which he had completed sever- Democratic state Senator Floyd McKis- al days earlier, from his personal comput- sick, Jr., objected to the ‘‘Partisan Advan- er onto a legislative computer. Lewis Dep. COMMON CAUSE v. RUCHO 809 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

138:6–8; Ex. 1009, at 45:7–45:11; Ex. 1014, the 2016 Plan, with one slight modifica- at 21:10–21:24; Ex. 4061. Democratic tion,6 on February 18 and February 19, Committee members were not allowed to respectively, in both cases by party-line consult with Dr. Hofeller nor were they votes. Ex. 1011, at 110:13–22; Ex. 1016, at allowed access to the state computer sys- 81:6–16. tems to which he downloaded the 2016 The 2016 Plan splits 13 counties and 12 Plan. Ex. 1011, at 36:9-20; Ex. 1014, at precincts. Ex. 5023. Under several mathe- 44:23-45:15; Ex. 2008. According to Repre- matical measures of compactness, the dis- sentative Lewis, Senator Rucho, and Dr. tricts created by the 2016 Plan are, on Hofeller, the 2016 Plan adhered to the average, more compact than the districts Committee’s Partisan Advantage and Po- created by the 2011 Plan. Ex. 5048. In litical Data criteria. Ex. 1014, at 36:25– accordance with the Chairs goals of pro- 37:6; Ex. 1016, at 37:3–7; Hofeller Dep. tecting incumbents and preserving the 129:14–15. ‘‘cores’’ of the districts in the 2011 Plan, 10 The following day, Representative Lewis of the 13 districts (Districts 1, 2, 3, 4, 5, 6, and Senator Rucho presented the 2016 7, 10, 11, and 12) in the 2016 Plan retain at Plan to the Committee. Ex. 1008. As part least 50 percent of the population in their of the presentation, Representative Lewis corresponding 2011 version. Ex. 5001, Ta- provided Committee members with ble 1. Representative Lewis acknowledged spreadsheets showing the partisan per- as much, testifying that ‘‘[m]any of formance of the proposed districts in twen- the[ districts in the 2016 Plan] look basical- ty previous statewide elections. Ex. 1017. ly the same as they did in the 2011 map.’’ Representative Lewis stated that he and Lewis Dep. 61:15–16. For example, Repre- Senator Rucho believed that the 2016 Plan sentative Lewis noted that, like the 2011 ‘‘will produce an opportunity to elect ten Plan, the 2016 Plan split Buncombe Coun- Republican members of Congress,’’ but it ty and the City of Asheville, where Demo- was ‘‘a weaker map than the [2011 Plan]’’ from the perspective of Partisan Advan- cratic voters are concentrated, between tage. Ex. 1008, at 12:3–7. The Committee Districts 10 and 11. Id. at 62:11–19. Not- approved the 2016 Plan by party-line vote. withstanding the General Assembly’s stat- Id. at 67:10–72:8. ed goal of protecting incumbents, the 2016 Plan paired 2 of the 13 incumbents elected On February 19, 2016, the North Car- under the unconstitutional 2011 Plan olina House of Representatives debated (David Price previously elected in District the 2016 Plan. During that debate, Repre- 4 and George Holding previously elected in sentative Lewis further explained the ra- District 13). Ex. 2010, at 15–19. tionale behind the Partisan Advantage criterion, stating: ‘‘I think electing Repub- The Harris plaintiffs filed objections to licans is better than electing Democrats. the Plan with the three-judge court presid- So I drew this map to help foster what I ing over the racial gerrymandering case. think is better for the country.’’ Ex. 1016, Harris v. McCrory, No. 1:13-cv-949, 2016 at 34:21–23. Following that debate, the WL 3129213, at *1 (M.D.N.C. June 2, North Carolina Senate and North Car- 2016). Among those objections, the Harris olina House of Representatives approved plaintiffs asked the court to reject the 2016

6. During a Senate Redistricting Committee Districts 6 and 13 to avoid placing two in- meeting on February 18, 2017, the 2016 Plan cumbents in the same district. Ex. 1009, at was slightly modified by moving two whole 53:2–54:14; Ex. 1014, at 22:21–23:10; Lewis precincts and one partial precinct between Dep. 138:6–139:2. 810 318 FEDERAL SUPPLEMENT, 3d SERIES

Plan as an unconstitutional partisan gerry- complaint alleging that the 2016 Plan con- mander. Id. at *2. Noting that the Su- stituted a partisan gerrymander. Compl., preme Court had not agreed to a standard Common Cause v. Rucho, No. 1:16-CV- for adjudicating partisan gerrymandering 1026, Aug. 5, 2016, ECF No. 1. The claims and that the ‘‘plaintiffs ha[d] not League of Women Voters of North Car- provided the Court with a ‘suitable stan- olina (the ‘‘League’’) and twelve North dard’ ’’ for evaluating such claims, the Carolina voters 8 (collectively, ‘‘League court rejected the partisan gerrymander- Plaintiffs,’’ and together with Common ing objection ‘‘as presented.’’ Id. at *3 Cause Plaintiffs, ‘‘Plaintiffs’’) filed their (quoting Ariz. State Leg., 135 S.Ct. at partisan gerrymandering action on Sep- 2658). The court twice made clear, howev- tember 22, 2016. Compl., League of Wom- er, that its ‘‘denial of plaintiffs’ objections en Voters of N.C. v. Rucho, No. 1:16-CV- does not constitute or imply an endorse- 1164, Sept. 22, 2016, ECF No. 1. Both ment of, or foreclose any additional chal- parties named as defendants Legislative lenges to, the [2016 Plan].’’ Id. at *1, *3 Defendants; A. Grant Whitney, Jr., in his (emphasis added). official capacity as Chairman of the North In November 2016, North Carolina con- Carolina State Board of Elections (the ducted congressional elections using the ‘‘Board of Elections’’); the Board of Elec- 2016 Plan. In accordance with the objections; and the State of North Carolina tive of the Partisan Advantage criterion, (collectively, with Chairman Whitney and Republican candidates prevailed in 10 of the Board of Elections, ‘‘State Defen- the 13 (76.92%) congressional districts es- dants,’’ and with Legislative Defendants, tablished by the 2016 Plan. Ex. 1018. Re- ‘‘Defendants’’). publican candidates received 53.22 percent In their operative complaints, both Com- of the statewide vote. Ex. 3022. Republican mon Cause Plaintiffs and League Plaintiffs candidates prevailed in each of the ten allege that the 2016 Plan violates the districts Dr. Hofeller and the Chairs in- Equal Protection Clause, by intentionally tended and expected Republican candi- diluting the electoral strength of individu- dates to prevail (Districts 2, 3, 5, 6, 7, 8, 9, als who previously opposed, or were likely 10, 11, and 13), and Democratic candidates to oppose, Republican candidates, and the prevailed in each of the three districts Dr. First Amendment, by intentionally burden- Hofeller and the Chairs intended and ex- ing and retaliating against supporters of pected to be ‘‘predominantly Democratic’’ non-Republican candidates on the basis of (Districts 1, 4, and 12). Exs. 3022, 5116. their political beliefs and association. First C. PROCEDURAL HISTORY Am. Compl. for Decl. J. and Inj. Relief On August 5, 2016, Common Cause, the (‘‘Common Cause Compl.’’) ¶¶ 25–45, Com- North Carolina Democratic Party, and mon Cause v. Rucho, No. 1:16-CV-1026, fourteen North Carolina voters 7 (collec- Sept. 7, 2016, ECF No. 12; Am. Compl. tively, ‘‘Common Cause Plaintiffs’’), filed a (‘‘League Compl.’’) ¶¶ 69–83, League of

7. The individual plaintiffs in the Common 8. The individual plaintiffs in the League ac- Cause action are Larry D. Hall; Douglas Ber- tion are William Collins, Elliott Feldman; ger; Cheryl Lee Taft; Richard Taft; Alice L. Carol Faulkner Fox; Annette Love; Maria Bordsen; William H. Freeman; Melzer A. Palmer; Gunther Peck; Ersla Phelps; John Morgan, Jr.; Cynthia S. Boylan; Coy E. Brew- Quinn, III; Aaron Sarver; Janie Smith Sump- er, Jr.; John Morrison McNeill; Robert War- ter; Elizabeth Torres Evans; and Willis ren Wolf; Jones P. Byrd; John W. Gresham; Williams. and Russell G. Walker, Jr. COMMON CAUSE v. RUCHO 811 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

Women Voters of N.C. v. Rucho, No. 1:16- tered opinions regarding the justiciability CV-1164, Feb. 10, 2017, ECF No. 41. of—and, to the extent such claims are Plaintiffs allege that the General Assembly justiciable, the legal framework for—parti- diluted the votes of supporters of non- san gerrymandering claims foreclosed Republican candidates through ‘‘crack- Plaintiffs’ claims. Mot. to Dismiss for Fail- ing’’—dispersing members or supporters ure to State a Claim, Feb. 21, 2017, ECF of a disfavored party or group across a No. 45. In a memorandum opinion and number districts so that they are relegated order entered March 3, 2017, this Court to minority status in each of those dis- denied Defendants’ motions to dismiss. tricts—and ‘‘packing’’—concentrating Common Cause v. Rucho, 240 F.Supp.3d members or supporters of the disfavored 376 (M.D.N.C. 2017); Order, Mar. 3, 2017, party or group in a particular district or ECF No. 51. limited number of districts so as to dilute the voting strength of supporters of the Beginning on October 16, 2017, this disfavored party or group in the remaining Court held a four-day trial, during which districts. Common Cause Compl. ¶ 35; the Common Cause Plaintiffs, League League Compl. ¶ 6. Plaintiffs, and Legislative Defendants in- Common Clause Plaintiffs further allege troduced evidence and presented testimo- that the 2016 Plan violates Article I, sec- ny from their expert witnesses. The par- tion 2 of the Constitution, which provides ties also stipulated to the admission of that members of the House of Representa- numerous additional exhibits as well as tives will be chosen ‘‘by the People of the extensive deposition testimony. Although several States,’’ by usurping the right of counsel for the State Defendants attended ‘‘the People’’ to select their preferred can- trial, they did not participate and took no didates for Congress, and Article I, section position as to how this Court should re- 4, by exceeding the States’ delegated au- solve the case. thority to determine ‘‘the Times, Places and Manner of holding Elections’’ for In post-trial briefing, League Plaintiffs members of Congress. Common Cause set forth a single, three-part test for deter- Compl. ¶¶ 46–54. mining whether a state congressional re- On February 7, 2017, this Court consoli- districting plan violates the First and dated the two actions for purposes of dis- Fourteenth Amendments. Under their pro- covery and trial. Order, Feb. 7, 2017, ECF posed test, a plaintiff alleging that a state No. 41. Three days later, League Plaintiffs redistricting body engaged in unconstitu- amended their complaint to reflect the re- tional partisan gerrymandering bears the sults of the 2016 congressional election burden of proving: (1) that the redistrict- conducted under the 2016 Plan and empiri- ing body enacted the challenged plan with cal analyses of those results. the intent of discriminating against voters On February 21, 2017, Defendants who support candidates of a disfavored moved to dismiss both complaints under party and (2) that the challenged plan had Federal Rule of Civil Procedure 12(b)(6), a ‘‘large and durable’’ discriminatory effect principally asserting that (1) Pope v. Blue, on such voters. League of Women Voters 809 F.Supp. 392 (W.D.N.C. 1992), which Pls.’ Post-Trial Br. (‘‘League Br.’’) 3, Nov. the Supreme Court summarily affirmed, 6, 2017, ECF No. 113. If the plaintiff 506 U.S. 801, 113 S.Ct. 30, 121 L.Ed.2d 3 makes such a showing, then the burden (1992), required dismissal of Plaintiffs’ ac- shifts to the governmental defendant to tions, and (2) the Supreme Court’s splin- provide (3) a legitimate, non-partisan justi- 812 318 FEDERAL SUPPLEMENT, 3d SERIES

fication for the plan’s discriminatory effect. contended that Legislative Defendants Id. provided no compelling interest justifying League Plaintiffs pointed to the Political such viewpoint discrimination. Id. at 9. Advantage and Partisan Advantage crite- Turning to the Equal Protection Clause, ria as well as the chairmen’s official expla- Common Cause Plaintiffs suggested that nations of those criteria as evidence of the the level of scrutiny to which a court must General Assembly’s intent to discriminate subject a redistricting plan turns on the against voters who support Democratic degree to which the redistricting body in- candidates. Id. at 7–8. As to the plan’s tended to pursue partisan advantage. Id. discriminatory effects, League Plaintiffs at 15–17. According to Common Cause introduced expert analyses of the 2016 Plaintiffs, the General Assembly predomi- Plan’s alleged ‘‘partisan asymmetry’’ to es- nantly pursued partisan advantage in tablish that the plan makes it substantially drawing the 2016 Plan, warranting applica- more difficult for voters who favor Demo- tion of strict scrutiny. Id. Under that stan- cratic candidates to translate their votes dard, Legislative Defendants must show into representation, and that this substan- that the plan was narrowly tailored to tial difficulty is likely to persist throughout advance a compelling state interest, Com- the life of the 2016 Plan. Id. at 12–16. mon Cause Plaintiffs maintained. Id. As Finally, League Plaintiffs asserted that proof of the General Assembly’s predomi- Legislative Defendants failed to provide nant intent to burden voters who support any evidence of a legitimate justification non-Republican candidates, Common for the 2016 Plan’s alleged partisan asym- Cause Plaintiffs pointed to the Political metry, such as the state’s political geogra- Data and Partisan Advantage criteria, the phy or other legitimate redistricting goals. chairmen’s explanations of the purpose be- Id. at 21–24. hind those criteria, and expert analyses By contrast, Common Cause Plaintiffs showing that the 2016 Plan is an ‘‘extreme advanced distinct legal frameworks for statistical outlier’’ with regard to its pro- their First Amendment, Equal Protection, Republican tilt relative to thousands of and Article I claims. Regarding the First other simulated districting plans conform- Amendment, Common Cause Plaintiffs as- ing to non-partisan districting principles. serted that the 2016 Plan’s disfavoring of Id. at 17. Common Cause Plaintiffs further voters who previously opposed Republican argued that, even if this Court found that candidates or associated with non-Republi- the General Assembly did not draw the can candidates or parties amounts to view- 2016 Plan with a predominantly partisan point discrimination and passes constitu- motive, the 2016 Plan nonetheless failed tional muster only if narrowly tailored to constitutional muster under intermediate serve a compelling state interest. Common or rational basis scrutiny. Id. at 18–19. Cause Pls.’ Post-Trial Br. (‘‘Common Cause Br.’’) 5–8, Nov. 6, 2017, ECF No. Finally, Common Cause Plaintiffs al- 116. According to Common Cause Plain- leged that the 2016 Plan exceeds the Gen- tiffs, the General Assembly’s use of indi- eral Assembly’s delegated authority under viduals’ past voting history to assign such Article I, section 4—commonly referred to individuals to congressional districts with as the ‘‘Elections Clause’’—because it the purpose of advantaging Republican amounts to an unconstitutional effort ‘‘ ‘to candidates on a statewide basis constitutes dictate electoral outcomes’ ’’ and ‘‘ ‘to favor evidence of viewpoint discrimination. Id. at TTT a class of candidates.’ ’’ Id. at 20–21 7–15. Common Clause Plaintiffs further (quoting Cook v. Gralike, 531 U.S. 510, COMMON CAUSE v. RUCHO 813 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

523–24, 121 S.Ct. 1029, 149 L.Ed.2d 44 a ‘‘partisan gerrymander’’—as they define (2001) ). And Common Clause Plaintiffs that term—because, among other reasons, further asserted that the 2016 Plan vio- (1) the General Assembly did not try to lates Article I, section 2 because it gives ‘‘maximize’’ the number of Republican voters who favor Republican candidates seats, and (2) the districts created by the ‘‘ ‘a greater voice in choosing a Congress- 2016 Plan conform to a number of tradi- man’ ’’ than voters who favor candidates tional redistricting principles such as comput forward by other parties. Id. at 22–23 pactness, contiguity, and adherence to (quoting Wesberry v. Sanders, 376 U.S. 1, county lines. Id. at 3, 7–8. 13–14, 84 S.Ct. 526, 11 L.Ed.2d 481 In a memorandum opinion and order (1964) ). entered January 9, 2018, this Court first In response, Legislative Defendants rejected Legislative Defendants’ justicia- first argued that both sets of Plaintiffs lack bility and standing arguments, holding Article III standing to assert any of their that Plaintiffs had put forward judicially claims. Legislative Defs.’ Post-Trial Br. manageable standards for adjudicating (‘‘Leg. Defs.’ Br.’’) 12, Nov. 6, 2017, ECF their claims and that the individual and No. 115. With regard to Plaintiffs’ Equal organizational Plaintiffs had standing to Protection claim, in particular, Legislative assert district-by-district and statewide Defendants asserted that the Equal Pro- challenges to the 2016 Plan under each of tection Clause does not permit statewide the constitutional provisions under which standing for partisan gerrymandering Plaintiffs seek relief. Common Cause, 279 claims and that Plaintiffs lacked standing F.Supp.3d at 608–36. The Court then to lodge district-by-district partisan gerry- unanimously held that the 2016 Plan violat- mandering challenges, notwithstanding ed the Equal Protection Clause and Article that at least one individual Plaintiff who is a registered Democrat resided in each of I of the Constitution. Id. at 636–72, 683–90; the State’s thirteen congressional districts. id. at 693–96, 698 (Osteen, J., concurring in Id. at 12–14. part). And a majority of the panel further concluded that the 2016 Plan violated the Legislative Defendants next contended First Amendment. Id. at 672–83 (majority that, even if Plaintiffs have standing, nei- op.). Having found that the 2016 Plan vio- ther set of Plaintiffs had offered a judicial- lated the Constitution, the Court enjoined ly manageable standard under any consti- the State from conducting further elections tutional provision for evaluating a partisan using the 2016 Plan and gave the General gerrymandering claim; therefore, they Assembly an opportunity to draw a (sec- claimed, Plaintiffs’ actions must be dis- ond) remedial plan for use in the 2018 missed as raising nonjusticiable political election. Id. at 690. questions. Id. at 9. To that end, Legislative Defendants criticized Plaintiffs’ expert sta- Soon thereafter, Legislative Defendants tistical analyses, in particular, on grounds unsuccessfully moved this Court to stay that such analyses are ‘‘a smorgasbord of our order pending review by the Supreme alleged ‘social science’ theories’’ that fail to Court. Common Cause v. Rucho, 284 answer what Legislative Defendants see as F.Supp.3d 780, 782 (M.D.N.C. 2018). Leg- the fundamental question in partisan ger- islative Defendants then successfully rymandering cases: ‘‘how much politics is sought a stay from the Supreme Court. too much politics in redistricting?’’ Id. at 2, Rucho v. Common Cause, ––– U.S. ––––, 9–11. As to the merits, Legislative Defen- 138 S.Ct. 923, 199 L.Ed.2d 619 (2018) dants asserted that the 2016 Plan was not (mem.). Several months later, on June 25, 814 318 FEDERAL SUPPLEMENT, 3d SERIES

2018, the Supreme Court vacated this ty to enact congressional election regula- Court’s judgment, remanding the case for tions and interfering with the right of ‘‘the reconsideration in light of Gill, which ad- People’’ to choose their Representatives. dressed what evidence a plaintiff must put forward to establish Article III standing to II. JURISDICTIONAL ARGUMENTS assert a partisan gerrymandering claim Before addressing the merits of Plain- under the Equal Protection Clause based tiffs’ claims, we first address Legislative on a vote dilution theory. Defendants’ threshold standing and justici- This Court invited the parties to submit ability arguments. As detailed below, we briefing regarding the impact of Gill on conclude that some, but not all, Plaintiffs our January 9, 2018, opinion and order have standing to assert partisan vote dilu- striking down the 2016 Plan as an uncon- tion claims under the Equal Protection stitutional partisan gerrymander. Having Clause; that Plaintiffs have standing to carefully considered the Supreme Court’s assert partisan gerrymandering claims un- opinion in Gill and the parties’ briefing, we der the First Amendment; and that Com- conclude that at least one of the named mon Cause Plaintiffs have standing to as- Plaintiffs residing in each of the State’s sert their claims under Article I of the thirteen congressional districts has stand- Constitution. We further conclude that ing to lodge a partisan vote dilution chal- Plaintiffs’ partisan gerrymandering claims lenge under the Equal Protection Clause are not barred by the political question to each district in the 2016 Plan. And we doctrine, either in theory or as proven. further hold that Gill does not call into A. STANDING question our earlier conclusions that Plain- tiffs have standing to assert First Amend- [13, 14] Article III’s ‘‘case’’ or ‘‘con- ment and Article I challenges to the 2016 troversy’’ requirement demands that a Plan, and that all of Plaintiffs’ constitution- plaintiff demonstrate standing—that the al claims are justiciable. plaintiff has ‘‘such a personal stake in the Turning to the merits, we conclude that outcome of the controversy as to assure Plaintiffs’ evidence establishes that 12 of that concrete adverseness which sharpens the 13 districts in the 2016 Plan violate the the presentation of issues upon which the Equal Protection Clause because, in draw- court so largely depends for illumination ing each of those 12 districts, the General of difficult constitutional questions.’’ Bak- Assembly’s predominant intent was to di- er v. Carr, 369 U.S. 186, 204, 82 S.Ct. lute the votes of voters who favored non- 691, 7 L.Ed.2d 663 (1962). To establish Republican candidates; the General As- standing, a plaintiff first must demon- sembly’s manipulation of each of those dis- strate ‘‘an ‘injury in fact’—an invasion of trict’s lines has had the effect of diluting a legally protected interest which is (a) such voters’ votes; and no legitimate state concrete and particularized, TTT and (b) interest justifies that dilution. We further ‘actual or imminent, not conjectural or reaffirm our previous conclusion that the hypothetical.’ ’’ Lujan v. Defs. of Wildlife, 2016 Plan violates the First Amendment 504 U.S. 555, 560, 112 S.Ct. 2130, 119 by unjustifiably imposing burdens on L.Ed.2d 351 (1992) (citations and some Plaintiffs based on their previous and on- internal quotation marks omitted). ‘‘Sec- going political expression and affiliation. ond, there must be a causal connection Finally, we again hold that the 2016 Plan between the injury and the conduct com- violates Article I by exceeding the scope of plained of—the injury has to be ‘fairly the General Assembly’s delegated authori- TTT trace[able] to the challenged action of COMMON CAUSE v. RUCHO 815 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) the defendant, and not TTT th[e] result Plaintiffs’ rights to engage in political [of] the independent action of some third speech and association; and (3) that the party not before the court.’ ’’ Id. (altera- 2016 Plan violates Article I of the Consti- tions in original) (quoting Simon v. E. tution by ‘‘dictat[ing] electoral outcomes,’’ Ky. Welfare Rights Org., 426 U.S. 26, 41– by ‘‘favor[ing] TTT a class of candidates,’’ 42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) ). Cook, 531 U.S. at 523, 121 S.Ct. 1029, and ‘‘Third, it must be ‘likely,’ as opposed to by giving voters who favor Republican merely ‘speculative,’ that the injury will candidates ‘‘a greater voice in choosing a be ‘redressed by a favorable decision.’ ’’ Congressman’’ than voters who favor can- Id. at 561, 112 S.Ct. 2130 (quoting Si- didates put forward by other parties, Wes- mon, 426 U.S. at 38, 43, 96 S.Ct. 1917). berry, 376 U.S. at 14, 84 S.Ct. 526. Plaintiffs bear the burden of establishing 1. Equal Protection Clause their standing. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, a. Background 164 L.Ed.2d 589 (2006). In Gill, the Supreme Court addressed [15] Importantly, the Supreme Court what constitutes an injury-in-fact sufficient repeatedly has admonished that courts to give rise to Article III standing to as- must assess a plaintiff’s standing on a sert a partisan gerrymandering claim un- claim-by-claim basis. Gill, 138 S.Ct. at 1934 der the Equal Protection Clause based on (‘‘[S]tanding is not dispensed in gross.’’ a vote dilution theory. 138 S.Ct. at 1930– (internal quotation marks omitted) ). Put 31. There, twelve Wisconsin voters lodged differently, ‘‘a plaintiff who has been sub- a statewide challenge to all ninety-nine ject to injurious conduct of one kind [does districts in the State Assembly districting not] possess by virtue of that injury the plan, principally alleging that the plan as a necessary stake in litigating conduct of whole violated the Equal Protection Clause another kind, although similar, to which he by intentionally diluting the votes of indi- has not been subject.’’ Lewis v. Casey, 518 viduals who supported Democratic candi- U.S. 343, 358 n.6, 116 S.Ct. 2174, 135 dates. Id. at 1923–24. Four of the plaintiff- L.Ed.2d 606 (1996) (quoting Blum v. Yar- voters further alleged in the complaint etsky, 457 U.S. 991, 999, 102 S.Ct. 2777, 73 that ‘‘they lived in State Assembly districts L.Ed.2d 534 (1982) ). where Democrats have been cracked or With regard to each of Plaintiffs’ three packed.’’ Id. at 1924. At trial, however, the claims, Legislative Defendants do not dis- plaintiffs’ evidence focused on the map- pute that to the extent Plaintiffs suffered makers’ intent to draw a plan that would an injury-in-fact, the injury was caused by favor Republican candidates statewide and the 2016 Plan. Nor do they dispute that, on the statewide partisan effects of the for each of Plaintiffs’ claims, the asserted map. Id. at 1931–32. And none of the indi- injuries are redressable by a favorable de- vidual plaintiffs ‘‘sought to prove that he cision of this Court. Accordingly, we must or she lived in a cracked or packed dis- determine whether Plaintiffs have suffered trict.’’ Id. at 1932. Following trial, the dis- an injury-in-fact for each of the three trict court held that each of the plaintiffs claims at issue: (1) that the 2016 Plan suffered an injury-in-fact giving rise to violates the Equal Protection Clause of Article III standing to assert a statewide the Fourteenth Amendment by diluting Equal Protection challenge to the district- Plaintiffs’ votes on the basis of invidious ing plan because their evidence established partisanship; (2) that the 2016 Plan vio- that, ‘‘[a]s a result of the statewide parti- lates the First Amendment by burdening san gerrymandering, Democrats do not 816 318 FEDERAL SUPPLEMENT, 3d SERIES have the same opportunity provided to Re- been so gerrymandered.’’ Id. at 1930 (cit- publicans to elect representatives of their ing United States v. Hays, 515 U.S. 737, choice to the Assembly’’ and therefore that 744–45, 115 S.Ct. 2431, 132 L.Ed.2d 635 ‘‘the electoral influence of plaintiffs and (1995) ). In a Shaw-type racial gerryman- other Democratic voters statewide has dering case, a plaintiff can establish that been unfairly [and] disproportionately TTT the lines of her district were drawn on the reduced for the life of [the districting basis of race ‘‘through ‘direct evidence’ of plan].’’ Whitford v. Gill, 218 F.Supp.3d legislative intent, ‘circumstantial evidence 837, 927–28 (W.D. Wisc. 2016) (first three of a district’s shape and demographics,’ or alterations in original) (internal quotation a mix of both.’’ Cooper v. Harris, ––– U.S. marks omitted), vacated 138 S.Ct. at 1929, ––––, 137 S.Ct. 1455, 1464, 197 L.Ed.2d 837 1934. (2017) (quoting Miller v. Johnson, 515 U.S. [16] The Supreme Court rejected the 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 district court’s holding that a plaintiff chal- (1995) ). And like Gill’s reference to ‘‘hypo- lenging a districting plan on grounds that thetical district[s],’’ 138 S.Ct. at 1931, a it violates the Equal Protection Clause by plaintiff in such a racial gerrymandering diluting the plaintiff’s vote on the basis of case can establish a burden on her Four- partisanship has standing to challenge a teenth Amendment rights by introducing plan statewide. Gill, 138 S.Ct. at 1931. an alternative districting plan, which con- Emphasizing ‘‘that a person’s right to vote forms to a legislature’s legitimate district- is ‘individual and personal in nature,’ ’’ the ing objectives and traditional redistricting Court held that ‘‘[t]o the extent the plain- criteria, under which the plaintiff’s vote tiffs’ alleged harm is the dilution of their would not have been diluted based on her votes, that injury is district specific.’’ Id. at race. See, e.g., Cooper, 137 S.Ct. at 1478– 1930 (quoting Reynolds v. Sims, 377 U.S. 81; Easley v. Cromartie, 532 U.S. 234, 258, 533, 561, 84 S.Ct. 1362, 12 L.Ed.2d 506 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001). (1964) ). When a plaintiff alleges that a Applying this precedent, the Gill Court districting plan dilutes his vote on the concluded that several forms of evidence basis of partisanship, the Court explained, relied on by the plaintiffs failed to estab- ‘‘[t]hat harm arises from the particular lish an injury-in-fact. First, the Court held composition of the voter’s own district, that testimony by one named plaintiff, Wil- which causes his vote—having been packed liam Whitford, that the districting plan or cracked—to carry less weight than it undermined his ability ‘‘to engage in cam- would carry in another, hypothetical dis- paign activity to achieve a [Democratic] trict.’’ Id. at 1931. Put differently, the inju- majority in the Assembly and the Senate’’ ry giving rise to such a claim ‘‘arises did not establish an injury in fact for two through a voter’s placement in a ‘cracked’ reasons: (a) Whitford conceded on cross or ‘packed’ district.’’ Id. examination that his district was not [17, 18] In reaching this conclusion, the cracked or packed and that the plan ‘‘did Court explicitly analogized partisan gerry- not affect the weight of his vote’’ and (b) mandering claims premised on vote dilu- the Supreme Court never has recognized a tion to Shaw-type racial gerrymandering ‘‘shared interest in the composition of ‘the claims, for which the Court has ‘‘held that legislature as a whole’ ’’ as an individual a plaintiff who alleges that he is the object legal interest. Gill, 138 S.Ct. at 1924–25, of a racial gerrymander—a drawing of dis- 1932. Second, the Court said that the trict lines on the basis of race—has stand- plaintiffs’ direct evidence that the map- ing to assert only that his own district has makers intended the districting plan to COMMON CAUSE v. RUCHO 817 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

strengthen the electoral prospects of Re- the Supreme Court decided Gill—district- publican candidates did not support stand- specific evidence of cracking and packing. ing because the injury-in-fact requirement For example, Common Cause Plaintiffs re- ‘‘turns on effect, not intent, and requires a quested that Defendants admit, for each showing of a burden on the plaintiffs votes district, that Dr. Hofeller included or ex- that is actual or imminent, not conjectural cluded counties and parts of counties in or hypothetical.’’ Id. at 1932 (internal quo- particular districts or divided counties be- tation marks omitted). Finally, the Court tween particular districts to achieve the said that the plaintiffs’ statistical analyses General Assembly’s partisan objective for of the districting plan’s ‘‘partisan asymme- each district. Ex. 2043, at 23–33. Addition- try’’—that the plan does not allow support- ally, Common Cause Plaintiffs deposed Dr. ers of the two principal parties to translate Hofeller and Representative Lewis regard- their votes into representation with equal ing why boundaries for specific districts effectiveness—did not establish the requi- were drawn in a specific location and the site district-specific injury because the political consequence of those boundaries. analyses ‘‘are an average measure’’ and E.g., Hofeller Dep. 1927–12; Lewis Dep. therefore ‘‘do not address the effect that a 50:20–51:1, 62:2–19, 64:10–17. And Com- gerrymander has on the votes of particular mon Cause Plaintiffs’ statistical evidence citizens.’’ Id. at 1933. provides not only an ‘‘average measure’’ of The instant case meaningfully differs the 2016 Plan’s cracking and packing, but from Gill. To begin, unlike the plaintiffs in also district-specific evidence of cracking Gill who ‘‘failed to meaningfully pursue and packing. Ex. 3040, at 18, 30, 39. their allegations of individual harm,’’ id. at Common Cause Plaintiffs’ pre-trial Pro- 1932, Common Cause Plaintiffs, in particu- posed Findings of Fact also forecasted lar, have alleged, argued, and proven dis- that they would introduce numerous pieces trict-specific injuries throughout the of evidence establishing that the 2016 Plan course of this litigation. For example, each manipulated lines of specific districts and individual Common Cause Plaintiff alleged thereby cracked and packed likely Demo- in their complaint that his or her vote is cratic voters solely for the benefit of the ‘‘diluted or nullified as a result of his place- Republican Party. Findings of Fact & ment in [his or her particular district].’’ Conclusions of Law Filed by the Common Common Cause Compl. ¶¶ 2(d)–(q). The Cause Pls. 21, 28, 36–37, No. 1:16-CV-1026, Common Cause Complaint further alleged June 5, 2017, ECF No. 65. And Common that the 2016 Plan ‘‘pack[s] as many Dem- Cause Plaintiffs’ post-trial Proposed Find- ocratic voters as possible in the First, ings of Fact likewise asked this Court to Fourth, and Twelfth Congressional Dis- make numerous district-specific findings as tricts’’ and ‘‘dilut[es] or nullif[ies] the votes to the discriminatory burden imposed by of the remaining Democratic voters who each of the districts in the 2016 Plan. reside outside of these three districts by Common Cause Pls.’ Post-Trial Findings dispersing (or ‘cracking’) all remaining of Fact & Conclusions of Law (‘‘Common Democratic voters among the other ten Cause FOF’’) 12–16, 28–36, No. 1:16-CV- districts,’’ and therefore that ‘‘[t]he 2016 1026, Nov. 6, 2017, ECF No. 117. There Plan as a whole, and each of the thirteen can be no question that Common Cause individual districts’’ are unconstitutional. Plaintiffs have ‘‘meaningfully pursued’’ a Id. ¶¶ 35, 37, 45 (emphasis added). district-by-district vote dilution claim un- Common Cause Plaintiffs also sought, der the Equal Protection Clause. Gill, 138 obtained, and introduced at trial—before S.Ct. at 1932. 818 318 FEDERAL SUPPLEMENT, 3d SERIES

Additionally, unlike the Gill plaintiffs, Ex. 4080. Also unlike the plaintiffs in who resided in a small minority of the Gill—who failed to develop any district- State Assembly districts that they chal- specific evidence of cracking or packing— lenged, see id. at 1923, 1931, named League Plaintiffs alleged that specific dis- Common Cause Plaintiffs reside and are tricts were cracked or packed and intro- registered to vote in each of the 13 con- duced district-specific evidence to support gressional districts included in the 2016 such allegations. In their complaint, for Plan, Exs. 3024–38. Accordingly, unlike example, League Plaintiffs stated that the Gill plaintiffs, the Common Cause ‘‘[a]mong ‘cracked’ districts in which the Plaintiffs are not complaining of gerry- prevailing candidate received less than 60 mandering in districts in which they do percent of the vote Republican candidates not reside. won all six of them (Districts 2, 5, 6, 8, 9, and 13). Conversely, the one ‘packed’ dis- In contrast, prior to Gill, League Plain- trict in which the prevailing candidate re- tiffs framed their Equal Protection claim ceived more than 70 percent of the vote as a statewide challenge, rather than a (District 1) was won by a Democratic can- district-specific challenge. See, e.g., League didate.’’ League Compl. ¶ 64. of Women Voters of N.C. Pls.’ Final Pro- posed Findings of Fact & Conclusions of Additionally, League Plaintiffs intro- Law (‘‘League FOF’’) 81, No. 1:16-CV- duced into evidence—again, before the Su- 1026, Nov. 6, 2017, ECF No. 112 (‘‘Plain- preme Court decided Gill—numerous tiffs’ injury is concrete and particularized county or county group maps color-coded because as a result of the statewide parti- on a precinct-by-precinct basis using Dr. san gerrymandering, Democrats do not Hofeller’s partisanship variable to demon- have the same opportunity provided to Re- strate that a particular district group in publicans to elect representatives of their the 2016 Plan divided (or cracked) concentrations of non-Republican voters in the choice to Congress.’’). And several League county or that a particular district in the Plaintiffs testified that their vote was dilut- 2016 Plan packed concentrations of non- ed because Democratic candidates’ share Republican voters in the county. Exs. 4008, of the State’s congressional delegation was 4066 (Buncombe County); Exs. 4009, 4067 not proportionate to the share of congres- (Cumberland County); Exs. 4010, 4068 sional votes cast for Democratic candidates (Guilford County); Exs. 4011, 4069 (John- statewide. E.g., Dep. of Elliott J. Feldman ston County); Exs. 4012, 4070 (Mecklen- (‘‘Feldman Dep.’’) 20:8–16, Mar. 24, 2017, burg County); Exs. 4013, 4071 (Pitt Coun- ECF No. 101-20; Dep. of Annette Love ty), Exs. 4014, 4072 (Wake and Durham (‘‘Love Dep.’’) 12:3–18, Apr. 7, 2017, ECF Counties); Exs. 4015, 4073 (Wilson Coun- No. 101-1. ty); Ex. 4074 (Bladen County). And Mary [19] But unlike in Gill—which did not Trotter Klenz, who is a Democratic voter include an organizational plaintiff and in and member of the League, testified that which the individual plaintiffs resided in a she believes the congressional district in small minority of the districts challenged— which she is registered to vote, District 9, Defendants stipulated prior to trial that is the product of invidious partisan gerry- the League has members in each of the mandering because it is a result of a legis- State’s thirteen congressional districts, and lative effort to divide Mecklenburg County that at least one League member in each along partisan lines and thereby render of those districts is registered as a Demo- Democratic candidates ‘‘less competitive’’ crat and supports and votes for Democrat- than they were in the previous version of ic candidates. See Trial Tr. II, at 140–41; her district. 30(b)(6) Dep. of the League of COMMON CAUSE v. RUCHO 819 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

Women Voters of N.C. by Mary Trotter numerous findings that, in specific coun- Klenz (‘‘Klenz Dep.’’) 65:23–66:12, Apr. 4, ties, the lines of particular districts were 2017, ECF No. 101–28 (‘‘[T]he way the drawn to pack or crack likely Democratic district is drawn TTT this little, bitty piece voters. League FOF ¶¶ 125–35. is in Mecklenburg County in my neighbor- And after the Supreme Court vacated TTT hood and then goes all the way along this Court’s opinion and judgment for re- TTT the state line over to Bladen County so consideration in light of Gill, League it’s even less competitive. When it was Plaintiffs proffered additional evidence to more in Mecklenburg, at least you had the support their standing to lodge a district- TTT TTT continuity of Mecklenburg [b]ut by-district vote dilution claim under the now its so spread out that it’s just ridicu- Equal Protection Clause to each district in lous.’’). Several other League Plaintiffs the 2016 Plan. In particular, a declaration also testified to district-specific injuries. by the director of the League identified E.g. Dep. of Carol Faulkner Fox (‘‘Fox specific precincts in each of the thirteen Dep.’’) 19:25, 20:9–12, Mar. 22, 2017, ECF congressional districts in which at least No. 101-4; Dep. of Aaron J. Sarver (‘‘Sar- one League member is registered to vote ver Dep.’’) 25:2–26:18, Apr. 10, 2017, ECF and regularly votes as a Democrat. Decl. No. 101-23. of Walter L. Salinger 2–4, July 10, 2018, Likewise, League Plaintiffs introduced ECF No. 129-1. Furthermore, a supple- into evidence several alternative districting mental declaration by Dr. Chen demon- plans generated through computer sim- strated that, in all but one of those ulation by Dr. Jowei Chen, a political sci- League members’ districts, the votes of ence professor at the University of Michi- those members would have carried more gan—all of which conform to the General weight, as measured by Dr. Hofeller’s pre- Assembly’s non-partisan districting crite- cinct-level partisanship variable, in the dis- ria, see infra Part III.B.1.a—or created by tricting plan generated by Dr. Chen that Dr. Hofeller that did not display the same maximally advances, subject to certain degree of cracking and packing of Demo- constraints, the General Assembly’s non- cratic voters in particular districts as the partisan redistricting objectives (‘‘Plan 2- 2016 Plan, exs. 4016–33. Based on that 297’’). Supp. Decl. of Jowei Chen (‘‘Second evidence, League Plaintiffs’ Proposed Chen Decl.’’) 2–3, 6–7, July 11, 2018, ECF Findings of Fact asked this Court to make No. 129-2.9 10

9. League Plaintiffs and Common Cause Plain- dences of each individual Plaintiff. All of that tiffs each submitted a supplemental declara- information was admitted into evidence at tion by Dr. Chen regarding Plaintiffs’ stand- trial. ing. Second Chen Decl.; Decl. of Dr. Jowei Dr. Chen’s supplemental declarations— Chen (‘‘Third Chen Decl.’’), July 11, 2018, which Plaintiffs submitted after the Supreme ECF No. 130-2. As further explained below, at Court decided Gill and remanded this case trial Dr. Chen offered testimony and opinions for reconsideration under the standing frame- based on 3,000 computer-generated district- work set forth therein—report the two-party ing plans drawn to conform to the General vote share, as measured by Dr. Hofeller’s Assembly’s nonpartisan districting criteria. partisanship variable, in each individual See infra Part III.B.a.ii. Prior to trial, Plain- Plaintiff’s district in either Plan 2-297 or tiffs disclosed to Defendants each of those 2,000 of Dr. Chen’s computer-generated plans 3,000 plans as well as numerous forms of and compare that vote share to the district-by- descriptive information about the plans, in- district results observed in the 2016 election cluding the two-party vote share for each dis- using the 2016 Plan. Each declaration, there- trict in each of the plans, as measured by Dr. fore, amounts to a new presentation of data Hofeller’s partisanship variable. Plaintiffs also and analyses already disclosed to Legislative disclosed in discovery the address of the resi- Defendants and admitted into evidence. Addi- 820 318 FEDERAL SUPPLEMENT, 3d SERIES

The most significant difference between And all of those Plaintiffs identified at this case and Gill, however, is that, as least one alternative districting plan—and demonstrated below, Plaintiffs who reside in many cases hundreds of alternative dis- and vote in each of the thirteen challenged tricting plans—that more effectively con- congressional districts testified to, intro- forms to the General Assembly’s non-parti- duced evidence to support, and, in all but san redistricting criteria, but nonetheless one case, ultimately proved the type of places the Plaintiff in a district in which dilutionary injury the Supreme Court rec- the Plaintiff’s vote would ‘‘carry [more] ognized in Gill. See infra Part II.A.1.b. weight.’’ 11 Gill, 138 S.Ct. at 1931.

tionally, Legislative Defendants deposed Dr. 140. To be sure, the Supreme Court has stated Chen regarding his supplemental declarations that the Constitution does not require that the and, following that deposition, were afforded two-party make-up of a state’s congressional the opportunity to submit additional briefing delegation be proportionate to the two-party to this Court regarding the supplemental dec- statewide congressional vote. Bandemer, 478 larations and their impact on Plaintiffs’ stand- U.S. at 132, 106 S.Ct. 2797 (plurality op.). ing. In such circumstances, we exercise our But selecting the modal outcome in a ran- discretion to admit Dr. Chen’s supplemental domly generated sample, which outcome hap- declarations into evidence. See, e.g., Fisher v. pens to not favor either party, does not Pelstring, 817 F.Supp.2d 791, 816 (D.S.C. amount to imposing a proportionality require- 2011) (admitting supplemental expert report ment. Rather, it simply amounts to selecting a when supplement ‘‘clarif[ied]’’ earlier expert plan with a congressional delegation that testimony and opposing party had opportuni- most commonly occurs as a result of a state’s ty to question expert regarding supplemental political geography and non-partisan district- report). ing objectives. And even if Dr. Chen had 10. Plan 2-297 was one of 1,000 plans ran- sought to impose a proportionality require- domly generated by Dr. Chen that protect ment, the Supreme Court has held that it is more incumbents and split fewer counties constitutionally permissible for a state legisla- than the 2016 Plan. Second Chen Decl. 2; Ex. ture to seek to draw a ‘‘districting plan that 2010, at 15; see also infra Part III.B.1.a.ii. The would achieve a rough approximation of the most significant constraint imposed by Dr. statewide political strengths of the Democrat- Chen in determining which of those 1,000 ic and Republican Parties.’’ Gaffney v. Cum- plans maximally advanced the General As- mings, 412 U.S. 735, 752, 93 S.Ct. 2321, 37 sembly’s non-partisan districting objectives is L.Ed.2d 298 (1973). Accordingly, contrary to that Dr. Chen considered only those simulat- Legislative Defendants’ argument, in identify- ed districting plans that would have elected ing a ‘‘hypothetical’’ plan in which their votes seven Republican candidates and six Demo- would ‘‘carry more weight,’’ Gill, 138 S.Ct. at cratic candidates based on Dr. Hofeller’s par- 1931, Plaintiffs were not barred from relying tisanship variable. Second Chen. Decl. 2. on a plan that ‘‘rough[ly] approximat[ed]’’ the Nearly fifty-three percent of the 1,000 ran- statewide political strength of the two parties, domly generated plans would have elected Gaffney, 412 U.S. at 752, 93 S.Ct. 2321. seven Republicans and six Democrats based on Dr. Hofeller’s partisanship variable, a sig- 11. Legislative Defendants further object to the nificantly higher percentage than the next two use of Plan 2-297 and Dr. Chen’s other 1,999 most common delegations observed in Dr. computer-generated plans as comparators on Chen’s sample. Ex. 2010, at 16 (reporting that grounds that a number of the districts in 19.4% of plans would have elected six Repub- those plans are more favorable to Democratic lican candidates and that 25.8% of plans candidates than their counterparts in the would have elected eight Republican candi- 2016 Plan. Leg. Defs.’ Standing Br. 13–18. dates, according to Dr. Hofelelr’s partisanship According to Legislative Defendants, Dr. variable). Chen’s plans thereby ‘‘harm Republican vot- Legislative Defendants object to this con- ers in the very same way as alleged by [Plain- straint on grounds that it effectively imposes, tiffs] here.’’ Id. at 18. they maintain, a ‘‘proportional’’ representation. Leg. Defs.’ Br. on Standing (‘‘Leg. Defs.’ But given that (1) the General Assembly’s Standing Br.’’) 11, Aug. 7, 2018, ECF No. Republican leadership intentionally drew the COMMON CAUSE v. RUCHO 821 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

b. Plaintiffs’ District-Specific North Carolina’s piedmont and coastal Standing Evidence plains regions. Ex. 1001. As explained District 1 runs along the eastern side of more fully below, District 2 reflects a suc- North Carolina’s border with Virginia. Ex. cessful effort by the General Assembly to 1001. As discussed more fully below, Dis- crack concentrations of Democratic voters, trict 1 amounts to a successful effort by and thereby dilute such voters’ votes. See the General Assembly to concentrate, or infra Part III.B.2.b. Common Cause pack, voters who were unlikely to support Plaintiff Douglas Berger, who is regis- a Republican candidate, and thereby dilute tered as a Democrat and usually votes for such voters’ votes. See infra Part III.B.2.a. Democratic candidates, resides in District Common Cause Plaintiff Larry Hall re- 2. Ex. 3024; Dep. of Douglas Berger (‘‘Berger Dep.’’) 29:6–9, 34:7–13; 65:13–18; sides in District 1, is a registered Demo- 67:20–25, 69:3–9, Apr. 21, 2017, ECF No. crat, and typically votes for Democratic 101-8. Berger testified that prior to the candidates. Ex. 3031; Dep. of Larry Hall 2011 redistricting, he was assigned to a (‘‘Hall Dep.’’) 12:8–9, 8:11–14, 30:17–19, highly competitive district, with the pre- 32:10–22, 17:22–24, Apr. 5, 2017, ECF No. vailing candidate in the 2010 election win- 101-2. Hall testified that the 2016 Plan’s ning by ‘‘just a few hundred votes.’’ Ber- packing of Democratic voters in District 1 ger Dep. 32:5–22. But his district is no had the effect of diluting his vote. Hall longer ‘‘competitive’’ as a result of the Dep. at 15:8–14 (‘‘[T]he 2016 Plan TTT redistricting, he testified, with Democratic changed the district, and the impact of my candidates lacking any meaningful chance vote TTT was reduced.’’). Hall’s vote would at prevailing. Id. at 6:14–20 (noting that have carried greater weight in numerous District 2 was ‘‘the secondmost competi- other ‘‘hypothetical district[s],’’ Gill, 138 tive district TTT which involved a 13 per- S.Ct. at 1931—of 2,000 simulated district- centage point loss by the Democratic can- ing plans generated by Dr. Chen to con- didate’’); see also id. at 73:2–8 (stating that form to the General Assembly’s nonparti- the General Assembly’s ‘‘primary focus san redistricting criteria all but 3 of the has been to look at how each of the people plans, including Plan 2-297, would have in this district have voted and TTT all the placed Hall into a less Democratic-leaning people that have certain a political view or district, as measured by Dr. Hofeller’s pre- view similar to my view, we’ve been TTT cinct-level partisanship variable, Third aggregated and relegated to a position Chen Decl. 4, 6–8, 11. where we can’t have our views reflected’’). District 2 includes all or part of six By contrast, over 99 percent of the sim- counties running along the border between ulated districting plans generated by Dr.

2016 Plan to advantage Republican candi- [the black voting age population] in the re- dates, see Ex. 1007, and that (2) the 2016 Plan drawn districts, while increasing it in adjoin- is an ‘‘extreme statistical outlier’’ with regard ing districts, is to be expected whenever a to its favorability to Republican candidates, plan replaces racial predominance with other see infra Part III.B.1.a.ii, it is unsurprising redistricting principles’’ (internal quotation that Dr. Chen’s alternative plans—which were marks and alterations omitted) ). Accordingly, drawn without regard to partisan favoritism contrary to Legislative Defendants’ claim, that and to conform to the General Assembly’s Dr. Chen’s plans are more favorable to Demo- non-partisan districting objectives—would be cratic voters and candidates in no way estab- more favorable to Democratic candidates. Cf. lishes that those plans subject Republican vot- Covington, 283 F.Supp.3d at 450 (explaining, ers to the same form of invidious partisan in racial gerrymandering case, that ‘‘the fact discrimination that the 2016 Plan inflicts on that the [remedial] districts happen to reduce non-Republican candidates and voters. 822 318 FEDERAL SUPPLEMENT, 3d SERIES

Chen, including Plan 2-297, would have including Plan 2-297, would have placed assigned Berger to a more Democratic- the Tafts in a more Democratic-leaning leaning district. Third Chen Decl. 4, 6–8, district. Third Chen Decl. 4, 6–8, 11. 11. District 4 runs through the center of Wake County, southern Durham County, District 3 encompasses a number of and Orange County, connecting concentra- counties in northeast North Carolina, tions of Democratic voters in the Cities of many of which border the Atlantic Ocean Raleigh, Durham, and Chapel Hill. Exs. or Intracoastal Waterway. Ex. 1001. As 1001, 3019. As detailed more fully below, explained more fully below, Plaintiffs al- Dr. Hofeller, acting at Representative leged, and ultimately proved, that in draw- Lewis and Senator Rucho’s direction, in- ing District 3 the General Assembly tended to and did in fact pack likely Demo- cracked likely Democratic voters and sub- cratic voters in District 4 and, in doing so, merged such voters in a district in which a diluted such voters’ votes. See infra Part Republican candidate would prevail. See III.B.2.d. League Plaintiff Carol Fox—who infra Part III.B.2.c. Common Cause Plain- lives in Durham County in District 4 and tiff Richard Taft—who resides in District 3 votes for Democratic candidates—testified and is a registered Democrat who typically that District 4 ‘‘was packed’’—i.e., ‘‘drawn votes for Democratic candidates—testified so that all of the Democrats are smooshed that ‘‘District 3 is still designed TTT to together so that they’re going win with a disperse [his Democratic] vote around,’’ huge surplus of votes needed.’’ Fox Dep. and that his ‘‘vote really is meaningless 19:25, 20:9–12. Common Cause Plaintiff Al- ice Bordsen also is registered to vote in TTT because the Republican majority is set District 4 and has historically voted for and there is no way a candidate who is a Democratic congressional candidates. Ex. Democrat can win in that district.’’ Ex. 3026; Dep. of Alice Louise Bordsen 3036; Dep. of Richard Taft, MD (‘‘R. Taft (‘‘Bordsen Dep.’’) 37:1–2, Apr. 18, 2017, Dep.’’) 14:12–14, 24:25–25:11, Mar. 30, ECF No. 101-15. Bordsen testified that 2017, ECF No. 101-10. Mr. Taft’s wife, she believes District 4 is the product of Cheryl Lee Taft, likewise testified that the ‘‘intentional packing’’ and is ‘‘super manipulation of District 3’s lines adversely pack[ed].’’ Bordsen Dep. at 33:8–16, 34:16– affected the weight of her vote. Dep. of 17. Approximately, 80 percent of the dis- Cheryl Taft (‘‘C. Taft Dep.’’) 26:1–5, Mar. tricting plans in Dr. Chen’s 2,000-plan 30, 2017, ECF No. 101-11. By contrast, sample would have placed Bordsen in a over 95 percent of the 2,000 simulated district with fewer likely Democratic vot- districting plans generated by Dr. Chen, ers.12 Third Chen Decl. 4, 6–8.

12. Common Cause Plaintiff Morton Lurie, because ‘‘there’s no chance of a Republican who resides in District 4, also alleged that he winning in the 4th District.’’ Id. at 25:15–20. suffered a dilutionary injury in fact attribut- Lurie makes a compelling argument that the able to 2016 Plan’s redrawing of District 4’s 2016 Plan has had the effect of diluting his boundaries. Unlike the other individual Com- vote: more than 91 percent of the districting mon Cause Plaintiffs, Lurie is a registered plans generated by Dr. Chen placed Lurie into Republican who typically votes for Republican a district more favorable to the Republican candidates, including the Republican congres- candidates Lurie has historically supported. sional candidate in District 4 in the 2016 Third Chen Decl. 4, 6–8. Unlike the Demo- election. Ex. 3032; Dep. of Morton Lurie cratic Plaintiffs who reside in District 4, how- (‘‘Lurie Dep.’’) 8:5–7, 9:8, 20:1–5, Apr. 5, ever, Lurie has difficulty establishing that the 2017, ECF No. 101-12. Lurie, who the 2016 General Assembly assigned him to that dis- Plan moved from a district in which a Repub- trict in an effort to dilute his vote. In particu- lican candidate prevailed, testified that the lar, the General Assembly would seemed to 2016 plan ‘‘dilute[s] the value of [his] vote’’ have preferred that Lurie lived elsewhere so COMMON CAUSE v. RUCHO 823 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

District 5 spans ten whole counties in Cause Plaintiff Meltzer A. Morgan, Jr., is the northwest corner of the State. Ex. affiliated with the Democratic Party and 1001. Plaintiffs introduced evidence, but typically votes for Democratic candidates. ultimately fail to prove, that District 5 Ex. 3034; Dep. of Melzer Aaron Morgan, reflects an effort by the General Assembly Jr. (‘‘Morgan Dep.’’) 5:11–14, 15:7–17, 16:2– to submerge Democratic voters in a safe 7, April 7, 2017, ECF No. 101-16. Between Republican district. See infra Part III. 2002 and 2010, Morgan was assigned to B.2.e. Common Cause Plaintiff William H. District 13, which consistently elected Freeman lives in District 5, is registered Democratic candidates. See Morgan Dep. as a Democrat, and voted against the Re- 10:18–23. But as a result of the redistrict- publican congressional candidate in the ing, Morgan now is assigned to District 6, 2016 election. Ex. 3029; Dep. of William which he characterized as ‘‘tilted’’ for Re- Halsey Freeman (‘‘Freeman Dep.’’) 6:24– publicans and ‘‘not competitive.’’ Id. at 7:7, Apr. 7, 2017, ECF No. 101-14. Free- 23:7–8. By contrast, approximately 78 per- man testified that as a result of the redis- cent of the 2,000 simulated districting tricting plans drawn by Dr. Hofeller, Rep- plans generated by Dr. Chen would have resentative Lewis, and Senator Rucho, the placed Morgan in a district less favorable lines of District 5 are ‘‘much worse’’ for to Republican candidates. Third Chen Democratic candidates. Freeman Dep. Decl. 4, 6–9. For example, the predicted 18:25–19:3, 19:14–23. Freeman further tes- Republican vote share in Morgan’s district tified that ‘‘because of the way [District 5 in Plan 2-297 (51.49%) is approximately is drawn], there is no remote chance of any three percentage points lower than the Democrat winning, so my vote is just a predicted Republican vote share in District total waste.’’ Id. at 17:17–25. More than 6 (54.46%). Id. at 11. half of the 2,000 simulated districting plans generated by Dr. Chen placed Freeman in District 7 includes all or part of nine a district more favorable to Democratic counties located in the southeast corner of candidates. Third Chen Decl. 4, 6–9. And the State. Ex. 1001. As detailed below, in Dr. Chen’s Plan 2-297, the Republican District 7 cracks concentrations of Demo- vote share in Freeman’s district, as meas- cratic voters and has the effect of sub- ured by Dr. Hofeller’s partisanship varia- merging such voters in a safe Republican ble, would decline from 56.15 percent to district. See infra Part III.B.2.g. Common 49.30 percent. Id. at 11. Cause Plaintiff Cynthia Boylan—who re- District 6 spans all or part of six coun- sides in District 7, is a registered Demo- ties in central North Carolina. Ex. 1001. crat, and typically votes for Democratic As explained more fully below, District 6 candidates, Ex. 3027—testified that al- reflects a successful effort by the General though Democratic candidates historically Assembly to crack likely Democratic vot- prevailed in the district by narrow mar- ers and thereby dilute their votes by sub- gins, ‘‘the way [District 7] was redrawn merging them in a safe Republican dis- was to give the Republican nominee the trict. See infra Part III.B.2.f. Common advantage of being elected in the TTT [d]is-

that his Republican vote would not be ‘‘wast- district drawn so that a Democratic candidate ed’’ in a district the General Assembly drew to would prevail. Because other Plaintiffs have be ‘‘predominantly Democratic.’’ Hofeller standing to lodge an Equal Protection parti- Dep. 192:7–16. But because Lurie elected to san vote dilution challenge to District 4, we live in a precinct predominantly populated by need not—and thus do not—definitively ad- likely Democratic voters, the General Assem- dress Lurie’s standing. bly had little option but to assign Lurie to a 824 318 FEDERAL SUPPLEMENT, 3d SERIES trict,’’ Dep. of Cynthia Boylan (‘‘Boylan General Assembly cracked likely Demo- Dep.’’) 18:1–9, Apr. 5, 2017, ECF No. 101- cratic voters and submerged them in a 17. Nearly 64 percent of the 2,000 district- district in which a Republican candidate ing plans generated by Dr. Chen, including was much more likely to prevail. See infra Plan 2-297, placed Boylan in a district Part III.B.2.i. The 2016 Plan places Com- more favorable to Democratic candidates, mon Cause Plaintiff John Morrison as measured by Dr. Hofeller’s partisan McNeill—who lives in Robeson County, is performance variable. Third Chen Decl. 4, affiliated with the Democratic party, and 6–9, 11. typically votes for Democratic candidates, District 8 takes on a snake-like shape, ex. 3033; Dep. of John Morrison McNeill running through all or part of seven coun- (‘‘McNeill Dep.’’) 33:3–7, April 5, 2017, ties in south central North Carolina. Ex. ECF No. 101-19—in District 9, ex. 3033. 1001. As explained more fully below, Dis- McNeill testified that unlike earlier district 8 was intended to, and does in fact, tricting plans, the version of District 9 in dilute the voting strength of Democratic the 2016 Plan connects south Charlotte, voters by cracking concentrations of likely which is predominantly Republican, and Democratic voters. See infra Part III. Robeson County, which he said includes B.2.h. Common Cause Plaintiff Coy E. low-income, rural voters who favor Demo- Brewer, Jr., lives in Cumberland County— cratic policies like Obamacare—areas that which is in District 8—is a registered have ‘‘little in common.’’ McNeill Dep. Democrat, and typically votes for Demo- 26:9–27:14. More than 97 percent of the cratic candidates. Ex. 3025; Dep. of Coy E. 2,000 districting plans generated by Dr. Brewer, Jr. (‘‘Brewer Dep.’’) 44:15–16, Chen, including Plan 2-297, placed in Apr. 18, 2017, ECF No. 101-18. Brewer McNeill in a more Democratic-leaning dis- testified that historically ‘‘all’’ of the con- trict. Third Chen Decl. 4, 6–9, 11. Similar- gressional districts that included parts of ly, League member Klenz, who lives in the Cumberland County were ‘‘reasonably Mecklenburg County section of District 9, competitive.’’ Brewer Dep. 50:1–7. But as a testified that the General Assembly re- result of the redistricting, which split a drew District 9 to make Democratic candi- concentration of likely Democratic voters dates ‘‘less competitive’’ by connecting ‘‘a in Cumberland County, District 8 is no little, bitty piece’’ of Mecklenburg County, longer ‘‘competitive’’ for Democratic candi- which is composed of heavily Republican dates, according to Brewer. Id. at 51:9–17. precincts, with rural counties many miles By contrast, over 99 percent of the dis- away, including Bladen County. Klenz tricting plans generated by Dr. Chen to Dep. 65:23–66:12. And Plan 2-297 demon- conform to the General Assembly’s non- strates that it was possible for the General partisan districting criteria, including Plan Assembly to draw a districting plan that 2-297, placed Brewer in a district that was does not join Mecklenburg County’s pre- less heavily tilted in favor of Republicans. dominantly Republican precincts, including Third Chen Decl. 4, 6–9, 11. the precinct in which Klenz lives, with District 9 runs through all or part of predominantly rural counties in Eastern eight counties that lie directly south of North Carolina like Bladen and Robeson, District 8, connecting the southern portion where McNeill lives. See Second Chen of the City of Charlotte with rural Bladen Decl. 2–3. County. Ex. 1001. As detailed more fully District 10 spans all or part of eight below, Plaintiffs alleged, and ultimately counties, running from Charlotte’s eastern proved, that in drawing District 9, the suburbs to the foothills of the Appalachian COMMON CAUSE v. RUCHO 825 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

Mountains. Ex. 1001. As explained below, registered Democrat and typically votes in drawing District 10, the General Assem- for Democratic congressional candidates, bly intended to, and did in fact, dilute the to District 11. Ex. 3028; Dep. of Jones P. voting strength of Democratic voters by Byrd (‘‘Byrd Dep.’’) 27:2–4, Apr. 20, 2017, cracking concentrations of such voters and ECF No. 101-24. Prior to 2011, District 11 submerging those voters in a safe Republi- included all of Buncombe County, Byrd can district. See infra Part III.B.2.j. testified, but the 2016 Plan, like the 2011 League Plaintiff John Quinn, III, resides Plan, ‘‘sliced and diced’’ Buncombe County in Buncombe County in District 10, is by ‘‘mov[ing] a core of the Democratic member of the Democratic Party, and vot- concentration out of the district, and ed for the Democratic congressional candi- put[ting] it in a district where it would be date in the 2016 election. Dep. of John J. diluted.’’ Byrd Dep. 20:4–5, 20:23–21:16, Quinn, III (‘‘Quinn Dep.’’) 10:18–11:2, 21:22–22:1, 31:14–32:3. Under the 2016 11:10-18, 17:1–3, 21:24–25, 37:20–25, Apr. Plan, Democratic ‘‘votes don’t really mat- 10, 2017, ECF No. 101-22. Quinn testified ter in either [district],’’ he further ex- that the 2016 Plan splits Buncombe Coun- plained, because both districts were drawn ty and the City of Asheville between Dis- to ensure Republican candidates would trict 10 and District 11, and thereby cracks prevail. Id. at 32:15–18. Notably, all 2,000 a concentration of voters that are political- districting plans generated by Dr. Chen, ly cohesive (and tend to vote Democratic), including Plan 2-297, would have placed unlike his previous district which did not Byrd into a district more favorable to divide Buncombe County and was ‘‘the sin- Democratic candidates, as measured by gle most competitive district in the State.’’ Dr. Hofeller’s partisanship variable. Third Quinn Dep. 26:17–23, 38:20–25. Quinn fur- Chen Decl. 4, 6–11. Similarly, League ther testified that District 10 is ‘‘certainly Plaintiff Aaron Sarver—who resides in not compact at all.’’ Id. at 26:25. Plan 2-297 Asheville in District 11 and is a registered does not divide Buncombe County and as- Democrat who votes for Democratic candi- signs Quinn to a district that is more fa- dates, Sarver Dep. 25:2–9, 45:15–17, 47:14– vorable to Democratic candidates. Second 48:6—testified that because ‘‘Asheville is Chen Decl. 2, 4–7 (reporting that district divided into two Congressional Districts that includes Asheville in Plan 2-297, Dis- the political voice is diluted’’ and ‘‘the 10th trict 1, has predicted Republican vote or 11th are not winnable’’ for Democratic share of 52.62 percent, as opposed to pre- candidates, id. at 25:2–26:18. Plan 2-297 dicted Republican vote share of 58.17 per- does not divide the City of Asheville or cent in District 10 of the 2016 Plan) Buncombe County and assigns Sarver to a District 11 encompasses almost all of the district that is more favorable to Demo- southwest corner of the State, with the cratic candidates. Second Chen Decl. 3, 4– sole exception being a bulbous protrusion 7 (reporting that district that includes of District 10 that takes in a portion of Asheville in Plan 2-297, District 1, has Buncombe County and the City of Ashe- predicted Republican vote share of 52.62 ville. Ex. 1001. As explained more fully percent, as opposed to predicted Republi- below, District 11 reflects a successful ef- can vote share of 57.11 percent in District fort by the General Assembly to crack a 11 in the 2016 Plan). naturally occurring concentration of Demo- District 12 contains all of Mecklenburg cratic voters, and thereby create a safe County, with the exception of a pizzaslice- Republican district. See infra Part III. shaped section of predominantly Republi- B.2.k. The 2016 Plan assigned Common can precincts in the southeastern portion Cause Plaintiff Jones P. Byrd, who is a of the county, which are assigned to Dis- 826 318 FEDERAL SUPPLEMENT, 3d SERIES trict 9. Exs. 1001, 3017. As explained be- Democrat, and typically votes for Demo- low, District 12 amounts to a successful cratic candidates, including in the 2016 effort by the General Assembly to pack congressional election. Ex. 3037; Dep. of Mecklenburg County voters who were un- Russell Grady Walker, Jr. (‘‘Walker Dep.’’) likely to support a Republican congres- 29:24, Apr. 7, 2017, ECF No. 101-27. Walk- sional candidate and thereby dilute such er testified that the 2016 Plan ‘‘diluted’’ his voters’ votes. See infra Part III.B.2.l. vote because ‘‘there was no chance for a Common Cause Plaintiff John W. Gresham qualified person who was not a Republican lives in District 12 and is a registered to have much of a shot at’’ winning in Democrat who typically votes for Demo- District 13. Walker Dep. 29:17–23. Nearly cratic candidates. Ex. 3030; Dep. of John 90 percent of the 2,000 districting plans West Gresham (‘‘Gresham Dep.’’) 8:7–9, generated by Dr. Chen, including Plan 2- 9:16–18, 37:12–14, Mar. 24, 2017, ECF No. 297 placed Walker in a district more favor- 101-24. Gresham testified that the 2016 able to Democratic candidates. Third Chen Plan ‘‘pack[s]’’ likely Democratic voters in Decl. 4, 6–11; Clarification Regarding Mecklenburg County, and thereby ‘‘dilut- Paragraph Describing Plaintiff Russell ed’’ his vote. Gresham Dep. 25:5, 37:18–21. Walker in July 11, 2018 Supp. Decl. of By comparison, over 99 percent of the Jowei Chen 2, July 24, 2018, ECF No. 136- districting plans in Dr. Chen’s 2,000-plan 1. sample, including Plan 2-297, placed Gres- [20, 21] Because Plaintiffs in each of ham into a district with fewer likely Demo- the State’s thirteen congressional districts cratic voters. Third Chen Decl. 4, 6–11. both testified that and introduced direct Finally, District 13 includes all or parts and circumstantial evidence that ‘‘the par- of five counties in central North Carolina. ticular composition of the voter’s own dis- Ex. 1001. As demonstrated more fully be- trict TTT caus[ed] his [or her] vote—having low, Plaintiffs’ evidence proves District 13 been packed or cracked—to carry less was intended to, and does in fact, dilute weight than it would carry in another, the voting strength of Democratic voters hypothetical district,’’ Gill, 138 S.Ct. at by cracking concentrations of likely Demo- 1931, we conclude that such Plaintiffs have cratic voters. See infra Part III.B.2.m. standing to assert partisan vote dilution Common Cause Plaintiff Russell Walker, claims under the Equal Protection Clause Jr., resides in District 13, is a registered to each of those districts.13 Additionally,

13. Legislative Defendants nevertheless claim tion, Gill contemplated that individuals that Plaintiffs who support Democratic candi- placed in packed districts—like Districts 1, 4, dates and live in Districts 1, 4, and 12— and 12—would have standing, notwithstand- which elected Democratic candidates in the ing the election of their candidate of choice. 2016 election—lack standing to assert a par- That result is consistent with the Court’s ra- tisan vote dilution claim under the Equal cial gerrymandering jurisprudence—to which Protection Clause because such Plaintiffs’ Gill expressly appealed—which holds that ‘‘candidate of choice’’ was elected in those those members of a particular race that are districts, Leg. Defs.’ Standing Br. 8—a posi- packed into a district have standing to assert tion Judge Osteen embraces in his partial a racial gerrymandering claim, notwithstand- dissent, post at 949–50. But Gill states that a ing that the district elected their candidate of plaintiff can suffer a dilutionary injury as a choice. Id. at 1930; see also, e.g., Covington, result of ‘‘packing,’’ as well as ‘‘cracking.’’ 137 S.Ct. at 2211 (affirming district court 138 S.Ct. at 1931 (emphasis added). When a finding that state legislative districting plan district is packed, the injured individuals nec- packed African-Americans into 28 majority- essarily elect their candidate of choice, albeit African-American districts; plaintiffs included by an overwhelming margin. Accordingly, African-American voters who resided in contrary to Legislative Defendants’ conten- packed districts and were able to elect their COMMON CAUSE v. RUCHO 827 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) because at least one of these Plaintiffs— League member Klenz lives in that district who, again, reside in each of the State’s and testified to and provided evidence that thirteen congressional districts—is affiliat- her vote was diluted on the basis of invidi- ed with the Democratic Party, we further ous partisanship.14 Id. conclude that Plaintiff North Carolina Democratic Party has standing to raise a c. Several Individual and Organiza- partisan vote dilution challenge to each tional Plaintiffs Lack Standing district in the 2016 Plan. See Friends of under Gill the Earth, Inc. v. Laidlaw Envt’l Servs. [22] We further conclude that, under (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. Gill, several named Plaintiffs lack standing 693, 145 L.Ed.2d 610 (2000). (‘‘An associa- to lodge a partisan vote dilution claim un- tion has standing to bring suit on behalf of der the Equal Protection Clause. In partic- its members when its members would oth- ular, several named Plaintiffs testified that erwise have standing to sue in their own they believe their vote was diluted by the right, the interests at stake are germane 2016 Plan as a whole, rather than by the to the organization’s purpose, and neither lines of their particular district. For exam- the claim asserted nor the relief requested ple, League Plaintiff Elliot Feldman—who requires the participation of individual resides in District 9 and is a registered members in the lawsuit.’’). Likewise, at a Democrat, Ex. 4055—testified that he was minimum, the League has standing to as- ‘‘aggrieved [by] the present situation sert a partisan vote dilution challenge to whereby Democrats can have TTT 51, 52 District 9 because, as explained above, percent of the vote for TTT congressional

candidate of choice); Cooper, 137 S.Ct. at Plaintiffs who were cracked into a safe Re- 1469, 1473, 1482 (affirming district court publican district. If the votes of such Plaintiffs finding that 2011 Plan unconstitutionally had not been diluted on the basis of invidious ‘‘pack[ed]’’ African-American voters into Dis- partisanship—and therefore their districts tricts 1 and 12, notwithstanding that Plantiff had not been drawn so as to allow the Repub- African-American voters were able to elect lican candidate to prevail by a ‘‘safe’’ mar- their candidate of choice in those districts). gin—then the elected officials, facing a close re-election race, may have been more respon- For the same reason, we reject Legislative sive to issues supported by Democratic voters Defendants’ argument that Plaintiffs who and such voters would have had a better ‘‘live in districts that either elected Republi- chance electing their preferred candidate in cans in 2016 or which have elected Republi- future elections. cans under prior maps adopted by a Demo- cratic-controlled General Assembly’’ lack 14. Because at least one Plaintiff with standing standing. Leg. Defs.’ Br. at 8. Contrary to to assert an Equal Protection partisan vote Legislative Defendants’ argument, Gill’s dis- dilution claim lives in each of the State’s cussion of standing does not focus on—or thirteen congressional districts, we need even mention—whether a plaintiff’s ‘‘candi- not—and thus do not—decide whether the date of chioce’’ prevailed. Rather, it requires League has standing to challenge all thirteen courts to determined whether a particular districts under such a theory. In particular, district was ‘‘packed’’ or ‘‘cracked’’ and we do not decide whether, by itself, evidence whether the vote of a plaintiff who resides in that an organization (1) has a member in each that district would ‘‘carry more weight’’ un- district in a plan (2) who supports an alleged- der an alternative plan. 138 S.Ct. at 1930–31. ly disfavored party and (3) lives in a precinct As is the case with Plaintiffs who live in that would be assigned to a district more packed districts, it is the intentional dilution favorable to the allegedly disfavored party un- of the voting strength of voters who support der an alternative plan confers standing on non-Republican candidates—not the outcome the organization to lodge a partisan vote dilu- of a particular election—that injures those tion challenge to each district in the plan. 828 318 FEDERAL SUPPLEMENT, 3d SERIES

[candidates], and then wind up [with] tional plaintiff Common Cause likewise about 30 percent [of the seats] here on the testified that its Equal Protection Clause congressional level,’’ Feldman Dep. 20:8– challenge was solely premised on a state- 13. Feldman further agreed this his ‘‘prob- wide theory of injury. 30(b)(6) Dep. of lem with the districts is that the number of Common Cause by Bob Phillips (‘‘Phillips Republicans elected is not proportional to Dep.’’) 16:24–17:4, Apr. 14, 2017, ECF No. the vote that Republicans receive in state- 101-29. wide elections.’’ Id. at 30:12–16. Similarly, As explained above, see supra Part II. League Plaintiff Annette Love, who re- A.1.a, Gill held that partisan vote dilution sides in District 1, testified that her ‘‘prob- claims under the Equal Protection Clause lem is with the plan as a whole, not [her] must proceed district-by-district, and specific district.’’ Love Dep. 12:16–18 (em- therefore that a plaintiff cannot rely on an phasis added). According to Love, the 2016 alleged ‘‘statewide’’ injury to support such Plan is ‘‘unfair’’ to supporters of Demo- a claim, 138 S.Ct. at 1931, as these specific cratic candidates, like herself, because ‘‘we Plaintiffs seek to do. Likewise, Gill stated have 3 representatives [in Washington] that the Supreme Court never has recog- versus I believe it’s 10’’ Republican repre- nized a ‘‘shared interest in the composition sentatives. Id. at 12:10–15. of the legislature as a whole’’ as an individ- Other individual Plaintiffs similarly tes- ual interest giving rise to a vote dilution tified that they felt injured by the plan as claim, 138 S.Ct. at 1924–25, 1932 (internal a whole—not the boundaries of their spe- quotation marks omitted), meaning that cific district—because the partisan compo- these Plaintiffs cannot rely on the composi- sition of the State’s congressional delegation of the State’s congressional delegation tion was not proportionate to the two- to establish their individual injury. Accord- party share of the statewide vote. Dep. of ingly, these Plaintiffs lack standing to as- William Collins (‘‘Collins Dep.’’) 16:5–19, sert a partisan vote dilution claim under Mar. 30, 2017, ECF No. 101-5 (League the Equal Protection Clause.15 Plaintiff who lives in District 1 stating he 2. First Amendment believes ‘‘statewide the plan is not fair because ‘‘10 to 3’’ ratio of Republicans to [23, 24] Having concluded that at least Democrats in congressional delegation one Plaintiff has standing to lodge a parti- ‘‘doesn’t really project the right num- san vote dilution challenge under the bers.’’); Dep. of Elizabeth Evans (‘‘Evans Equal Protection Clause to each of the Dep.’’) 21:14–22:18, Apr. 7, 2017, ECF No. thirteen districts in the 2016 Plan, we next 101-7 (‘‘I have a problem with the plan address whether Plaintiffs have standing statewideTTTT I’m part of a majority party to assert their First Amendment claims. [Democratic] in North Carolina, but I have Partisan gerrymandering implicates the only three representatives.’’); Dep. of Wil- ‘‘the First Amendment interest of not bur- lis Williams (‘‘Williams Dep.’’) 26:13–27:22, dening or penalizing citizens because of March 30, 2017, ECF No. 101-6 (‘‘[T]he their participation in the electoral process, problem with the plan is that statewide it their voting history, their association with disadvantages Democrats.’’). And organiza- a political party, or their expression of

15. Because at least one Plaintiff with standing remaining individual Plaintiffs—Maria Palm- to assert an Equal Protection partisan vote er, Gunther Peck, Ersla Phelps, Janie Sump- dilution claim lives in each of the State’s ter, and Robert Wolf—have standing to assert thirteen congressional districts, we need a partisan vote dilution claim under the Equal not—and thus do not—decide whether the Protection Clause. COMMON CAUSE v. RUCHO 829 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

political views.’’ Vieth v. Jubelirer, 541 objects.’’ Gill, 138 S.Ct. at 1939 (Kagan, J., U.S. 267, 314, 124 S.Ct. 1769, 158 L.Ed.2d concurring); id. at 1938 (‘‘[T]he association- 546 (2004) (Kennedy, J., concurring in the al harm of a partisan gerrymander is dis- judgment). Put differently, ‘‘significant tinct from vote dilution.’’); see also ‘First Amendment concerns arise’ when a Williams v. Rhodes, 393 U.S. 23, 30, 89 State purposely ‘subject[s] a group of vot- S.Ct. 5, 21 L.Ed.2d 24 (1968) (explaining ers or their party to disfavored treat- that the Supreme Court ‘‘ha[s] repeatedly ment.’ ’’ Gill, 138 S.Ct. at 1938 (Kagan, J., held that freedom of association is protect- concurring) (alteration in original) (quoting ed by the First Amendment,’’ including Vieth, 541 U.S. at 314, 124 S.Ct. 1769). ‘‘the right of individuals to associate for Among other types of ‘‘burden[s]’’ on the advancement of political beliefs’’). First Amendment rights, partisan gerry- These associational harms ‘‘ha[ve] nothing mandering ‘‘purposely dilut[es] the weight to do with the packing or cracking of any of certain citizens’ votes to make it more single district’s lines.’’ Gill, 138 S.Ct. at difficult for them to achieve electoral suc- 1939. Rather, ‘‘the valued association and cess because of the political views they the injury to it are statewide, [and] so too have expressed through their voting histo- is the relevant standing requirement.’’ Id. ries and party affiliations.’’ Shapiro v. Mc- Manus, 203 F.Supp.3d 579, 595 (D. Md. [27] Individual Plaintiffs testified to le- 2016) (three-judge panel). This dilutionary gally cognizable non-dilutionary injuries to aspect of the First Amendment injury as- their First Amendment right to engage in sociated with partisan gerrymandering political association. In particular, individ- echoes the district-specific injury giving ual Plaintiffs testified to decreased ability rise to a partisan vote dilution claim under to mobilize their party’s base, persuade in- the Equal Protection Clause. See id. (ex- dependent voters to participate, attract plaining that ‘‘while a State can dilute the volunteers, raise money, and recruit candi- value of a citizen’s vote by placing him in dates. For example, League Plaintiff Eliz- an overpopulated district, a State can also abeth Evans, who served as the Secretary dilute the value of his vote by placing him of the Granville County Democratic Party in a particular district because he will be and worked on the Democratic Party’s outnumbered there by those who have af- canvassing and get-out-the-vote efforts, filiated with a rival political party. In each testified that she had difficulty convincing case, the weight of the viewpoint communi- fellow Democrats to ‘‘come out to vote’’ cated by his vote is ‘debased’ ’’ (quoting because, as a result of the gerrymander, Bd. of Estimate of City of N.Y. v. Morris, ‘‘they felt their vote didn’t count.’’ Evans 489 U.S. 688, 693–94, 109 S.Ct. 1433, 103 Dep. 12:24–16:12. Common Cause Plaintiff L.Ed.2d 717 (1989) ). As detailed above, at Melzer Morgan, who is a member of the least one Plaintiff in each of the State’s Democratic Party, testified that ‘‘[t]he thirteen congressional districts has ade- drawing of the districts mean[s] that TTT quately alleged such a dilutionary injury. you don’t have a very vibrant Democratic See supra Part II.A.1.b. Party because there is not much hope of [25, 26] Partisan gerrymandering also prevailing at various levels’’ as a result of implicates ‘‘distinct,’’ non-dilutionary First the gerrymander. Morgan Dep. 23:2–5, Amendment injuries, such as infringing on 27:21–24. Morgan further testified that in- ‘‘the ability of like-minded people across dividuals inclined to support Democratic the State to affiliate in a political party and candidates have refused to give money to carry out that organization’s activities and the Democratic congressional candidate in 830 318 FEDERAL SUPPLEMENT, 3d SERIES his Greensboro district, in particular, be- L.Ed.2d 514 (1986) (‘‘The freedom of asso- cause they say there is ‘‘no sense in us ciation protected by the First and Four- giving money to that candidate because teenth Amendments includes partisan po- [she] is unlikely to prevail, notwithstand- litical organization.’’). ‘‘By placing a state ing the merit of [her] position.’’ Id. at party at an enduring electoral disadvan- 23:20–25. And League Plaintiff John tage, the gerrymander weakens its capaci- Quinn, who is ‘‘very active’’ in his local ty to perform all its functions.’’ Gill, 138 Democratic Party in District 11, testified S.Ct. at 1938 (Kagan, J., concurring). That that he has had difficulty ‘‘rais[ing] mon- is the case here. The North Carolina Dem- ey,’’ ‘‘recruit[ing] candidates,’’ and ‘‘mobi- ocratic Party testified that ‘‘with the way liz[ing] a campaign’’ for a Democratic can- the congressional districts were drawn, it didate in his district because the district indicates that only three [districts] would was drawn to strongly favor Republican elect Democrats and the others will not be candidates. Quinn Dep. 24:13–14, 38:20– able to elect Democrats [which] makes it 39:34. extremely difficult to raise funds and have Other individual Plaintiffs who support resources and get the attention of the na- and work on behalf of the Democratic Par- tional congressional campaign committees ty and Democratic candidates also testified and other lawful potential funders for con- at length regarding the adverse effects of gressional races in those districts.’’ See the 2016 Plan on the ability of their party 30(b)(6) Dep. of N.C. Democratic Party by to perform its core functions. Berger Dep. George Wayne Goodwin (‘‘Goodwin Dep.’’) 73:11–74:1, 79:10–13; Brewer Dep. 52:2–13; 97:18–98:5, April 17, 2017, ECF Nos. 110-7, Fox Dep. 51:18–52:9; Palmer Dep. 27:4– 101-30. Additionally, ‘‘[t]he way the dis- 29:21, 32:13–34:17 50:10–23; Dep. of Gun- tricts are drawn these days, it’s harder to ther Peck (‘‘Peck Dep.’’) 27:8–24, 34:6–20, recruit candidates given that the deck March 22, 2017, ECF No. 101-3; Quinn seems to be stacked, at least in congres- Dep. 31:19–32:3, 37; C. Taft Dep. 17:6–11; sional districts,’’ the party testified. Id. at Sarver Dep. 26:9–27:23, 34:8–15, 37:18– 27:17–20; see also id. at 42:12–25 (identify- 39:4; Walker Dep. 29:17–30:8. The Su- ing particular districts in which Democrat- preme Court has recognized that these ic Party had difficulty recruiting candi- types of non-dilutionary harms constitute dates). cognizable First Amendment injuries. See, e.g., Anderson v. Celebrezze, 460 U.S. 780, [28] Plaintiff organizations the League 792, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) and Common Cause also testified to associ- (finding that plaintiff was injured by elec- ational injuries attributable to the 2016 tion law that made ‘‘[v]olunteers TTT more Plan. The League engages in statewide difficult to recruit and retain, media pub- voter education, registration, and ‘‘get out licity and campaign contributions TTT more the vote’’ efforts. Klenz Dep. 44:15–25, difficult to secure, and voters TTT less in- 59:16–17. Due to a lack of voter interest terested in the campaign’’). attributable to the gerrymander, the As Justice Kagan recognized in Gill, League had difficulty fulfilling its mission ‘‘what is true for party members may be of ‘‘inform[ing] TTT [and] engag[ing] voters doubly true for party officials and triply in the process of voting and civic partic- true for the party itself (or for related ipation in their government.’’ Id. 59:16–17. organizations).’’ 138 S.Ct. at 1938; see also Additionally, as a result of the 2016 Plan, Tashjian v. Republican Party of Conn., the League has had difficulty providing 479 U.S. 208, 214, 107 S.Ct. 544, 93 opportunities for its members and other COMMON CAUSE v. RUCHO 831 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) voters to interact with ‘‘candidate[s] that 29:6–11, 150:8–15. As a redistricting plan [were] expected to win and projected to expressly designed to achieve ‘‘Partisan win,’’ because those candidates were often Advantage,’’ Ex. 1007, the 2016 Plan runs not ‘‘motivated’’ to participate ‘‘in voter directly contrary to the non-partisan ap- forums, debates, [or] voter guides, because proach to redistricting—and the open and the outcome is so skewed in favor or in accountable government—for which Com- disfavor of one or the other.’’ Id. at 60:6– mon Cause and its members have long 10. Accordingly, the League has estab- advocated. Accordingly, the 2016 Plan has lished that the 2016 Plan’s invidious parti- burdened the rights of members of the san discrimination burdens its mission. See League and Common Cause ‘‘to associate Ohio A Philip Randolph Inst. v. Smith, for the advancement of political beliefs.’’ No. 1:18-CV-357, 2018 WL 3872330, at *4 Williams, 393 U.S. at 30, 89 S.Ct. 5. (S.D. Ohio Aug. 15, 2018) (three-judge panel) (finding, post-Gill, that the Ohio In sum, we conclude both individual and League of Women Voters had standing to organizational Plaintiffs have standing to assert First Amendment partisan gerry- assert their First Amendment challenge to mandering claim because ‘‘the map makes the 2016 Plan. And we further conclude it more difficult to engage voters through that because these injuries are statewide, their education, registration, and outreach such Plaintiffs have standing to lodge a efforts, and by deterring and discouraging First Amendment challenge to the 2016 their members and other Ohio voters from Plan as a whole. Gill, 138 S.Ct. at 1939. engaging in the political process’’ (internal 3. Article I quotation marks and alterations omitted) ); [29, 30] The injuries underlying Com- League of Women Voters of Mich. v. John- mon Cause Plaintiffs’ Article I claims— son, slip op. at 13, No. 2:17-CV-14148 (E.D. which allege that the 2016 Plan exceeds Mich. May 16, 2018), ECF No. 54 (three- the General Assembly’s authority under judge panel) (same, in case in which Michi- the Elections Clause and usurps the power gan League of Women Voters asserted of ‘‘the People’’ to elect their representa- partisan gerrymandering challenge to Michigan districting plan). tives—also do not stop at a single district’s lines. In invoking Article I, Plaintiffs allege Common Cause and its members work, that North Carolina’s districting map upon a statewide basis, to educate the public sets a fundamental balance established by about voting-related issues and ‘‘advocate the Constitution. As explained in more de- for more open, honest and accountable tail below, the grant of power to state government.’’ Phillips Dep. 35:9–10, 37:25– 39:9, 71:6–8, 150:2–7. As part of that ef- legislatures to regulate federal elections in fort, Common Cause has long advocated Article I, section 4 is akin to an enumerat- for redistricting reform, and legislation ed power of Congress. See infra Part V; providing for non-partisan redistricting. Richard H. Pildes, The Constitution and Id. at 20:20–21:13. In North Carolina, in Political Competition, 30 NOVA L. REV. particular, Common Cause worked with 253, 263–64 (2006). This is ‘‘[b]ecause any Republican legislators in the 2000s and state authority to regulate election to [con- Democratic legislators in the 2010s to en- gressional] offices could not precede their act legislation providing for non-partisan very creation by the Constitution’’; accord- redistricting, and Common Cause devel- ingly, ‘‘such power ‘had to be delegated to, oped and advocated for a non-partisan rather than reserved by, the States.’ ’’ congressional districting plan as an alter- Cook v. Gralike, 531 U.S. 510, 522, 121 native to the 2016 Plan. Id. at 21:9–13, S.Ct. 1029, 149 L.Ed.2d 44 (2001) (quoting 832 318 FEDERAL SUPPLEMENT, 3d SERIES

Thornton, 514 U.S. at 804, 115 S.Ct. 1842). and the States when the enforcement of Thus, ‘‘the States may regulate the inci- those laws causes injury that is concrete, dents of elections TTT only within the ex- particular, and redressable.’’); see also clusive delegation of power under the Ariz. State Leg., 135 S.Ct. at 2695 (Scalia, Elections Clause.’’ Id. at 523, 121 S.Ct. J., dissenting) (‘‘[W]e have never passed on 1029. Here, Common Cause Plaintiffs al- a separation-of-powers question raised di- lege that the General Assembly’s partisan rectly by a governmental subunit’s com- gerrymandering exceeds the scope of that plaint. We have always resolved those power and therefore upsets the constitu- questions in the context of a private law- tional balance established by Article I. suit in which the claim or defense depends [31] These Plaintiffs’ Article I claim, on the constitutional validity of action by therefore, is premised on federalism. ‘‘The one of the governmental subunits that has Framers understood the Elections Clause caused a private party concrete harm.’’). as a grant of authority to issue procedural To be sure, bringing a claim that impli- regulations, and not as a source of power cates a structural harm does not absolve to dictate electoral outcomes, to favor or litigants from the requirement to allege disfavor a class of candidates, or to evade particularized injuries. See Lance v. Coff- important constitutional restraints.’’ man, 549 U.S. 437, 440, 127 S.Ct. 1194, 167 Thornton, 514 U.S. at 833–34, 115 S.Ct. L.Ed.2d 29 (2007) (per curiam). In Lance, 1842; see also Cook, 531 U.S. at 527, 121 the Colorado state legislature was initially S.Ct. 1029 (Kennedy, J., concurring) (‘‘[A unable to agree on a new congressional state] simply lacks the power to impose redistricting map after the 2000 census, so any conditions on the election of Senators the state court drew and implemented a and Representatives, save neutral provi- new map. See id. at 437–38, 127 S.Ct. 1194. sions as to the time, place, and manner of Several years later, in 2003, the state legis- elections pursuant to Article I, § 4.’’). Ac- lature finally passed a new redistricting cordingly, if Plaintiffs are correct in their plan. See id. at 438, 127 S.Ct. 1194. The assertions about the General Assembly’s state attorney general, however, sought to actions, then, in enacting the 2016 Plan, enjoin implementation of the map on the General Assembly acted beyond its grounds that the Colorado Constitution constitutional authority in direct contra- prohibits more than one redistricting after vention of a delicate balance of governmental powers established in Article I. See each census. See id. The state supreme Thornton, 514 U.S. at 841, 115 S.Ct. 1842 court held that the new map indeed violat- (Kennedy, J., concurring) (‘‘That the ed the state constitution and could not take States may not invade the sphere of feder- effect. See id. Subsequently, four voters al sovereignty is as incontestable TTT as brought suit in federal court alleging that the corollary proposition that the Federal the ruling of the Colorado Supreme Court Government must be held within the violated the Elections Clause of the U.S. boundaries of its own power when it in- Constitution by preventing the Colorado trudes upon matters reserved to the legislature from exercising its constitution- States.’’). Establishing such a structural ally-granted power of regulating elections. harm can confer standing. See Bond v. See id. at 441, 127 S.Ct. 1194. But the United States, 564 U.S. 211, 221–22, 131 Supreme Court held that the voters lacked S.Ct. 2355, 180 L.Ed.2d 269 (2011) (‘‘An standing to bring such a suit because individual has a direct interest in objecting ‘‘[t]he only injury plaintiffs allege is that to laws that upset the constitutional bal- the law—specifically the Elections ance between the National Government Clause—has not been followed.’’ Id. at 442, COMMON CAUSE v. RUCHO 833 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

127 S.Ct. 1194. The Court described the ries to their associational rights. See supra voters’ claims as ‘‘precisely the kind of Part II.A.2. As discussed above, these inju- undifferentiated, generalized grievance ries include, among others, difficulty re- about the conduct of the government’’ that cruiting candidates due to the perceived is insufficient to confer standing. Id. Rath- lack of competitiveness of elections, diffi- er, the voters needed to cite more than culty raising money, and difficulty encour- ‘‘the right, possessed by every citizen, to aging people to vote on account of wide- require that the Government be adminis- spread belief that electoral outcomes are tered according to law.’’ Id. at 440, 127 foregone conclusions. Id. And, as Justice S.Ct. 1194. Kagan made clear, such injuries, if state- In Lance, the Supreme Court specifical- wide in scope, admit statewide standing. ly differentiated the generalized injuries of See id. the plaintiffs in that case from the individ- Several circuits also have relied on these ualized injuries alleged by the plaintiffs in types of associational injuries when finding Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 that organizations had standing to assert L.Ed.2d 663 (1962). In Baker, the plaintiffs claims under Article I. For example, in lived in five Tennessee counties and chal- Texas Democratic Party v. Benkiser, 459 lenged the state districting plan ‘‘appor- F.3d 582 (5th Cir. 2006), the Republican tioning the members of the General As- sembly among the State’s 95 counties.’’ 369 Party of Texas declared that one of its U.S. at 187–88, 204, 82 S.Ct. 691. The candidates, who had already won the pri- alleged injury was based on a vote dilution mary election for the U.S. House of Repre- theory: ‘‘appellants assert TTT that [the sentatives in one of Texas’ districts, was no current apportioning] disfavors the voters longer eligible to run due to a change in in the counties in which they reside, plac- his residency. See id. at 584–85. The Texas ing them in a position of constitutionally Republican Party thus sought to replace unjustifiable inequality vis-`a-vis voters in the candidate on the general election ballot irrationally favored counties.’’ Id. at 207– with a new candidate. See id. Before the 08, 82 S.Ct. 691. And although the entire Republican Party could do so, however, state map was ultimately redrawn in that the Democratic Party sought injunctive re- case, Gill clarified that the Baker plain- lief. See id. at 585. The district court found tiffs’ claims were only brought on a dis- that the Republican Party had impermissi- trict-by-district basis, because they were bly added a residency requirement to run- based on an alleged injury of vote dilution. ning for the U.S. House of Representa- See Gill, 138 S.Ct. at 1930–31. tives, which the Qualifications Clause of [32] Unlike the plaintiffs in Lance— the Constitution prohibited. See id. Ac- and like the plaintiffs in Baker—at least cordingly, the district court permanently one Plaintiff residing in each district in the enjoined the chairwoman of the Republi- 2016 Plan alleges and offers proof of the can Party from finding the first candidate type individualized dilutionary injuries the to be ineligible and from replacing him on Court recognized in Gill. See supra Part the ballot with another Republican candi- II.A.1.b. Those injuries-in-fact establish date. See id. such Plaintiffs’ standing to lodge their The Republican Party appealed. Among structural claim under Article I. Bond, 564 its arguments was that the residency re- U.S. at 221–22, 131 S.Ct. 2355. quirement for candidates for the House of Plaintiffs also allege and prove addition- Representatives was a permissible use of al non-dilutionary injuries, including inju- the authority conferred to the State under 834 318 FEDERAL SUPPLEMENT, 3d SERIES

the Elections Clause. See id. at 590–91. merely an ideological interests. Political The Fifth Circuit rejected this argument. victory accedes power to the winning par- The court found that the Republican Par- ty, enabling it to better direct the machin- ty’s actions were not performed in a ‘‘ ‘non- ery of government toward the party’s in- discriminatory, politically neutral fash- terest. While power may be less tangible ion,’ ’’ id. at 590 (quoting Miller v. Moore, than money, threatened loss of that power 169 F.3d 1119, 1125 (8th Cir. 1999) ), nor is still a concrete and particularized injury did they fall within the limited grant of sufficient for standing purposes.’’ Id. (in- power provided by the Elections Clause, ternal citation omitted). The same is true id. at 591. in this case. The North Carolina Demo- Relevant here, the Fifth Circuit found cratic Party has an interest in electing its that the Texas Democratic Party had candidates to office, and the inability to standing to bring these claims. For direct recruit candidates, raise funds, and get standing, the court found that the Demo- voters to the polls create injuries-in-fact cratic Party would suffer an economic inju- sufficient to confer standing.16 See supra ry because ‘‘it would need to raise and Part II.A.2. expend additional funds and resources to Two challenges to a Kansas law requir- prepare a new and different campaign in a ing proof of citizenship to register to short time frame.’’ Id. at 586 (internal vote—decided by two separate circuits— quotation marks omitted). Furthermore, similarly establish that an individual who the Party would also have standing as a suffers an injury-in-fact as a result of an result of ‘‘harm to its election prospects.’’ election regulation has standing to assert a Id. More specifically, ‘‘if the [Republican structural challenge to the regulation un- Party] were permitted to replace [the orig- der Article I. See League of Women Voters inal candidate] with a more viable candi- of the U.S. v. Newby, 838 F.3d 1, 9 (D.C. date, then [the Democratic Party’s] con- Cir. 2016) (holding that because the ‘‘new gressional candidate’s chances of victory obstacles’’ created by the Kansas law ‘‘un- would be reduced.’’ Id. Additionally, other questionably make it more difficult for the ‘‘Democratic candidates, like county com- Leagues to accomplish their primary mis- missioners and judges, would suffer due to sion of registering voters, they provide the change’s effect on voter turnout and injury for purposes both of standing and volunteer efforts.’’ Id. irreparable harm’’); see also Fish v. Ko- Like the Legislative Defendants here, bach, 840 F.3d 710, 716 n.5 (10th Cir. 2016) the Republican Party in Benkiser argued (holding that Plaintiffs, including the that such ill effects were not injuries-in- League of Women Voters of Kansas, have fact sufficient to confer standing. The Fifth standing to challenge the law). Further Circuit disagreed, admonishing that ‘‘[v]o- still, although the Supreme Court did not luminous persuasive authority shows oth- specifically address standing in Thornton, erwise.’’ Id. at 587 & n.4 (collecting cases). the Court nonetheless ruled on the merits The court held that ‘‘a political party’s of the case when several citizens and the interest in a candidate’s success is not League of Women Voters of Arkansas

16. The Fifth Circuit also found that the Dem- and campaign coffers,’’ and that ‘‘[p]ersuasive ocratic Party had associational standing on authorities establish that such injuries are suf- behalf of its candidates. See Benkiser, 459 ficient to give a candidate standing to protest F.3d at 587. The Fifth Circuit held that the the action causing the harm.’’ Id. at 587 & n.4 Republican Party’s actions ‘‘threaten [the (collecting cases). Again, the same is true in Democratic candidate’s] election prospects this case. COMMON CAUSE v. RUCHO 835 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

brought suit challenging a law that violat- true, ‘‘defeat [a] principle solemnly embod- ed both the Qualifications Clause and the ied’’ in the Constitution. 376 U.S. at 14, 84 Elections Clause. See 514 U.S. 779, 115 S.Ct. 526; see also Cook, 531 U.S. at 528, S.Ct. 1842. Several other cases provide 121 S.Ct. 1029 (Kennedy, J., concurring) similar tacit support. See, e.g., Arizona v. (‘‘The dispositive principle in this case is Inter Tribal Council of Ariz., Inc., 570 fundamental to the Constitution, to the U.S. 1, 133 S.Ct. 2247, 186 L.Ed.2d 239 idea of federalism, and to the theory of (2013) (addressing the merits in a case representative government. The principle brought by a collection of non-profit organ- is that Senators and Representatives in izations to a state law that fell outside the the National Government are responsible scope of the Elections Clause); Tashjian, to the people who elect them, not to the 479 U.S. at 217 (addressing the merits in a States in which they resideTTTT The idea case brought by the Republican Party of federalism is that a National Legislature challenging a law outside the scope of the enacts law which bind the people as indi- Elections Clause and stating that although viduals, not as citizens of a State; and, it ‘‘[t]he Constitution grants to the States a follows, freedom is most secure if the peo- broad power to prescribe the ‘Times, ple themselves, not the States as interme- Places and Manner of holding Elections diaries, hold their federal legislators to for Senators and Representatives,’ Art. I, account for the conduct of their office’’); § 4, cl. 1,’’ that power ‘‘does not justify TTT Thornton, 514 U.S. at 842, 115 S.Ct. 1842 the abridgment of fundamental rights, such as the right to vote [or] the freedom (Kennedy, J., concurring) (‘‘Nothing in the of political association.’’ (citing Wesberry, Constitution or The Federalist Papers, 376 U.S. at 6–7, 84 S.Ct. 526) ); Anderson, however, supports the idea of state inter- 460 U.S. at 792, 103 S.Ct. 1564 (finding ference with the most basic relation be- that plaintiff was injured by an election tween the National Government and its law that made ‘‘[v]olunteers TTT more diffi- citizens, the selection of legislative repre- cult to recruit and retain, media publicity sentatives’’). The harm suffered by Plain- and campaign contributions TTT more diffi- tiffs as a result of this potential violation of cult to secure, and voters TTT less interest- the Constitution’s structure, however, ed in the campaign’’). manifests itself through individual dilution- In sum, as the Supreme Court held in ary and associational injuries. Accordingly, Bond, citizens have standing in cases ‘‘as- we find that such injuries are sufficient sert[ing] injury from governmental action injuries-in-fact on behalf of the individual taken in excess of the authority that feder- plaintiffs, as well as on behalf of the Demo- alism defines,’’ 564 U.S. at 220, 131 S.Ct. cratic Party of North Carolina and Com- 2355—that is, when a ‘‘government acts in mon Cause. Furthermore, because these excess of its lawful powers,’’ id. at 222, 131 structural and associational harms have S.Ct. 2355—so long as the plaintiffs still statewide implications, we find that such have the requisite injury-in-fact. Here, injuries are sufficient to confer standing on Common Cause Plaintiffs’ Article I claim is a statewide basis. See Gill, 138 S.Ct. at grounded in that same principle of federal- 1938–40 (Kagan, J., concurring). ism. They claim that the North Carolina General Assembly has overstepped the * * * * * limited grant of power provided by the In conclusion, we find and conclude that Elections Clause, thereby giving it too individual and organizational Plaintiffs in much influence over the National Legisla- each congressional district have alleged ture. Like in Wesberry, these actions, if and suffered dilutionary injuries-in-fact at- 836 318 FEDERAL SUPPLEMENT, 3d SERIES tributable to the 2016 Plan, and, based on States, subject to the supervision of Con- those injuries, have standing to assert a gress, thereby leaving no place for judicial partisan vote dilution challenge to each of review.17 Id. at 553–55, 66 S.Ct. 1198. those districts. We further find and con- Baker confronted a one-person, one-vote clude that individual and organizational challenge under the Equal Protection Plaintiffs have standing to assert a state- Clause to a state legislative districting wide First Amendment claim. And those plan. The Court concluded such claims Common Cause Plaintiffs who have alleged were justiciable, and distinguished Cole- and proven injuries-in-fact also have stand- grove on grounds that Colegrove involved a ing to seek relief under Article I. challenge under the Guaranty Clause, Arti- B. JUSTICIABILITY cle IV, Section 4, which the Court had [33] Next, Legislative Defendants ar- previously held was not ‘‘the source of a gue that although partisan gerrymander- constitutional standard for invalidating ing claims are justiciable ‘‘in theory,’’ state action.’’ 369 U.S. at 209–10, 223, 82 Plaintiffs’ specific partisan gerrymander- S.Ct. 691 (citing Taylor v. Beckham, 178 ing claims should be dismissed because, as U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187 alleged and proven, they raise nonjusticia- (1900) ). In concluding that one-person, ble political questions. Leg. Defs.’ FOF 93. one-vote apportionment claims are justicia- The political question doctrine dates to ble, Baker held that an issue poses a politi- Justice Marshall’s opinion in Marbury v. cal question if there is: Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. A textually demonstrable constitutional 60 (1803), and rests on the principle that commitment of the issue to a coordinate certain disputes are not appropriate for or political department; or a lack of judi- amenable to resolution by the courts be- cially discoverable and manageable stan- cause they raise questions constitutionally dards for resolving it; or the impossibili- reserved to the political branches, id. at ty of deciding without an initial policy 170 (‘‘Questions, in their nature political, or determination of a kind clearly for non- which are, by the constitution and laws, judicial discretion; or the impossibility submitted to the executive, can never be made in this court.’’). of a court’s undertaking independent resolution without expressing lack of the The political question doctrine has respect due coordinate branches of gov- played a central role in apportionment ernment; or an unusual need for un- cases. The Supreme Court set forth its questioning adherence to a political de- current test for determining whether a cision already made; or the potentiality claim raises a political question in a case of embarrassment from multifarious dealing with the justiciability of one-per- pronouncements by various departments son, one-vote claims. See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 on one question. (1962). Prior to Baker, in Colegrove v. Id. at 217, 82 S.Ct. 691. Applying this test, Green, 328 U.S. 549, 66 S.Ct. 1198, 90 the Court concluded one-person, one-vote L.Ed. 1432 (1946), several Justices took claims were justiciable under the Four- the position that certain apportionment teenth Amendment because they involved challenges raised political questions be- a determination of ‘‘the consistency of cause the Constitution expressly delegated state action with the Federal Constitu- authority over apportionment to the tion’’—a question constitutionally assigned

17. In Baker, the Court concluded that a ma- the action on justiciability grounds. Baker, jority of the Colegrove Court did not dismiss 369 U.S. at 234–35, 82 S.Ct. 691. COMMON CAUSE v. RUCHO 837 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) to the Judiciary. Id. at 226, 82 S.Ct. 691. at 161–62, 106 S.Ct. 2797 (Powell, J., con- The Court further emphasized that the curring in part and dissenting in part). resolution of the question was ‘‘judicially The Court revisited the justiciability of manageable’’ because ‘‘[j]udicial standards partisan gerrymandering claims in Vieth v. under the Equal Protection Clause are Jubelirer, 541 U.S. 267, 124 S.Ct. 1769, well developed and familiar, and it has 158 L.Ed.2d 546 (2004). Conceding ‘‘the in- been open to courts since the enactment of compatibility of severe partisan gerryman- the Fourteenth Amendment to determine, ders with democratic principles,’’ id. at if on the particular facts they must, that a 292, 124 S.Ct. 1769 (plurality op.), a four- discrimination reflects no policy, but sim- justice plurality nonetheless took the posi- ply arbitrary and capricious action.’’ Id. tion that no judicially manageable stan- The Court subsequently extended Baker’s dard exists to adjudicate partisan gerry- justiciability holding to one-person, one- mandering claims and therefore would vote challenges to congressional districts have reversed Bandemer’s holding of jus- under Article I, Section 2. See Wesberry, ticiability, id. at 281, 124 S.Ct. 1769. Jus- 376 U.S. at 5–6, 84 S.Ct. 526. tice Kennedy agreed with the plurality that the Vieth plaintiffs had failed to put 1. Governing Law forward a legally cognizable standard for In Davis v. Bandemer, 478 U.S. 109, 106 evaluating partisan gerrymandering S.Ct. 2797, 92 L.Ed.2d 85 (1986), the Su- claims, therefore warranting dismissal of preme Court applied the Baker framework the action for failure to allege ‘‘a valid to partisan gerrymandering claims, hold- claim on which relief may be granted.’’ Id. ing that such claims do not raise nonjusti- at 306, 313, 124 S.Ct. 1769 (Kennedy, J., ciable political questions, see id. at 123, concurring in the judgment). But Justice 106 S.Ct. 2797 (plurality op.); id. at 161– Kennedy rejected the plurality’s conclu- 65, 106 S.Ct. 2797 (Powell, J., concurring sion that partisan gerrymandering claims in part and dissenting in part). Writing for are categorically nonjusticiable. See id. at the Court, Justice White emphasized that 309–10, 124 S.Ct. 1769. And the remaining the Court had previously concluded that four Justices agreed with Justice Kenne- one-person, one-vote and racial gerryman- dy’s refusal to reverse Bandemer’s justici- dering claims were justiciable, thereby es- ability holding. Id. at 317, 124 S.Ct. 1769 tablishing that apportionment claims im- (Stevens, J., dissenting) (‘‘[F]ive Members plicating ‘‘issue[s] of representation’’ are of the Court TTT share the view that, even justiciable. Id. at 124, 106 S.Ct. 2797 (plu- if these appellants are not entitled to pre- rality op.). Justice White further stated vail, it would be contrary to precedent and that there was no reason to believe that profoundly unwise to foreclose all judicial the ‘‘standards TTT for adjudicating this review of similar claims that might be political gerrymandering claim are less advanced in the future.’’). Two years later, manageable than the standards that have the Supreme Court again refused to revis- been developed for racial gerrymandering it Bandemer’s holding that partisan gerry- claims.’’ Id. at 125, 106 S.Ct. 2797. Al- mandering claims are justiciable. League though the Court recognized the justicia- of United Latin Am. Citizens v. Perry bility of partisan gerrymandering claims (LULAC ), 548 U.S. 399, 414, 126 S.Ct. under the Equal Protection Clause, a ma- 2594, 165 L.Ed.2d 609 (2006). And the jority could not agree as to the substantive Supreme Court’s most recent partisan standard for proving such claims. Com- gerrymandering decision, Gill, expressly pare id. at 127–37, 106 S.Ct. 2797, with id. declined to address the justiciability of 838 318 FEDERAL SUPPLEMENT, 3d SERIES such claims, 138 S.Ct. at 1929 (majority [36, 37] On its most fundamental level, op.), with Justice Kagan, joined by three partisan gerrymandering violates ‘‘the core other Justices, reaffirming that ‘‘[c]ourts principle of republican government TTT have a critical role to play in curbing par- that the voters should choose their repre- tisan gerrymandering,’’ id. at 1941 (Kagan, sentatives, not the other way around.’’ J., concurring). Ariz. State Leg., 135 S.Ct. at 2677 (internal quotation marks omitted); see also Powell [34] Accordingly, under controlling Su- v. McCormack, 395 U.S. 486, 540–41, 89 preme Court precedent, a challenge to an S.Ct. 1944, 23 L.Ed.2d 491 (1969) (‘‘[T]he alleged partisan gerrymander presents a true principle of a republic is, that the justiciable case or controversy. See Com- people should choose whom they please to mon Cause, 240 F.Supp.3d at 387. For govern them.’’ (quoting Alexander Hamil- good reason. ton in 2 Debates of the Federal Constitu- [35] As the Supreme Court recently tion 257 (J. Elliott ed. 1876) ) ). Put differ- held, ‘‘ ‘partisan gerrymanders TTT are in- ently, partisan gerrymandering represents compatible with democratic principles.’ ’’ ‘‘ ‘an abuse of power that, at its core, Ariz. State Leg., 135 S.Ct. at 2658 (quoting evinces a fundamental distrust of voters, Vieth, 541 U.S. at 292, 124 S.Ct. 1769 serving the self-interest of the political (plurality op.) ) (alterations omitted). That parties at the expense of the public good.’ ’’ statement accords with the unanimous con- LULAC, 548 U.S. at 456, 126 S.Ct. 2594 clusion of the Justices in Vieth. See 541 (Stevens, J., concurring in part and dis- U.S. at 292, 124 S.Ct. 1769 (plurality op.) senting in part) (quoting Balderas v. Tex- (recognizing ‘‘the incompatibility of severe as, Civ. Action No. 6:01CV158, App. to partisan gerrymanders with democratic Juris. Statement 209a–10a (E.D. Tex. principles’’); id. at 312, 316–17, 124 S.Ct. 2006) ). To that end, partisan gerryman- 1769 (Kennedy, J., concurring) (‘‘If a State dering leads to a ‘‘cascade of negative re- passed an enactment that declared ‘All sults TTT: indifference to swing voters and future apportionment shall be drawn so as their views; extreme political positioning most to burden Party X’s rights to fair and designed to placate the party’s base and effective representation, though still in ac- fend off primary challenges; the devaluing cord with one-person, one-vote principles,’ of negotiation and compromise; and the we would surely conclude the Constitution impossibility of reaching pragmatic, bipar- had been violated.’’); id. at 326, 124 S.Ct. tisan solutions to the nation’s problems.’’ 1769 (Stevens, J., dissenting) (‘‘State action Gill, 138 S.Ct. at 1940 (Kagan, J., concur- that discriminates against a political mi- ring) (internal quotation marks omitted). nority for the sole and unadorned purpose [38] Partisan gerrymandering runs of maximizing the power of the majority contrary to both the structure of the re- plainly violates the decisionmaker’s duty to publican form of government embodied in remain impartial’’); id. at 345, 124 S.Ct. the Constitution and fundamental individu- 1769 (Souter, J., dissenting) (‘‘[T]he inal rights preserved by the Bill of Rights. creasing efficiency of partisan redistricting As detailed more fully below, partisan ger- has damaged the democratic process to a rymandering of congressional districts con- degree that our predecessors only began stitutes a structural violation because it to imagine.’’); id. at 360, 124 S.Ct. 1769 insulates Representatives from having to (Breyer, J., dissenting) (holding that redis- respond to the popular will, and instead tricting plan violates Constitution if it renders them responsive to state legisla- amounts to an ‘‘unjustified use of political tures or, as in this case, political factions factors to entrench a minority in power’’). thereof. See infra Part V. Unlike the Sen- COMMON CAUSE v. RUCHO 839 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) ate, which, at the time of the founding, the People. For example, James Madison represented the interests of the States, the explained that ‘‘[i]t is essential’’ that a Framers intended for the House of Repre- Republican government ‘‘derive[ its pow- sentatives to be the governmental body ers] from the great body of society, not directly responsive to ‘‘the People.’’ U.S. from an inconsiderable proportion or a Const. Art. I, § 2; see also Wesberry, 376 favored class of it; otherwise a handful of U.S. at 13, 84 S.Ct. 526 (explaining that tyrannical nobles, exercising their oppres- ‘‘William Samuel Johnson of Connecticut sions by a delegation of their powers, had summed [the Great Compromise] up might aspire to the rank of republicans well: ‘in one branch the people, ought to be and claim for their government the honor- represented; in the other, the States’ ’’). As able title of republic.’’ The Federalist No. James Madison explained, ‘‘it is essential 39 (James Madison), at 209 (second em- to liberty that the government in general phasis added); Debates at 40 (reporting should have a common interest with the that James Wilson stated that ‘‘[a]ll inter- people, so it is particularly essential that ference between the general and local gov- the [House of Representatives] should ernment should be obviated as much as have an immediate dependence on, and an possible’’). The Framers expressed partic- intimate sympathy with, the people.’’ See ular concern that State legislatures would The Federalist No. 52 (James Madison), at seek to influence Congress by enacting 295 (Clinton Rossiter ed., 1999) (emphasis electoral regulations that favored candi- added). On this point, both the Federalists dates aligned with, and responsive to, the and Anti-Federalists agreed. See e.g., interests of the legislatures, rather than James Madison, Notes of Debates in the the public at large. See Debates at 167 Federal Convention of 1787 39 (W. W. (reporting that Rufus King expressed con- Norton & Co. 1987) (1787) (hereinafter cern that ‘‘the Legislatures would con- ‘‘Debates’’) (reporting that George Mason stantly choose men subservient to their ‘‘argued strongly for an election of the own views as contrasted to the general larger branch by the people. It was to be interest; and that they might even devise the grand depository of the democratic modes of election that would be subversive principle of the government.’’); id. at 167 of the end in view’’). Surveying these and (reporting that James Wilson stated that other founding era authorities, the Su- he ‘‘considered the election of the first preme Court recognized that ‘‘[i]t would branch by the people not only as the cor- defeat the principle solemnly embodied in ner Stone, but as the foundation of the the Great Compromise TTT to hold that, fabric: and that the difference between a within the states, legislatures may draw mediate and immediate election was im- the lines of congressional districts in such mense’’). ‘‘When that moment does not a way as to give some voters a greater come—when legislators can entrench voice in choosing a Congressman than oth- themselves in office despite the people’s ers.’’ Wesberry, 376 U.S. at 14, 84 S.Ct. will—the foundation of effective democrat- 526. Partisan gerrymandering—drawing ic governance dissolves.’’ Gill, 138 S.Ct. at district lines to enhance the electoral pow- 1940–41 (Kagan, J., concurring). er of voters who support a favored party [39] Emphasizing that the House of and diminish the electoral power of voters Representatives was the repository of the who support disfavored parties—amounts People’s power, the Framers repeatedly to a legislative effort ‘‘to give some voters expressed concern about state legislatures, a greater voice in choosing a Congressman or political factions thereof, interposing than others,’’ id., contrary to the republi- themselves between Representatives and can system put in place by the Framers. 840 318 FEDERAL SUPPLEMENT, 3d SERIES

[40] Partisan gerrymandering also harm. As the Supreme Court explained in runs afoul of rights that ‘‘are individual Wesberry, ‘‘[o]ur Constitution leaves no and personal in nature,’’ Reynolds, 377 room for classification of people in a way U.S. at 561, 84 S.Ct. 1362, because it sub- that unnecessarily abridges [the right to verts the foundational constitutional princi- vote]’’ because ‘‘[o]ther rights, even the ple that the State govern ‘‘impartially’’— most basic, are illusory if the right to vote that ‘‘the State should treat its voters as is undermined.’’ 376 U.S. at 17–18, 84 S.Ct. 526. To that end, the Supreme Court long standing in the same position, regardless has held that ‘‘legislation which restricts of their political beliefs or party affilia- those political processes which can ordi- tion.’’ Davis, 478 U.S. at 166, 106 S.Ct. narily be expected to bring about repeal of 2797 (Powell, J., concurring in part and undesirable legislation, is to be subjected dissenting in part); see also infra Part III. to more exacting judicial scrutiny under And partisan gerrymandering infringes on the general prohibitions of the Fourteenth core political speech and associational Amendment than are most other types of rights by ‘‘burdening or penalizing citizens legislation.’’ United States v. Carolene because of their participation in the elec- Prods. Co., 304 U.S. 144, 152 n.4, 58 S.Ct. toral process, their voting history, their 778, 82 L.Ed. 1234 (1938). association with a political party, or their [42, 43] A partisan gerrymander that expression of political views.’’ Vieth, 541 is intended to and likely has the effect of U.S. at 314, 124 S.Ct. 1769 (Kennedy, J., entrenching a political party in power un- concurring in the judgment); see also infra dermines the ability of voters to effect Part IV. change when they see legislative action as infringing on their rights. And as James [41] That partisan gerrymandering en- Madison warned, a legislature that is itself croaches on these individual rights by un- insulated by virtue of an invidious gerry- dermining the right to vote—the principle mander can enact additional legislation to vehicle through which the public secures restrict voting rights and thereby further other rights and prevents government ov- cement its unjustified control of the organs erreach—magnifies the constitutional of both state and federal government.18 See

18. A separate three-judge panel of this Court 138 S.Ct. 2548, 2552–54, ––– L.Ed.2d –––– concluded that the General Assembly unjusti- (2018). The legislature elected under the ra- fiably, and therefore unconstitutionally, relied cially gerrymandered 2011 plan has enacted, on race in drawing lines surrounding twenty- and continues to enact, voting- and election- eight districts in North Carolina’s 2011 state related legislation that has been struck down legislative redistricting plan—among the larg- by state and federal courts as unconstitutional est racial gerrymanders ever confronted by a or violative of federal law. See N.C. State federal court. See Covington v. North Carolina, Conference of NAACP v. McCrory, 831 F.3d 316 F.R.D. 117 (M.D.N.C. 2016). The Su- 204, 214–15 (4th Cir. 2016), cert. denied, ––– preme Court summarily affirmed that deci- U.S. ––––, 137 S.Ct. 1399, 198 L.Ed.2d 220 sion without dissent. North Carolina v. Cov- (2017) (mem.); Raleigh Wake Citizens Ass’n v. ington, ––– U.S. ––––, 137 S.Ct. 2211, 198 Wake Cty. Bd. of Elections, 827 F.3d 333, 352 L.Ed.2d 655 (2017) (mem.). The Covington (4th Cir. 2016); Order, Poindexter v. Strach, panel subsequently held that several districts No. 5:18-CV-366, 324 F.Supp.3d 625, 2018 redrawn by the General Assembly in an effort WL 4016306 (Aug. 22, 2018), ECF No. 22 to remedy the constitutional violation consti- (holding that statute retroactively removing tuted racial gerrymanders themselves, Coving- candidates from the ballot who were qualified ton v. North Carolina, 283 F.Supp.3d 410, and previously had been approved to appear 429–42 (M.D.N.C. 2018)—a decision the Su- on the ballot likely violated the candidates’ preme Court again affirmed, ––– U.S. ––––, rights under the First and Fourteenth Amend- COMMON CAUSE v. RUCHO 841 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

Debates at 424 (‘‘[T]he inequality of the (Scalia, J., concurring in part and dissent- Representation in the Legislatures of par- ing in part). Casting a vote and associating ticular States, would produce like inequali- with a political party are among the most ty in their representation in the Natl. Leg- fundamental forms of ‘‘election-time islature, as it was presumable that the speech.’’ See Williams, 393 U.S. at 30, 89 Counties having the power in the former S.Ct. 5 (recognizing ‘‘the right of individu- case would secure it to themselves in the als to associate for the advancement of latter.’’). That is precisely what occurred in political beliefs, and the right of qualified the late Eighteenth Century when Demo- voters, regardless of their political persua- cratic legislatures used aggressive partisan sion, to cast their votes effectively’’); Reyn- gerrymanders to secure Democratic con- olds, 377 U.S. at 555, 84 S.Ct. 1362 (‘‘The trol of the House of Representatives and right to vote freely for the candidate of then, by virtue of that control, restrict one’s choice is of the essence of a demo- earlier federal efforts to enforce the Fif- cratic society, and any restrictions on that teenth Amendment in the South, thereby right strike at the heart of representative facilitating the return of de jure and de government.’’); Alexander Meiklejohn, The facto segregation. See Erik J. Engstrom, First Amendment is an Absolute, 1961 Partisan Gerrymandering and the Con- Sup. Ct. Rev. 245, 254 (1961) (‘‘The revolu- struction of American Democracy 94–121 tionary intent of the First Amendment is (2013). TTT to deny to [the government] authority [44–47] The Constitution sharply cur- to abridge the freedom of the electoral tails restrictions on electoral speech and power of the people.’’). Partisan gerryman- the right to vote because, in our republican dering is no different than legislative ef- form of democracy, elected representatives forts to curtail other forms of election-time in power have a strong incentive to enact speech because in both cases ‘‘[p]oliticians legislation or policies that preserve their have deep-seated incentives to bias trans- position and those of their fellow partisans, lation of votes into seats.’’ Engstrom, su- at the expense of public interest. As Jus- pra at 192. Accordingly, because partisan tice Scalia explained, ‘‘[t]he first instinct of gerrymandering encroaches on individuals’ power is the retention of power, and, un- right to engage in ‘‘election-time speech’’— der a Constitution that requires periodic including the right to vote—allegations of elections, that is best achieved by the sup- partisan gerrymandering ‘‘must be careful- pression of election-time speech.’’ McCon- ly and meticulously scrutinized’’ by the nell v. Fed. Election Comm’n, 540 U.S. 93, judiciary. Reynolds, 377 U.S. at 562, 84 263, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) S.Ct. 1362.

ments); N.C. State Conf. of the NAACP v. Bi- language adopted by the General Assembly to partisan Bd. of Elections & Ethics Enforce- describe two amendments to the North Car- ment, No. 1:16-CV-1274, 2018 WL 3748172, olina Constitution proposed by the General at *12–13 (M.D.N.C. Aug. 7, 2018) (holding Assembly ‘‘misleads and does not sufficiently that state statute authorizing individual voters inform the voters’’ regarding the substance of the amendments and thereby likely violates to challenge registrations of other voters on the State Constitution); Cooper v. Berger, No. change-of-residency grounds violated Nation- 16-CVS-15636 (Wake Cty. Super. Ct. Mar. 17, al Voter Registration Act); City of Greensboro 2017) (three-judge panel) (striking down por- v. Guilford Cty. Bd. of Elections, 251 tions of two statutes, which stripped the then F.Supp.3d 935, 951 (M.D.N.C. 2017); Order recently elected Democratic Governor of a on Injunctive Relief, Cooper v. Berger, No. 18- broad variety of powers, including powers CVS-9805 (Wake Cty. Super. Ct. Aug. 21, related to supervision of State Board of Elec- 2018) (three-judge panel) (holding that ballot tions, on separation-of-powers grounds). 842 318 FEDERAL SUPPLEMENT, 3d SERIES

[48] Because partisan gerrymandering judicial protection by such an interpreta- targets voting rights, the deference to the tion of Article I.’’ Id. policy judgments of the political branches [49] Further, ‘‘a textually demonstra- animating the political question doctrine is ble constitutional commitment’’ of author- inapplicable. In Wesberry, the defendant ity to a coordinate branch provides the state asserted that claims premised on ma- strongest basis for treating a claim as a lapportionment of congressional districts political question. Vieth, 541 U.S. at 278, raise political questions because the Elec- 124 S.Ct. 1769 (plurality op.) (character- tions Clause—which empowers state ‘‘Leg- izing the ‘‘textually demonstrable consti- islatures,’’ subject to congressional regula- tutional commitment’’ test as the most tion, to ‘‘prescribe[ ] TTT The Times, Places ‘‘importan[t] and certain[ ]’’ test for the and Manner of holding Elections for TTT existence of a political question). Given Representatives’’—textually commits dis- that the Supreme Court has recognized tricting and apportionment questions to that the importance of the right to vote Congress and the States. 376 U.S. at 6–7, warrants not treating malapportionment 84 S.Ct. 526. In rejecting that argument, claims as political questions, notwith- the Supreme Court refused to ‘‘support standing the alleged textual commitment TTT a construction [of the Elections of such claims in the Elections Clause, a Clause] that would immunize state con- purported lack of judicially manageable gressional apportionment laws which de- standards provides an even weaker basis base a citizen’s right to vote from the for ‘‘stripp[ing] of judicial protection’’ the power of courts to protect the constitution- right to vote when a legislature seeks to al rights of individuals from legislative de- destroy that right through partisan ger- 19 struction, a power recognized at least since rymandering. Wesberry, 376 U.S. at 6– our decision in Marbury v. Madison.’’ Id. 7, 84 S.Ct. 526. In sum, ‘‘[t]he right to vote is too impor- Importantly, and contrary to Legislative tant in our free society to be stripped of Defendants’ claims, the judiciary’s refusal

19. We further note that a majority of the Kennedy’s controlling opinion explained why Supreme Court never has found that a claim the Court has declined to rely on an alleged raised a nonjusticiable political question sole- lack of judicial manageable standards as an ly due to the alleged absence of a judicially exclusive basis for finding a claim nonjusticia- manageable standard for adjudicating the ble: claim. Rather, in each case in which the Su- preme Court has found a claim nonjusticiable Relying on the distinction between a claim under the political doctrine, the Court has having or not having a workable standard TTT principally pointed to a textual commitment involves a difficult proof: proof of a of the challenged action to a political branch categorical negative [—] proof that no stan- in finding the claim nonjusticiable. See, e.g., dard could exist. This is a difficult proposi- Nixon v. United States, 506 U.S. 224, 228–36, tion to establish, for proving a negative is a 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (holding challenge in any context. that challenge to the procedure Senate Vieth, 541 U.S. at 311, 124 S.Ct. 1769 (Kenne- adopted for ‘‘try[ing]’’ impeachment, U.S. dy, J., concurring). Legislative Defendants Const. Art. I, § 3, cl. 6, raised nonjusticiable have failed to provide any ‘‘proof that no political question); Gilligan v. Morgan, 413 standard could exist’’ for evaluating a parti- U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407 san gerrymandering claim. Accordingly, we (1973) (holding that claim premised on the decline Legislative Defendants’ request that ‘‘organizing, arming, and disciplining’’ of we take the unprecedented step of dismissing members of the National Guard involved is- a claim under the political question doctrine sue ‘‘committed expressly to the political solely due to an alleged lack of judicially branches of government’’). In Vieth, Justice manageable standards for resolving the claim. COMMON CAUSE v. RUCHO 843 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) to treat alleged infringements on the right performance of that duty, it seems equally to vote—like claims of partisan gerryman- clear that the individual who considers dering—as political questions reflects an himself injured, has a right to resort to the effort to advance the interests served by laws of his country for a remedy.’’). We the political question doctrine, rather than find no basis to disregard that obligation usurp the role of the political branches. As here. the Supreme Court has explained, ‘‘[t]he Notably, the State defendant in Reyn- voting rights cases, indeed, have repre- olds made arguments against judicial over- sented the Court’s efforts to strengthen sight of state redistricting identical to the political system by assuring a higher those advanced by Legislative Defendants level of fairness and responsiveness to the here—namely, that it is improper for political processes, not the assumption of a continuing judicial review of substantive courts to embroil themselves in inherently political judgments entrusted expressly to political issues and that courts lack the the coordinate branches of government.’’ capability of identifying a judicially man- Gilligan v. Morgan, 413 U.S. 1, 11, 93 ageable standard to determine whether, S.Ct. 2440, 37 L.Ed.2d 407 (1973). Put and to what degree, malapportionment vio- differently, because the judiciary jealously lates the Constitution. Rejecting each of protects the right to vote—and thereby these arguments, the Supreme Court reaf- ensures that the People retain the means firmed the principle first recognized by to counteract any encroachment by the Chief Justice Marshall in Marbury: ‘‘We political branches on substantive individual are cautioned about the dangers of enter- rights—the judiciary can give the political ing into political thickets and mathematical branches greater latitude to make substan- quagmires. Our answer is this: a denial of tive policy decisions. See John Hart Ely, constitutionally protected rights demands Democracy and Distrust: A Theory of Ju- judicial protection; our oath and our office dicial Review 102 (1980) (explaining that require no less of us.’’ Reynolds, 377 U.S. by ‘‘devoting itself instead to policing the at 566, 84 S.Ct. 1362. Our oath and our mechanisms by which [our constitutional] office impose that same obligation here. system seeks to ensure that our elected 2. Legislative Defendants’ Arguments representatives will actually represent,’’ Against Justiciability the judiciary ‘‘recognizes the unacceptabili- ty of the claim that appointed and life- Legislative Defendants nonetheless ar- tenured judges are better reflectors of gue that, regardless of whether partisan conventional values than elected represen- gerrymandering claims are justiciable ‘‘in tatives’’). theory,’’ this Court should dismiss Plain- tiffs’ claims as nonjusticiable because [50] In sum, partisan gerrymandering infringes on a variety of individual rights Plaintiffs have failed to put forth a ‘‘judi- and does so by targeting the right to cially manageable standard’’ for resolving vote—the constitutional mechanism their claims. Leg. Defs.’ Br. 2, 11, 17; Leg. through which the People repel legislative Defs.’ FOF 93. Legislative Defendants ar- encroachment on their rights. The Su- gue that the analytical frameworks and preme Court long has recognized that empirical analyses advanced by Plaintiffs when the Constitution preserves individual fail to provide a judicially manageable rights, courts have an obligation to enforce standard for three reasons. First, Legisla- those rights. Marbury, 5 U.S. at 166 tive Defendants assert that Plaintiffs’ legal (‘‘[W]here a specific duty is assigned by frameworks and expert analyses fail to law, and individual rights depend upon the address, much less resolve, what Legisla- 844 318 FEDERAL SUPPLEMENT, 3d SERIES tive Defendants see as the fundamental tisan gerrymandering as constitutionally question bearing on the constitutionality of permissible; and (iii) the Supreme Court partisan gerrymandering: ‘‘how much poli- repeatedly has sanctioned at least some tics is too much politics in redistricting’’? degree of partisan gerrymandering. None Leg. Defs.’ Br. 2, 9-11. Second, Legislative of these three claims is correct. Defendants argue that the empirical anal- i. yses on which Plaintiffs rely—which Leg- islative Defendants characterize as ‘‘a [51] Legislative Defendants are cor- smorgasbord of alleged ‘social science’ the- rect that the Elections Clause delegates ories’’—lack any constitutional basis, and primary responsibility to state legisla- instead amount to ‘‘academically inspired tures—or other redistricting bodies estab- proposed judicial amendments to the Con- lished pursuant to state law—to draw constitution.’’ Id. at 2, 17. Finally, Legislative gressional districts. See Ariz. State Leg., Defendants maintain that allowing the ju- 135 S.Ct. at 2668, 2677. But neither found- diciary to strike down a redistricting plan ing era authorities nor Supreme Court as a partisan gerrymander would interfere precedent supports Legislative Defen- with the political branches’ decision, ren- dants’ contentions that the Elections dered pursuant to Congress’s authority Clause’s assignment of election regulation under the Election Clause, to require elec- to political bodies contemplates such bod- tion of representatives from single-mem- ies engaging in some degree of invidious ber districts. Id. at 13. We reject all three partisan discrimination in the regulation of arguments. elections—the conduct at issue here—or a. Failure To Draw Line Between that such efforts would be immune from Acceptable and ‘‘Too Much’’ judicial review. Partisanship On the contrary, scholars agree that Legislative Defendants’ assertion that ‘‘[t]he idea of political parties, representing any judicially manageable partisan gerry- institutionalized divisions of interest, was mandering framework must distinguish famously anathema to the Framers, as it ‘‘reasonable’’ partisan gerrymandering had long been in Western political from ‘‘too much’’ partisan gerrymandering thought.’’ Daryl J. Levinson & Richard H. rests on the premise that some degree of Pildes, Separation of Parties, Not Powers, invidious partisan gerrymandering—again, 119 Harv. L. Rev. 2311, 2320 (2006) (em- defined by the Supreme Court as ‘‘the phasis added); see also, e.g., James A. drawing of legislative district lines to sub- Gardner, Can Party Politics Be Virtuous, ordinate adherents of one political party 100 Colum. L. Rev. 667, 667 (2000) (‘‘The and entrench a rival party in power,’’ Ariz. generation of Americans that founded the State Leg., 135 S.Ct. at 2658—is constitu- United States and wrote its Constitution tionally permissible. To justify that prem- feared and despised political parties.’’); ise, Legislative Defendants assert that (i) Steven G. Calabresi, Political Parties as the Elections Clause assigns election regu- Mediating Institutions, 61 U. Chi. L. Rev. lation—and districting, in particular—to 1479, 1484–85 (1994) (‘‘The Framers of our political bodies, and thereby contemplates Constitution were quite outspoken in voic- that politics will play a role in the drawing of district lines, rendering questions of ing their dislike for ‘factions’ and ‘par- partisan gerrymandering ‘‘best left to the ties.’ ’’). political branches,’’ Leg. Defs.’ FOF 93; (ii) For example, James Madison, the prin- historical practice indicates that the found- cipal author of the Constitution, charac- ing generation viewed some amount of par- terized ‘‘factions’’ as a ‘‘disease’’ and a COMMON CAUSE v. RUCHO 845 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) dangerous vice that ‘‘tainted our public their efforts to seize political power.’’ administration.’’ The Federalist No. 10, at Gardner, supra at 668. ‘‘Once in possession 46 (James Madison). In defending the of power, factions could be expected to use Elections Clause, Alexander Hamilton it to pursue their own private self-interest similarly decried the ‘‘diseases of faction.’’ at the expense of the common good, a The Federalist No. 61, at 343 (Alexander course of behavior that political theorists Hamilton). And in his 1796 Farewell Ad- since Aristotle have judged to be a defin- dress, George Washington spoke at length ing characteristic of bad government.’’ Id. about the ‘‘baneful effect of the spirit of This ‘‘antipathy’’ for political parties party’’ and the ‘‘interest and duty of a played a central role in the drafting of the wise people to discourage and restrain it.’’ Elections Clause, in particular: the most George Washington, Farewell Address hotly contested issue at the constitutional (1796), available at http://avalon.law.yale. convention regarding the Election Clause 20 edu/18th century/washing.asp. dealt with whether, and to what extent, the As illustrated by Washington’s address, federal government should be empowered ‘‘[t]he founders’ antipathy toward political to displace the States’ authority to admin- parties rested on their belief that parties ister and regulate elections. On the one were the vehicles by which self-interested hand, James Madison argued that ‘‘the groups and individuals—‘factions,’ in their Legislatures of the States ought not to terminology—coordinated and pressed have the uncontrouled right of regulating

20. In full, Washington warned that: It serves always to distract the public coun- cils and enfeeble the public administration. This spirit [of party], unfortunately, is in- It agitates the community with ill-founded separable from our nature, having its root jealousies and false alarms, kindles the ani- in the strongest passions of the human mosity of one part against another, foments mind. It exists under different shapes in all occasionally riot and insurrection. It opens governments, more or less stifled, con- the door to foreign influence and corrup- trolled, or repressed; but in those of the tion, which finds a facilitated access to the popular form, it is seen in its greatest rank- government through the channels of party ness, and is truly their worst enemy. passions. Thus the policy and the will of The alternate domination of one faction one country are subject to the policy and over another, sharpened by the spirit of will of another. revenge, natural to party dissension, which There is an opinion that parties in free in different ages and countries has perpe- countries are useful checks upon the ad- trated the most horrid enormities, is itself a ministration of the government and serve to frightful despotism. But this leads at length keep alive the spirit of liberty. This within to a more formal and permanent despotism. certain limits is probably true; and in gov- The disorders and miseries which result ernments of a monarchical cast, patriotism gradually incline the minds of men to seek may look with indulgence, if not with favor, security and repose in the absolute power upon the spirit of party. But in those of a of the individual; and sooner or later the popular character, in governments purely chief of some prevailing faction, more able elective, it is a spirit not to be encouraged. or more fortunate than his competitors, From their natural tendency, it is certain turns this disposition to the purposes of his there will always be enough of that spirit own elevation, on the ruins of public liber- for every salutary purpose. And there being ty. constant danger of excess, the effort ought Without looking forward to an extremity of to be by force of public opinion, to mitigate this kind (which nevertheless ought not to and assuage it. A fire not to be quenched, it be entirely out of sight), the common and demands a uniform vigilance to prevent its continual mischiefs of the spirit of party are bursting into a flame, lest, instead of warm- sufficient to make it the interest and duty of ing, it should consume. a wise people to discourage and restrain it. George Washington, Farewell Address (1796). 846 318 FEDERAL SUPPLEMENT, 3d SERIES the times places and manner of holding tion of congressional elections in the feder- elections [as i]t was impossible to foresee al government, they were united in their all the abuses that might be made of the view that the Constitution should be draft- discretionary power.’’ Debates at 423. ed to minimize the possibility that political ‘‘Whenever the State Legislatures had a bodies controlled by partisan ‘‘factions’’ favorite measure to carry, they would take would adopt electoral regulations designed care so to mould their regulations as to to favor the controlling party. See Note, A favor the candidates they wished to suc- New Map: Partisan Gerrymandering as a ceed,’’ Madison explained. Id. at 424 (em- Federalism Injury, 117 Harv. L. Rev. phasis added). Likewise, Alexander Hamil- 1196, 1201 (2004). Put differently, the ton argued that the federal government founders disagreed as to whether empow- should have some supervisory authority ering the federal government to establish over the States’ regulation of elections be- election regulations or devolving such pow- cause there was no reason to believe that er to the States was more likely to fore- ‘‘it is less probable that a predominant stall the universally feared abuse of such faction in a single State should, in order to maintain its superiority, incline to a regulations by political bodies—and politi- preference of a particular class of electors, cal parties controlling such bodies, in par- than that a similar spirit should take pos- ticular—but they agreed that the Elections session of the representatives of thirteen Clause should be written so as to prevent States, spread over a vast region, and in the enactment of election regulations moti- several respects distinguishable from each vated by invidious partisanship. More sig- other by a diversity of local circumstances, nificantly, due to the framers’ antipathy prejudices, and interests.’’ The Federalist for political parties, the Constitution as No. 61, at 342 (emphasis added). whole—not just the Elections Clause— On the other hand, delegates who op- ‘‘was designed to discourage [political par- posed federal intrusion on state regulation ties’] emergence.’’ Richard H. Pildes, Fore- of elections saw such intrusion ‘‘as an ave- word, The Constitutionalization of Demo- nue through which Congress might perpet- cratic Politics, 118 Harv. L. Rev. 28, 81 uate itself in power or TTT institute unfair (2004). at-large voting methods in the states so as [52] Accordingly, the vehement and to favor particular interests.’’ Jamal universal condemnation of political parties Greene, Note, Judging Partisan Gerry- by the individuals responsible for drafting manders Under the Elections Clause, 114 and initially implementing the Constitu- Yale L.J. 1021, 1036 (2005) (emphasis added); Br. of Amici Curiae Historians in tion—including in their debates regarding Supp. of Appellees (‘‘Historians’ Br.’’) at the Elections Clause—contradicts Legisla- 14, Gill v. Whitford, No. 16-1161, 2017 WL tive Defendants’ claim that the Elections 4311107 (S. Ct. Sept. 5, 2017) (‘‘Important- Clause’s assignment of election regulation ly, delegates arguing against Madison[’s to political bodies amounts to constitution- position on the Elections Clause] did not al acquiescence in invidiously partisan elec- claim that such entrenchment was a state’s tion regulations, like the 2016 Plan. There right or somehow acceptable—rather, they is a wide gulf between legislative map- countered that the greater fear was that drawers taking into account political con- Congress might abuse its power to en- siderations in drawing districting lines—as trench itself.’’). Thus, although the dele- the Election Clause contemplates—and gates disagreed as to whether, and to what partisan legislative mapdrawers seeking to extent, to place authority over the regula- subordinate the interests of supporters of COMMON CAUSE v. RUCHO 847 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

a rival party and entrench their fellow (1995); Tashjian v. Republican Party of partisans in power, see infra Part II. Conn., 479 U.S. 208, 107 S.Ct. 544, 93 B.2.a.iii—as the General Assembly did L.Ed.2d 514 (1986); Karcher v. Daggett, here and as Washington, Madison, and 462 U.S. 725, 103 S.Ct. 2653, 77 L.Ed.2d Hamilton warned against. Put differently, 133 (1983); Anderson v. Celebrezze, 460 that the Elections Clause contemplates U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 election regulations based, at least in part, (1983); Buckley v. Valeo, 424 U.S. 1, 96 on political considerations in no way S.Ct. 612, 46 L.Ed.2d 659 (1976); Williams proves that it contemplates election regu- v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 lations enacted for partisan advantage, L.Ed.2d 24 (1968); Reynolds v. Sims, 377 particularly when the Framers expressly U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 sought to discourage the formation of po- (1964); Wesberry v. Sanders, 376 U.S. 1, 84 litical parties. S.Ct. 526, 11 L.Ed.2d 481 (1964); Gomil- As to Legislative Defendants’ related lion v. Lightfoot, 364 U.S. 339, 81 S.Ct. contention that questions of election regu- 125, 5 L.Ed.2d 110 (1960). lation are ‘‘best left to the political brach- es’’ because ‘‘nothing in the Constitution [53] As the Wesberry Court explained gives unelected judges the authority to in rejecting an identical argument, ‘‘since make TTT policy decisions overruling the our decision in Marbury v. Madison,’’ it decisions by elected representatives,’’ Leg. has been recognized that federal courts Defs.’ FOF 93, 95, that contention runs have the ‘‘power TTT to protect the consti- squarely into an unbroken wall of Supreme tutional rights of individuals from legisla- Court precedent dating back decades tive destruction,’’ including the destruction striking down as unconstitutional numer- of constitutional rights through discrimina- ous state and federal election regulatory election regulations. 376 U.S. at 6–7, tions—and congressional districting plans 84 S.Ct. 526. Indeed, ‘‘the need for judicial and election regulations, in particular— review is at its most urgent in [such] cases. even though the Constitution assigns pri- For here, politicians’ incentives conflict mary authority over election regulation to with voters’ interests, leaving citizens with- the political branches. See, e.g., Cooper v. out any political remedy for their constitu- Harris, ––– U.S. ––––, 137 S.Ct. 1455, 197 tional harms.’’ Gill, 138 S.Ct. at 1941 (Ka- L.Ed.2d 837 (2017); McCutcheon v. Fed. gan, J., concurring) (emphasis added). Election Comm’n, 572 U.S. 185, 134 S.Ct. Legislative Defendants offer no argu- 1434, 188 L.Ed.2d 468 (2014); Shelby Cty., ment, nor have we identified any, as to Ala. v. Holder, 570 U.S. 529, 133 S.Ct. why the conduct at issue here—a control- 2612, 186 L.Ed.2d 651 (2013); Ariz. Free Enterprise Club’s Freedom PAC v. Ben- ling party in a state legislative body enact- nett, 564 U.S. 721, 131 S.Ct. 2806, 180 ing an election regulation designed to sub- L.Ed.2d 664 (2011); Citizens United v. ordinate the interests of supporters of the Fed. Election Comm’n, 558 U.S. 310, 130 party’s rival and cement itself in power— S.Ct. 876, 175 L.Ed.2d 753 (2010); Cook v. should be treated as an exception to this Gralike, 531 U.S. 510, 121 S.Ct. 1029, 149 long-recognized and -exercised role for L.Ed.2d 44 (2001); Bush v. Vera, 517 U.S. federal courts to ensure that state and 952, 116 S.Ct. 1941, 135 L.Ed.2d 248 federal election laws do not violate the (1996); Miller v. Johnson, 515 U.S. 900, Constitution. Notably, the Supreme Court 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995); refused to except several of the election U.S. Term Limits, Inc. v. Thornton, 514 regulations struck down above from consti- U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 tutional scrutiny, notwithstanding that the 848 318 FEDERAL SUPPLEMENT, 3d SERIES political branches enacted those regula- Part II.B.1. Given (1) that the Supreme tions based on a good faith, if ultimately Court routinely strikes down state and constitutionally mistaken, belief that the federal election regulations that violate the regulations would advance democratic and Constitution and (2) that the Court does so public interests. See, e.g., Shelby Cty., 570 even in the case of regulations adopted by U.S. at 535, 133 S.Ct. 2612 (striking down the political branches to further democrat- provision in Voting Rights Act of 1965, ic and public interests, we see no reason which Congress enacted ‘‘to address en- why the Court would create a special ex- trenched racial discrimination in voting, an ception from constitutional scrutiny for insidious and pervasive evil which had election regulations, like partisan gerry- been perpetuated in certain parts of the manders, enacted for an invidious purpose country through unremitting and ingenious and which do not purport to advance any defiance of the Constitution’’ (internal quo- democratic or public interest. Accordingly, tation marks omitted) ); Thornton, 514 we decline Legislative Defendants’ invita- U.S. at 783–84, 115 S.Ct. 1842 (striking tion to create such a special exception. down provision in Arkansas Constitution ii. establishing term limits for members of the State’s congressional delegation be- Having rejected Legislative Defendants’ cause ‘‘[t]he people of Arkansas find and Elections Clause argument, we turn to declare that TTT entrenched incumbency their related contention that founding era has reduced voter participation and has led practice indicates that the founding gener- to an electoral system that is less free, less ation viewed some amount of partisan ger- competitive, and less representative than rymandering as constitutionally permissi- the system established by the Founding ble. Setting aside the legal question of Fathers’’); Buckley, 424 U.S. at 26–27, 96 whether any approach to constitutional in- S.Ct. 612 (striking down several provisions terpretation—including approaches in the Federal Election Campaign Act of grounded in ascertaining the original un- 1971, which Congress enacted to ‘‘limit the derstanding or meaning of the Constitu- actuality and appearance of corruption’’ re- tion—would privilege historical practice sulting from large political donations and over the uniform and express statements to ‘‘equalize the relative ability of all citi- of the Framers condemning parties and zens to affect the outcome of elections’’). partisan election regulations, the historical evidence does not bear the weight Legisla- By contrast, Legislative Defendants do not argue—and never have argued—that tive Defendants claim. the 2016 Plan’s express partisan discrimi- As to the historical pedigree of gerry- nation advances any democratic, constitu- manders, like the plurality in Vieth, we tional, or public interest. Nor could they. note that gerrymanders date to the colo- Neither the Supreme Court nor any lower nial era. See Leg. Defs.’ Br. 17; 541 U.S. at court has recognized any such interest fur- 274, 124 S.Ct. 1769 (plurality op.). And thered by partisan gerrymandering—‘‘the without question, several notorious gerry- drawing of legislative district lines to sub- manders were drawn soon after the ordinate adherents of one political party Founding, including the ‘‘salamander’’- and entrench a rival party in power.’’ Ariz. shaped state legislative district attributed State Leg., 135 S.Ct. at 2658. And as ex- to Massachusetts Governor Elbridge Ger- plained above, partisan gerrymandering ry in 1812 that gave rise to the term runs contrary to numerous fundamental ‘‘gerrymander.’’ Vieth, 541 U.S. at 274, 124 democratic principles and individual rights S.Ct. 1769; see Engstrom, supra at 21 enshrined in the Constitution. See supra (‘‘Partisan collisions over districting per- COMMON CAUSE v. RUCHO 849 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) vaded the early republic, and even had could not have occurred in the vast ma- antecedents in the colonial legislatures’’). jority of the country for several decades State legislatures gerrymandered state after the Constitution was ratified. legislative and congressional districts to In the small minority of states in which favor one candidate at the expense of an- the two-party system was sufficiently well- other in a variety of ways: through the established to give rise to the enactment of manipulation of district lines; by using re- partisan gerrymanders, such gerryman- gional or state-wide, multi-member dis- ders were widely criticized as antidemo- tricts, as opposed to single-member dis- cratic and unconstitutional. For example, tricts; and, most commonly, by creating the newspaper cartoon that coined the districts with unequal population. Eng- term ‘‘Gerry-Mander’’ described partisan strom, supra at 22–23. redistricting as ‘‘a grievous wound on the But while some amount of gerryman- Constitution,—it in fact subverts and dering occurred in the founding era, the changes our form of Government, which historical evidence does not reveal that ceases to be Republican as long as an partisan gerrymandering—the drawing of Aristocratic House of Lords under the districts to subordinate supporters of dis- form of a Senate tyrannizes over the Peo- favored party and entrench a favored ple, and silences and stifles the voice of the party in power—was so widespread as to Majority.’’ The Gerry-Mander, or Essex indicate that the founding generation, South District Formed into a Monster!, contrary to the express objections of the Salem Gazette, Apr. 2, 1813. Numerous framers, viewed some amount of partisan other Nineteenth-Century partisan gerry- gerrymandering as permissible. In partic- manders, most commonly accomplished ular, ‘‘an organized political party system through malapportionment, faced similar did not become a recognized and accepted condemnation from politicians, the press, feature of the American political system the judiciary, and the public. See Histori- until the Jacksonian period.’’ Levinson & ans’ Br. at 23–34. Pildes, supra at 2320–21; see James [54] Even if founding-era practice did Thomas Tucker, Redefining American support Legislative Defendants’ assertion Democracy: Do Alternative Voting Sys- that some degree of partisan gerryman- tems Capture the True Meaning of ‘‘Rep- dering was viewed as permissible—which resentation,’’ 7 Mich. J. of Race & L. 357, it does not—long-standing, and even wide- 427 (2002) (‘‘Political affiliations initially spread, historical practice does not immu- were much more informal and localized, nize governmental action from constitu- and did not evolve into the more orga- tional scrutiny. See, e.g., Citizens United, nized form we commonly associate with 558 U.S. at 365, 130 S.Ct. 876 (striking parties until the Jacksonian Era in the down federal statute prohibiting election- 1830s.’’). And as late as 1824, a two-party eering communications by corporations, in system had emerged in only ten percent part, on grounds that statute unconstitu- of the states, Engstrom, supra at 44, tionally discriminated against corporate meaning that gerrymandering by one entities, notwithstanding that laws had party to minimize or diminish the elector- been in place for approximately 100 years al prospects of the candidates of an oppo- constraining the political speech of corpo- sition party—the conduct at issue here— rations 21); Reynolds, 377 U.S. at 582, 84

21. See id. at 394 (Stevens, J., dissenting) (not- tions ever since the passage of the Tillman Act ing that ‘‘Congress ha[d] placed special limi- in 1907’’) tations on campaign spending by corpora- 850 318 FEDERAL SUPPLEMENT, 3d SERIES

S.Ct. 1362 (holding that malapportionment tional the drawing of district lines to frus- of state legislative districts violates Equal trate the electoral power of supporters of a Protection Clause, notwithstanding that disfavored party. That is precisely what malapportionment was widespread in the the Supreme Court concluded in holding Nineteenth and early Twentieth Centu- that racial gerrymandering and malappor- ries). That is particularly true when, as tionment violated the Constitution, not- here, the legal bases for challenging the withstanding that both practices were conduct were unavailable at the time of the widespread during the Nineteenth and Founding. See id. The Equal Protection early Twentieth Centuries. See Reynolds, Clause, which fundamentally altered the 377 U.S. at 556 n.30, 567 n.43, 84 S.Ct. relationship between the States and the 1362; Gomillion v. Lightfoot, 364 U.S. 339, federal government, post-dates the found- 345–46, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). ing era by decades. See Fitzpatrick v. Bit- iii. zer, 427 U.S. 445, 455, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (‘‘There can be no [55] Legislative Defendants’ contention doubt that this line of cases has sanctioned that the Supreme Court has sanctioned intrusions by Congress, acting under the some degree of partisan gerrymander- Civil War Amendments, into the judicial, ing—the drawing of district lines to under- executive, and legislative spheres of auton- mine the electoral prospects of supporters omy previously reserved to the States.’’); of candidates of a disfavored party—fares Libertarian Party of Va. v. Alcorn, 826 no better. To be sure, the Supreme Court F.3d 708, 715 (4th Cir. 2016) (Wilkinson, has recognized certain purposes for which J.) (‘‘Of course, the Reconstruction Amend- a state redistricting body may take into TTT ments materially altered the division account political data or partisan consider- of labor [between the federal government ations in drawing district lines. For exam- and the States] established by the Fram- ple, in appropriate circumstances, a legis- ers for the regulation of elections.’’). Like- lature may draw district lines to avoid the wise, the Supreme Court did not recognize pairing of incumbents. See Karcher v. Dag- the incorporation of the First Amendment gett, 462 U.S. 725, 740, 103 S.Ct. 2653, 77 against the States through the Fourteenth L.Ed.2d 133 (1983). Likewise, the Supreme Amendment until 1943. See Murdock v. Court has held that a state redistricting Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. body does not violate the Constitution by 870, 87 L.Ed. 1292 (1943). And until the seeking ‘‘to create a districting plan that Reconstruction Congress adopted Section would achieve a rough approximation of 1983, there was no mechanism for a plaintiff to challenge a congressional redistrict- the statewide political strengths of the ing plan as a partisan gerrymander under Democratic and Republican Parties.’’ Gaff- Article I or any other federal constitution- ney, 412 U.S. at 752, 93 S.Ct. 2321. And al provision. See The Enforcement Act of the Supreme Court has recognized that a 1871, 17 Stat. 13 (1871), codified as redistricting body may draw district lines amended at 42 U.S.C. § 1983. to respect political subdivisions or maintain ‘‘communities of interest.’’ Abrams v. Accordingly, even if some degree of par- Johnson, 521 U.S. 74, 100, 117 S.Ct. 1925, tisan gerrymandering had been acceptable during the founding era, that does not 138 L.Ed.2d 285 (1997). mean that the ratification of the Four- But the Supreme Court’s acceptance of teenth Amendment and the incorporation state legislatures’ reliance on partisan con- of the First Amendment against the States siderations and political data for certain did not subsequently render unconstitu- purposes does not establish that a state COMMON CAUSE v. RUCHO 851 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

legislature may pursue any political or that justify deviating from population partisan objective, as Legislative Defen- equality in congressional districts. See dants contend. In particular, the Supreme Harris v. Ariz. Indep. Redistricting Court never has recognized that a legisla- Comm’n, ––– U.S. ––––, 136 S.Ct. 1301, ture may draw district lines for the pur- 1306–07, 194 L.Ed.2d 497 (2016). pose of diminishing or minimizing the vot- [56, 57] In sum, neither the constitu- ing strength of supporters of a particular tional delegation of redistricting to political party or citizens who previously voted for bodies, nor historical practice, nor Su- representatives of a particular party—the preme Court precedent supports Legisla- legislative action challenged here. On the tive Defendants’ assertion that it is some- contrary, the Supreme Court recently held times permissible for a state redistricting that such efforts are ‘‘incompatible with body to draw district lines for the sole democratic principles.’’ Ariz. State Leg., purpose of diminishing the electoral power 135 S.Ct. at 2658 (alteration omitted); see also Reynolds, 377 U.S. at 578–79, 84 S.Ct. of voters who supported or are likely to 1362 (condemning ‘‘[i]ndiscriminate dis- support a disfavored party or candidate. tricting, without any regard for political Because the Constitution does not author- subdivision or natural or historical bound- ize state redistricting bodies to engage in ary lines, [as] little more than an open such partisan gerrymandering, we believe invitation to partisan gerrymandering’’ a judicially manageable framework for (emphasis added) ). And in approving the evaluating partisan gerrymandering claims ‘‘proportionality’’ gerrymander in Gaffney, need not distinguish an ‘‘acceptable’’ level the Court expressly distinguished gerry- of partisan gerrymandering from ‘‘exces- manders that seek ‘‘to minimize or elimi- sive’’ partisan gerrymandering. Vieth, 541 nate the political strength of any group or U.S. at 316, 124 S.Ct. 1769 (Kennedy, J., party.’’ 22 412 U.S. at 754, 93 S.Ct. 2321; concurring in the judgment) (recommend- see also id. at 751, 93 S.Ct. 2321 (‘‘A ing against ‘‘a standard that turns on districting plan may create multimember whether partisan interests in the redis- districts perfectly acceptable under equal tricting process were excessive’’ because a population standards, but invidiously dis- government body is ‘‘culpable’’ regardless criminatory because they are employed to of whether it seeks to maximize its parti- minimize or cancel out the voting strength san advantage or ‘‘proceeds by a more of racial or political elements of the voting subtle effort, capturing less than all the population.’’ (emphasis added) (internal seats in each State’’). Rather, the frame- quotation marks omitted) ). Likewise, the work should distinguish partisan gerry- Supreme Court did not include burdening mandering from the results of legitimate or punishing citizens for voting for candi- districting objectives, including those ob- dates from an opposing party among its jectives that take into account political list of ‘‘legitimate’’ redistricting factors data or permissible partisan consider-

22. For this reason, Legislative Defendants allocate political power to the parties in ac- misplace reliance on the Supreme Court’s de- cordance with their voting strength,’’ Gaffney, cision in Easley. Leg. Defs.’ Br. 6. Unlike the 412 U.S. at 754, 93 S.Ct. 2321; see also Cro- 2016 Plan, which was drawn by a Republi- martie, 133 F.Supp.2d at 412–13; id. at 423– can-controlled General Assembly to disfavor 24 (Thornburg, J. dissenting). Accordingly, supporters of Democratic candidates, see su- the districting plan at issue in Easley ad- pra Part I.B.; infra Part III.A.1.i, the district- vanced a recognized legitimate districting ob- ing plan at issue in Easley was drawn by a jective. politically divided General Assembly to ‘‘fairly 852 318 FEDERAL SUPPLEMENT, 3d SERIES ations. Put differently, ‘‘[a] determination be difficult to make,’’ but nonetheless that a gerrymander violates the law must holding that a racial gerrymandering rest TTT on a conclusion that [political] plaintiff may prevail by showing ‘‘that race classifications, though generally permissi- was the predominant factor motivating the ble, were applied in an invidious manner or legislature’s decision to place a significant in a way unrelated to any legitimate legis- number of voters within or without a par- lative objective.’’ Id. at 307, 124 S.Ct. 1769. ticular district’’). Given that Gill expressly As explained below, we conclude that analogized partisan gerrymandering Plaintiffs’ proposed legal frameworks and claims to racial gerrymandering claims, supporting evidence do just that. 138 S.Ct. at 1930, and that predominance [58] That being said, our conclusion is a judicially manageable standard for that twelve of the thirteen districts in the distinguishing acceptable consideration of 2016 Plan violate the Equal Protection race from ‘‘too much’’ consideration of Clause does not rest on our determination race, the predominance standard we apply that States lack authority to engage in constitutes a judicially manageable stan- partisan gerrymandering—the intentional dard from distinguishing ‘‘too much’’ parti- drawing of district lines to undermine the san gerrymandering from an acceptable electoral prospects of candidates of a disfa- level of partisan gerrymandering, to the vored party and entrench a favored party extent that partisan gerrymandering ever in power—in drawing congressional dis- is constitutionally acceptable. tricts. In particular, we assume that a con- b. The Judicial Manageability gressional district amounts to an unconsti- of Plaintiffs’ Empirical tutional partisan gerrymander only if the Analyses legislative body’s predominant purpose in drawing the district was to subordinate the Legislative Defendants next argue that interests of supporters of a disfavored par- the empirical analyses introduced by Plain- ty and entrench a representative from a tiffs do not offer a judicially manageable favored party in power. See infra Part standard for adjudicating partisan gerry- III.A.1. Accordingly, under the standard mandering claims, but instead are ‘‘a smor- on which we rely on to strike down those gasbord of alleged ‘social science’ theories’’ twelve districts, a state legislative body that lack any constitutional basis. Leg. may engage in some degree of partisan Defs.’ Br. 2. As detailed more fully below, gerrymandering, so long as it was not Plaintiffs offer two groups of empirical predominantly motivated by invidious par- analyses to support their Equal Protection tisan considerations. and First Amendment claims. The first Notably, the Supreme Court has treated group of analyses relies on thousands of predominance as a judicially manageable computer-generated districting plans that standard in the gerrymandering context. conform to most traditional redistricting In particular, the Court has endorsed pre- criteria, including those relied on by the dominance as the standard for determin- General Assembly in drawing the 2016 ing how much consideration of race is ‘‘too Plan. According to Plaintiffs, when these much’’ in the drawing of legislative district plans are evaluated using the precinct-by- lines. See Miller v. Johnson, 515 U.S. 900, precinct results of recent North Carolina 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 elections, the 2016 Plan is an ‘‘extreme (1995) (recognizing that ‘‘[t]he distinction statistical outlier’’ with regard to the de- between being aware of racial consider- gree to which it disfavors voters who op- ations and being motivated by them may pose Republican candidates. See infra COMMON CAUSE v. RUCHO 853 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

Parts III.B.1.a–b. Plaintiffs assert that claims, nor does this Court do so. Instead, these analyses prove that the General As- Plaintiffs argue that these analyses pro- sembly intended to burden voters who sup- vide evidence that the 2016 Plan violates a ported non-Republican candidates, that the number of well-established constitutional 2016 Plan had the effect of burdening such standards—that the government act im- voters, and that that effect was not attrib- partially, not infringe the right to vote, not utable to another legitimate redistricting burden individuals based on the exercise of objective. The second group of analyses their rights to political speech and associa- assess the 2016 Plan’s ‘‘partisan symme- tion, and not allow state legislatures to try’’—whether the plan allows supporters dictate electoral outcomes or interpose of the two principal parties to translate themselves between the voters and their their votes into representation with equal representatives in Congress. effectiveness. See infra Part III.B.1.b.ii. According to Plaintiffs, a variety of meas- The Supreme Court long has relied on ures of the 2016 Plan’s partisan symmetry statistical and social science analyses as reveal that, throughout the life of the plan, evidence that a defendant violated a stan- supporters of non-Republican candidates dard set forth in the Constitution or fed- will likely have a significantly more diffi- eral law. In the context of the Equal cult time translating their votes into repre- Protection Clause, in particular, the Su- sentation. preme Court has relied on statistical and [59, 60] Legislative Defendants are social science evidence as proof that a correct that none of these empirical analy- government action was motivated by dis- ses appear in the Constitution. But Plain- criminatory intent or had a discriminato- tiffs need not show that a particular empir- ry effect—the same purposes for which ical analysis or statistical measure appears Plaintiffs seek to use such evidence here. in the Constitution to establish that a judi- For example, in Yick Wo v. Hopkins, 118 cially manageable standard exists to re- U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 solve their constitutional claims. See, e.g., (1886), the Court held that an ordinance Brown v. Thomson, 462 U.S. 835, 842–43, providing a municipal board of supervi- 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983) sors with the discretion to grant or with- (holding that ‘‘an apportionment plan with hold its consent to use wooden buildings a maximum population deviation under as laundries, although neutral on its face, 10% falls within th[e] category’’ of ‘‘minor was administered in a manner that dis- TTT deviations from mathematical equality criminated on the basis of national origin, among state legislative districts [that] are id. at 366, 374, 6 S.Ct. 1064. As proof, insufficient to make out a prima facie case the Court noted that the board withheld of invidious discrimination under the Four- consent from 200 individuals, ‘‘all of teenth Amendment,’’ notwithstanding that whom happen to be Chinese subjects,’’ the plain language of the Constitution ref- whereas ‘‘eighty others, not Chinese sub- erences no such statistical threshold). jects, [we]re permitted to carry on the Rather, Plaintiffs must identify cognizable same business under similar conditions.’’ constitutional standards to govern their Id. at 374, 6 S.Ct. 1064. claims, and provide credible evidence that Defendants have violated those standards. Likewise, in Brown v. Board of Edu- And contrary to Legislative Defendants’ cation of Topeka, 347 U.S. 483, 74 S.Ct. assertions, Plaintiffs do not seek to consti- 686, 98 L.Ed. 873 (1954), the Supreme tutionalize any of the empirical analyses Court cited numerous academic studies of they have put forward to support their the psychological impact of segregation on 854 318 FEDERAL SUPPLEMENT, 3d SERIES children and youth as evidence that ‘‘[s]ep- on statistical analyses to strike down as arate educational facilities are inherently unconstitutional the coverage formula in unequal,’’ and therefore violate the Equal Section 4(b) of the Voting Rights Act, cit- Protection Clause, id. at 494–95 & n.11, 74 ing evidence that the gap between white S.Ct. 686. And the Supreme Court has and black voter registration percentages recognized that ‘‘[s]tatistical analyses have had fallen substantially since Congress served and will continue to serve an impor- first adopted the coverage formula in 1965, tant role as one indirect indicator of racial as had the percentage of proposed voting discrimination in access to service on gov- changes facing objections from the Attor- ernmental bodies.’’ Mayor of Phila. v. ney General. Shelby Cty. v. Holder, 570 Educ. Equal. League, 415 U.S. 605, 620, 94 U.S. 529, 133 S.Ct. 2612, 2626, 186 L.Ed.2d S.Ct. 1323, 39 L.Ed.2d 630 (1974). The 651 (2013). And of particular note, in its Court also embraced the use of statistical decision holding that the 2011 Plan consti- evidence to determine whether a govern- tuted a racial gerrymander, the Supreme mental body was justified, under the Four- Court in part relied on an expert statistical teenth Amendment, in using ‘‘race-based analysis—which found that the General measures to ameliorate the effects of past Assembly disproportionately moved blacks discrimination.’’ City of Richmond v. J.A. into the racially gerrymandered districts, Croson Co., 488 U.S. 469, 476–77, 109 S.Ct. even when controlling for party registra- 706, 102 L.Ed.2d 854 (1989) (plurality op.); tion—as proof that the General Assembly see also id. at 509, 109 S.Ct. 706 (‘‘[E]vi- predominantly relied on race, rather than dence of a pattern of individual discrimina- partisan considerations, in drawing district tory acts can, if supported by appropriate lines. Cooper, 137 S.Ct. at 1477–78. statistical proof, lend support to a local government’s determination that broader Contrary to Legislative Defendants’ as- remedial relief is justified.’’). sertion that Plaintiffs must identify a specific empirical test derived from the lan- The Supreme Court also has relied on statistical and social science evidence in guage of the Constitution to prove the cases involving voting rights and redis- existence of a judicially manageable stan- tricting, in particular. For example, to sup- dard to adjudicate their constitutional port their racial gerrymandering claim, the claims, in none of these cases did the plaintiffs in Gomillion alleged that the Supreme Court hold that the particular City of Tuskegee, Alabama, redrew its mu- statistical or social science analyses upon nicipal boundaries ‘‘to remove from the which it relied had—or had to have—con- city all save only four or five of its 400 stitutional pedigree, or that the plaintiff Negro voters while not removing a single had to identify a specific empirical thresh- white voter or resident.’’ 364 U.S. at 341, old, across which the relevant constitution- 81 S.Ct. 125. The Court concluded that the al provision would be violated. For exam- plaintiffs alleged adequate facts to support ple, the Gomillion Court did not state that a claim under the Equal Protection Clause, a statistical analysis revealing that the mu- explaining that ‘‘[i]f these allegations upon nicipal boundary plan had fenced out, say, a trial remain uncontradicted or unquali- only 80 percent of blacks, as opposed to 99 fied, the conclusion would be irresistible, percent, would be inadequate to establish tantamount for all practical purposes to a a constitutional violation. Nor did the mathematical demonstration, that the leg- Court require that the plaintiffs identify islation is solely concerned with segregat- the particular percentage of fenced-out ing white and colored voters.’’ Id. (empha- blacks at which a boundary plan would sis added). More recently, the Court relied violate the Equal Protection Clause. Like- COMMON CAUSE v. RUCHO 855 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

wise, the Brown Court did not point to any of the case.’’ Fed. R. Evid. 702; see also specific constitutional basis for its reliance Daubert v. Merrell Dow Pharm., Inc., 509 on psychological research demonstrating U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 the impact of segregation on children and (1993). And when, as here, the court also youth, nor did it require the plaintiffs to serves as the finder-of-fact, the court must identify a specific degree of adverse psy- carefully weigh empirical evidence, and chological impact necessary to support an discount such evidence’s probative value if Equal Protection claim. And the Shelby it fails to address the relevant question, County Court did not require the states lacks rigor, is contradicted by more reli- seeking invalidation of the coverage formu- able and compelling evidence, or is other- la to identify a specific gap between white wise unworthy of substantial weight. and black voter registration percentages or a specific percentage of proposed voting [63] Here, in arguing that Plaintiffs’ changes facing objections from the Attor- empirical evidence fails to provide a judi- ney General at which Congress would be cially manageable standard for adjudicat- constitutionally barred from displacing the ing their claims, Legislative Defendants states’ rights to administer elections. identify what they see as a number of Rather, in all of the cases, the Supreme specific flaws, limitations, and weaknesses Court treated the empirical analyses as of that evidence—that the partisan asym- evidence of a violation of an established metry measures cannot be applied in all constitutional standard—that governmen- states, that the simulated maps fail to take tal entities must act impartially, that gov- into account certain criteria on which the ernmental entities must not invidiously General Assembly relied, that several of discriminate based on race or national ori- the analyses rely on hypothetical election gin, that the federal government may not results, to name a few. We find these interfere in traditional areas of state au- objections either unfounded or insufficient- thority absent a compelling justification, ly compelling to overcome the significant and that the federal government must probative value of the analyses, see infra have a legitimate reason for subjecting the Part III. Tellingly, as evidenced by their laws of certain states to more intrusive consistent placement of ‘‘social science’’ in scrutiny than those of other states. quotation marks and their characterization [61, 62] Contrary to Legislative Defen- of Plaintiffs’ evidence as ‘‘academically in- dants’ assertion, therefore, courts are not spired,’’ Legislative Defendants’ judicial foreclosed from considering statistical manageability argument more aptly rests analyses and ‘‘ ‘social science’ theories’’ as on the belief that we should dismiss Plain- evidence of a violation of a constitutional tiffs’ actions as nonjusticiable simply be- or statutory standard. Leg. Defs.’ Br. 2. cause much of the evidence upon which But that does not mean courts must blind- Plaintiffs’ rely has its genesis in academic ly accept such analyses either. On the con- research and is the product of an effort by trary, in all cases courts play an essential scholars to apply novel, and sometimes gatekeeping role in ensuring that an ex- complex, methodological approaches to ad- pert analysis—including each analysis in- dress a previously intractable problem. troduced by Plaintiffs and Legislative De- fendants—is sufficiently reliable, in that it Such an argument must fail as a matter of ‘‘is based on sufficient facts or data,’’ ‘‘is fact and law. the product of reliable principles and As a matter of fact, we recognize that methods,’’ and the principles and methods the application of Plaintiffs’ empirical have ‘‘been reliably applied TTT to the facts methods to redistricting, to date, has 856 318 FEDERAL SUPPLEMENT, 3d SERIES largely occurred in academic research. But S.Ct. 1769 (Kennedy, J., concurring in the see Raleigh Wake Citizens Ass’n v. Wake judgment) (explaining that advances in Cty. Bd. of Elections, 827 F.3d 333, 344 technology in redistricting pose both a (4th Cir. 2016) (relying on analysis of hun- ‘‘threat’’—because technology increases dreds of computer-simulated districting ‘‘the temptation to use partisan favoritism plans as evidence that population devia- in districting’’—and a ‘‘promise’’—because tions in municipal districting plan were ‘‘these new technologies may produce new attributable to illegitimate partisan pur- methods of analysis that make more evi- pose rather than legitimate redistricting dent the precise nature of the burdens objectives); Whitford, 218 F.Supp.3d at gerrymanders impose on the representa- 890–906 (relying on predictions of vote tional rights of voters and parties’’); see percentages based on historical election also Gill, 138 S.Ct. at 1941 (Kagan, J., data, a ‘‘uniform swing analysis,’’ and a concurring) (‘‘[T]echnology makes today’s measure of partisan asymmetry to con- gerrymandering altogether different from clude Wisconsin legislative redistricting the crude linedrawing of the past.’’). But plan adversely affected representational ‘‘the Constitution forbids ‘sophisticated as rights of non-Republican voters). But the well as simpleminded modes of discrimina- empirical methods themselves have been tion.’ ’’ Reynolds, 377 U.S. at 563, 84 S.Ct. developed and broadly applied inside and 1362 (quoting Lane v. Wilson, 307 U.S. outside of academia to address a wide vari- 268, 275, 59 S.Ct. 872, 83 L.Ed. 1281 ety of problems. For example, Dr. Chen (1939) ). Accordingly, the judiciary likewise testified that the computational algorithms has an obligation to keep pace with techno- and statistical theories he used in generat- logical and methodological advances so it ing simulated redistricting plans to assess can effectively fulfill its constitutional role the partisan performance of the 2016 Plan to police evermore sophisticated modes of are used by logistics companies to optimize discrimination. their distribution chains. Trial Tr. II, at 25:2-24. And other empirical methods on As a legal matter, the empirical analy- which Plaintiffs’ expert witnesses relied ses’ sophistication and genesis in academic are broadly used by governments, the research also do not preclude this Court business community, and academia in a from concluding that Plaintiffs’ claims are variety of other fields ranging from nation- judicially manageable. To be sure, the sta- al defense, to public safety, to finance, and tistical analyses and social science theories to health care. Trial Tr. I, at 41:4–8; Br. used by Plaintiffs’ experts are more ad- Amicus Curiae Eric S. Lander in Supp. of vanced than the bare descriptive statistics Appellees 23–25, Gill v. Whitford, No. 16- upon which the Supreme Court relied in 1161, 2017 WL 4311103 (S. Ct. Aug. 31, Yick Wo, Gomillion, and Shelby County. 2017). But the Court has not hesitated to accept To hold that such widely used, and re- sophisticated or novel empirical methods lied upon, methods cannot provide a judi- as evidence. For example, in Thornburg v. cially manageable standard for adjudicat- Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 ing Plaintiffs’ partisan gerrymandering L.Ed.2d 25 (1986), the Supreme Court en- claims would be to admit that the judiciary dorsed the use of ‘‘extreme case analysis lacks the competence—or willingness—to and bivariate ecological regression analy- keep pace with the technical advances that sis,’’ id. 52–53, 106 S.Ct. 2752, in determin- simultaneously facilitate such invidious ing whether an electoral district exhibits partisanship and provide an opportunity to ‘‘racially polarized’’ voting, within the remedy it. See Vieth, 541 U.S. at 312, 124 meaning of Section 2 of the Voting Rights COMMON CAUSE v. RUCHO 857 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

Act, id. at 61, 106 S.Ct. 2752 (plurality op.). sophisticated methods—like the descrip- Notably, both forms of analysis derived tive statistics relied on in Yick Wo, Gomil- from social science literature, as did the lion, and Shelby County—comes with definition of ‘‘racially polarized’’ voting costs. In particular, descriptive statistics adopted by the Court. Id. at 53 nn.20–21, rarely provide, as a statistical matter, a 106 S.Ct. 2752. Outside of the voting con- basis for making causal inferences. See text, the Supreme Court has embraced Jeffrey M. Wooldridge, Econometric Anal- new social science theories and empirical ysis of Cross Section and Panel Data § 1.1 analyses to resolve a variety of constitu- (2002) (‘‘The notion of ceteris paribus— tional and statutory disputes. See, e.g., that is, holding all other (relevant) factors Ohio v. Am. Express Co., ––– U.S. ––––, fixed—is the crux of establishing a causal 138 S.Ct. 2274, 2280–81, 2285–87, ––– relationship. Simply finding that two varia- L.Ed.2d –––– (2018) (relying extensively bles are correlated is rarely enough to on theoretical economic literature in hold- conclude that a change in one variable ing that court reviewing antitrust chal- causes a change in another.’’); Brown v. lenge to a two-sided transaction platform must consider ‘‘both sides’’ of the market Entm’t Merchants Ass’n, 564 U.S. 786, in ‘‘rule of reason’’ analysis); Leegin Crea- 800, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011) tive Leather Prods., Inc. v. PSKS, Inc., (‘‘[C]orrelation [is] not evidence of causa- 551 U.S. 877, 881–82, 889–92, 127 S.Ct. tion.’’). For example, although descriptive 2705, 168 L.Ed.2d 623 (2007) (appealing to statistics may reveal that an allegedly dis- ‘‘the theoretical literature’’ and a variety of favored group of employees has a lower economic analyses to support its decision average salary than another group, that to reverse century-old precedent treating does not mean that the average salary vertical price restraints as a per se viola- difference is attributable to invidious dis- tion of the Sherman Act); Utah v. Evans, crimination, as the allegedly disfavored 536 U.S. 452, 465, 122 S.Ct. 2191, 153 group’s lower average salary may reflect a L.Ed.2d 453 (2002) (holding that Census variety of nondiscriminatory reasons that Bureau’s use of ‘‘hot-deck imputation’’ to can be accounted for adequately only by conduct decennial census did not violate using more advanced statistical methods. census statute or the Constitution, relying See Tagatz v. Marquette Univ., 861 F.2d on the ‘‘technical literature’’ to determine 1040, 1044 (7th Cir. 1988) (Posner, J.) whether hot-deck imputation constitutes (‘‘Correlation is not causation.’’); Ste. Ma- ‘‘sampling’’); Maryland v. Craig, 497 U.S. rie v. E. R.R. Ass’n, 650 F.2d 395, 400 (2d 836, 855, 857, 110 S.Ct. 3157, 111 L.Ed.2d Cir. 1981) (Friendly, J.). 666 (1990) (appealing to ‘‘the growing body of academic literature documenting the [64] Advances in statistical and empiri- psychological trauma suffered by child cal theory and application, therefore, have abuse victims who must testify in court’’ in the potential to allow parties, experts, and holding that the Confrontation Clause did amici to provide courts with more rigorous not categorically prohibit state laws per- and probative evidence, thereby decreas- mitting victims of child abuse to testify ing the risk that courts will render a deci- outside the presence of their alleged abus- sion that later proves to have rested on an er). errant empirical analysis. Consequently, it As the judiciary’s understanding and ap- makes no practical or legal sense for plication of statistical and empirical meth- courts to close their eyes to new scientific ods have increased, it has come to appreci- or statistical methods—as Legislative De- ate that the attractive simplicity of less fendants implicitly suggest—to prove or 858 318 FEDERAL SUPPLEMENT, 3d SERIES disprove claims premised on established fidence in the correctness of the conclusion legal standards. As Justice Kennedy rec- because even if one piece of evidence is ognized in Vieth, ‘‘new technologies may subsequently found infirm other probative produce new methods of analysis that evidence remains. See, e.g., Strickler v. make more evident the precise nature of Greene, 527 U.S. 263, 293, 296, 119 S.Ct. the burdens gerrymanders impose on the 1936, 144 L.Ed.2d 286 (1999) (holding that representational rights of voters and par- exculpatory evidence withheld by govern- ties.’’ 541 U.S. at 312–13, 124 S.Ct. 1769. ment was not ‘‘material’’ for purposes of That is precisely what we find Plaintiffs’ Brady v. Maryland, 373 U.S. 83, 83 S.Ct. empirical methods have done. See infra 1194, 10 L.Ed.2d 215 (1963), when ‘‘there Part III.B. was considerable forensic and other physi- [65] More fundamentally, there is no cal evidence linking [the defendant] to the constitutional basis for dismissing Plain- crime’’). Even if none of the analyses in- tiffs’ claims as judicially unmanageable— troduced by Plaintiffs could, by itself, pro- not because they are irrelevant, unreliable, vide definitive evidence that the 2016 Plan or incorrectly applied, but simply because constitutes an unconstitutional partisan they rely on new, sophisticated empirical gerrymander—which we do not necessari- methods that derive from academic rely believe is the case—‘‘[a] case of discrim- search. The Constitution does not require ination can TTT be made by assembling a the federal courts to act like Galileo’s In- number of pieces of evidence, none mean- quisition and enjoin consideration of new ingful in itself, consistent with the proposi- academic research, and the knowledge tion of statistical theory that a number of gained therefrom, simply because such re- observations, each of which supports a search provides a new understanding of proposition only weakly can, when taken how to give effect to our long-established as a whole, provide strong support if all governing principles. See Timothy Ferris, point in the same direction: a number of Coming of Age in the Milky Way 97–101 weak proofs can add up to a strong proof.’’ (1989). That is not what the founding gen- Sylvester v. SOS Children’s Vills. Ill., Inc., eration did when it adopted a Constitution 453 F.3d 900, 903 (7th Cir. 2006) (Posner, grounded in the then-untested political J.) (internal quotation marks omitted). theories of Locke, Montesquieu, and Rous- seau. That is not what the Supreme Court In sum, Plaintiffs’ reliance on aca- did when it recognized that advances in demically derived, social science evidence our understanding of psychology had prov- to support their partisan gerrymandering en that separate could not be equal. And claims does not render their claims judi- that is not what we do here. cially unmanageable. [66] Legislative Defendants’ character- c. Congress’s Decision To Require ization of the empirical evidence intro- Single-Member Districts duced by Plaintiffs’ as a ‘‘smorgasbord’’ also suggests that Legislative Defendants Finally, Legislative Defendants contend view the sheer number of analyses upon that rejecting their nonjusticiability argu- which Plaintiffs’ rely as rendering their ment would be tantamount to nullifying claims judicially unmanageable. Leg. the political branches’ decision to require Defs.’ Br. 2. But when a variety of differ- representatives to be elected from single- ent pieces of evidence, empirical or other- member districts. See Leg. Defs.’ Br. 13 wise, all point to the same conclusion—as (‘‘[W]hat plaintiffs are asking the Court to is the case here—courts have greater con- do is sub silentio eliminate district-based COMMON CAUSE v. RUCHO 859 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) congressional redistricting in North Car- which a minority party retains significant olina.’’). Again, we disagree. representation,’’ Vieth, 541 U.S. at 360, 124 [67] By statute, each State must ‘‘es- S.Ct. 1769 (Breyer, J., dissenting). Addi- tablish[ ] by law a number of districts tionally, single-member districts ‘‘diminish equal to the number of Representatives to the need for coalition governments’’ and which such State is so entitled, and Repre- thereby ‘‘make[ ] it easier for voters to sentatives shall be elected only from dis- identify which party is responsible for gov- tricts so established, no district to elect ernment decision-making (and which ras- more than one Representative.’’ 2 U.S.C. cals to throw out).’’ Id. at 357, 124 S.Ct. § 2c. Consistent with that statutory obli- 1769. And single-member districts make it gation, our invalidation of the 2016 Plan as easier for a representative to understand an unconstitutional partisan gerrymander the interests of her constituency and act in no way impacts North Carolina’s au- on behalf of those interests because she thority—indeed, statutory obligation—to serves a limited group of constituents, draw a congressional redistricting plan us- rather than the entire state. S. Rep. 90- ing single-member districts. Rather, it sim- 291, at 28 (1967) (Individual Views of Sen. ply requires that the General Assembly, in Bayh). The use of single-member districts drawing congressional district lines, not comes with democratic costs, as well. Most seek to diminish or minimize the electoral notably, the stability achieved by single- power of voters who supported or are like- member districts necessarily entails that a ly to support candidates of a particular legislative body will be less responsive to party. shifts in popular will. [68–70] Of equal significance, judicial [71] Our Supreme Court defines ‘‘par- restriction of partisan gerrymandering ad- tisan gerrymandering’’ as ‘‘the drawing of vances the purpose behind single-member legislative district lines to subordinate ad- districts, rather than undermines it. The herents of one political party and en- Supreme Court long has recognized that trench a rival party in power,’’ Ariz. State the ‘‘basic aim’’ of requiring districting is Leg., 135 S.Ct. at 2658. Thus, by defini- to ‘‘achiev[e] TTT fair and effective repre- tion, partisan gerrymandering—not judi- sentations for all citizens.’’ Reynolds, 377 cial oversight of such gerrymandering— U.S. at 565–66, 84 S.Ct. 1362. To that end, ‘‘[t]he very essence of districting is to pro- contravenes the purpose of district-based duce a different—a more ‘politically fair’— congressional districting because it is in- TTT result than would be reached with elec- tended not to ‘‘achiev[e] fair and ef- tions at large, in which the winning party fective representations for all citizens,’’ would take 100% of the legislative seats.’’ Reynolds, 377 U.S. at 565–66, 84 S.Ct. Gaffney, 412 U.S. at 753, 93 S.Ct. 2321. 1362 (emphasis added), and not to pro- The use of districting, as opposed to elec- duce a ‘‘more ‘politically fair’ ’’ result, tions at large, serves a number of specific Gaffney, 412 U.S. at 753, 93 S.Ct. 2321. beneficial purposes. For example, unlike And partisan gerrymandering undermines at-large electoral systems, which in politi- several of the specific benefits of single- cally divided states can lead to a wholesale member districts. It poses a risk that ‘‘a change in the state’s congressional delega- representative may feel more beholden to tion with only a small shift in votes be- the cartographers who drew her district tween parties, see Engstrom, supra at 22– than to the constituents who live there.’’ 28, single-member districting systems LULAC, 548 U.S. at 470, 126 S.Ct. 2594 ‘‘maintain[ ] relatively stable legislatures in (Stevens, J., concurring in part and dis- 860 318 FEDERAL SUPPLEMENT, 3d SERIES

senting in part). And by ‘‘entrenching’’ a Hart, and Tydings). Accordingly, al- party in power, Ariz. State Leg., 135 S.Ct. though legislators were divided as to at 2658, even in the face of shifting voter whether the compactness provision would preferences, LULAC, 548 U.S. at 470–71, be an effective tool to combat gerryman- 126 S.Ct. 2594 (Stevens, J., concurring in dering, they agreed that the statute part and dissenting in part), partisan ger- should not serve as an ‘‘invitation’’ to rymandering makes it harder for voters state legislatures to engage in gerryman- ‘‘to throw the rascals out,’’ Vieth, 541 U.S. dering, as we find Legislative Defen- at 357, 124 S.Ct. 1769 (Breyer, J., dissent- dants did here. ing) (internal quotation marks omitted), magnifying the downsides to the use of * * * * * single-member districts. In sum, we conclude that Plaintiffs have [72] Not only does partisan gerry- standing to lodge a partisan vote dilution mandering contradict the purpose behind challenge under the Equal Protection singlemember districting—and enhance Clause to each of the districts in the 2016 its drawbacks—the legislative history of Plan and to assert claims under the First Section 2c reveals that Congress did not Amendment and Article I challenging the intend for the statute to empower state 2016 Plan as a whole. We further hold that legislatures to engage in partisan gerrymandering. Congress adopted the cur- each of Plaintiffs’ claims is justiciable, and, rent version of the singlemember district in reaching that conclusion, we reject Leg- statute in 1967, in the wake of the Su- islative Defendants’ argument that Plain- preme Court’s invalidation of widespread tiffs have failed to provide this Court with malapportionment of congressional dis- a judicially manageable standard for re- tricts in Wesberry. S. Rep. 90-291, at 2. solving their claims. The draft of the statute reported out of the House required that congressional III. EQUAL PROTECTION districts be ‘‘in as reasonably a compact [73, 74] Having disposed of Legislative form as the State finds practicable.’’ Id. Defendants’ standing and justiciability ar- at 4. The House intended for the com- guments, we now turn to Plaintiffs’ claims pactness requirement to reflect a ‘‘con- under the Equal Protection Clause of the gressional policy against gerrymander- Fourteenth Amendment. The Equal Pro- ing’’ and to ‘‘prevent gerrymandering,’’ tection Clause prohibits a State from including gerrymandering to ‘‘attempt ‘to ‘‘deny[ing] to any person within its juris- minimize or cancel out the voting diction the equal protection of the laws.’’ strength of racial or political elements of U.S. Const. amend. XIV. Partisan gerry- the voting population.’ ’’ Id. (emphasis added) (quoting Burns v. Richardson, mandering runs afoul of the Equal Protec- 384 U.S. 73, 89, 86 S.Ct. 1286, 16 tion Clause because, by seeking to dimin- L.Ed.2d 376 (1966) ). Congress removed ish the electoral power of supporters of a the compactness provision from the final disfavored party, a partisan gerrymander version of the statute after a group of treats individuals who support candidates senators expressed concern that the am- of one political party less favorably than biguity of the reasonableness standard individuals who support candidates of an- would be ‘‘an invitation to gerrymander, other party. Cf. Lehr v. Robertson, 463 especially to gerrymander at the expense U.S. 248, 265, 103 S.Ct. 2985, 77 L.Ed.2d of urban minority groups.’’ Id. at 19 (Mi- 614 (1983) (‘‘The concept of equal justice nority Views of Sens. Kennedy, Dodd, under law requires the State to govern COMMON CAUSE v. RUCHO 861 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) impartially.’’). Put differently, a redistrict- is personal in nature, Gill, 138 S.Ct. at ing plan violates the Equal Protection 1930 (majority op.), partisan vote dilution Clause if it ‘‘serve[s] no purpose other claims under the Equal Protection Clause, than to favor one segment—whether ra- like racial gerrymandering claims, must cial, ethnic, religious, economic or politi- proceed on a district-by-district basis. Ac- cal—that may occupy a position of cordingly, each of the three elements of a strength TTT or to disadvantage a political- partisan vote dilution claim must be satis- ly weak segment.’’ Karcher, 462 U.S. at fied for each district. Although the three- 748, 103 S.Ct. 2653 (Stevens, J. concur- step framework governing partisan gerry- ring). mandering claims under the Equal Protec- tion Clause is not in dispute, neither the A. BACKGROUND LAW Supreme Court nor the parties agree as to [75, 76] As this Court explained in de- the standard of proof for each of those nying Defendants’ motions to dismiss, the elements—or whether Plaintiffs satisfied Supreme Court’s splintered partisan ger- those standards—the questions to which rymandering decisions establish that in we now turn. order to prove a prima facie partisan gerrymandering claim under the Equal Pro- 1. Discriminatory Intent tection Clause, ‘‘a plaintiff must show both [78] The Supreme Court long has re- [1] discriminatory intent and [2] discrimi- quired that a plaintiff seeking relief under natory effects.’’ Common Cause, 240 the Equal Protection Clause to establish F.Supp.3d at 387 (citing Bandemer, 478 that a challenged official action can ‘‘be U.S. at 127, 106 S.Ct. 2797 (plurality op.); traced to a TTT discriminatory purpose.’’ id. at 161, 106 S.Ct. 2797 (Powell, J., con- Washington v. Davis, 426 U.S. 229, 240, 96 curring and dissenting) ). Plaintiffs further propose—and we agree—that if Plaintiffs S.Ct. 2040, 48 L.Ed.2d 597 (1976). The establish that the 2016 Plan was enacted discriminatory purpose or intent require- with discriminatory intent and resulted in ment extends to Equal Protection chal- discriminatory effects, the plan will none- lenges to redistricting plans, in particular, theless survive constitutional scrutiny if including partisan gerrymandering chal- its discriminatory effects are attributable lenges. See, e.g., Bandemer, 478 U.S. at to the state’s political geography or anoth- 127, 106 S.Ct. 2797 (plurality op.); id. at er legitimate redistricting objective. 161, 106 S.Ct. 2797 (Powell, J., concurring League Br. 21; Common Cause Br. 17–19; in part and dissenting in part); Rogers v. see also Bandemer, 478 U.S. at 141–42, Lodge, 458 U.S. 613, 617, 102 S.Ct. 3272, 106 S.Ct. 2797 (plurality op.) (recognizing 73 L.Ed.2d 1012 (1982); see also Cooper, justification step); cf. Whitford, 218 137 S.Ct. at 1463 (holding that to establish F.Supp.3d at 884 (‘‘[T]he Equal Protection a racial gerrymandering claim under the clause prohibit[s] a redistricting scheme Equal Protection Clause, a plaintiff must which (1) is intended to place a severe show ‘‘that race was the predominant fac- impediment on the effectiveness of the tor motivating the legislature’s decision to votes of individual citizens on the basis of place a significant number of voters within their political affiliation, (2) has that ef- or without a particular district’’ (internal fect, and (3) cannot be justified on other, quotation marks omitted) ). legitimate legislative grounds.’’). [79] To establish a discriminatory pur- [77] Importantly, because the injury pose or intent, a plaintiff need not show giving rise to a partisan vote dilution claim that the discriminatory purpose is ‘‘ex- 862 318 FEDERAL SUPPLEMENT, 3d SERIES press or appear[s] on the face of the stat- dence probative of such intent are well- ute.’’ Washington, 426 U.S. at 241, 96 S.Ct. established, it remains unclear what type 2040. Rather, ‘‘an invidious discriminatory of intent a partisan gerrymandering plain- purpose may often be inferred from the tiff must prove. As explained above, there totality of the relevant facts.’’ Id. at 242, 96 are a number of purposes for which a state S.Ct. 2040; see also Covington, 138 S.Ct. at redistricting body permissibly may rely on 2553 (affirming district court’s finding, political data or take into account partisan based on ‘‘circumstantial TTT evidence con- considerations. See supra Part II.B.2.a.iii. cerning the shape and demographics of Accordingly, a plaintiff in a partisan gerry- [the challenged] districts,’’ that race pre- mandering case cannot satisfy the discrim- dominated in the drawing of district lines, inatory intent requirement simply by prov- notwithstanding that legislature expressly ing that the redistricting body intended to directed mapdrawers not to consider race rely on political data or to take into ac- in drawing the districts). count political or partisan considerations. [80–82] In determining whether an Rather, the plaintiff must show that the ‘‘invidious discriminatory purpose was a redistricting body intended to apply parti- motivating factor’’ behind the challenged san classifications ‘‘in an invidious manner action, evidence that the impact of the or in a way unrelated to any legitimate challenged action falls ‘‘more heavily’’ on legislative objective.’’ Vieth, 541 U.S. at one group than another ‘‘may provide an 307, 124 S.Ct. 1769 (Kennedy, J., concur- important starting point.’’ Vill. of Arling- ring in the judgment); id. at 339, 124 S.Ct. ton Heights v. Metro. Hous. Dev. Corp., 1769 (Stevens, J., dissenting) (holding re- 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d districting plan would violate Equal Pro- 450 (1977). ‘‘Sometimes a clear pattern, tection Clause if it reflected ‘‘a naked de- unexplainable on grounds other than [in- sire to increase partisan strength’’); see vidious discrimination], emerges from the also Romer v. Evans, 517 U.S. 620, 632, effect of the state action even when the 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) governing legislation appears neutral on (defining an ‘‘invidious’’ classification as ‘‘a its face.’’ Id. Likewise, ‘‘[t]he historical classification of persons undertaken for its background of the decision’’ may be proba- own sake TTT inexplicable by anything but tive of discriminatory intent, ‘‘particularly animus towards the class it affects’’). To if it reveals a series of official actions that end, a plaintiff satisfies the discrimi- taken for invidious purposes.’’ Id. at 267, natory purpose or intent requirement by 97 S.Ct. 555. ‘‘The specific sequence of introducing evidence establishing that the events leading up to the challenged deci- state redistricting body acted with an in- sion also may shed some light on the deci- tent to ‘‘subordinate adherents of one po- sionmaker’s purposes,’’ including whether litical party and entrench a rival party in the legislative process involved ‘‘[d]epar- power.’’ Ariz. State Leg., 135 S.Ct. at 2658. tures from the normal procedural se- Another question bearing on the dis- quence.’’ Id. Additionally, ‘‘[t]he legislative criminatory intent requirement is what or administrative history may be highly level of intent a plaintiff must prove to relevant, especially where there are con- establish a partisan gerrymandering claim. temporary statements by members of the Common Cause Plaintiffs assert that the decision-making body, minutes of its meet- degree of partisan intent motivating the ings, or reports.’’ Id. at 268, 97 S.Ct. 555. drawing of the districting plan’s lines de- [83, 84] Although the discriminatory termines the level of scrutiny under which intent requirement and the forms of evi- a court must review the plan. Common COMMON CAUSE v. RUCHO 863 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

Cause Br. 16–18. For example, if a parti- The Supreme Court, however, has rec- san purpose ‘‘predominated’’ over other le- ognized one exception to the general rule gitimate redistricting criteria, then the set forth in Arlington Heights: to establish 2016 Plan warrants strict scrutiny, Com- a Shaw-type racial gerrymandering claim mon Cause Plaintiffs maintain. Id. at 17. If under the Fourteenth Amendment, a partisan advantage was only ‘‘a purpose’’ plaintiff must prove that ‘‘race was the motivating the 2016 Plan, then, according predominant factor motivating the legisla- to Common Cause Plaintiffs, the plan ture’s decision to place a significant num- should be reviewed under the ‘‘sliding ber of voters within or without a particular scale’’ standard of review set forth in district.’’ Miller, 515 U.S. at 916, 115 S.Ct. Anderson v. Celebrezze, 460 U.S. 780, 788, 2475. There are compelling theoretical ar- 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and guments against extending the ‘‘predomi- Burdick v. Takushi, 504 U.S. 428, 434, 112 nance’’ requirement applicable in such ra- S.Ct. 2059, 119 L.Ed.2d 245 (1992). Com- cial gerrymandering actions to partisan mon Cause Br. 18. By contrast, League gerrymandering claims. To begin, the Su- Plaintiffs assert that a plaintiff need not preme Court expressly has characterized prove that invidious partisanship ‘‘predom- Shaw-type racial gerrymandering claims inated’’ over other legitimate redistricting as ‘‘ ‘analytically district’ from a vote dilu- criteria, instead arguing that a partisan tion claim.’’ Id. at 911, 115 S.Ct. 2475 gerrymandering plaintiff will meet its bur- (quoting Shaw I, 509 U.S. at 652, 113 S.Ct. den under the intent prong if it proves 2816). Because Plaintiffs’ Equal Protection that the redistricting body acted with the claim is grounded in a partisan vote dilu- intent to ‘‘disadvantage[e] one party’s (and tion theory, there is good reason to ques- favor[ ] the other party’s) voters and candi- tion the applicability of precedent bearing dates.’’ League Br. at 5. on an ‘‘analytically distinct’’ form of claim. League Plaintiffs’ position that a plain- [85, 86] More significantly, the consti- tiff asserting a partisan vote dilution claim tutional violation in a Shaw-type racial under the Equal Protection Clause need gerrymandering case consists of ‘‘sepa- not show that partisan considerations ‘‘pre- rat[ing] voters into different districts on dominated’’ over other legitimate, non-par- the basis of race.’’ Shaw I, 509 U.S. at 649, tisan redistricting criteria finds support in 113 S.Ct. 2816. Accordingly, to state a Supreme Court precedent. In Bandemer, prima facie case of racial gerrymandering the plurality opinion did not require that a a plaintiff need not show that a legislative plaintiff establish that the mapmakers mapdrawer segregated voters on the basis were solely or primarily motivated by in- of race to disadvantage members of one vidious partisanship, but instead required racial group relative to another. See Mil- proof of ‘‘intentional discrimination against ler, 515 U.S. at 904, 115 S.Ct. 2475 (‘‘Racial an identifiable political group.’’ 478 U.S. at and ethnic distinctions of any sort are 127, 106 S.Ct. 2797. And in describing the inherently suspect and thus call for the general intent requirement for Equal Pro- most exacting judicial examination TTT re- tection claims in Arlington Heights, the gardless of the race of those burdened or Supreme Court held that a plaintiff gener- benefitted by a particular classification.’’ ally need not prove that a legislature took (internal quotation marks omitted) ); Shaw a challenged action with the ‘‘sole,’’ ‘‘domi- I, 509 U.S. at 650–51, 113 S.Ct. 2816; Cov- nant,’’ or ‘‘primary’’ purpose of discrimi- ington, 316 F.R.D. at 129 (‘‘[A] finding that nating against an identifiable group. 429 race was the predominant motive drawing U.S. at 265–66, 97 S.Ct. 555. a district does not TTT signify that the 864 318 FEDERAL SUPPLEMENT, 3d SERIES legislature acted TTT with discriminatory meet the heightened burden of showing intent in its redistricting.’’). Notably, the invidiousness weighs heavily against ex- Supreme Court expressly has distin- tending the predominance requirement for guished Shaw-type racial gerrymandering Shaw-type racial gerrymandering claims claims from claims that a ‘‘State has enact- to partisan gerrymandering claims. ed a particular voting scheme as a pur- Nevertheless, in Gill, the Supreme poseful device ‘to minimize or cancel out Court expressly analogized partisan gerry- the voting potential of racial or ethnic mi- mandering claims to Shaw-type racial ger- norities’ ’’—i.e. districting schemes that in- rymandering claims and appealed to prece- vidiously discriminate on the basis of race. dent regarding such claims in justifying its See Miller, 515 U.S. at 911, 115 S.Ct. 2475 holding, 138 S.Ct. at 1930, suggesting that (emphasis added) (quoting Mobile v. Bol- the Supreme Court may import into its den, 446 U.S. 55, 66, 100 S.Ct. 1490, 64 partisan gerrymandering jurisprudence L.Ed.2d 47 (1980), superseded by statute the predominance requirement it applies in on other grounds as recognized by Thorn- Shaw-type racial gerrymandering cases. burg v. Gingles, 478 U.S. 30, 35, 106 S.Ct. Accordingly, we assume that a plaintiff 2752, 92 L.Ed.2d 25 (1986) ). In the latter asserting a partisan vote dilution claim type of cases, a plaintiff need not prove under the Equal Protection Clause faces that the redistricting body’s invidious pur- the heightened burden of proving that a pose predominated. See Bolden, 446 U.S. legislative mapdrawer’s predominant pur- at 66, 100 S.Ct. 1490 (plurality op.). pose in drawing the lines of a particular [87] Under the Supreme Court’s defi- district was to ‘‘subordinate adherents of nition of ‘‘partisan gerrymandering’’ a one political party and entrench a rival 23 plaintiff must show that the legislative party in power.’’ Ariz. State Leg., 135 mapdrawer segregated voters on the basis S.Ct. at 2658. of partisanship for an invidious purpose— 2. Discriminatory Effects to ‘‘subordinate adherents of one political [88] The discriminatory effects prong party and entrench a rival party in power.’’ is the principal reason the Supreme Court Ariz. State Leg., 135 S.Ct. at 2658. That a has failed to agree on a standard for prov- partisan gerrymandering plaintiff must ing a partisan gerrymandering claim.24

23. Because we find that invidious partisan- need not demonstrate that a districting plan’s ship predominated in the drawing of twelve segregation of voters on basis of race yields the thirteen districts in the 2016 Plan, see discriminatory effects. See Cooper, 137 S.Ct. infra Part III.B.2, Plaintiffs necessarily satisfy at 1464. Likewise, a plaintiff who has proven their burden under the intent prong regard- invidious racial gerrymandering need not less of whether the Supreme Court adopts the show that such gerrymandering has resulted heightened predominance standard we as- in discriminatory effects. See Hunter v. Under- sume applies. wood, 471 U.S. 222, 228, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (‘‘Once racial discrimina- 24. As a theoretical matter, there is good rea- tion is shown to have been a ‘substantial’ or son to question whether a partisan vote dilu- ‘motivating’ factor behind enactment of the tion plaintiff who has proven that a state law, the burden shifts to the law’s defenders districting body was predominantly motivated to demonstrate that the law would have been by invidious partisan considerations in draw- enacted without this factor.’’). ing district lines should be required to dem- Additionally, once a plaintiff proves that a onstrate discriminatory effects. In particular, state districting body acted with invidious dis- in Shaw-type racial gerrymandering claims— criminatory intent, a discriminatory effects which do not require a showing of invidious requirement effectively obligates a court to intent and to which the Gill Court expressly determine whether the body failed to achieve appealed, see supra Part III.A.1—a plaintiff its intended goal. To do so, a plaintiff would COMMON CAUSE v. RUCHO 865 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

For nearly two decades, the plurality opin- Writing for a four-Justice plurality, Jus- ion in Bandemer provided what was wide- tice White stated that a partisan gerry- ly treated as the controlling test for deter- mandering plaintiff must prove that it ‘‘has mining whether a redistricting plan had been unconstitutionally denied its chance the effect of discriminating against voters to effectively influence the political pro- based on their partisan affiliation. See, cess’’ or that the ‘‘electoral system [has e.g., Pope, 809 F.Supp. at 395 (‘‘[The Ban- been] arranged in a manner that will con- demer] plurality opinion must be consid- sistently degrade a voter’s or a group of ered controlling as the position which con- voters’ influence on the political process as curs in the judgment on the narrowest a whole.’’ Id. at 132–33, 142-43, 106 S.Ct. grounds.’’). In Bandemer, a group of 2797. Because legislators are presumed to Indiana Democrats sued Indiana state of- represent all of their constituents, ‘‘even in ficials alleging that the State’s decennial a safe district where the losing group loses state legislative redistricting—which was election after election,’’ a ‘‘mere lack of enacted by a Republican-controlled legisla- proportional representation will not be suf- ture and approved by a Republican gover- ficient to prove unconstitutional represen- nor—violated the Equal Protection Clause tation.’’ Id. at 132, 106 S.Ct. 2797. Rather, by intentionally discriminating against a plaintiff must provide evidence ‘‘of con- Democrats, notwithstanding that the plan tinued frustration of the will of a majority satisfied the one-person, one-vote require- of the voters or effective denial to a minor- ment. 478 U.S. at 113–14, 106 S.Ct. 2797 ity of voters of a fair chance to influence (plurality op.). As evidence of the district- the political process.’’ Id. at 133, 106 S.Ct. ing plan’s discriminatory effects, the plain- 2797. tiffs alleged that the legislature drew district lines that packed Democratic voters Applying this test, the plurality conclud- into certain districts and fragmented ed the plaintiffs failed to meet their bur- Democratic votes in other districts in or- den. Id. at 134, 106 S.Ct. 2797. In particu- der to debase Democratic voting strength. lar, the plurality stated that the results of Id. at 115, 106 S.Ct. 2797. Additionally, the a single election were insufficient to dem- legislature allegedly used multi-member onstrate that Indiana Democrats would be districts to further diminish Democrats’ relegated to minority status throughout voting strength. Id. In the first election the decade, particularly because Indiana following the redistricting, Democratic was a ‘‘swing [s]tate’’ and voters would candidates received 51.9 percent of the ‘‘sometimes prefer Democratic candidates, vote but won 43 percent (43 of 100) of the and sometimes Republican.’’ Id. at 135, 106 seats in the state House. Id. In the Sen- S.Ct. 2797. The plurality further empha- ate, Democratic candidates received 53.1 sized that the district court did not find percent of the vote, and won 52 percent that the redistricting plan would preclude (13 of 25) of the seats up for election. Id. Democrats from taking control of the as-

seem to have to demonstrate either that the was inept or intentionally engaged in a futile districting body was not inept—i.e. poorly im- task. Notwithstanding these theoretical prob- plemented its predominant purpose in draw- lems with the discriminatory effects require- ing the districting plan—or, alternatively, that ment, we nevertheless assume Bandemer con- the potential mutability of voter preferences tinues to control and that a partisan vote did not render futile the districting body’s ef- dilution plaintiff must prove that a districting fort to engage in invidious discrimination. We plan drawn with invidious partisan intent are not aware of any legal standard requiring yielded discriminatory effects. a plaintiff to disprove that a legislative body 866 318 FEDERAL SUPPLEMENT, 3d SERIES sembly in a subsequent election, nor did 541 U.S. at 283, 124 S.Ct. 1769 (plurality the district court ask ‘‘by what percentage op.) (‘‘Because this standard was misguid- the statewide Democratic vote would have ed when proposed [and] has not been im- had to increase to control either the House proved in subsequent application, TTT we or the Senate.’’ Id. And the plaintiffs pro- decline to affirm it as a constitutional re- vided no proof that the redistricting plan quirement.’’); id. at 308, 124 S.Ct. 1769 would ‘‘consign the Democrats to a minori- (Kennedy, J., concurring in the judgment); ty status in the Assembly throughout the id. at 318, 339, 124 S.Ct. 1769 (Stevens, J., [decade].’’ Id. dissenting); id. at 344–45, 124 S.Ct. 1769 The Bandemer plurality’s discriminatory (Souter, J., dissenting); see id. at 360, 124 effects test proved virtually impossible for S.Ct. 1769 (Breyer, J., dissenting). And the future plaintiffs to satisfy. See, e.g., Pope, Justices appeared to agree that one of the 809 F.Supp. at 397 (dismissing partisan principal problems with the Bandemer plu- gerrymandering action because the plain- rality’s discriminatory effects test is that it tiffs did ‘‘not allege, nor c[ould] they, that created an evidentiary standard so high the state’s redistricting plan TTT caused that no plaintiff could satisfy it, even in the them to be ‘shut out of the political pro- face of strong evidence of partisan discrim- cess’ ’’ or that they had ‘‘been or w[ould] ination. See id. at 280–81, 124 S.Ct. 1769 be consistently degraded in their partic- (plurality op.) (noting that under Bandem- ipation in the entire political process’’); er’s test, ‘‘several districting plans TTT Badham v. Eu, 694 F.Supp. 664, 670 (N.D. were upheld despite allegations of extreme Cal. 1988) (dismissing partisan gerryman- partisan discrimination, bizarrely shaped dering claim because the plaintiffs failed to districts, and disproportionate results’’); id. allege any ‘‘interfer[ence] with [the alleg- at 312, 124 S.Ct. 1769 (Kennedy, J., con- edly disfavored party’s] registration, orga- curring in the judgment) (rejecting Ban- nizing, voting, fund-raising, or campaign- demer’s effects test as establishing ‘‘a sin- ing’’ or that the interests of supporters of gle, apparently insuperable standard’’); id. the disfavored party were ‘‘being ‘entirely at 344–45, 124 S.Ct. 1769 (Souter, J., dis- ignore[d]’ by their congressional represen- senting) (rejecting Bandemer effects test tatives’’ (third alteration in original) (quot- on grounds that it ‘‘required a demonstra- ing Bandemer, 478 U.S. at 132, 106 S.Ct. tion of such pervasive devaluation over 2797) ). As one commentator explained, such a period of time as to raise real doubt ‘‘by its impossibly high proof requirements that a case could ever be made out’’). the Court in Bandemer essentially elimi- In light of Vieth’s rejection of Bandem- nated political gerrymandering as a mean- er’s discriminatory effects test, there is an ingful cause of action, but only after it had absence of controlling authority regarding essentially declared the practice unconsti- the evidentiary burden a plaintiff must tutional.’’ John Hart Ely, Gerrymanders: meet to prove that the boundaries of a The Good, the Bad, and the Ugly, 50 Stan. particular district have the effect of dis- L. Rev. 607, 621 (1998); see also Samuel criminating against voters who are likely Issacharoff, Pamela S. Karlan & Richard to support a disfavored candidate or party. H. Pildes, The Law of Democracy 563 However, the Supreme Court’s two most (1998) (‘‘Bandemer has served almost ex- recent cases discussing partisan gerryman- clusively as an invitation to litigation with- dering—Gill and Arizona Independent Re- out much prospect of redress.’’). districting Commission—provide some In Vieth, all of the Justices rejected guidance regarding what a plaintiff must Bandemer’s discriminatory effects test. show to prove discriminatory effects re- COMMON CAUSE v. RUCHO 867 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) sulting from district lines drawn on the entrenchment, a plaintiff need not meet basis of invidious partisanship. In Gill, the Bandemer’s ‘‘apparently insuperable stan- Court held that the injury in a partisan dard,’’ id. at 312, 124 S.Ct. 1769 (Kennedy, vote dilution case ‘‘arises from the particu- J., concurring in the judgment), which re- lar composition of the voter’s own district, quired a showing that supporters of a dis- which causes his vote—having been packed favored party had been entirely ignored by or cracked—to carry less weight than it their representatives and for years had would in another, hypothetical district.’’ been frozen out of key aspects of the politi- 138 S.Ct. at 1931. Put differently, the ‘‘bur- cal process. Instead, a plaintiff must show den’’ giving rise to a partisan vote dilution that the dilution of the votes of supporters claim ‘‘arises through a voter’s placement of a disfavored party in a particular dis- in a ‘cracked’ or ‘packed’ district.’’ Id. trict—by virtue of cracking or packing—is Likewise, in Arizona Independent Redis- likely to persist in subsequent elections tricting Commission defined partisan ger- such that an elected representative from rymandering as, in part, ‘‘subordinates ad- the favored party in the district will not herents of one political party.’’ Ariz. State feel a need to be responsive to constituents Leg., 135 S.Ct. at 2658. Accordingly, the who support the disfavored party. lines of a particular district have the effect of discriminating against—or subordinat- 3. Lack of Justification ing—voters who support candidates of a [91, 92] The justification prong exam- disfavored party, if the district dilutes such ines whether districts’ discriminatory par- voters’ votes by virtue of cracking or packing. tisan effects are justified by a legitimate state districting interest or neutral expla- [89, 90] Arizona Independent Redis- nation. See Vieth, 541 U.S. at 307, 124 tricting Commission further defined parti- S.Ct. 1769 (Kennedy, J., concurring in the san gerrymandering as ‘‘entrenching a ri- judgment) (noting that ‘‘[a] determination val party in power.’’ Ariz. State Leg., 135 that a gerrymander violates the law’’ must S.Ct. at 2658. The Supreme Court’s refer- ‘‘rest TTT on a conclusion that [political] ence to entrenchment addresses another classifications TTT were applied in TTT a principal constitutional concern with parti- way unrelated to any legitimate legislative san gerrymandering—that it insulates leg- objective’’); Bandemer, 478 U.S. at 141, islators from popular will and renders 106 S.Ct. 2797 (‘‘If there were a discrimi- them unresponsive to portions of their con- natory effect and a discriminatory intent, stituencies. See Reynolds, 377 U.S. at 565, 84 S.Ct. 1362 (‘‘Since legislatures are re- then the legislation would be examined for sponsible for enacting laws by which all valid underpinnings.’’). As a general mat- citizens are to be governed, they should be ter, once a plaintiff establishes a prima bodies which are collectively responsible to facie case that the boundaries of a chal- the popular will.’’). As the Supreme Court lenged district violate the Equal Protection explained with regard to racial gerryman- Clause, the burden shifts to the govern- ders, ‘‘[w]hen a district obviously is creat- mental defendant to prove that a legiti- ed solely to effectuate the perceived com- mate state interest or other neutral factor mon interests of one TTT group, elected justified such discrimination. See, e.g., Coo- officials are more likely to believe that per, 137 S.Ct. at 1464 (racial gerrymander- their primary obligation is to represent ing); Brown, 462 U.S. at 842–43, 103 S.Ct. only the members of that group, rather 2690 (one-person, one-vote). Plaintiffs con- than their constituency as a whole.’’ Shaw tend—and Legislative Defendants do not I, 509 U.S. at 648, 113 S.Ct. 2816. To prove dispute—that the same burden-shifting ap- 868 318 FEDERAL SUPPLEMENT, 3d SERIES

proach applies in partisan gerrymandering tory intent, discriminatory effects, and lack cases.25 Accordingly, once a plaintiff estab- of justification. Then, we evaluate Plain- lishes a prima facie case of partisan vote tiffs’ district-specific evidence bearing on dilution, the burden shifts to the defendant each of the three prongs of a partisan vote to prove that a district’s or districts’ dis- dilution claim. criminatory effects are attributable to a legitimate state interest or other neutral 1. Statewide Evidence explanation. a. Intent B. APPLICATION [94] The record in this case reflects [93] Having laid out the legal frame- that a wealth of statewide evidence proves work for a evaluating Plaintiffs’ partisan the General Assembly’s predominant in- vote dilution claim under the Equal Pro- tent to ‘‘subordinate’’ the interests of non- tection Clause, we now must determine Republican voters and ‘‘entrench’’ Republi- whether Plaintiffs’ evidence establishes can domination of the state’s congressional that any, some, or all of the thirteen dis- delegation. In particular, we find that the tricts in the 2016 Plan constitute partisan following evidence proves the General As- gerrymanders. Although partisan vote di- sembly’s predominant discriminatory in- lution claims, like racial gerrymandering tent: (i) the facts and circumstances sur- claims, must proceed on a district-by-dis- rounding the drawing and enactment of trict basis, Gill, 138 S.Ct. at 1930 (majority the 2016 Plan, (ii) empirical analyses of the op.), Plaintiffs can—and do—rely on state- 2016 Plan, and (iii) the discriminatory par- wide evidence to prove their partisan vote tisan intent motivating the 2011 Plan, dilution claims, see Ala. Leg. Black Caucus which the General Assembly expressly v. Alabama, ––– U.S. ––––, 135 S.Ct. 1257, sought to carry forward when it drew the 1265, 191 L.Ed.2d 314 (2015) (‘‘Voters, of 2016 Plan. course, can present statewide evidence in order to prove racial gerrymandering in a i. particular district.’’); Gill, 138 S.Ct. at 1937 (Kagan, J., concurring) (stating that when [95] Several aspects of the 2016 redis- district court, on remand, considers merits tricting process establish that the General of partisan vote dilution claim under the Assembly sought to advance the interests Equal Protection Clause, ‘‘it can consider of the Republican Party at the expense of statewide (as well as local) evidence’’). Ac- the interests of non-Republican voters. cordingly, applying the legal framework First, Republicans had exclusive control set forth above, we first consider Plaintiffs’ over the drawing and enactment of the statewide evidence bearing on discrimina- 2016 Plan. The Committee’s Republican

25. The district court in Gill expressly declined that the burden on the justification prong to determine whether, at the justification in- rested with the plaintiffs, Whitford v. Nichol, quiry, the burden shifts to the government 180 F.Supp.3d 583, 599 (W.D. Wis. 2016) defendant to prove that a districting plan’s (summary judgment order), Legislative Defen- discriminatory partisan effects were attribut- dants have not argued that Plaintiffs have the able to a legitimate state interest. 218 burden to prove that 2016 Plan’s discrimina- F.Supp.3d at 911. As explained above, the tory partisan effects were not justified by a burden-shifting approach taken by the Su- legitimate state interests. Nevertheless, we preme Court in analogous Equal Protection find that even if the burden lies with Plain- cases counsels in favor of placing the burden tiffs, Plaintiffs have propounded sufficient evi- on Legislative Defendants. And unlike the de- dence of the 2016 Plan’s lack of justification fendants in Whitford, who expressly argued to meet such a burden. COMMON CAUSE v. RUCHO 869 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

leadership and majority denied Democratic favor voters who support Republican can- legislators access to the principal map- didates and subordinate the interests of drawer, Dr. Hofeller. Ex. 1011, at 36:9–20; voters who support non-Republican candi- Ex. 1014, at 44:23–45:15; Ex. 2008. And dates. Ex. 1007 (emphasis added). More- with the exception of one small change to over, the Partisan Advantage criterion re- prevent the pairing of Democratic incum- flects an express intent to entrench the bents, Dr. Hofeller finished drawing the Republican supermajority in North Car- 2016 Plan before Democrats had an oppor- olina’s congressional delegation by seeking tunity to participate in the legislative pro- to ‘‘maintain’’ the partisan make-up of the cess. Additionally, all of the key votes— delegation achieved under the unconstitu- including the Committee votes adopting tional 2011 Plan. Id. the Political Data and Partisan Advantage The official explanation of the purpose criteria and approving the 2016 Plan, and behind that criterion by Representative the House and Senate votes adopting the Lewis—who co-chaired the Committee 2016 Plan—were decided on a party-line basis. Ex. 1008, at 12:3–7, 67:10–72:8; Ex. and, in that capacity, developed the 1011, at 110:13–22; Ex. 1016, at 81:6–16. As Adopted Criteria and oversaw the drawing the Bandemer plurality recognized, when a of the 2016 Plan—demonstrates as much. single party exclusively controls the redis- Representative Lewis explained that ‘‘to tricting process, ‘‘it should not be very the extent [we] are going to use political difficult to prove that the likely political data in drawing this map, it is to gain consequences of the reapportionment were partisan advantage.’’ Ex. 1005 at 54; see intended.’’ Bandemer, 478 U.S. at 129, 106 also Ex. 1016, at 29:12–13 (‘‘We did seek a S.Ct. 2797 (plurality op.); Pope, 809 partisan advantage in drawing the map.’’ F.Supp. at 396. (Statement of Rep. Lewis) ). To that end, Second, the legislative process ‘‘[d]e- the Partisan Advantage criterion required part[ed] from the normal procedural se- ‘‘draw[ing] lines so that more of the whole quence.’’ Arlington Heights, 429 U.S. at VTDs voted for the Republican on the 267, 97 S.Ct. 555. Representative Lewis ballot than they did the Democrat,’’ he and Senator Rucho instructed Dr. Hofeller explained. Ex. 1005, 57:10-16. And Repre- regarding the criteria he should follow in sentative Lewis ‘‘acknowledge[d] freely drawing the 2016 Plan before they had that this would be a political gerryman- been appointed co-chairs of the Committee der,’’ Id. at 48:4–5—a sentiment with and before the Committee debated and which Senator Rucho ‘‘s[aw] nothing adopted those criteria. Lewis Dep. 77:7–20. wrong,’’ Rucho Dep. 118:20–119:10. Indeed, Dr. Hofeller completed drawing Fourth, the process Dr. Hofeller fol- the 2016 Plan before the Committee met lowed in drawing the 2016 Plan, in accor- and adopted the governing criteria. Id. dance with Representative Lewis and Sen- And notwithstanding that the Committee ator Rucho’s instructions, reflected the held public hearings and received public General Assembly’s intent to discriminate input, Dr. Hofeller never received, much against voters who were likely to support less considered, any of that input in draw- non-Republican candidates. In particular, ing the 2016 Plan. Rucho Dep. 55:4–56:13; in accordance with the Political Data crite- Hofeller Dep. 177:9–21. rion, Dr. Hofeller used past election re- Third, the plain language of the ‘‘Parti- sults—which Dr. Hofeller, Representative san Advantage’’ criterion reflects an ex- Lewis, and Senator Rucho agree serve as press legislative intent to discriminate—to the best predictor of whether a geographic 870 318 FEDERAL SUPPLEMENT, 3d SERIES area is likely to vote for a Republican or assess the partisan performance of the Democratic candidate, Ex. 1016, at 30:23– plan on a district-by-district basis and as a 31:3; Hofeller Dep. 25:1–17; Rucho Dep. whole. Id. at 247:19–23; Hofeller Dep. II 95:15–16—to create a composite partisan- 283:15–22, 284:20–285:4. Based on that re- ship variable indicating whether, and to view, Dr. Hofeller would convey his assess- what extent, a particular precinct was like- ment of the partisan performance of the ly to support a Republican or Democratic plan to Representative Lewis. Hofeller candidate, Hofeller Dep. II 262:21–24, Dep. II 290:17–25. The evidence estab- 267:5–6. Of particular relevance to the lishes that Representative Lewis’s apprais- mapdrawers’ intent to draw a plan that al of the various draft plans provided by would favor Republicans for the remainder Dr. Hofeller focused on such plans’ likely of the decade, Dr. Hofeller testified that he partisan performance. Representative believed that because ‘‘the underlying po- Lewis admitted as much during debate on litical nature of the precincts in the state the proposed map, stating that he believed does not change,’’ his composite partisan- ‘‘electing Republicans is better than elect- ship variable indicated whether a particu- ing Democrats,’’ and therefore that he lar precinct would be a ‘‘strong Democratic ‘‘drew this map in a way to help foster’’ the precinct [or Republican precinct] in every election of Republican candidates. Ex. subsequent election.’’ Ex. 2045, at 525:14– 1016, at 34:21–23. And Representative 17 (emphasis added); see also Hofeller Lewis testified that when he assessed the Dep. II 274:9–12 (explaining partisan char- draft plans, ‘‘[n]early every time’’ he used acteristics of particular VTD, as reflected the results from North Carolina’s 2014 in Dr. Hofeller’s composite partisanship Senate race between Senator Thom Tillis variable, are likely to ‘‘carry TTT through a and former Senator Kay Hagan to evalu- string of elections’’). ate the plans’ partisan performance in ‘‘fu- Dr. Hofeller then used the partisanship ture elections.’’ Lewis Dep. 63:9–64:17. variable to assign a county, VTD, or pre- ii. cinct ‘‘to one congressional district or an- We also find that empirical evidence re- other,’’ Hofeller Dep. 106:23–107:1, 132:14– veals that the 2016 Plan ‘‘bears more 20, and ‘‘as a partial guide’’ in deciding heavily on [supporters of candidates of one whether and where to split VTDs, munici- party] than another.’’ Washington, 426 palities, or counties, id. 203:4–5; Hofeller U.S. at 242, 96 S.Ct. 2040. In particular, Dep. II 267:10–17. For example, Dr. Hofel- two empirical analyses introduced by ler split—or, in redistricting parlance, Plaintiffs demonstrate that the pro-Repub- ‘‘cracked’’—the Democratic city of Ashe- lican partisan advantage achieved by the ville between Republican Districts 10 and 2016 Plan cannot be explained by the Gen- 11 and the Democratic city of Greensboro eral Assembly’s legitimate redistricting ob- between Republican Districts 6 and 13. Ex. jectives, including legitimate redistricting 4066, 4068. And Dr. Hofeller drew the objectives that take into account partisan Districts 4 and 12 to be ‘‘predominantly considerations. Democratic,’’ Hofeller Dep. 192:7–12, by Dr. Jonathan Mattingly, a mathematics concentrating—or ‘‘packing’’—Democratic and statistics professor at Duke University voters in Durham, Mecklenburg, and and an expert in applied computational Wake Counties in those two districts, Ex. mathematics, drew an ensemble of 24,518 4070, Ex. 4072. simulated districting plans from a proba- After drawing a draft plan, Dr. Hofeller bility distribution of all possible North then would use his partisanship variable to Carolina congressional redistricting plans. COMMON CAUSE v. RUCHO 871 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

Ex. 3002, at 9–10. To create the ensemble, cal subdivisions, and, potentially, compli- Dr. Mattingly programmed a computer ance with the Voting Rights Act, as ‘‘legiti- first to draw a random sample of more mate’’ considerations for deviations from than 150,000 simulated plans using a Mar- population equality in state redistricting kov chain Monte Carlo algorithm—a wide- plans), and nearly all non-partisan criteria ly employed statistical method used in a adopted by the Committee, see Ex. 1007. 26 variety of settings —that randomly per- After constructing the 24,518-plan en- turbed the lines of an initial districting semble, Dr. Mattingly analyzed the parti- 27 plan to generate successive new plans. san performance of the 2016 Plan relative Id. at 13–15. The computer algorithm then to the plans in his ensemble using pre- eliminated from the 150,000 plan sample cinct-level actual votes from North Car- all ‘‘unreasonable’’ districting plans—plans olina’s 2012 and 2016 congressional elec- with noncontiguous districts, plans with tions.30 Dr. Mattingly’s analysis, therefore, population deviations exceeding 0.1 per- ‘‘assumed that the candidate does not mat- cent, plans that were not reasonably com- ter, that a vote for the Democrat or Re- pact under common statistical measures of publican will not change, even after the compactness, plans that did not minimize districts are rearranged.’’ Ex. 3002, at 23. the number of county and VTD splits, and Dr. Mattingly found that 0.36 percent plans that did not comply with the Voting (89/24,518) of the plans yielded a congres- Rights Act 28—yielding the 24,518-plan en- sional delegation of 9 Republicans and 4 semble.29 Id. at 15–17. The criteria Dr. Democrats—the outcome that would have Mattingly used to eliminate ‘‘unreason- occurred under the 2016 Plan—when he able’’ plans from his sample reflect tradi- evaluated the ensemble using actual 2012 tional redistricting criteria, see Harris, 136 votes. Id. at 3; Ex. 3040, at 7. The ensem- S.Ct. at 1306 (recognizing compactness, ble most frequently yielded plans that contiguity, maintaining integrity of politi- would have elected 7 (39.52%) or 6

26. Dr. Mattingly testified that the Markov at least 33.5 percent. Trial Tr. I, at 41:23–25. chain Monte Carlo algorithm was developed Dr. Mattingly chose those thresholds because as part of the Manhattan Project and is widely they were comparable to the BVAP percent- used for a variety of purposes, including drug ages in the two highest BVAP districts in the development, weather forecasting, and ma- 2016 Plan. Id. at 42:2–11. chine learning. Trial Tr. I, at 41:4–8. 29. 27. To ensure the choice of initial districting To test the robustness of his results to plan did not impact his results, Dr. Mattingly changes in his exclusion criteria, Dr. Matting- conducted his analysis using three different ly re-ran his analyses using an ensemble of initial plans: (1) the 2011 Plan, (2) the 2016 more than 119,000 simulated maps. Ex. 3040, Plan, and (3) a plan drawn by a bipartisan at 31–32. The partisanship results he obtained group of retired North Carolina judges who using the larger ensemble mirrored those observed as a simulated nonpartisan districting tained using the smaller ensemble. Id.; Trial commission. Ex. 3004, at 27; Trial Tr. I, at Tr. I, at 77:20–79:15. 87:5-88:11. Dr. Mattingly found that the choice of initial plan did not impact his prin- 30. Dr. Mattingly reasonably excluded the re- cipal findings. Ex. 3004, at 27; Trial Tr. I, at sults from the 2014 election because one of 87:5-88:11. the candidates in that election ran unopposed, meaning that there were no votes in that 28. Dr. Mattingly’s algorithm ensured compliance with the Voting Rights Act by requiring district from a contested election to use in that any simulated plan included in the final performing his analysis. Ex. 3002, at 23. Leg- ensemble include one district with a black islative Defendants took no issue with this voting-age population (‘‘BVAP’’) of at least 40 methodological choice. percent and a second district with a BVAP of 872 318 FEDERAL SUPPLEMENT, 3d SERIES

(38.56%) Republicans. Ex. 3002, at 4; Ex. shaped’’ form, which Dr. Mattingly charac- 3040, at 7. Using actual 2016 congressional terized as ‘‘the signature of gerrymander- votes, a congressional delegation of 10 Re- ing,’’ because the 2016 Plan places ‘‘signifi- publicans and 3 Democrats—the outcome cantly more Democrats in the three most that occurred under the 2016 Plan—oc- Democratic districts and fairly safe Repub- curred in less than 0.7 percent of the sim- lican majorities in the first eight most ulated plans (162/24,518), with a delegation Republican districts.’’ Ex. 3002, at 8; Ex. of 8 Republicans and 5 Democrats occur- 3040, at 18, 30, 39; Trial Tr. I, 35:19–22 ring in approximately 55 percent of the (‘‘[T]here were clearly many, many more plans. Ex. 3040 at 19. Put differently, us- Democrats packed into those Democratic ing both actual 2012 or 2016 votes, more districts [in the 2016 Plan]; and on the than 99 percent of the 24,518 simulated other hand, that allowed there to be many maps produced fewer Republican seats more Republicans in the next group of than the 2016 Plan. Trial Tr. I, at 35:9–10. districts.’’). Using 2012 votes, for example, Dr. Mattingly’s analysis of the simulated the percentage of votes cast for Democrat- plans also demonstrated that the General ic candidates in the three most Democratic Assembly ‘‘cracked’’ and ‘‘packed’’ Demo- districts (Districts 12, 4, and 1) in the 2016 cratic voters. Dr. Mattingly ordered the 13 Plan was significantly higher than the per- congressional districts in each of the 24,- centage of votes cast for Democratic candi- 518 simulated plans from lowest to highest dates in the three most Democratic dis- based on the percentage of Democratic tricts in the 24,518 plan sample, and the votes that would have been cast in the percentage of votes cast for Democratic districts in the 2012 and 2016 elections. Ex. candidates in the eighth through tenth 3002, at 5–7. When analyzed using the most Democratic districts (Districts 9, 2, results of both the 2012 and 2016 election, and 13) was significantly lower than in the the medians of the Democratic vote share equivalent districts in the ensemble. Ex. in each of the 13 districts ‘‘form a relative- 3002, at 6-7; Ex. 3040, at 29–30. And the ly straight, gradually increasing line from percentage of votes cast for Democratic the most Republican district TTT to the candidates in the sixth and seventh most most Democratic.’’ Id. at 7; Ex. 3040, at 18, Democratic district was below that of 75 30, 39. An identical plot of the Democratic percent of the plans in the ensemble. Ex. vote percentages under a plan drawn by a 3040, at 29–30; see also Trial Tr. I, at 60:6– bipartisan commission of former judges 23 (describing the sixth through thirteenth took on the same, gradually increasing lin- most Republican districts in 2016 Plan as ear form. Ex. 3040, at 18, 30, 39. ‘‘extreme outliers’’ relative to the simulat- By contrast, when Dr. Mattingly con- ed plans). Dr. Mattingly found the same ducted the same analysis using the 2016 pattern of packing Democratic voters in Plan, he found that the line connecting the the three most Democratic districts when medians of the Democratic vote share in he used the votes from the 2016 election. each of the 13 districts took on an ‘‘S- Ex. 3002, at 6-7. COMMON CAUSE v. RUCHO 873 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

Figure 1: The ‘‘signature’’ was ‘‘[m]uch, much less advantageous to of gerrymandering Republicans.’’ Id. Dr. Mattingly performed To determine whether the 2016 Plan’s a number of additional analyses to validate pro-Republican bias could have resulted his results by assessing their sensitivity to from chance, Dr. Mattingly analyzed how changes in his model—including seeking to ‘‘slight[ ]’’ changes in the boundaries of the reduce the number of county splits in his districts in the 2016 Plan impacted the sample, reducing the population deviation plan’s partisan performance. Trial Tr. I, at threshold, and altering the compactness 36:3–12. That analysis found that ‘‘when threshold—all of which confirmed the ro- [he] shifted just as little as 10 percent of bustness of his results.31 Ex. 3040, at 35– the boundary,’’ the new map produced a 38; Trial Tr. I, at 83:23–84:1, 85:9–20, ‘‘very, very different’’ partisan result that 85:21–86:24.

31. At trial, Common Cause Plaintiffs asked those analyses on grounds that they had not Dr. Mattingly to testify to the results of sever- been disclosed prior to trial. Trial Tr. I, at al additional sensitivity and robustness analy- 139:7-9. We sustain Legislative Defendants’ ses he performed, all of which confirmed his objection, see Fed. R. Civ. P. 26(a)(2)(B), principal findings. Trial Tr. I, at 139:19- 26(e)(1)(A), and therefore do not consider that 141:12. Legislative Defendants objected to evidence. 874 318 FEDERAL SUPPLEMENT, 3d SERIES

Based on his principal analyses and sen- Mattingly’s analysis that the packing and sitivity and robustness tests, Dr. Mattingly cracking of non-Republican voters had to concluded that the 2016 Plan is ‘‘heavily have been the product of an intentional gerrymandered’’ and ‘‘dilute[s] the votes’’ legislative effort reinforces that conclusion. of supporters of Democratic candidates. And Dr. Mattingly’s finding that the 2016 Ex. 3002, at 9. He further concluded that Plan produced ‘‘safe Republican majorities the General Assembly could not ‘‘have cre- in the first eight most Republican dis- ated a redistricting plan that yielded [the tricts,’’ Ex. 3002, at 8, shows that the pro-Republican] results [of the 2016 Plan] General Assembly intended for the parti- unintentionally.’’ Trial Tr. I, at 62:9–12; see san advantage to persist. That the 2016 also id. at 73:8–9 (stating the pro-Republi- Plan’s intentional pro-Republican bias ex- can partisan results of the 2016 Plan, when ists when Dr. Mattingly used the actual analyzed using 2016 votes, ‘‘would be es- votes from both 2012 (a relatively good sentially impossible to generate random- year for Democrats) and 2016 (a relatively ly’’); id. at 92:24–93:8 (opining that 2016 good year for Republicans) also speaks to Plan was ‘‘specifically tuned’’ to achieve a the imperviousness of the 2016 Plan’s par- pro-Republican ‘‘partisan advantage’’). And tisan advantage to changes in candidates Dr. Mattingly further opined ‘‘that it’s ex- and the political environment. tremely unlikely that one would have pro- Dr. Chen, a political science professor at duced maps that had that level of packing the University of Michigan and expert in here and that level of depletion [of Demo- political geography and redistricting, also cratic votes] here unintentionally or using evaluated the 2016 Plan’s partisan per- nonpartisan criteria.’’ Id. at 71:24–72:2. formance relative to simulated districting We find that Dr. Mattingly’s analyses, plans. Trial Tr. I, at 157:2–4. But rather which he confirmed through extensive sen- than creating a representative ensemble of sitivity testing, provide strong evidence districting plans by randomly perturbing that the General Assembly’s predominant an initial plan, as Dr. Mattingly did, Dr. intent in drawing the 2016 Plan was to Chen created a computer algorithm to dilute the votes of voters likely to support draw three random sets of 1,000 simulated Democratic candidates and entrench the districting plans that comply with specific Republican Party in power. In particular, criteria.32 Ex. 2010, at 2. To determine given that 99 percent of Dr. Mattingly’s ‘‘whether the distribution of partisan out- 24,518 simulated plans—which conformed comes created by the [2016 Plan] could to traditional redistricting criteria and the have plausibly emerged from a non-parti- non-partisan criteria adopted by the Com- san districting process,’’ id. at 4, Dr. Chen, mittee—would have led to the election of like Dr. Mattingly, then analyzed the parti- at least one additional Democratic candi- san performance of the 2016 Plan relative date, we agree with Dr. Mattingly’s conclu- to the plans in his three 1,000-plan samples sion that the 2016 Plan’s pro-Republican using precinct-level election results, id. at bias is not attributable to a legitimate re- 9. Unlike Dr. Mattingly, who used results districting objective, but instead reflects from North Carolina’s 2012 and 2016 con- an intentional effort to subordinate the gressional elections, Dr. Chen used two interests of non-Republican voters. Dr. equally-weighted averages of precinct-level

32. To draw a random sample of simulated accordance with the governing criteria, ‘‘by plans, Dr. Chen’s algorithm builds each sim- adding adjacent VTDs until you construct an ulated plan by randomly selecting a VTD and entire first district.’’ Trial Tr. I, at 163:19-25. then ‘‘building outward’’ from that VTD, in COMMON CAUSE v. RUCHO 875 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) votes cast in previous statewide elections: ed that ‘‘the [2016 Plan] is an extreme (1) the seven statewide elections Dr. Hofel- partisan outlier when compared to valid, ler included in his composite partisanship computer-simulated districting plans’’ and variable and (2) the twenty elections in- that the Committee’s ‘‘partisan goal—the cluded in the Committee’s Political Data creation of 10 Republican districts—pre- criterion. Id. at 9–10. As the Fourth Cir- dominated over adherence to traditional cuit explained, ‘‘Dr. Chen’s computer sim- districting criteria.’’ Id. at 10–11. ulations are based on the logic that if a To test whether the Committee’s goal of computer randomly draws [1,000] redis- protecting incumbents called into question tricting plans following traditional redis- the validity of his results, Dr. Chen next tricting criteria, and the actual enacted programmed his computer to draw maps plan[ ] fall[s] completely outside the range that adhered to the requirements it used of what the computer has drawn [in terms to draw the first set of simulated maps, of partisanship], one can conclude that the and also to not pair in a single district any traditional criteria do not explain that en- of the 13 incumbents elected under the acted plan.’’ Raleigh Wake Citizens Ass’n, 2011 Plan. Id. at 15. By comparison, the 827 F.3d at 344. 2016 Plan paired 2 of the 13 incumbents Dr. Chen programmed the computer to elected under the 2011 Plan. Id. Like the draw the first set of districting plans to first set of simulations, the second set of follow what he deemed to be the non- simulated plans split the same or fewer partisan criteria included in the Commit- counties and VTDs as the 2016 Plan and tee’s Adopted Criteria: population equality, improved the compactness of the 2016 Plan contiguity, minimizing county and VTD under the Reock and Popper-Polsby meas- splits, and maximizing compactness. Id. at ures. Id. at 18. Dr. Chen again found that 6. The 1,000 simulated plans generated by none of the 1,000 plans yielded a congres- the computer split the same or fewer coun- sional delegation of 10 Republicans and 3 ties and VTDs as the 2016 Plan and signifi- Democrats—the outcome that would have cantly improved the compactness of the occurred under the 2016 Plan—when he 2016 Plan under the Reock and Popper- evaluated the sample using Dr. Hofeller’s Polsby measures of compactness. Id. at 6– seven-election average. Id. at 16–17. A ma- 7. Dr. Chen found that none of the 1,000 jority of the plans included in the sample plans yielded a congressional delegation of (52.9%) would have elected 7 Republicans. 10 Republicans and 3 Democrats—the out- Id. at 16. Using the twenty elections in the come that would have occurred under the Adopted Criteria, a congressional delega- 2016 Plan—when he evaluated the sample tion of 10 Republicans and 3 Democrats using Dr. Hofeller’s seven-election aver- again occurred in none of the simulated age. Id. at 13–14. The sample most fre- plans, with a delegation of 6 (50.3%) or 7 quently yielded plans that would have (30.6%) Republicans occurring most fre- elected 6 (32.4%) or 7 (45.6%) Republicans. Id. at 13. Using the results of the twenty quently. Id. Based on these results, Dr. elections referenced in the Adopted Crite- Chen concluded that the General Assem- ria, a congressional delegation of 10 Re- bly’s desire to avoid pairing incumbents publicans and 3 Democrats—the outcome did not explain the 2016 Plan’s pro-Repub- that would have occurred under the 2016 lican partisan advantage. Id. at 18–19. Plan—again occurred in none of the sim- To further test the validity of his results, ulated plans, with a delegation of 6 (52.5%) Dr. Chen’s third set of simulations sought Republicans occurring most frequently. Id. to match the number of split counties (13) Based on these results, Dr. Chen conclud- and paired incumbents (2) in the 2016 876 318 FEDERAL SUPPLEMENT, 3d SERIES

Plan, rather than minimize such criteria. goal TTT of creating a ten Republican map, Id. at 19–20. Adhering to these character- not only predominated [in] the drawing of istics of the 2016 Plan did not meaningfully the map, but it subordinated the nonparti- alter Dr. Chen’s results. In particular, he san portions of the Adopted Criteria,’’ in- again found that none of the 1,000 plans cluding the goals of increasing compact- yielded a congressional delegation of 10 ness and avoiding county splits. Trial Tr. I, Republicans and 3 Democrats—the out- at 158:20–159:2 (emphasis added). come that would have occurred under the [96] Like Dr. Mattingly’s analyses, we 2016 Plan—when he evaluated the sample find that Dr. Chen’s analyses provide com- using Dr. Hofeller’s seven-election aver- pelling evidence that the General Assem- age. Id. at 21–22. A majority of the plans bly’s predominant intent in drawing and included in the sample (53%) would have enacting the 2016 Plan was to subordinate elected 7 Republicans. Id. at 21. Using the the interests of non-Republican voters and twenty elections in the Adopted Criteria, a entrench Republican congressmen in of- congressional delegation of 10 Republicans fice. In particular, we find it significant and 3 Democrats again occurred in none of that none of the 3,000 simulated districts the simulated plans, with a delegation of 6 plans generated by Dr. Chen’s computer Republicans and 7 Democrats occurring algorithm, which conformed to all of the most frequently (52.3%). Id. Based on traditional nonpartisan districting criteria these results, Dr. Chen concluded that the adopted by the Committee, produced a General Assembly’s decision not to mini- congressional delegation containing 10 Re- mize the number of county splits or paired publican and 3 Democrats—the result the incumbents could not ‘‘have justified the General Assembly intended the 2016 Plan plan’s creation of a 10-3 Republican advan- to create, and the result the 2016 Plan in tage.’’ Id. at 20. fact created. That the 2016 Plan continued Analyzing the results of his three sim- to be an ‘‘extreme statistical outlier’’ in ulation sets as a whole, Dr. Chen conclud- terms of its pro-Republican tilt under ed that the 2016 Plan ‘‘is an extreme sta- three separate specifications of criteria for tistical outlier in terms of its partisanship.’’ drawing the simulated plans reinforces our Trial Tr. I, at 213:22–23. He further con- confidence that Dr. Chen’s conclusions re- cluded ‘‘that the pursuit of that partisan flect stable and valid results.33

33. In his partial dissent, our colleague Judge General Assembly’s nonpartisan objectives, Osteen states that he does not find Dr. Chen’s Dr. Chen’s maps are ‘‘tantamount for all maps ‘‘as persuasive as the majority’’ because practical purposes to a mathematical demon- ‘‘Dr. Chen drafted [the] maps without consid- stration, that the legislation is solely con- eration to partisan interests,’’ notwithstanding cerned with’’ favoring the Republican party at that, according to Judge Osteen, a state legis- the expense of non-Republican voters and lative body may permissibly pursue some de- candidates. Gomillion, 364 U.S. at 341, 81 gree of partisan favoritism. Post at 953. We do S.Ct. 125. To be sure, given the direct evi- not believe the non-partisan nature of Dr. dence of the General Assembly’s invidious Chen’s maps undermines their probative force. To begin, we first rely on Dr. Chen’s partisan intent, Dr. Chen’s maps are less nec- (and Dr. Mattingly’s maps) to establish the essary to establish invidious intent in this General Assembly’s invidious partisan in- particular case. Nonetheless, even in the ab- tent—that the 2016 Plan ‘‘bears more heavily sence of the overwhelming direct evidence of on [supporters of candidates of one party] invidious discriminatory intent, Dr. Chen’s than another.’’ Washington, 426 U.S. at 242, maps offer a basis for establishing that the 96 S.Ct. 2040. By demonstrating that the General Assembly was predominantly moti- 2016 Plan amounts to an ‘‘extreme statistical vated by partisan considerations in drawing outlier’’ relative to plans that conform to the district lines. COMMON CAUSE v. RUCHO 877 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

Legislative Defendants raise two objec- essentially the same conclusion. As Legis- tions to Dr. Mattingly’s and Dr. Chen’s lative Defendants’ expert in congressional analyses, neither of which we find under- elections, electoral history, and redistrict- mines the persuasive force of their conclu- ing Sean Trende acknowledged,34 Trial Tr. sions. To begin, Legislative Defendants as- III, at 30:14-15, the sets of votes used by sert that Dr. Mattingly’s and Dr. Chen’s Dr. Mattingly and Dr. Chen included elec- analyses rest on the ‘‘baseless assumption’’ tions in which Republican candidates per- that ‘‘voters vote for the party, and not for formed well and elections in which Demo- individual candidates.’’ Leg. Defs.’ Br. 10– cratic candidates performed well, Ex. 5101, 11. Although we agree that the quality of at 25, 36 (describing 2008 election as a individual candidates may impact, to a cer- ‘‘Democratic wave’’ and 2010 election as a tain extent, the partisan vote share in a ‘‘Republican wave’’). The twenty-race aver- particular election, we do not find that this age used by Dr. Chen, in particular, en- assumption undermines the probative compassed forty race/candidate combina- force of the two simulation analyses, and tions occurring over four election cycles, for several reasons. meaning that it reflected a broad variety of To begin, we find it significant that Dr. candidates and electoral conditions. Given Mattingly and Dr. Chen used four differ- that Dr. Mattingly and Dr. Chen reached ent sets of actual votes—2012 and 2016 consistent results using data reflecting nu- congressional votes in Dr. Mattingly’s case merous candidates and races—and con- and the seven- and twenty-statewide race firmed those results in numerous sensitivi- averages in Dr. Chen’s case—and reached ty analyses—we believe that the strength

Additionally, as Justice Kennedy explained invidious partisanship predominated in the in Vieth, one of the two principle obstacles to drawing of the lines of a particular district. identifying a judicially manageable standard Nonetheless, when, as here, such evidence is for evaluating a partisan gerrymandering supported by district-specific evidence of claim is the absence of ‘‘any agreed upon cracking and packing, then it provides reli- model of fair and effective representation.’’ able and compelling evidence of discriminato- 541 U.S. at 307, 124 S.Ct. 1769. Put different- ry intent, discriminatory effects, and lack of ly, assuming as we do that some degree of justification. partisanship is permissible, there needs to be 34. Prior to trial, League Plaintiffs moved to a baseline from which to measure to what exclude Mr. Trende’s report and testimony degree a districting plan drawn on the basis under Federal Rule of Evidence 702 and Dau- of partisan favoritism deviates from the uni- bert. League of Women Voters Pls.’ Mot. in verse of ‘‘fair and effective’’ plans. Id. By Limine To Exclude the Testimony of Sean P. identifying the distribution of partisan out- Trende at trial, June 16, 2017, ECF No. 702. comes that occur in a randomly drawn set of This Court’s Final Pretrial Order denied the plans, Dr. Chen’s (and Dr. Mattingly’s) sim- motion, without prejudice to League Plaintiffs ulations provide a baseline measure of what asserting a similar objection at trial. Final constitutes ‘‘fair and effective’’ plans against Pretrial Order, Oct. 4, 2017, ECF No. 90. which courts can assess how much invidious League Plaintiffs renewed their motion to ex- partisanship is ‘‘too much’’ (in the event the clude Mr. Trende’s testimony at trial. Trial Tr. Supreme Court concludes that some degree of III, at 19:20–22. This Court took League unadorned partisan discrimination in permis- Plaintiffs’ objection under advisement and al- sible). When, as here, a districting plan is lowed Mr. Trende to testify. Id. at 30:2–21. standard deviations from the mean in terms We conclude that Mr. Trende’s training and of the partisan composition of the delegation experience render him qualified to provide it produces, that amounts to probative and expert testimony regarding congressional reliable statewide evidence that the plan rests elections, electoral history, and redistricting, on ‘‘too much’’ partisanship. To be sure, such and therefore overrule League Plaintiffs’ ob- evidence, standing alone, does not establish jection. 878 318 FEDERAL SUPPLEMENT, 3d SERIES

or weakness of individual candidates does relied in drawing the 2016 Plan. As Dr. not call into question their key findings. Hofeller—who has been involved in North That Dr. Chen found that the 2016 Plan Carolina redistricting for more than 30 produced a 10-Republican, 3-Democrat del- years, Ex. 2045, at 525:6–10—testified: egation using Dr. Hofeller’s seven-race av- ‘‘[T]he underlying political nature of the erage and the twenty-race average derived precincts in the state does not change no from the Adopted Criteria—the same par- matter what race you use to analyze it.’’ tisan make-up as the congressional delega- Ex. 2045, at 525:9–10 (emphasis added); tion elected by North Carolina voters in Hofeller Dep. 149:5–18. ‘‘So once a pre- the 2016 race—further reinforces our con- cinct is found to be a strong Democratic fidence that Dr. Mattingly’s and Dr. precinct, it’s probably going to act as a Chen’s assumption regarding the partisan strong Democratic precinct in every sub- behavior of voters did not materially im- sequent election. The same would be true pact their results. for Republican precincts.’’ Ex. 2045, at Second, Dr. Chen investigated the rea- 525:14–17; see also Hofeller Dep. II 274:9– sonableness of the assumption Legislative 12 (‘‘[I]ndividual VTDs tend to carry TTT Defendants challenge by analyzing his set the same characteristics through a string of simulated districting plans using VTD- of elections.’’ (emphasis added) ). Repre- specific predicted Republican and Demo- sentative Lewis, Senator Rucho, and the cratic vote shares generated by a regres- Committee agreed with Dr. Hofeller that, sion model. Ex. 2010, at 26–31. The regres- at least in North Carolina, past election sion model controlled for incumbency and results serve as the best predictor of turnout, factors correlated with candidate whether, and to what extent, a particular quality and electoral conditions. Id. at 27. precinct will favor a Democratic or Repub- Dr. Chen found that even when controlling lican candidate, Ex. 1016, at 30:23–31:2; for incumbency and turnout on a VTD-by- Rucho Dep. 95:15–16, and therefore di- VTD basis, over 67 percent of his simulat- rected Dr. Hofeller to use past election ed maps yielded a congressional delegation results to draw a plan that would elect 10 of 7 Republicans and 6 Democrats, and Republicans and 3 Democrats, see Ex. none of his maps produced a delegation of 1007. And Dr. Hofeller, Representative 10 Republicans and 3 Democrats—the out- Lewis, and the rest of the Committee re- come the 2016 Plan would have produced. lied on past election results—the same Id. at 36. Based on that finding, Dr. Chen election results upon which Dr. Chen re- reaffirmed his conclusion that the 2016 lied—in evaluating whether the 2016 Plan Plan ‘‘could have been created only achieved its partisan objective. Ex. 1017 through a process in which the explicit (spreadsheet Representative Lewis pre- pursuit of partisan advantage was the presented to the Committee, immediately be- dominant factor.’’ Id. at 30. fore it voted to approve the 2016 Plan, Third, and most significantly, Dr. Mat- showing the partisan performance of the tingly’s and Dr. Chen’s assumption that plan using votes cast in twenty previous Legislative Defendants characterize as statewide elections). ‘‘baseless’’—that the partisan characteris- Importantly, the past election results tics of a particular precinct do not materi- upon which Dr. Hofeller, Representative ally vary with different candidates or in Lewis, and the Committee relied to assess different races—is the same assumption the 2016 Plan involved different candi- on which the Committee, Representative dates—a composite of seven statewide Lewis, Senator Rucho, and Dr. Hofeller races in Dr. Hofeller’s case and the results COMMON CAUSE v. RUCHO 879 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) of the 2014 Tillis-Hagan Senate race in Committee, Ex. 1007, nor are any of these Representative Lewis’ case—than those criteria mentioned in the legislative record. who ran in the 2016 congressional elec- Additionally, both the Adopted Criteria tions. Legislative Defendants and the ex- and the legislative record expressly contra- pert mapdrawer they employed, therefore, dict the purported BVAP threshold criteri- believed that Dr. Mattingly’s and Dr. on, as the Adopted Criteria state that Chen’s allegedly ‘‘baseless’’ assumption ‘‘[d]ata identifying the race of individuals was sufficiently reasonable, at least in the or voters shall not be used in the construc- case of North Carolina, to rely on it to tion or consideration of districts,’’ Ex. 1007 draw the 2016 Plan. Likewise, Legislative (emphasis added), and Representative Defendants’ expert in American politics Lewis and Dr. Hofeller repeatedly dis- and policy, southern politics, quantitative claimed any reliance on race or effort to political analysis, and election administra- preserve BVAP percentages in the 2016 tion, Dr. M.V. Hood, III, conceded that he Plan, see, e.g., Ex. 1016 at 62:9–20; Hofel- relied on the same assumption in assess- ler Dep. 145:9–12, 146:4–146:8, 183:22– ing the likely partisan performance of the 184:8. And even if the General Assembly districts created by the 2016 Plan. Trial had implicitly adopted a BVAP threshold Tr. IV, at 11:8-12, 71:1–15 (acknowledging criterion—which the record proves it did that by averaging partisan results of past not—Dr. Mattingly’s analysis accounted elections with different candidates, as Dr. for that criterion by requiring that any Hofeller and Dr. Chen did, ‘‘candidate ef- simulated plan included in his final ensem- fects are going to average out so we’ll get ble include one district with a BVAP of at a pretty good fix on what the partisan least 40 percent and a second district with composition of an area is’’). In such cir- a BVAP of at least 33.5 percent. Trial Tr. cumstances, we cannot say that that as- I, at 41:23–25 sumption calls into question the significant probative force of Dr. Mattingly’s and Dr. [97, 98] The only two of the alleged Chen’s analyses, particularly given how ex- implicit criteria that find any support in treme a partisan outlier the 2016 Plan was the record of this case—the alleged crite- in each of the two analyses. ria requiring preservation of the ‘‘cores’’ of Legislative Defendants next contend the districts in the 2011 Plan and the that both sets of simulated maps fail to division of populous counties—are criteria account for a number of criteria implicitly that would serve to advance the General relied upon by the General Assembly, in- Assembly’s invidious partisan objective. By cluding: that more populous, rather than preserving the ‘‘cores’’ of the districts in less populous counties should be divided; the 2011 Plan, the General Assembly per- that the ‘‘core’’ of the 2011 Plan districts petuated the partisan effects of a district- should be retained; that a district line ing plan expressly drawn ‘‘to minimize the should not traverse a county line more number of districts in which Democrats than once; and that, to ensure compliance would have an opportunity to elect a Dem- with the Voting Rights Act, one district ocratic candidate.’’ Hofeller Dep. 127:19– should have a black voting age population 22. And the alleged criterion requiring di- (‘‘BVAP’’) of at least 42 percent and anoth- vision of populous counties—which is refer should have a BVAP of at least 35 erenced in a single line of an affidavit percent. Leg. Defs.’ FOF 78–86. provided by Dr. Hofeller after the trial, see None of these alleged criteria were Ex. 5116, at 5—effectively required ‘‘crack- among the seven criteria adopted by the ing’’ areas of Democratic strength because 880 318 FEDERAL SUPPLEMENT, 3d SERIES more populous counties tend to be Demo- ing effort coincided with the RSLC’s cratic whereas less populous counties tend REDMAP, in which Dr. Hofeller partici- to be Republican. This is precisely what pated and which sought to ‘‘solidify conser- the 2016 Plan did by dividing populous vative policymaking at the state level and Democratic counties like Buncombe and maintain a Republican stronghold in the Guilford. Exs. 4066, 4068. Given that most U.S. House of Representatives for the next of these alleged implicit criteria have no decade.’’ Ex. 2015, at ¶ 10; Ex. 2026, at 1 support in the record and the remaining (emphasis added). As chairs of the commit- purported criteria work hand-in-hand with tees responsible for drawing the 2011 Plan, the General Assembly’s partisan objective, Representative Lewis and Senator Rucho’s the omission of these purported criteria ‘‘primary goal’’ was ‘‘to create as many from Dr. Mattingly’s and Dr. Chen’s analy- districts as possible in which GOP candi- ses does not in any way call into question dates would be able to successfully com- the persuasive force of their results. pete for office.’’ Hofeller Dep. 123:1–7. De- fendants conceded as much in the Harris iii. litigation, in which Dr. Hofeller stated in [99] Finally, although we find the facts an expert report that ‘‘[p]olitics was the and analyses specifically relating to the primary policy determinant in the drafting 2016 Plan sufficient, by themselves, to es- of the TTT [2011] Plan.’’ Ex. 2035, at ¶ 23. tablish the General Assembly’s discriminatory intent, we further note that evidence To effectuate the General Assembly’s regarding the drawing and adoption of the partisan intent, Dr. Hofeller drew the 2011 2011 Plan also speaks to the General As- Plan ‘‘to minimize the number of districts sembly’s discriminatory intent in drawing in which Democrats would have an oppor- and enacting the 2016 Plan. Typically, it tunity to elect a Democratic candidate.’’ would be improper for a court to rely on Hofeller Dep. 127:19–22 (emphasis added). evidence regarding a different districting In particular, Dr. Hofeller ‘‘concentrat[ed]’’ plan in finding that a redistricting body Democratic voters in three districts, Ex. enacted a challenged plan with discrimina- 2043, at 33–34, and thereby ‘‘increase[d] tory intent. The ‘‘Partisan Advantage’’ cri- Republican voting strength’’ in five new terion proposed by the Chairs and adopted districts, Hofeller Dep. 116:19–117:25. No- by the Committee, however, expressly tably, the three districts in the 2011 Plan sought to carry forward the partisan ad- that elected Democratic candidates were vantage obtained by Republicans under the same three districts in the 2016 Plan the unconstitutional 2011 Plan. Ex. 1007 that elected Democratic candidates, and (‘‘The Committee shall make reasonable the ten districts in the 2011 Plan that efforts to construct districts in the 2016 elected Republican candidates were the TTT Plan to maintain the current partisan same ten districts in the 2016 Plan that makeup of North Carolina’s congressional elected Republican candidates. Exs. 1018– delegation.’’). Accordingly, to the extent 19. Additionally, when compared to his 24,- invidious partisanship was a motivating 518-plan ensemble, Dr. Mattingly found purpose behind the 2011 Plan, the Com- that the 2011 Plan also was ‘‘heavily engi- mittee expressly sought to carry for- neered’’ to favor Republican candidates, ward—and thereby entrench—the effects Ex. 3002, at 2, exhibiting ‘‘S-shaped curve’’ of that partisanship. that is ‘‘the signature of [partisan] gerry- As with the 2016 Plan, Republicans ex- mandering’’ as the 2016 Plan, Trial Tr. I, clusively controlled the drawing and adop- at 76:18–77:5; Ex. 3040, at 17–18. Accord- tion of the 2011 Plan. The 2011 redistrict- ingly, the 2016 Plan carried forward the COMMON CAUSE v. RUCHO 881 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

invidious partisan intent motivating the surely conclude the Constitution had been 2011 Plan. violated.’’). iv. That does not mean, however, that to Legislative Defendants nonetheless ar- establish a constitutional violation a plain- gue that the General Assembly failed to tiff must prove that a districting body act with the requisite discriminatory intent sought to maximize partisan advantage. for two reasons: (1) the General Assembly The Supreme Court does not require that did not seek to ‘‘maximize partisan advan- a redistricting plan maximally malappor- tage’’ and (2) the General Assembly ad- tion districts for it to violate the one- hered to a number of ‘‘traditional redis- person, one-vote requirement. Nor does tricting criteria,’’ such as compactness, the Supreme Court require that a redis- contiguity, and equal population. Neither tricting plan maximally disadvantage vot- argument, however, calls into question our ers of a particular race to constitute an finding that Plaintiffs satisfied their bur- unconstitutional racial gerrymander. And den as to the discriminatory intent re- in the context of partisan gerrymandering, quirement. in particular, Justice Kennedy has rejected [100] Legislative Defendants’ reliance a ‘‘maximization’’ requirement, explaining on the General Assembly’s purported lack that a legislature is ‘‘culpable’’ regardless of intent to ‘‘maximize partisan advantage’’ of whether it engages in an ‘‘egregious’’ fails as a matter of both law and fact. As a and ‘‘blatant’’ effort to ‘‘capture[ ] every matter of law, Legislative Defendants cite congressional seat’’ or ‘‘proceeds by a no authority, controlling or otherwise, stat- more subtle effort, capturing less than all ing that a governmental body must seek to seats.’’ Vieth, 541 U.S. at 316, 124 S.Ct. ‘‘maximize’’ partisan advantage in order to 1769. violate the Equal Protection Clause. To be Another basis for not imposing a maxim- sure, the Supreme Court has indicated ization requirement is that, in the context that evidence that a legislative body of a partisan gerrymander, what consti- sought to maximize partisan advantage tutes ‘‘maximum partisan advantage’’ is would prove that the legislature acted with elusive, and turns on political strategy de- discriminatory intent. See Gaffney, 412 cisions. A party may not seek to maximize U.S. at 751, 93 S.Ct. 2321 (‘‘A districting plan may create multimember districts the number of seats a redistricting plan perfectly acceptable under equal popula- could allow it to win in a particular election tion standards, but invidiously discrimina- because, by spreading out its supporters tory because they are employed to ‘mini- across a number of districts to achieve mize or cancel out the voting strength of such a goal, its candidates would face a racial or political elements of the voting greater risk of losing either initially or in population.’ ’’ (quoting Fortson v. Dorsey, subsequent elections. See Bernard Grof- 379 U.S. 433, 439, 85 S.Ct. 498, 13 L.Ed.2d man & Thomas Brunnell, The Art of the 401 (1965) ); Vieth, 541 U.S. at 316, 124 Dummymander, in Redistricting in the S.Ct. 1769 (Kennedy, J., concurring in the New Millennium 192–93 (Peter F. Galderi- judgment) (‘‘If a State passed an enact- si ed., 2005) (finding, for example, that ment that declared ‘All future apportion- North Carolina’s 1991 decennial redistrict- ment shall be drawn so as most to burden ing plan, which was drawn by a Democrat- Party X’s rights to fair and effective repre- controlled General Assembly, created dis- sentation, though still in accord with one- tricts with sufficiently narrow margins in person, one-vote principles,’ we would favor of expected Democratic voters that 882 318 FEDERAL SUPPLEMENT, 3d SERIES

Republicans were able capture seats later court would ‘‘throw’’ the plan out as per- in the decade). Accordingly, different par- petuating the constitutional violation. tisan redistricting bodies may have differ- Dr. Mattingly’s and Dr. Chen’s analyses ent perspectives on what constitutes maxi- further evidence that the 2016 Plan re- mum partisan advantage. flected an effort to maximize partisan ad- As a matter of fact, Plaintiffs presented vantage. In particular, when Dr. Mattingly compelling evidence that the General As- evaluated his 24,518-plan ensemble using sembly did seek to maximally burden vot- the votes cast in North Carolina’s 2012 ers who were likely to support non-Re- congressional election, none of the plans publican candidates. Most significantly, in produced an 11-2 pro-Republican partisan explaining the proposed Partisan Advan- advantage. Ex. 3040, at 7. And Dr. Mat- tage criterion to the Committee, Repre- tingly found the same result when he used sentative Lewis said that he ‘‘propose[d] votes from the 2016 election—none of the that [the Committee] draw the maps to simulated plans produced an 11-2 partisan give a partisan advantage to 10 Republi- advantage. Id. at 19. Likewise, regardless cans and 3 Democrats because [he] d[id] of whether Dr. Chen applied the seven- not believe it[ would be] possible to draw race formula used by Dr. Hofeller or the a map with 11 Republicans and 2 Demo- twenty-race formula adopted by the Com- crats.’’ Ex. 1005, at 50:7–10 (emphasis mittee, none of his 3,000 simulated plans added). Legislative Defendants assert that produced a 10-3 pro-Republican partisan this statement establishes that Represen- advantage, let alone an 11-2 partisan ad- tative Lewis did not draw the map to vantage. Ex. 2010, at 12, 16, 21, 36–37. maximize partisan advantage because he Finally, the facts and circumstances sur- did not believe that it would be possible to draw a plan that could elect 11 Republi- rounding the drawing and enactment of cans without violating other criteria, ‘‘such the 2011 Plan—the partisan effects of as keeping TTT counties whole and split- which the Committee expressly sought to ting fewer precincts.’’ Leg. Defs.’ Br. 5. carry forward in the 2016 Plan, Ex. 1007— Put differently, Legislative Defendants further establish that the General Assem- maintain that the 2016 Plan’s adherence to bly drew the 2016 Plan to maximize parti- other traditional redistricting criteria es- san advantage. In particular, Representa- tablishes that the General Assembly did tive Lewis and Senator Rucho’s ‘‘primar[y] not pursue maximum partisan advantage. goal’’ in drawing the 2011 Plan was ‘‘to Id. create as many districts as possible in which GOP candidates would be able to But Representative Lewis acknowledged successfully compete for office.’’ Hofeller during his deposition that had the 2016 Dep. 123:1–7 (emphasis added). And, in Plan split a large number of precincts and accordance with that goal, Dr. Hofeller counties, as the 2011 Plan did, there was a testified that he drew the plan ‘‘to mini- significant risk that the Harris court mize the number of districts in which would ‘‘throw it out’’ on grounds that it Democrats would have an opportunity to failed to remedy the racial gerrymander. elect a Democratic candidate.’’ Id. at Lewis Dep. 166:13–168:8. Accordingly, 127:19–22 (emphasis added). Representative Lewis’s testimony indicates that he believed the 2016 Plan offered the [101] Nor does the General Assembly’s maximum lawful partisan advantage—the reliance on a number of traditional redis- maximum partisan advantage that could be tricting criteria undermine our finding that obtained without risking that the Harris invidious partisan intent motivated the COMMON CAUSE v. RUCHO 883 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

2016 Plan. As a matter of law, the Su- taining the integrity of political subdivi- preme Court long has held that a state sions.’’ Harris, 136 S.Ct. at 1306. In partic- redistricting body can engage in unconsti- ular, Legislative Defendants’ expert Dr. tutional partisan gerrymandering even if it Hood conceded that the 2016 Plan divided complies with the traditional redistricting numerous political subdivisions, see, e.g., criterion of population equality. Gaffney, Trial Tr. IV, at 41:2–18, 42:6–43:4, includ- 412 U.S. at 751, 93 S.Ct. 2321. More re- ing the City of Asheville, Buncombe Coun- cently, the Supreme Court rejected an ty, Cumberland County, the City of Fay- identical argument in a racial gerryman- etteville, the City of Greensboro, Guilford dering case, holding that ‘‘inconsistency County, Johnston County, the City of between the [challenged] plan and tradi- Charlotte, Mecklenburg County, the City tional redistricting criteria is not a thresh- of Raleigh, and Wake County, Exs. 4066– old requirement’’ to establish such a claim. 72. Notably, the Committee voted, on a Bethune-Hill v. Va. State Bd. of Elections, party-line basis, against adopting a pro- ––– U.S. ––––, 137 S.Ct. 788, 799, 197 L.Ed.2d 85 (2017) (emphasis added). The posed criterion that would have directed rationale supporting the Bethune-Hill the mapdrawers to make reasonable ef- Court’s refusal to allow compliance with forts to respect the lines of political subdi- traditional redistricting criteria to immu- visions and preserve communities of inter- nize a plan from scrutiny under the Equal est. See Ex. 1006, at 27–28. The division of Protection Clause is equally compelling in political subdivisions allowed the General the partisan gerrymandering context. As Assembly to achieve its partisan objec- the Whitford Court explained in holding tives, by packing non-Republican voters in that compliance with traditional redistrict- certain districts and submerging non-Re- ing criteria is not a ‘‘safe harbor’’ from a publican voters in majority-Republican dis- partisan gerrymandering claim, ‘‘[h]ighly tricts. Trial Tr. IV, at 41:2–18, 42:6–43:4. sophisticated mapping software now allows lawmakers to pursue partisan advantage * * * * * without sacrificing compliance with tradi- In sum, we find that Plaintiffs’ statewide tional districting criteria.’’ 218 F.Supp.3d evidence establishes that the General As- at 889. ‘‘A map that appears congruent and sembly’s pursuit of partisan advantage compact to the naked eye may in fact be predominated over its non-partisan redis- an intentional and highly effective partisan tricting objectives. And given that Dr. gerrymander.’’ Id. Chen found that the General Assembly’s As a matter of fact, the 2016 Plan does desire to protect incumbents and express not conform to all traditional redistricting refusal to try to avoid dividing political principles. Although the plan is equipopu- subdivisions failed to explain the 2016 lous, contiguous, improves on the compact- Plan’s partisan bias, we find that Plaintiffs’ ness of the 2011 Plan, and reduces the evidence distinguishes between permissi- number of county and precinct splits rela- ble redistricting objectives that rely on tive to the 2011 Plan, a number of districts political data or consider partisanship, and in the 2016 Plan take on ‘‘bizarre’’ and what instead here occurred: invidious par- ‘‘irregular’’ shapes explicable only by the tisan discrimination. partisan make-up of the precincts the mapdrawers elected to place within and with- b. Effects out the districts. See infra Part III.B.2. [102] Having concluded that statewide The 2016 Plan also fails to adhere to the evidence establishes that the General As- traditional redistricting principle of ‘‘main- sembly’s predominant intent was to dis- 884 318 FEDERAL SUPPLEMENT, 3d SERIES criminate against voters who supported or thirteen-seat congressional delegation, were likely to support non-Republican whereas North Carolina voters cast 53.22 candidates and entrench Republican can- percent of their votes for Republican con- didates in office, we now turn to Plain- gressional candidates. Ex. 3022. Notably, tiffs’ statewide evidence of the 2016 Plan’s the district court in Gill found that less discriminatory effects. We find that Plain- significant disparities between the favored tiffs’ statewide evidence proves that the party’s seat-share and vote-share (60.7% v. 2016 Plan dilutes the votes of non-Repub- 48.6% and 63.6% v. 52%) provided evidence lican voters—by virtue of widespread of a challenged districting plan’s discrimi- cracking and packing—and entrenches natory effects. 218 F.Supp.3d at 901. As the State’s Republican congressmen in of- the court explained, ‘‘[i]f it is true that a fice. In reaching this conclusion we rely redistricting ‘plan that more closely re- on the following categories of evidence: (i) flects the distribution of state party power the results of North Carolina’s 2016 con- seems a less likely vehicle for partisan gressional election conducted using the discrimination,’ TTT then a plan that devi- 2016 Plan; (ii) expert analyses of those ates this strongly from the distribution of results revealing that the 2016 Plan ex- statewide power suggests the opposite.’’ hibits ‘‘extreme’’ partisan asymmetry; (iii) Id. at 902 (quoting LULAC, 548 U.S. at Dr. Mattingly’s and Dr. Chen’s simulation 419, 126 S.Ct. 2594 (opinion of Kennedy, analyses; and (iv) the results of North J.) ). Carolina’s 2012 and 2014 elections using The results of the 2016 election also the 2011 Plan—the partisan effects of reveal that the 2016 Plan ‘‘packed’’ and which the General Assembly expressly ‘‘cracked’’ voters who supported Republi- sought to carry forward when it drew the can candidates. In particular, in the three 2016 Plan—and empirical analyses of districts in which Democratic candidates those results. prevailed, the Democratic candidates received an average of 67.95 percent of the i. vote, whereas Republican candidates re- We begin with the results of North Car- ceived an average of 31.24 percent of the olina’s 2016 congressional election conduct- vote. See Ex. 3022. By contrast, in the ten ed under the 2016 Plan. The General As- districts in which Republican candidates sembly achieved its unambiguously stated prevailed, the Republican candidates re- goal: North Carolina voters elected a conceived an average of 60.27 percent of the gressional delegation of 10 Republicans vote, and Democratic candidates received and 3 Democrats. Exs. 1018, 3022. That an average of 39.73 percent of the vote. the 2016 Plan resulted in the outcome See id. Democratic candidates, therefore, Representative Lewis, Senator Rucho, Dr. consistently won by larger margins than Hofeller, and the General Assembly in- Republican candidates. Additionally, the tended proves both that the precinct-level Democratic candidate’s margin in the least election data used by the mapdrawers Democratic district in which a Democratic served as a reliable predictor of the 2016 candidate prevailed (34.04%) was nearly Plan’s partisan performance and that the triple that of the Republican candidate’s mapdrawers effectively used that data to margin in the least Republican district in draw a districting plan that perfectly which a Republican candidate prevailed achieved the General Assembly’s partisan (12.20%), see id., reflecting the ‘‘S-shaped objectives. curve’’ that Dr. Mattingly described as Following the 2016 election, Republicans ‘‘the signature of [partisan] gerrymander- hold 76.9 percent of the seats in the state’s ing,’’ Trial Tr. I, at 76:18–77:5. COMMON CAUSE v. RUCHO 885 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

And the results of the 2016 congression- assumed that votes shift in all districts by al election establish that the 2016 Plan’s the same amount. Id. Dr. Jackman found discriminatory effects—attributable to that ‘‘[i]f Democrats obtained a statewide, cracking and packing—likely will persist uniform swing of even six points—taking through multiple election cycles. To begin, Democratic share of the two-party vote to the Republican candidate’s vote share 52.7%—no seats would change hands rela- (56.10%) and margin of victory (12.20%) in tive to the actual 2016 results.’’ Id. at 59 the least Republican district electing a Re- (emphasis added). Accordingly, even if publican candidate, District 13, exceed the Democratic candidates obtained a 52.7 per- thresholds at which political science ex- cent of the statewide vote, they would perts, including Legislative Defendants’ comprise only 23.1 percent of the state’s expert Dr. Hood, consider a seat to be congressional delegation. And if Democrat- ‘‘safe’’—i.e., highly unlikely to change par- ic candidates captured the same percent- ties in subsequent elections. See Ex. 5058, age of the vote (53.22%) that elected Re- at 25, Trial Tr. IV, at 29:16–22, 86:21–88:5; publican candidates in ten districts in 2016, LULAC, 548 U.S. at 470–71, 126 S.Ct. 2594 Democratic candidates would prevail in only four districts. Ex. 3022. (Stevens, J., dissenting in part) (characterizing 10 percent advantage as a threshold ii. for a ‘‘safe’’ seat and explaining that We also find that other analyses per- ‘‘[m]embers of Congress elected from such formed by Dr. Jackman assessing the 2016 safe districts need not worry much about Plan’s ‘‘partisan asymmetry’’—whether the possibility of shifting majorities, so supporters of each of the two parties are they have little reason to be responsive to able to translate their votes into represen- political minorities in their district’’). In- tation with equal ease—provide additional deed, all of the districts—including all ten evidence of the 2016 Plan’s statewide dis- Republican-held districts—in the 2016 criminatory effects. Trial Tr. II, at 34:20– Plan are ‘‘safe’’ under that standard. Ex. 22 (explaining that a redistricting plan ex- 3022. hibits partisan asymmetry if there is ‘‘a gap between the parties with respect to Additionally, Dr. Simon Jackman—a the way their votes are translated into professor of political science at the Univer- seats’’). The concept of partisan symmetry, sity of Sydney and expert in statistical at least in its modern form, dates to the methods in political science, elections and 1970s, but scholars did not begin to widely election forecasting, and American political view it as a measure of partisan gerryman- institutions, Trial Tr. II, at 32:5-9—per- dering until the last 20 years. Id. at 33:24– formed a ‘‘uniform swing analysis,’’ which 34:11. Dr. Jackman analyzed three stan- is used by both researchers and courts to dard measures of partisan symmetry: the assesses the sensitivity of a districting plan ‘‘efficiency gap,’’ ‘‘partisan bias,’’ and ‘‘the to changing electoral conditions, Ex. 4002, mean-median difference.’’ Id. at 34:13–17. at 15–16, 54–59; Whitford, 218 F.Supp.3d The efficiency gap, which was the focus at 899–903. To conduct his uniform swing of Dr. Jackman’s report and is the newest analysis, Dr. Jackman took the two-par- measure of partisan asymmetry, evaluates ties’ statewide vote share in the 2016 elec- whether a districting plan leads supporters tion, and then shifted those shares by one- of one party to ‘‘waste’’ more votes than percent increments ranging from 10 per- supporters of the other. Ex. 4002, at 5. The cent more Republican to 10 percent more concept of ‘‘wasted’’ votes derives directly Democratic. Ex. 4002, at 54. The analysis from two of the principal mechanisms 886 318 FEDERAL SUPPLEMENT, 3d SERIES mapdrawers use to diminish the electoral which occur when the two parties waste power of a disfavored party or group: approximately the same number of votes, packing and cracking. Trial Tr. II, at reflect a districting plan that does not 45:19–46:11. ‘‘Wasted’’ votes are votes cast favor, invidiously or otherwise, one party for a candidate in excess of what the candi- or the other. date needed to win a given district, which Using the results of the 2016 congres- increase as more voters supporting the sional elections conducted under the 2016 candidate are ‘‘packed’’ into the district, or Plan, Dr. Jackman calculated an efficiency votes cast for a losing candidate in a given gap favoring Republican candidates of 19.4 district, which increase, on an aggregate percent.36 Ex. 4002, at 7–8. That constitut- basis, when a party’s supporters are ed the third largest efficiency gap (pro- ‘‘cracked.’’ 35 Id. at 35:9–23, 45:19–46:11. Republican or pro-Democratic) in North Dr. Jackman calculated the efficiency Carolina since 1972, surpassed only by the gap by subtracting the sum of one party’s efficiency gaps exhibited in the 2012 and wasted votes in each district in a particular 2014 elections using the 2011 Plan. Trial election from the sum of the other party’s Tr. II, at 54:21–24. wasted votes in each district in that elec- To put the 19.4 percent figure further in tion and then dividing that figure by the perspective, Dr. Jackman estimated the total number of votes cast for all parties in efficiency gaps for 512 congressional elec- all districts in the election. Ex. 4002, at 18; tions occurring in 25 states 37 between 1972 Ex. 4078. Efficiency gaps close to zero, and 2016.38 He determined that the distri-

35. ‘‘Wasted’’ votes is a term of art used by tested elections from his database, Dr. Jack- political scientists, and is not intended to con- man ‘‘imputed’’ (or predicted) Democratic vey that any vote is in fact ‘‘wasted’’ as that and Republican vote shares in those elections term is used colloquially. in two ways: (1) using presidential vote shares in the districts and incumbency status and (2) 36. The efficiency gap measure takes on a dif- using results from previous and subsequent ferent sign depending on whether it favors contested elections in the district and incum- one party or the other. Rather than denoting bency status. Id. at 24–26. Because calculat- the sign of each calculated efficiency gap, this ing an efficiency gap requires predicting both opinion reports the absolute value, or magni- vote shares and turnout, Dr. Jackman also tude, of the efficiency gap. predicted turnout using turnout data from contested congressional elections, usually contested elections under the same districting 37. Dr. Jackman’s database included results plan. Id. Importantly, Dr. Jackman reported from only 25 states because he excluded elec- measures of statistical significance reflecting tions both in states with six or fewer repre- error rates associated with the imputed vote sentatives at the time of the election and in shares and turnout, and his conclusions re- Louisiana due to its unique run-off election garding the partisan performance of the 2016 system. Ex. 4002, at 18–19 According to Dr. Plan accounted for those measures of statisti- Jackman, when a state has six or fewer repre- cal significance. See, e.g., id. at 41–48. Al- sentatives the efficiency gap varies substan- though Legislative Defendants assert that the tially with the shift of a single seat, thus imputation requirement complicates the effi- making it a less useful metric in those states. ciency gap analysis, they do not challenge Dr. Id. Legislative Defendants do not take issue Jackman’s methodology for imputing the vote with this methodological choice. shares and turnout in the uncontested elections, nor do they take issue with his results. 38. Approximately 14 percent of the districts Leg. Defs.’ FOF 64. Accordingly, we find that included in Dr. Jackman’s 512-election data- Dr. Jackman’s imputation of vote shares and base had elections that did not include candi- turnout in uncontested elections does not im- dates from both parties. Ex. 4002, at 20–26. pact the validity and probative force of his Rather than excluding districts with uncon- results. COMMON CAUSE v. RUCHO 887 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

bution of those efficiency gaps was normal cluded that the 2016 Plan creates ‘‘a sys- with its mean and median centered on tematic advantage for Republican candi- zero, meaning that, on average, the dis- dates,’’ id. at 62, and that that advantage tricting plans in his sample did not tend to ‘‘is generating tangible consequences in favor either party. Ex. 4002, at 26–28. Dr. terms of seats being won,’’ Trial Tr. II, at Jackman found that North Carolina’s 2016 82:13–16. congressional election under the 2016 Plan yielded the 13th most pro-Republican effi- Dr. Jackman also sought to test wheth- ciency gap of the 512 elections in the data- er, given the magnitude of North Car- base, and that 95 percent of the plans in olina’s 2016 efficiency gap, the pro-Repub- the database had efficiency gaps that were lican bias of the 2016 Plan is likely to smaller in magnitude (in favor of either persist in future elections. To do so, he Republicans or Democrats). Id. at 7, 65. performed regressions using his multi- Dr. Jackman also calculated the average state dataset to analyze the relationship efficiency gap for the 136 unique district- between the first efficiency gap observed ing plans included in his 512-election data- in the first election conducted under a base, and found that the 2016 Plan pro- particular districting plan and the average duced the fourth-largest average efficiency efficiency gap over the remaining elections gap of the 136 plans. Id. at 10; Trial Tr. II, in which that plan was used. Ex. 4002, at at 60:15–17. And Dr. Jackman compared 47–54. Using data from the 108 plans in North Carolina’s efficiency gap in 2016 his dataset that were used in at least three with that of 24 other states for which his elections, Dr. Jackman estimated that a database contained 2016 data, finding that plan with an initial efficiency gap of 19.4 the 2016 Plan produced the largest effi- percent in favor of a particular party, like ciency gap of any of those plans. Ex. 4002, the 2016 Plan, likely would have an 8 at 9. percent average efficiency gap in favor of To further put the 19.4 percent figure in the same party in the remaining elections context, Dr. Jackman used his database of conducted under the plan, with the plan elections to analyze what magnitude of resulting in an average efficiency gap in efficiency gap would likely lead to at least that same party’s favor over 90 percent of one congressional seat changing hands—a the time. Id. at 47. When Dr. Jackman ‘‘politically meaningful’’ burden on a disfa- restricted his data set to the 44 plans that vored party’s supporters. Ex. 4002, at 37; have been used at least three times since Trial Tr. II, at 64:6–12. Dr. Jackman found that in states with congressional delega- 2000, he found that an efficiency gap of tions with 7 to 15 representatives, like 19.4 percent in favor of one party would North Carolina, an 8 percent efficiency likely have a 12 percent efficiency gap in gap is associated with at least one seat that party’s favor over the remainder of likely changing hands.39 Ex. 4002, at 39–41. the plan’s use. Id. Based on these analy- Under that threshold, North Carolina’s ses, Dr. Jackman concluded that the evi- 2016 efficiency gap of 19.4 percent indi- dence ‘‘strongly suggests’’ that the 2016 cates that the 2016 Plan allowed Republi- Plan ‘‘will continue to produce large, [pro- cans to prevail in at least one more district Republican] efficiency gaps (if left undis- than they would have in an unbiased plan. turbed), generating seat tallies for Demo- Based on these results, Dr. Jackman con- crats well below those that would be gen-

39. Dr. Jackman observed a lower threshold of gations with 15 members or more. Ex. 4002, 5 percent for states with congressional dele- at 39-41. 888 318 FEDERAL SUPPLEMENT, 3d SERIES

erated from a neutral districting plan.’’ Id. efficiency gap cannot be administered pro- at 66. spectively, making it impossible for a legis- Additionally, Dr. Jackman evaluated the lature to predict whether a districting plan likely persistence of the 2016 Plan’s pro- will violate the Constitution; and (7) the Republican bias by conducting a uniform efficiency gap does not encourage map- swing analysis and determining the size of makers to draw more competitive districts. pro-Democratic swing necessary to elimi- Leg. Defs.’ FOF 62–66. Although we do nate the 2016 Plan’s pro-Republican effi- not entirely discount all of these objec- ciency gap. Id. at 54–60. Dr. Jackman tions, we find that they do not individually, found that it would require a uniform or as a group, materially undermine the swing of approximately 9 percentage persuasive force of Dr. Jackman’s efficien- points in Democrats’ favor—on the order cy gap analysis regarding the 2016 Plan. of the 1974 post-Watergate swing in favor of Democrats, the largest pro-Democratic [103] Dr. Jackman concedes that the swing that has occurred in North Carolina sensitivity of the efficiency gap in jurisdic- since 1972—for the efficiency gap to re- tions with only a few districts—in the case turn to zero, and therefore for the 2016 of congressional districts, states with six or Plan to lose its pro-Republican bias. Id. at fewer districts—renders it difficult, if not 55–59. Based on these analyses, Dr. Jack- impossible, to apply. See Ex. 4002, at 19. man concluded that the 2016 Plan’s pro- According to Legislative Defendants, this Republican efficiency gap ‘‘is durable,’’ and limitation requires this Court to categori- that it would require a swing of votes in cally reject the efficiency gap as a measure Democratic candidates’ favor of ‘‘historic of partisan gerrymandering because ‘‘[i]t magnitude’’ to strip the 2016 Plan of its would be untenable for a court to impose a pro-Republican bias. Trial Tr. II, at 54:24– constitutional standard on one state that 55:9; see also Ex. 4002, at 66 (concluding literally cannot be imposed or applied in all that the 2016 Plan’s large, pro-Republican other states.’’ Leg. Defs.’ Br. 10. But efficiency gap is ‘‘likely to endure over the League Plaintiffs do not propose that this course of the plan’’). Court constitutionalize the efficiency gap— Legislative Defendants raise several ob- nor does this Court do so. Rather, League jections to Dr. Jackman’s efficiency gap Plaintiffs argue—and this Court finds— analysis: (1) the efficiency gap cannot be that Dr. Jackman’s efficiency gap analysis applied in all states; (2) the efficiency gap provides evidence that Defendants violated is a measure of ‘‘proportional representa- the governing constitutional standard: that tion,’’ and therefore is foreclosed by con- a redistricting body must not adopt a dis- trolling Supreme Court precedent; (3) tricting plan that intentionally subor- there are several problems with Dr. Jack- dinates the interests of supporters of a man’s efficiency gap thresholds for identi- disfavored party and entrenches a favored fying when a particular plan is biased to- party in power. See supra Parts III.A. wards one party and when that bias is That constitutional standard does not vary likely to persist; (4) the efficiency gap does with the size of a state’s congressional not account for a variety of idiosyncratic delegation. In states entitled to a small factors that play a significant role in deter- number of representatives, a partisan ger- mining election outcomes; (5) the efficiency rymandering plaintiff simply will have to gap fails to flag as unconstitutional certain rely on different types of evidence to prove districting plans that bear certain hall- that the redistricting body violated that marks of a partisan gerrymander; (6) the constitutional standard. Importantly, in ad- COMMON CAUSE v. RUCHO 889 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) dition to the efficiency gap, this Court the same for both sides of politics’’). Even relies on a variety of other types of evi- if the efficiency gap did amount to a meas- dence probative of the 2016 Plan’s discrim- ure of proportional representation, ‘‘[t]o inatory effects, much of which could be say that the Constitution does not require relied on in states with a smaller number proportional representation is not to say of congressional districts. See infra Part that highly disproportionate representa- III.B. tion may not be evidence of a discrimina- [104] Legislative Defendants also are tory effect.’’ Whitford, 218 F.Supp.3d at correct that the Constitution does not en- 906–07. On the contrary, a number of Jus- title supporters of a particular party to tices have concluded that disproportionate representation in a state’s congressional representation constitutes evidence, al- delegation in proportion to their statewide though not conclusive evidence, of a redis- vote share. See LULAC, 548 U.S. at 419, tricting plan’s discriminatory effects—the 126 S.Ct. 2594 (opinion of Kennedy, J.) same way in which we treat Dr. Jack- (‘‘To be sure, there is no constitutional re- man’s efficiency gap evidence. LULAC, quirement of proportional representation 548 U.S. at 419, 126 S.Ct. 2594 (opinion of TTTT’’). But the efficiency gap, like other Kennedy, J.) (‘‘[A] congressional plan that measures of partisan asymmetry, does not more closely reflects the distribution of dictate strict proportional representation. state party power seems a less likely vehi- Trial Tr. II, at 48:21–50:7; Trial Tr. III, at cle for partisan discrimination than one 70:5–7. In particular, the efficiency gap that entrenches an electoral minority.’’); permits a redistricting body to choose to Bandemer, 478 U.S. at 132, 106 S.Ct. 2797 draw a districting plan that awards the (plurality op.) (‘‘[A] failure of proportional party that obtains a bare majority of the representation alone does not constitute statewide vote a larger proportion of the impermissible discrimination under the seats in the state’s congressional delega- Equal Protection Clause.’’ (emphasis add- tion (referred to as a ‘‘winner’s bonus’’). ed) ). The efficiency gap, therefore, is not prem- As to Dr. Jackman’s proposed thresh- ised on strict proportional representation, olds, Legislative Defendants are correct but rather on the notion that the magni- that in Gill Dr. Jackman used a different tude of the winner’s bonus should be ap- method for calculating an efficiency gap 40 proximately the same for both parties. and found ‘‘that an efficiency gap above 7% Trial Tr. II, at 49:8–17 (Dr. Jackman ex- in any districting plan’s first election year plaining that partisan symmetry is a will continue to favor that party for the life ‘‘weaker property’’ than proportional rep- of the plan.’’ 218 F.Supp.3d at 905. By resentation because ‘‘[a]ll it insists on is contrast, here Dr. Jackman concluded that, that the mapping from votes into seats is in states like North Carolina with 7 to 14

40. In Gill, Dr. Jackman used the ‘‘simplified tions about voter turnout and the votes-to- method’’ for calculating the efficiency gap, seats ratio. Id. at 907–08. Dr. Jackman calcu- which assumes equal voter turnout at the lated the 2016 Plan’s efficiency gap, as well as district level and that for each ‘‘1% of the vote the efficiency gaps observed in his 512-elec- a party obtains above 50%, the party would tion database, using the ‘‘full method,’’ and be expected to earn 2% more of the seats.’’ therefore his analysis does not rest on the 218 F.Supp.3d at 855 n.88, 904. Although it assumptions about which the district court accepted Dr. Jackman’s analysis, the district expressed concern. We decline to criticize Dr. court expressed a preference for the ‘‘full Jackman for changing his analysis to the method’’ of calculating the efficiency gap be- methodology the district court found most cause that method does not rely on assump- reliable and informative. 890 318 FEDERAL SUPPLEMENT, 3d SERIES representatives, a 12 percent first-year ef- mula,’’ does not take into account a num- ficiency gap indicates that the districting ber of idiosyncratic considerations that ef- plan’s partisan bias will persist in subse- fect the outcome of particular elections, quent elections. Ex. 4002, at 51–54. Even such as ‘‘the quality of TTT candidates, the under the more conservative threshold Dr. amount of money raised, the impact of Jackman proposes in this case, approxi- traditional districting principles on election mately one-third of the post-2000 district- results, whether Democratic voters are ing plans in such states that would trip Dr. more concentrated than Republican voters, Jackman’s threshold did not have an aver- and the impact of wave elections.’’ Leg. age remainder-of-the-plan efficiency gap of Defs.’ FOF 65. We agree that each of sufficient magnitude to establish that the these considerations may impact the out- districting plan deprived the disfavored come of a particular election. But we reject party of at least one seat. Id. at 53. We Legislative Defendants’ assertion that Dr. agree with Legislative Defendants that Jackman’s conclusion that the 2016 Plan is this error rate, which pertains only to the an extreme partisan outlier does not ac- durability of a gerrymander, weighs against relying on Dr. Jackman’s proposed count for these contest-specific factors. On thresholds as the sole basis for holding the contrary, Dr. Jackman reached his unconstitutional a districting plan. But Dr. conclusion by comparing the 2016 Plan’s Jackman’s efficiency gap analysis—and his efficiency gap with efficiency gaps ob- threshold analysis, in particular—is not served in the other 512 elections in his the sole, or even primary, form of evidence database. That database comprises results we rely on in finding that nearly all of the from 512 elections occurring in 25 states districts in the 2016 Plan violate the Equal over a 44-year period. As Dr. Jackman Protection Clause. And given (1) that the explained, ‘‘all of those [election-specific] magnitude of the 2016 Plan’s efficiency gap factors appeared in those 512 elections,’’ in the 2016 congressional election (19.4 including the Watergate and 1994 wave percent) significantly exceeded either elections, candidates facing political scan- threshold, (2) that most plans in Dr. Jack- dals, candidates who were well-funded or man’s database that exceeded his proposed poorly funded, states with political geogra- threshold continued to exhibit a meaning- phy favoring one party or the other, and ful bias throughout their life, and (3) that unique candidates at the top of the ballot numerous other pieces of evidence provide like President Obama and President proof of the 2016 Plan’s discriminatory Trump. Trial Tr. II, at 69:5–18. According- effects, we do not believe this concern ly, comparing the 2016 Plan’s efficiency strips Dr. Jackman’s analyses of their per- gap to those observed in hundreds of other suasive force in this case. See Whitford, elections allowed Dr. Jackman to conclude 218 F.Supp.3d at 907–08 (acknowledging that the election-specific factors that Leg- different methods of calculating the effi- islative Defendants highlight do not ex- ciency could prove problematic in other plain the large magnitude of the 2016 cases but nonetheless relying on efficiency Plan’s pro-Republican efficiency gap. gap evidence because challenged legislative districting plan was not ‘‘at the statis- [105, 106] Relatedly, Legislative De- tical margins’’ and ‘‘both methods yield[ed] fendants contend that Dr. Jackman’s pro- an historically large, pro-Republican [effi- posed efficiency thresholds flag several bi- ciency gap]’’). partisan districting plans or districting Legislative Defendants next assert that plans drawn by courts or nonpartisan com- the efficiency gap, as a ‘‘mathematical for- missions and fail to flag as partisan gerry- COMMON CAUSE v. RUCHO 891 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) manders a number of districting plans that criterion to predict the efficiency gap for bear other hallmarks of gerrymandering both the 2016 Plan and the 3,000 simulated such as irregular shapes and widespread plans he generated. Ex. 2010, at 32–34. division of political subdivisions and voting Like Dr. Jackman’s post hoc analysis, Dr. precincts. See Ex. 5101, at 29–62. But if a Chen’s analysis revealed that the 2016 districting plan is drawn on a bipartisan Plan’s predicted efficiency gap was an ex- basis or by a nonpartisan body, a plaintiff treme outlier relative to the simulated will be unable to establish that it was plans in his sample and significantly higher drawn with discriminatory intent, and than the thresholds suggested by Dr. therefore the plan will pass constitutional Jackman. Id. at 25. Accordingly, just as muster. See Whitford, 218 F.Supp.3d at the General Assembly used the data relied 908. Likewise, just as compliance with tra- on by Dr. Hofeller and prescribed by the ditional redistricting criteria does not im- Committee to predict (correctly) that the munize a districting plan from constitu- 2016 Plan would elect ten Republicans and tional scrutiny, see supra Part III.B.1.a.iv, three Democrats, so too could it have used failure to comply with redistricting criteria does not necessarily prove the inverse— that same data to predict the 2016 Plan’s that a districting plan amounts to an ac- efficiency gap—and that the magnitude of tionable partisan gerrymander. And to the that gap would provide strong evidence of 41 extent Dr. Jackman’s threshold fails to the 2016 Plan’s pro-Republican bias. flag certain unconstitutional plans, a plain- [107] Finally, we agree with Legisla- tiff can rely on other types of evidence to tive Defendants that the efficiency gap prove a plan’s discriminatory effects. Addi- does not provide redistricting bodies with tionally, each of these concerns are not an incentive to draw districting plans with present in this case—the Republican-con- more competitive districts. But the 2016 trolled General Assembly intended to di- Plan, which Legislative Defendants seek to lute the votes of non-Republican voters keep in place, also creates uniformly ‘‘safe’’ and the 2016 Plan exhibited an extremely districts. See Ex. 3022. And the Supreme large efficiency gap in the 2016 election— Court has never held that the Constitution meaning that those concerns, although potentially legitimate in other cases, do not entitles voters to competitive districts. Ac- significantly undermine the probative force cordingly, regardless of whether the effi- of Dr. Jackman’s efficiency gap conclusions ciency gap’s failure to encourage redis- as to the 2016 Plan. Accord Whitford, 218 tricting bodies to draw districting plans F.Supp.3d at 908. with competitive districts is desirable from a policy perspective, that failure does not We also reject Legislative Defendants’ render the efficiency gap legally infirm. assertion that a state redistricting body cannot apply the efficiency gap prospec- Partisan bias—the second measure of tively. In particular, Dr. Chen used the partisan asymmetry calculated by Dr. results from the seven races on which Dr. Jackman—measures a districting plan’s Hofeller relied and the twenty races in- asymmetry by taking the two parties’ cluded in the Committee’s Political Data statewide vote share in a particular elec-

41. At trial, League Plaintiffs sought to adduce state legislative districting plan. Trial Tr. II, at additional evidence of legislators’ ability to 136:24–137:7. Legislative Defendants objected use the efficiency gap prospectively by asking to the question on hearsay grounds. Id. at Dr. Jackman about a report purportedly pre- 137:10–13. Having taken the objection under pared by a North Carolina state legislator advisement at trial, we now sustain that ob- calculating the efficiency gap for a proposed jection. 892 318 FEDERAL SUPPLEMENT, 3d SERIES tion, and then imposing a uniform swing of Dr. Jackman found that the 2016 Plan the magnitude necessary to make the par- exhibited a pro-Republican partisan bias of ties split the statewide vote equally. Trial 27 percent. Ex. 4003, at 3–4. He again Tr. II, at 47:7–21; LULAC, 548 U.S. at 420, sought to put that figure in perspective by 126 S.Ct. 2594 (explaining that partisan comparing it to previous North Carolina bias is measured by ‘‘comparing how both congressional elections and congressional parties would fare hypothetically if they elections across the country. Dr. Jackman each (in turn) had received a given per- found that the 2016 Plan’s partisan bias in centage of the vote’’ (internal quotation the 2016 election was the largest observed marks and alteration omitted) ). After per- in North Carolina since 1972, the first year for which he had data. Id. And the 2016 forming the uniform swing, the analyst Plan’s partisan bias was the second largest then calculates the number of seats each observed among the 283 state congression- party would win. Trial Tr. II, at 47:7–21. A al elections 42 in his database, and ‘‘roughly districting plan ‘‘is biased in favor of the three standard deviations from the histori- party that would win more than 50 percent cal mean.’’ Id. at 4. Based on these find- of the seats, if it won 50 percent of the ings, Dr. Jackman characterized the parti- TTT vote and is biased against the party san bias exhibited by the 2016 Plan as that would win less than 50 percent of the ‘‘extreme’’—‘‘of quite literally historic mag- seats if it were able to win 50 percent of nitude, not just relative to North Car- the vote,’’ Dr. Jackman explained. Id. at olina’s history, but in the United States of 46:15–47:4. When partisan bias is close to America.’’ Trial Tr. II, at 80:15, 80:24–81:1. zero, a districting plan does not favor, Finally, Dr. Jackman estimated the 2016 invidiously or otherwise, one party or the Plan’s mean-median difference in North other. Ex. 4002, at 13–17; Trial Tr. II, at Carolina’s 2016 congressional election. As 48:21–50:7. In LULAC, a majority of the its name suggests, the mean-median differ- Court agreed that partisan bias, at a mini- ence is the difference between a party’s mum, has ‘‘utility in redistricting planning mean vote share in a particular election and litigation,’’ even if, by itself, it is ‘‘not a and median vote share in that election reliable measure of unconstitutional parti- across all of the districts included in the sanship.’’ 548 U.S. at 420, 126 S.Ct. 2594 subject districting plan. Ex. 4003, at 7. In (opinion of Kennedy, J.); id. at 483–84, 126 his report, Dr. Jackman explained that the S.Ct. 2594 (Souter, J. dissenting in part) intuition behind the mean-median differ- (joined by Ginsburg, J., noting that ‘‘[i]n- ence measure ‘‘is that when the mean and terest in exploring [partisan bias and other the median diverge significantly, the distri- measures of partisan symmetry] is evi- bution of district-level vote shares is dent’’ and citing separate opinions of Ken- skewed in favor of one party and against nedy, J., Stevens, J., and Breyer, J.). its opponent—consistent with the classic

42. In comparing the 2016 Plan’s partisan bias excluded uncompetitive elections because with that exhibited in elections in other states, partisan bias is a less reliable measure of Dr. Jackman excluded what he characterized partisan asymmetry in such elections. Id. at 5. as ‘‘uncompetitive elections’’—elections in Legislative Defendants take no issue with that which the two parties’ statewide vote shares methodological decision. North Carolina’s were not closer than the range of 55 percent 2016 statewide congressional vote was within to 45 percent. Ex. 4003, at 4–5. Accordingly, the 55%-to-45% range, and therefore, under Dr. Jackman had fewer comparators for his Dr. Jackman’s unrebutted opinion, partisan partisan bias estimate than for his efficiency bias provides reliable evidence of the 2016 gap estimate. Dr. Jackman explained that he Plan’s partisan asymmetry in 2016. COMMON CAUSE v. RUCHO 893 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) gerrymandering techniques of ‘packing’ into seats, and that the magnitude of that partisans into a relatively small number of impediment is an extreme outlier relative districts and/or ‘cracking’ partisans among to other congressional districting plans. a larger number of districts.’’ Id. As with We also find it significant that Dr. Jack- the efficiency gap and partisan bias, the man’s analyses demonstrate the durability closer the mean-median difference is to of the 2016 Plan’s pro-Republican bias, zero, the less a plan is biased (invidiously both by comparing the 2016 Plan to other or otherwise) towards one party or anoth- plans that were used in multiple elections er. and by demonstrating that 2016 Plan is Dr. Jackman found that the 2016 Plan likely to retain its pro-Republican bias exhibited a pro-Republican mean-median ‘‘under any likely electoral scenario.’’ difference of 5.1 percent in North Car- Whitford, 218 F.Supp.3d at 899, 903. Given olina’s 2016 congressional election. He ex- that durability, we find that the 2016 Plan plained that the mean-median difference has the effect of entrenching Republican arose from the packing of Democratic candidates in power, even in the face of voters in the three districts in which significant shifts in voter support in favor Democratic candidates prevailed, and the of non-Republican candidates, and thereby dispersal of Democratic voters across the likely making Republican elected represen- remaining districts. Trial Tr. II, at 81:17– tatives less responsive to the interests of 21 (‘‘[T]he skew here arises from the fact non-Republican members of their constitu- that there are three districts where Dem- ency. ocratic vote share is in the 60s, and then iii. there are ten where it’s below 50 percent, where the Democrat lost.’’). Again seek- Next, we find that Dr. Mattingly’s and ing to put the 2016 Plan’s 5.1 percent Dr. Chen’s simulation analyses not only figure in historical perspective, Dr. Jack- evidence the General Assembly’s discrimi- man found that ‘‘North Carolina’s average natory intent, but also provide strong evi- mean-median difference from 1972 to dence of the 2016 Plan’s statewide discrim- 2016 was just 1.0%,’’ Ex. 4003, at 8, and inatory effects. As explained above, Dr. for the other state elections included in Mattingly created an ensemble of 24,518 his database the average mean-median simulated districting plans that conform to difference was ‘‘roughly TTT zero.’’ Trial traditional redistricting criteria, and then Tr. II, at 81:22. assessed the electoral outcomes of those We find Dr. Jackman’s partisan asym- plans relative to the 2016 Plan using actual metry analyses—each of which measures votes cast in North Carolina’s 2012 and the 2016 Plan’s packing and cracking of 2016 congressional elections. See supra non-Republican voters—establish, on a Part III.B.1.a.ii. When he evaluated the statewide basis, that the 2016 Plan dilutes ensemble using actual 2012 votes, Dr. Mat- the votes of supporters of Democratic can- tingly found that nearly 80 percent of the didates and serves to entrench the Repub- simulated plans would have yielded two-to- lican Party’s control of the state’s congres- three fewer seats for Republicans than the sional delegation. In particular, we find it 2016 Plan, and more than 99 percent of the significant that three different measures of plans resulted in at least one less seat for partisan asymmetry all point to the same Republicans. Ex. 3040, at 7–10. And using result—that the 2016 Plan poses a signifi- actual 2016 congressional votes, Dr. Mat- cant impediment to supporters of non-Re- tingly found that more than 70 percent of publican candidates translating their votes the simulated plans produced two-to-three 894 318 FEDERAL SUPPLEMENT, 3d SERIES fewer seats for Republicans than the 2016 Based on these results, Dr. Chen conclud- Plan, and more than 99 percent of the ed that the 2016 Plan ‘‘creates 3 to 4 more plans resulted in at least one less seat for Republican seats than what is generally Republicans. Id. at 19–22. Dr. Mattingly’s achievable under a map-drawing process ensemble also revealed evidence that the respecting non-partisan, traditional dis- 2016 Plan diluted the votes of supporters tricting criteria.’’ Id. at 2–3. of Democratic candidates: Democratic can- To assess the 2016 Plan’s partisan ef- didates in the three most Democratic dis- fects, Dr. Chen also compared the 2016 tricts in the 2016 Plan—Districts 1, 4, and Plan’s efficiency gap with those of his sim- 12—received a significantly higher share ulated plans. For each of his three sets of of the two-party vote than the three most 1,000 simulated districting plans, Dr. Chen Democratic districts in Dr. Mattingly’s 24,- 518-plan ensemble. Ex. 3040, at 28–29. And found that the 2016 Plan yielded a signifi- in the eighth-through-tenth most Demo- cantly higher pro-Republican efficiency cratic districts in the 2016 Plan—in which gap than all of the simulated plans, re- Democratic candidates lost—the Demo- gardless of whether he used the results cratic candidate received a significantly from the seven elections relied on by Dr. lower share of the votes than in the equiv- Hofeller or the twenty elections prescribed alent districts in the 24,518-plan ensemble. by the Committee. Id. at 32–34. Because Id. Accordingly, Dr. Mattingly’s analyses the 2016 Plan yielded ‘‘improbabl[y]’’ high indicate that the 2016 Plan had a measura- pro-Republican efficiency gaps, Dr. Chen ble, tangible adverse impact on supporters concluded ‘‘with overwhelmingly high sta- of non-Republican candidates. tistical certainty that neutral, non-partisan Dr. Chen’s simulation analyses likewise districting criteria, combined with North indicate that the 2016 Plan had a measura- Carolina’s natural political geography, ble tangible statewide adverse effect on could not have produced a districting plan supporters of non-Republican candidates. as electorally skewed as the [2016 Plan].’’ Analyzing his first set of 1,000 simulated Id. at 25. plans—which sought to conform to the Taken together, Dr. Mattingly’s and Dr. Committee’s non-partisan criteria—using Chen’s analyses—which use multiple meth- elections results reflected in Dr. Hofeller’s ods for generating districting plans and seven-race formula, Dr. Chen found that multiple sets of votes—provide further 78 percent of the simulated plans would strong evidence that the 2016 Plan had the have elected three-to-four fewer Republi- effect of diluting the votes of non-Republi- can candidates, with all of the plans elect- can voters, and entrenching Republican ing at least one less Republican candidate. congressmen in office. As detailed above, See Ex. 2010, at 12–13. And using the none of Legislative Defendants’ objections Committee’s twenty-race criterion, Dr. to Dr. Mattingly’s and Dr. Chen’s analyses Chen found that 94.5 percent of the sim- call into question their persuasive force. ulated plans would have elected two-to- See supra Part III.B.1.a.ii. four fewer Republican candidates, with all iv. of the plans electing at least one fewer Republican candidate. Id. at 13. Dr. Chen Finally, although not essential to our found similar results when he used the finding that the 2016 Plan had the effect of 2,000 simulated plans in his simulated sets discriminating against supporters of non- that sought to avoid pairing incumbents Republican candidates, the results of the and match the county splits and incumbent two congressional elections conducted un- protection of the 2016 Plan. Id. at 16, 21. der the 2011 Plan—and empirical analyses COMMON CAUSE v. RUCHO 895 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

of those results—provide further evidence of the change, systematically degrading of the 2016 Plan’s discriminatory effects. the efficiency with which Democratic votes As explained previously, see supra Part translate into Democratic seats in North II.B.1.a.iii, because the Adopted Criteria Carolina.’’ Ex. 4002, at 66. Accordingly, expressly sought to carry forward the 2011 because (1) the General Assembly drew Plan’s partisan effects, Ex. 1007, any dis- the 2016 Plan to perpetuate the partisan criminatory partisan effects attributable to effects of the 2011 Plan and (2) evidence the 2011 Plan are probative of the 2016 reveals that the 2011 Plan was systemat- Plan’s discriminatory effects. That is par- ically biased to durably dilute the votes of ticularly true given that, according to an supporters of non-Republican candidates, analysis by Legislative Defendants’ expert we find that the pro-Republican bias of the Dr. Hood, most of the districts created by 2011 Plan provides further evidence of the 2016 Plan retained the ‘‘core’’ of their con- 2016 Plan’s statewide discriminatory ef- stituency under the 2011 Plan, Ex. 5058, at fects. 23, including, for example, Districts 1, 4, and 12 in which Dr. Hofeller expressly * * * * * sought to ‘‘concentrat[e]’’ likely Democrat- When viewed in totality, we find Plain- ic voters, Ex. 2043, at 33–34. tiffs’ statewide evidence establishes that the 2016 Plan has diluted the votes of In North Carolina’s 2012 election con- voters who support non-Republican candi- ducted under the 2011 Plan, North Car- dates, and will continue to do so in the olina voters statewide cast 50.9 percent of future. In making this determination, we the votes for Democratic congressional find it significant that Plaintiffs’ evidence candidates, yet Democratic candidates won proves the 2016 Plan’s discriminatory ef- only 30.8 percent of the state’s congres- fects in a variety of different ways. Plain- sional seats (4 of 13). Ex. 4002, at 62. The tiffs’ direct evidence based on the actual 2011 Plan exhibited a 21.4 percent pro- results of an election conducted under the Republican efficiency gap in the 2012 elec- 2016 Plan confirmed that the discriminato- tion. Id. In 2014, Democratic candidates ry effects intended by the 2016 Plan’s ar- won 46.2 percent of the statewide vote, and chitects and predicted by Dr. Mattingly’s won 23.1 percent of the seats in the state’s analyses—the election of 10 Republicans congressional delegation, producing a pro- by margins that suggest they will retain Republican efficiency gap of 21.1 percent. their seats throughout the life of the Id. North Carolina’s 2012 and 2014 effi- plan—in fact occurred. That five different ciency gaps produced under the 2011 Plan types of statistical analyses performed by were twelfth- and fourteenth-largest by three different experts all reached the magnitude in Dr. Jackman’s 512-election same conclusion gives us further confi- sample. Id. at 65. Therefore, as the dura- dence that 2016 Plan produces discernible bility analyses conducted by Dr. Jackman discriminatory effects. And although some described above would indicate, the magni- of those analyses considered ‘‘unfair re- tude of the 2012 efficiency gap pointed to sults that would occur in a hypothetical the large efficiency gap realized in 2014. state of affairs,’’ LULAC, 548 U.S. at 420, See supra Part III.B.2.b.ii. 126 S.Ct. 2594 (opinion of Kennedy, J.), Noting that the magnitude of North others like the efficiency gap and the Carolina’s efficiency gaps under the 2011 mean-median difference did not. Given Plan were significantly higher than those that all of this evidence ‘‘point[s] in the exhibited by the 2001 Plan, Dr. Jackman same direction’’—and Legislative Defen- concluded that the 2011 Plan ‘‘is the driver dants failed to provide any evidence to the 896 318 FEDERAL SUPPLEMENT, 3d SERIES contrary—Plaintiffs have provided ‘‘strong demonstrates that ‘‘Democrats appear to proof’’ of the 2016 Plan’s discriminatory be located in urban areas (e.g. Charlotte, effects. Sylvester, 453 F.3d at 903. Asheville, Winston-Salem, Greensboro, c. Lack of Justification Durham, and Raleigh) and within the 44 [108] We now consider whether the blackbelt area of the state that runs 2016 Plan’s dilutionary effects are justified through the coastal plain subregion,’’ by a legitimate state districting interest or whereas ‘‘Republican partisans are much neutral explanation. Legislative Defen- more geographically dispersed, producing dants offer two statewide explanations 43 a larger footprint within the state.’’ Id. at for the 2016 Plan’s discriminatory effects: 9–10 (footnote text altered). We agree with (i) North Carolina’s political geography, Legislative Defendants that supporters of which reflects the ‘‘natural packing’’ of Democratic candidates often cluster in Democratic voters, and (ii) the General North Carolina’s urban areas, but we find Assembly’s interest in protecting incum- that this clustering does not explain the bents, and the electoral benefits of incum- 2016 Plan’s pro-Republican discriminatory bency. We reject both proposed justifica- effects, for several reasons. tions. First, Dr. Hood conceded on cross-examination that, in drawing the 2016 Plan, i. the General Assembly repeatedly divided Legislative Defendants first argue that Democratic clusters. For example, Dr. Democratic voters tend to congregate in Hood conceded that the 2016 Plan North Carolina’s urban centers, and there- ‘‘cracked’’ the naturally occurring Demo- fore that the 2016 Plan’s pro-Republican cratic cluster in the City of Asheville and partisan bias is attributable to such natu- Buncombe County into two districts that ral packing, rather than invidious partisan he classified as ‘‘safe’’ Republican districts. discrimination. See Ex. 5058, at 10–13; Vi- Trial Tr. IV, at 40:1–43:4. Dr. Hood fur- eth, 541 U.S. at 289–90, 124 S.Ct. 1769 ther conceded that had the General As- (plurality op.) (describing ‘‘ ‘natural’ pack- sembly kept that naturally occurring Dem- ing’’). To support their natural packing ocratic cluster whole, it would have been argument, Legislative Defendants rely on more likely that voters in the cluster would a shaded map prepared by Dr. Hood re- have elected a Democratic candidate. Id. at flecting the partisan makeup of North 42:23–43:4. Dr. Hood similarly conceded Carolina’s VTDs. Ex. 5058, at 9–10. Ac- that the 2016 Plan ‘‘cracked’’ several other cording to Dr. Hood, that map ‘‘visual[ly]’’ naturally occurring Democratic clusters

43. Notwithstanding (1) that Common Cause Plain’’ region, which encompasses a large Plaintiffs, in particular, have pressed a dis- population of African-American voters. See trict-by-district Equal Protection challenge to Ex. 5058, at 10, n.16. Dr. Hood’s character- the 2016 Plan throughout the course of this ization of the ‘‘blackbelt’’ as a distinct politi- litigation, see supra Part II.A.1.a, and (2) Leg- cal subregion derives from a 1949 academic islative Defendants have consistently argued analysis of North Carolina’s political subre- that partisan vote dilution claims under the gions. V.O. Key, Jr., Southern Politics in State Equal Protection Clause must proceed dis- and Nation (Alfred A. Knopf 1949). Dr. Hood trict-by-district, Legislative Defendants never did not directly testify as to whether that have advanced any district-specific justifica- analysis, which is nearly seventy years old tions for the 2016 Plan’s discriminatory ef- and predates the civil rights movement, con- fects. tinues to accurately reflect North Carolina’s 44. According to Dr. Hood, the term ‘‘black- political geography. belt’’ refers to North Carolina’s ‘‘Coastal COMMON CAUSE v. RUCHO 897 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) and, by ‘‘submerg[ing]’’ likely Democratic voters’’ does not explain the 2016 Plan’s voters in pro-Republican districts, made it pro-Republican bias. Id. at 212:14–214:2. easier for Republican candidates to prevail Legislative Defendants have not provid- in more districts. Id. at 43:5–50:25; see ed any persuasive basis for calling into infra Part III.B.2. Accordingly, testimony question Dr. Mattingly’s and Dr. Chen’s by Legislative Defendants’ expert belies methods, findings, and conclusions. See su- any argument that natural packing ex- pra Part III.B.1.a.ii. And other than Dr. plains the 2016 Plan’s discriminatory parti- Hood’s ‘‘visual’’ analysis, Legislative De- san effect. fendants have not provided any contrary Second, Dr. Mattingly’s and Dr. Chen’s empirical analysis showing that the state’s simulation analyses, both of which account political geography does, in fact, explain for the state’s political geography, found the 2016 Plan’s discriminatory effects. See that ‘‘natural packing’’ of Democratic vot- Whitford, 218 F.Supp.3d at 914–15 (con- ers did not explain the 2016 Plan’s partisan cluding that Wisconsin’s political geogra- effects. In particular, based on his ensem- phy did not explain legislative districting ble of 24,518 simulated congressional dis- plan’s partisan bias when the defendant’s tricting plans—all of which conformed to natural packing argument was ‘‘based traditional redistricting criteria such as largely on TTT shaded maps rather than population equality, contiguity, keeping po- quantitative analysis’’). Accordingly, we litical subdivisions and precincts whole, find that North Carolina’s political geogra- compactness, and complying with the Vot- phy does not explain the 2016 Plan’s dis- ing Rights Act—Dr. Mattingly concluded criminatory effects on supporters of non- that ‘‘the background structure in the geo- Republican candidates. political makeup of North Carolina, TTT its ii. geography, where its people live, where its voters in each party are distributed, and [109, 110] Next, Legislative Defen- whether the African-American population dants suggest that the 2016 Plan’s dis- is, and what that necessitates relative to criminatory effects are attributable to the the Voting Rights Act’’ did not explain the General Assembly’s legitimate interest in 2016 Plan’s partisan bias. Trial Tr. I, at protecting incumbents elected under the 91:20–92:19. Dr. Chen’s analysis of his sim- 2011 Plan and the electoral benefits attrib- ulated districting plans—which conformed utable to incumbency. Legislative Defen- to the nonpartisan criteria adopted by the dants are correct that state redistricting Committee—reached the same conclusion: bodies have a legitimate interest, at least the ‘‘political geography of North Carolina outside the remedial context,45 in drawing

45. Although the Supreme Court has recog- legitimate, even where, as here, individuals nized that a redistricting body generally has a are incumbents by virtue of their election in legitimate interest in avoiding the pairing of an unconstitutional racially gerrymandered incumbents, the Supreme Court has not ad- district TTT is a questionable proposition.’’ Id. dressed whether, and by what means, a state The Justices’ skepticism regarding the use of redistricting body directed to draw remedial incumbency in the remedial context accords districts may protect incumbents elected in with the Supreme Court’s admonition that unconstitutional districts. Easley v. Cromartie, remedial plans should not ‘‘validate the very 532 U.S. 234, 262 n.3, 121 S.Ct. 1452, 149 maneuvers that were a major cause of the L.Ed.2d 430 (2001) (Thomas, J., dissenting) unconstitutional districting.’’ Abrams v. John- (noting that that question was not presented son, 521 U.S. 74, 86, 117 S.Ct. 1925, 138 to the Supreme Court or district court and, L.Ed.2d 285 (1997). Lower courts likewise therefore, that the Court had not addressed have expressed concern about the use of in- it). Four Justices, however, have stated that whether ‘‘the goal of protecting incumbents is cumbency in the remedial context. See Ket- 898 318 FEDERAL SUPPLEMENT, 3d SERIES districts so as to avoid pairing incumbents sitivity analysis that accounted for the in a single district. See Karcher, 462 U.S. electoral advantages associated with in- at 740, 103 S.Ct. 2653. But we find that cumbency. Id. at 26–31. Although that sen- the General Assembly’s efforts to protect sitivity analysis revealed, as expected, that incumbents do not explain the 2016 Plan’s incumbents enjoy electoral advantages, id. discriminatory partisan effects. at 27 (finding that North Carolina congres- In particular, Dr. Chen’s simulation sional incumbents receive, on average, ap- analyses demonstrate that the General As- proximately 3 percent greater electoral sembly could achieve its interest in avoid- support than nonincumbents), Dr. Chen ing the pairing of incumbents without found that the revealed electoral advan- drawing a plan exhibiting the discriminato- tage associated with incumbency did not ry effects of the 2016 Plan. Ex. 2010, at explain the 2016 Plan’s pro-Republican 15–19. Indeed, Dr. Chen’s simulated plans bias, id. at 28–30, 32–37. advanced the Committee’s goal of avoiding pairing incumbents more effectively than Dr. Chen’s finding that incumbency does the 2016 Plan: unlike the 2016 Plan, which not explain the 2016 Plan’s partisan bias is paired two of the state’s thirteen incum- unsurprising given that the 2016 Plan bents, Dr. Chen drew 1,000 plans that did sought to protect the incumbents elected not pair any incumbents. Id. at 3, 15–19 under the 2011 Plan. As explained above, (‘‘These simulation results clearly reject the General Assembly expressly drew the any notion that an effort to protect incum- 2011 Plan ‘‘to minimize the number of bents might have warranted the extreme districts in which Democrats would have partisan bias observed in the [2016 an opportunity to elect a Democratic can- Plan].’’). didate.’’ Hofeller Dep. 127:19–22; see also Additionally, to ensure that the election supra Part III.A.2–3. And the 2011 Plan data upon which he relied—the same data had the effect of diluting the votes of relied upon by Dr. Hofeller and prescribed supporters of Democratic candidates and by the Committee’s Political Data criteri- entrenching Republican control of the on—adequately accounted for the benefits state’s congressional delegation. Accord- of incumbency, Dr. Chen performed a sen- ingly, the General Assembly’s effort to

chum v. Byrne, 740 F.2d 1398, 1408 (7th Cir. give way to its obligation to remedy the con- 1984) (expressing skepticism about efforts to stitutional violation, and therefore that the protect incumbents in maps drawn to remedy General Assembly’s interest in protecting in- impermissible race-based districting because cumbents elected in racially gerrymandered ‘‘many devices employed to preserve incum- districts and districts adjacent to such dis- bencies are necessarily racially discriminato- tricts did not justify an enacted remedial ry’’); Jeffers v. Clinton, 756 F.Supp. 1195, plan’s failure to fully remedy the segregation 1199–1200 (E.D. Ark. 1990) (rejecting remedi- of voters on the basis of race. 283 F.Supp.3d al districts that violated Voting Rights Act, at 429–42. The Supreme Court affirmed that notwithstanding that the districts were de- judgment. 138 S.Ct. at 2552–54 signed to protect incumbents, because ‘‘[t]he The General Assembly drew the 2016 Plan desire to protect incumbents, either from run- after the 2011 Plan was found to be an uncon- ning against each other or from a difficult stitutional racial gerrymander. See supra Part race against a black challenger, cannot pre- I.B. Accordingly, whether the General Assem- vail if the result is to perpetuate violations of bly had a legitimate interest in protecting the equal-opportunity principle contained in incumbents elected under the 2011 Plan re- the Voting Rights Act’’). The district court in mains uncertain, particularly with regard to Covington held that any interest a legislative those incumbents elected in the unconstitu- body tasked with drawing a remedial district- tional districts and districts adjoining the un- ing plan has in protecting incumbents must constitutional districts. COMMON CAUSE v. RUCHO 899 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

protect incumbents elected under the 2011 with a predominant intent to subordinate Plan when it drew the 2016 Plan served to the interests of non-Republican voters and perpetuate the discriminatory partisan ef- entrench Republican control of North Car- fects of the 2011 Plan. olina’s congressional delegation. We fur- Legislative Defendants nevertheless ar- ther find that numerous forms of statewide gue that Republican candidates’ success in evidence prove that the 2016 Plan achieved the 2016 election under the 2016 Plan was the General Assembly’s discriminatory attributable to advantages associated with partisan objective. And we find that nei- incumbency, including that the Republican ther North Carolina’s political geography incumbents attracted less experienced op- nor the General Assembly’s interest in ponents and raised significantly more mon- protecting incumbents explains the 2016 ey than their opponents. Ex. 5058, at 6–7; Plan’s discriminatory effects. Trial Tr. IV, at 51:1–53:12. But Legislative 2. District-Specific Evidence Defendants’ political science expert, Dr. Having concluded that Plaintiffs have Hood, conceded on cross-examination that introduced compelling statewide evidence the likelihood an incumbent will prevail in bearing on discriminatory intent, discrimi- a redrawn district impacts the incumbent’s natory effects, and lack of justification, we ability to raise money and whether he turn to Plaintiffs’ district-specific evidence. draws a strong opponent. Trial Tr. IV, at Because Gill expressly analogized to parti- 54:23–55:12. To that end, Dr. Hood further san vote dilution claims to racial gerry- conceded that the Republican incumbents mandering claims, 138 S.Ct. at 1930, and may have attracted weak opponents and because racial gerrymandering claims also raised substantially more money because proceed on a district-by-district basis, in the General Assembly drew the Republi- evaluating each of the districts in the 2016 can incumbents districts in which they Plan we will draw on racial gerrymander- were likely to prevail—a possibility that ing precedent. Recall that in a Shaw-type Dr. Hood did not consider, much less eval- racial gerrymandering challenge a plaintiff uate. Id. at 54:9–59:18. must prove that ‘‘race was the predomi- Given that Legislative Defendants’ own nant factor motivating the legislature’s de- expert acknowledged that the 2016 Plan’s cision to place a significant number of vot- discriminatory lines may have caused Re- ers within or without a particular district.’’ publican incumbents’ observed advantages, Miller, 515 U.S. at 916, 115 S.Ct. 2475. In and that Legislative defendants failed to such cases, the Supreme Court has consid- offer any analyses rebutting Dr. Chen’s ered several forms of evidence, none of rigorous quantitative analysis showing that which is necessary or decisive alone, as the General Assembly’s goal of protecting probative that an impermissible consider- incumbents did not explain the 2016 Plan’s ation predominated. pro-Republican bias, we find the General Assembly’s interest in protecting incum- [111] First, the Supreme Court has bents and the electoral advantages associ- said that a lack of ‘‘respect for political ated with incumbency do not explain the subdivisions’’ may indicate an improper 2016 Plan’s discriminatory partisan effect. motive predominated. Shaw I, 509 U.S. at 647, 113 S.Ct. 2816. For example, the divi- * * * * * sion of counties, municipalities, or pre- In sum, we find that Plaintiffs’ statewide cincts can be probative that an improper evidence establishes that the General As- motive predominated. Miller, 515 U.S. at sembly drew and enacted the 2016 Plan 908, 918, 115 S.Ct. 2475. Additionally, if the 900 318 FEDERAL SUPPLEMENT, 3d SERIES legislature has split ‘‘communities of inter- Third, demographic data may help ex- est’’ or grouped areas with ‘‘fractured po- plain the location and idiosyncrasies of a litical, social, and economic interests’’ that district boundary, and thereby support a too may indicate an improper motive pre- finding of predominance. Miller, 515 U.S. dominated. Id. at 919, 115 S.Ct. 2475. at 917, 115 S.Ct. 2475 (noting that even if a district is not ‘‘bizarre on its face,’’ the [112, 113] Second, the shape or ap- predominance of race may become clearer pearance of a district also may speak to ‘‘when its shape is considered in conjunc- whether an improper motive predominat- tion with its racial and population densi- ed. Although a district need not be oddly ties’’); see also Vera, 517 U.S. at 961–62, shaped in order to violate the Equal Pro- 116 S.Ct. 1941. Thus, maps shaded to indi- tection Clause, ‘‘bizarreness TTT may be cate the percentage of the population in persuasive circumstantial evidence that each VTD or precinct that historically vot- [partisanship] for its own sake, and not ed for candidates of a particular party may other districting principles, was the legis- provide evidence that partisan consider- lature’s dominant and controlling rationale ations predominated in the drawing of a in drawing its district lines.’’ Id. at 912– particular district’s lines. See, e.g., Coving- 13, 115 S.Ct. 2475; see also Shaw II, 517 ton, 316 F.R.D. at 141–65 (relying, in part, U.S. at 905–06, 116 S.Ct. 1894 (consider- on ‘‘racial density maps’’ to determine ing a district’s bizarre shape and non-com- whether race predominated in drawing pactness to affirm a finding of racial pre- district lines). Because Dr. Hofeller, Rep- dominance). That is particularly true when resentative Lewis, and Senator Rucho tes- demographic evidence reveals that a dis- tified that they relied on such data in trict’s bizarre lines coincide with the his- drawing and evaluating the challenged dis- torical voting patterns of the precincts in- tricts, such maps provide particularly use- cluded in, or excluded from, the district. ful insights into whether district bound- See Miller, 515 U.S. at 912–13, 115 S.Ct. aries reflect partisan differences in the 2475. One way to assess whether a partic- population. See supra Part I.B. ular district takes on a bizarre shape is through use of mathematical measures of [114] Finally, although not a precondi- compactness, Karcher, 462 U.S. at 755, tion to establishing a claim that an improp- 103 S.Ct. 2653 (Stevens, J., concurring); er districting consideration predominated, Covington, 316 F.R.D. at 140, such as the a plaintiff can introduce an alternative dis- Reock and Polsby-Popper measures previ- tricting plan or plans that conform to tra- ously relied on by the General Assembly ditional districting principles—as or more in defending the 2016 Plan, Exs. 1007; effectively than the challenged plan—and 5001 app’x. Additionally, although visually in which the plaintiff’s vote is not diluted assessing districts necessarily involves on the basis of an impermissible consider- some subjective judgment, the Supreme ation. See, e.g., Cooper, 137 S.Ct. at 1478– Court has repeatedly relied upon such as- 82; Easley v. Cromartie, 532 U.S. 234, 258, sessments (the ‘‘eyeball approach’’ or ‘‘in- 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001). terocular test’’) to determine if a district Notably, Gill expressly embraced the use is ‘‘bizarre’’ or ‘‘irregular.’’ See, e.g., Vera, of alternative plans to demonstrate that 517 U.S. at 965–66, 116 S.Ct. 1941; Shaw the boundaries of a particular district di- II, 517 U.S. at 905–06, 116 S.Ct. 1894; luted a particular plaintiff’s vote on the Shaw I, 509 U.S. at 646–47, 113 S.Ct. basis of invidious partisanship. See 138 2816. S.Ct. at 1931 (explaining that the injury in COMMON CAUSE v. RUCHO 901 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) a partisan vote dilution case ‘‘arises from less dilution of Democratic voters’ votes, the particular composition of the voter’s based on Dr. Hofeller’s partisanship varia- own district, which causes his vote—having ble. Second Chen. Decl. 1–5. been packed or cracked—to carry less As further explained below, relying on weight than it would carry in another, these and other forms of district-specific hypothetical district’’ (emphasis added) ); evidence—as well as the overwhelming id. at 1936 (Kagan, J., concurring) statewide evidence set forth above—we (‘‘Among other ways of proving packing or conclude that partisan considerations pre- cracking, a plaintiff could produce an alter- dominated in the drawing of all but one of native map (or set of alternative maps)— the thirteen districts in the 2016 Plan, and comparably consistent with traditional dis- therefore that those twelve districts violate tricting principles—under which her vote the Equal Protection Clause. would carry more weight.’’). a. District 1 [115] Here, Plaintiffs rely on numer- District 1 spans all or part of fourteen ous alternative districting plans to prove counties in northeastern North Carolina, their partisan vote dilution claims. First, most of which run along the eastern por- Plaintiffs rely on two alternative plans tion of North Carolina’s border with Virgi- drawn by Dr. Hofeller as part of the 2016 nia. Ex. 1001. Dr. Hofeller testified that he remedial districting process. Exs. 4016–24. ‘‘concentrate[d]’’ Democratic voters in the Both plans are comparable to the 2016 2011 version of the district—which the Su- Plan with regard to compliance with tradi- preme Court held constituted a racial ger- tional districting criteria such as county rymander, Cooper, 137 S.Ct. at 1468–72— splits and compactness and include a num- in order to ‘‘weaken Democratic strength ber of districts more favorable to non- in Districts 7, 8, and 11,’’ Ex. 2043, at 33– Republican voters than their counterparts 34, and ‘‘to increase Republican voting in the 2016 Plan, as measured by Dr. strength in New Districts 2, 3, 6, 7, and Hofeller’s partisanship variable. Id. Sec- 13,’’ Hofeller Dep. 116:19–117:25. Although ond, Plaintiffs rely on a group of maps the version of the district in the 2016 Plan drawn by a bipartisan group of retired eliminates a number of appendages in the North Carolina judges convened to act as 2011 version drawn to make the district a simulated nonpartisan districting com- majority-black, Ex. 2001, the 2016 Plan mission and directed to comply with a set version retains approximately 70 percent of traditional, nonpartisan districting crite- of the population included in its 2011 ver- ria. Ex. 3002, at 10. Finally, Plaintiffs rely sion, Ex. 5001, tbl.1, carrying forward the on the thousands of computer-generated invidious partisanship motivating the 2011 districting plans created by Dr. Chen and Dr. Mattingly to conform to—and often version of the district’s lines. Dr. Hofeller more effectively advance—the General As- testified that District 1 was one of three sembly’s non-partisan districting objec- districts in the 2016 Plan he and the tives. See, e.g., Exs. 4025–4033, 5025–34. Chairs drew, using past election results, to Those computer-generated plans include be ‘‘predominantly Democratic.’’ Hofeller Plan 2-297, which Dr. Chen generated to Dep. 192:7–16, ECF No. 110-1. maximize, subject to certain constraints, As Dr. Hofeller and the Chairs intended the General Assembly’s non-partisan dis- and expected, District 1 packs supporters tricting criteria; in doing so, Plan 2-297 of Democratic candidates: the district’s protects more incumbents, splits fewer Democratic candidate received approxi- counties, has more compact districts than mately 70 percent of the votes cast in the the 2016 Plan, and exhibits significantly 2016 election. Compare Ex. 5116, at 9 (Dr. 902 318 FEDERAL SUPPLEMENT, 3d SERIES

Hofeller averring that, using his seven- To achieve the goal of concentrating race formula, Democratic candidate was Democratic voters in District 1, the 2016 likely to receive 68.8% of the two-party Plan divides municipalities and communi- vote share), with Ex. 1018, at 2 (Democrat- ties of interest along partisan lines. For ic candidate, Rep. G.K. Butterfield, re- example, the southwestern edge of District ceived 68.62% of the vote in 2016 election). 1 splits Wilson County by packing the Additionally, in the 2016 election, the Dem- county’s large cluster of historically Demo- ocratic candidate in District 1 received a cratic precincts into District 1, while plac- higher share of the vote in his district than ing the county’s historically Republican each of the Republican candidates received precincts into District 2. Ex. 4015. Similar- in the 10 districts Dr. Hofeller drew to be ly, the southern edge of District 1 splits predominantly Republican. Ex. 1018. Con- Pitt County by placing that county’s dis- sistent with these results, Legislative De- proportionately Democratic precincts into fendants’ expert Dr. Hood characterized District 1 while placing the disproportion- District 1 as ‘‘Safe Democratic.’’ Ex. 5058, ately Republican precincts into District 3. at 25. Ex. 4013.

Figure 2: The partisan division of retired judges split either Wilson or Pitt of Wilson County between County. Ex. 5095. And Plan 2-297 does not Districts 1 and 2 46 divide Wilson County at all and does not Dr. Hofeller created several alternative divide Pitt County along partisan lines. maps that did not split either Wilson or Compare Third Chen Decl. 1–3, with Ex. Pitt County. Ex. 2004, at 17–18. Not a 4013. Unsurprisingly, therefore, District single map drawn by the bipartisan group 1’s counterpart in Plan 2-297, District 12,

46. In Figures 2 through 8, which derive from cincts with lighter hues of blue. Precincts in Exhibits 3013 to 3020, precincts are shaded red historically favor Republican candidates; in accordance with Dr. Hofeller’s partisan- precincts shaded with darker hues of red his- ship variable. Precincts in blue historically torically favored Republican candidates more favor Democratic candidates; precincts shad- than precincts with lighter hues of red. Green ed with darker hues of blue historically fa- lines denote county lines and dotted lines vored Democratic candidates more than pre- denote district lines. COMMON CAUSE v. RUCHO 903 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

packs fewer Democratic voters, with the b. District 2 Democratic candidate expected to obtain District 2 spans all or part of six coun- approximately 59 percent of the two-party ties in central North Carolina, and splits vote, Second Chen Decl. at 5, as opposed three counties with Districts 1, 4, and 7. to 68 percent of vote garnered by the Ex. 1001. Dr. Hofeller testified that, in Democratic candidate in District 1 in the drawing the 2011 Plan, he removed Demo- 2016 election, Ex. 1018, at 2. cratic voters in the prior version of the Plaintiffs’ statistical evidence further district and placed them ‘‘in either Dis- proves that District 1’s unique partisan tricts 1 [or] 4’’ because it was the ‘‘only configuration was not mere happenstance. [way to] accomplish’’ the Republican lead- Instead, the data demonstrate that Demo- ership’s goal ‘‘to increase Republican vot- cratic voters in District 1 were, in fact, ing strength in New District[ ] TTT 13,’’ packed together in order to dilute such which was renumbered to be District 2 in voters’ voting strength. In particular, Dr. the 2016 Plan. Hofeller Dep. 116:19–117:25. Mattingly’s analysis of more than 24,000 District 2 retains approximately 57 percent simulated maps-which conform to all of the of the population of its predecessor in the General Assembly’s non-partisan district- 2011 Plan, Ex. 5001, tbl.1, thereby carrying objectives-reveals that the 2016 version ing forward the mapdrawers’ express par- of District 1 is an extreme statistical outli- tisan intent in drawing the 2011 version of er with regard to its concentration of District 2. Democratic voters. Ex. 3040, at 30. In par- The results of the 2016 election confirm ticular, only 0.61 percent of the 24,000 sim- the mapdrawers successfully cracked ulated maps had any district with a higher Democratic voters: as Dr. Hofeller intend- concentration of likely Democratic voters. ed and expected, the district’s Republican Trial Tr. I, at 72:10–13; Ex. 3040, at 29. candidate received approximately 56 per- This demonstrates that the effect of the cent of the votes cast in the 2016 election, 2016 version of Congressional District 1 is meaning that mapdrawers effectively en- to pack Democratic voters into the district sured Democratic voters would be highly in an amount greater than would other- unlikely to elect their candidate of choice. wise naturally occur more than 99 percent Compare Ex. 5116, at 9 (Dr. Hofeller aver- of the time under neutral districting crite- ring that, using his seven-race formula, ria. See Trial Tr. I, at 55:2–6, 70:1–4, candidate was likely to receive 55.6% of 76:22–77:1. the two-party vote share), with Ex. 1018, When viewed in conjunction with the at 2 (Republican candidate, Rep. George overwhelming statewide evidence, this dis- Holding, received 56.7% of the vote in 2016 trict-specific evidence confirms that (1) the election). Notably, the Republican candi- mapdrawers predominantly intended to, date received a significantly lower share of and did in fact, pack Democratic voters in the vote in District 2 than each of the District 1; (2) the packing of Democratic Democratic candidates received in the voters in District 1 had the effect of dilut- three districts Dr. Hofeller drew to be ing such voters’ votes; and (3) the packing predominantly and overwhelmingly Demo- of Democratic voters in District 1 was not cratic. Ex. 1018. a product of the State’s political geography To achieve the goal of diluting Demo- or other legitimate, non-partisan district- cratic voting strength in District 2, the ing considerations. Accordingly, we con- district takes on a highly irregular shape clude that District 1 violates the Equal and divides municipalities and communities Protection Clause. of interest along partisan lines. For exam- 904 318 FEDERAL SUPPLEMENT, 3d SERIES ple, District 2 includes a horseshoe-shaped 2 - District 4: 2016 Contingent Congres- section of Wake County—a horseshoe- sional Plan Corrected (‘‘NCGA District 4 shaped section that the General Assembly Data’’) 3 (Data Printed Feb. 25, 2016).47 retained from the 2011 version of the dis- Precinct-level results from other races fol- trict, which also was expressly drawn to low the same pattern: the Wake County favor Republican candidates, Ex. 5001, precincts assigned to District 2 tended to map 4—that encompasses the predomi- strongly favor Republican candidates, nantly Republican suburbs of Raleigh, but while the precincts assigned to District 4 excludes the predominantly Democratic favored Democratic candidates. Compare core of Raleigh, which the General Assem- NCGA District 2 Data 3, with NCGA Dis- bly placed in ‘‘predominantly Democratic’’ trict 4 Data 3; Compare VTD 2010 Elec- District 4. Ex. 3019. In the 2008 North tion Results - District 2: 2016 Congression- Carolina gubernatorial election, for exam- al Plan Corrected 4 (Data Printed Feb. 25, ple, 41.5 percent of the Wake County vot- 2016), with VTD 2010 Election Results - ers assigned to District 2 voted Democrat- District 4: 2016 Congressional Plan Cor- ic, whereas 57.1 percent of the Wake rected 5 (Data Printed Feb. 25, 2016). County voters assigned to District 4 voted Additionally, the eastern edge of District 2 Democratic. Compare VTD 2008 Election splits Wilson County by cracking off the Results - 2 - District 2: 2016 Contingent county’s large cluster of historically Demo- Congressional Plan Corrected (‘‘NCGA cratic precincts into District 1, while plac- District 2 Data’’) 3 (Data Printed Feb. 25, ing the county’s historically Republican 2016), with VTD 2008 Election Results - precincts into District 2. Ex. 4015.

47. The General Assembly compiles and makes Corrected&Body=Congress (last visited Aug. publicly available on its website for the 2016 8, 2018). We take judicial notice of this legis- Plan precinct-level election results on a coun- latively-maintained data under Federal Rule ty-by-county and district-by-district basis for of Evidence 201(b)(2), which provides for ju- each district in the 2016 Plan. See N.C. Gen- dicial notice of ‘‘a fact that is not subject to eral Assembly, 2016 Congressional Plan - Cor- reasonable dispute because it TTT can be ac- rected, https://www.ncleg.net/Representation/ curately and readily determined by sources Content/Plans/PlanPage DB 2016.asp?Plan= whose accuracy cannot reasonably be ques- 2016 Contingent Congressional Plan - tioned.’’ COMMON CAUSE v. RUCHO 905 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

Figure 3: The partisan division of Wake Plaintiffs’ statistical evidence further County between Districts 2 and 4 proves that District 2’s unique partisan Notably, Dr. Hofeller created alterna- make-up did not result from the State’s tive maps that did not split Wilson County. political geography or other legitimate dis- Ex. 2004, at 17–18. And although any map tricting consideration. Instead, the data must split Wake County to satisfy the one- demonstrate that Democratic voters in person, one-vote requirement, none of the District 2 were, in fact, cracked off into maps drawn by the panel of former judges Districts 1 and 4 in order to dilute the split Wake County along partisan lines, voting strength of the remaining Demo- like the 2016 Plan. Compare Ex. 5095, with cratic voters in District 2. In particular, Ex. 3019. Likewise, numerous alternative Dr. Mattingly’s analysis of more than 24,- maps generated by Plaintiffs’ experts, in- 000 simulated maps shows that the 2016 cluding Plan 2-297, demonstrate that the version of District 2 is an extreme statisti- General Assembly could have drawn Dis- cal outlier with regard to its concentration trict 2 without cracking the Democratic of Democratic voters. In the 2016 election cluster in Wilson County, and without di- the Democratic candidate in District 2 re- viding Wake County along partisan lines. ceived 43 percent of the vote, the second Compare, e.g., Second Chen Decl. 3; Exs. highest Democratic vote share in any of 5025, 5027, 5029, with Ex. 3019. The dis- the ten districts in which a Republican trict in Plan 2-297 that includes eastern candidate prevailed and the fifth highest Wake County, District 10, has a substan- Democratic vote share overall. Ex. 3040, at tially lower Republican vote share as 29–30. Yet, in Dr. Mattingly’s ensemble of measured by Dr. Hofeller’s variable than more than 24,000 plans, the median Demo- District 2. Compare Second Chen Decl. at cratic vote share of the fifth most Demo- 5 (expected Republican vote share of cratic district was 51 percent, with only .53 47.40%), with Ex. 1018, at 2 (Republican percent of such districts having a Demo- candidate received 56.71% of the vote in cratic vote share at or below the level 2016 election). recorded in District 2 the 2016 election. Id. 906 318 FEDERAL SUPPLEMENT, 3d SERIES

Put differently, in more than 99 percent of imately 81 percent of the population in- the 24,000 simulated maps, the district cluded in the 2011 version, Ex. 5001, tbl.1, with the fifth highest share of Democratic which the General Assembly expressly votes—like District 2 recorded in the 2016 drew to increase Republican voting election—had a higher concentration of strength. voters who supported Democratic congres- The results of the 2016 election demon- sional candidates that District 2. Ex. 3040, strate that the mapdrawers’ successfully at 29–30; see Trial Tr. I, at 55:2–6, 70:1–9, cracked Democratic voters in and around 72:10–13, 76:22–77:5. Accordingly, the stra- District 3: as Dr. Hofeller intended and tegic drawing of District 2—including the expected, the district’s Republican candi- cracking of Wilson and Wake Counties date received a safe majority of the votes along partisan lines—diluted the votes of cast in the 2016 election, and is therefore Democratic voters in District 2, and was likely to retain his seat in future elections. not the result of the State’s political geog- Compare Ex. 5116, at 9 (Dr. Hofeller aver- raphy or other legitimate redistricting considerations. ring that, using his seven-race formula, candidate was likely to receive 55% of the When viewed alongside the overwhelm- two-party vote share), with Ex. 1018, at 2 ing statewide evidence set forth above, this (Republican candidate, Rep. Walter B. district-specific evidence proves (1) that Jones, received 67.2% of the vote in 2016 the mapdrawers predominantly intended election). The Republican candidate also to, and did in fact, crack Democratic voters received a lower share of the vote in Dis- in drawing District 2; (2) that the cracking trict 3 than two of the Democratic candi- of Democratic voters in and adjacent to dates received in the three districts Dr. District 2 had the effect of diluting such Hofeller drew to be predominantly and voters’ votes; and (3) that the cracking of Democratic voters in and adjacent to Dis- overwhelmingly Democratic. Ex. 1018. trict 2 was not a product of the State’s To achieve the goal of diluting Demo- political geography or other legitimate, cratic voting strength in District 3, the non-partisan districting considerations. district divides municipalities and commu- Therefore, we conclude that District 2 vio- nities of interest along partisan lines. In lates the Equal Protection Clause. particular, the upper western edge of Dis- c. District 3 trict 3 splits Pitt County by cracking off District 3 spans all or part of seventeen that county’s disproportionately Democrat- counties in eastern North Carolina, most ic precincts into District 1, while placing of which run along North Carolina’s coast. its disproportionately Republican precincts Ex. 1001. Dr. Hofeller testified that, in into District 3. Ex. 4013. Notably, Dr. Ho- drawing the 2011 Plan, he removed Demo- feller created several alternative maps that cratic voters from the prior version of did not split Pitt County. Ex. 2004, at 17– District 3 and placed them ‘‘in TTT Dis- 18. And all but one map drawn by the trict[ ] 1’’ because it was the ‘‘only [way to] retired judges placed Pitt County entirely accomplish’’ the General Assembly’s goal in one district. Ex. 5095. Additionally, ‘‘to increase Republican voting strength in Plaintiffs’ experts generated a number of New District TTT 3.’’ Hofeller Dep. 116:19– other alternative maps that likewise did 117:25. Although the version of District 3 not split Pitt County. E.g., Exs. 5025, 5027. in the 2016 Plan eliminates a number of And although Plan 2-297 splits Pitt Coun- appendages from the 2011 version, Ex. ty, it does not do so along partisan lines. 2001, the 2016 Plan version retains approx- Compare Second Chen Decl. 3, with Ex. COMMON CAUSE v. RUCHO 907 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

4013. District 3’s counterpart in Plan 2- he and the Chairs drew, using past elec- 297, District 13, has a substantially lower tion results, to be ‘‘predominantly Demo- Republican vote share as measured by Dr. cratic.’’ Hofeller Dep. 192:7–16. Hofeller’s variable than District 3. Com- The results of the 2016 election demon- pare Second Chen Decl. at 5 (expected strate that the mapdrawers achieved their Republican vote share of 54.43%), with Ex. goal of packing Democratic voters in Dis- 1018, at 2 (Republican candidate received trict 4: as Dr. Hofeller intended and ex- 67.2% of the vote in 2016 election). pected, the district’s Democratic candidate When considered in conjunction with received an overwhelming majority of the Plaintiffs’ strong statewide evidence, this votes cast in the 2016 election. Compare constitutes district-specific proof (1) that Ex. 5116, at 9 (Dr. Hofeller averring that, the mapdrawers predominantly intended using his seven-race formula, Democratic to, and did in fact, crack Democratic voters candidate was likely to receive 63% of the in drawing District 3; (2) that the cracking two-party vote share), with Ex. 1018, at 2 of Democratic voters in and adjacent to (Democratic candidate, Rep. David Price, District 3 had the effect of diluting the received 68% of the vote in 2016 election). strength of the Democratic voters’ votes in Consistent with these results, Dr. Hood District 3; and (3) that the cracking of characterized District 4 as ‘‘Safe Demo- Democratic voters in and adjacent to Dis- cratic.’’ Ex. 5058, at 25. Additionally, in the trict 3 was not a product of the State’s 2016 election the Democratic candidate in political geography or other legitimate, District 4 received a higher share of the non-partisan districting considerations. Ac- vote in his district than each of the Repub- cordingly, District 3 violates the Equal lican candidates received in the 10 districts Protection Clause Dr. Hofeller drew so as to ensure Republi- d. District 4 can candidates would prevail. Ex. 1018, at District 4 sits in the upper middle of 2–4. North Carolina and spans all of Orange To achieve the goal of concentrating County, then snakes eastward and cap- Democratic voters in District 4, the district tures segments of Durham County and divides municipalities and communities of Wake County. Ex. 1001. Dr. Hofeller testi- interest along partisan lines. In particular, fied that he purposely drew the lines of the the eastern edge of District 4 reaches 2011 version of District 4 to encompass ‘‘all through Durham County and into the the strong Democratic VTDs’’ in the area heart of Wake County, packing Wake because the goal of the General Assem- County’s large cluster of historically Dem- bly’s Republican leadership ‘‘to increase ocratic precincts into District 4, while plac- Republican voting strength in New Dis- ing the county’s historically Republican tricts 2, 3, 6, 7, and 13 TTT could only be precincts into a horseshoe-shaped section accomplished’’ in that way. Hofeller Dep. of District 2. Ex. 4014. As noted above, 116:19–117:25. Although the version of the precinct-level elections results reveal that district in the 2016 Plan is significantly more compact than the 2011 version, Ex. the Wake County precincts assigned to 2001, the 2016 Plan version retains approx- District 2 tended to strongly favor Repub- imately 62 percent of the population in- lican candidates, while the precincts as- cluded in the 2011 version drawn to pack signed to District 4 favored Democratic Democratic voters. Ex. 5001, tbl.1. To that candidates. See supra Part III.B.2.b. end, Dr. Hofeller testified that District 4 Notably, although any map must divide was one of three districts in the 2016 Plan Wake County to comply with the one- 908 318 FEDERAL SUPPLEMENT, 3d SERIES person, one-vote rule, each of the maps version of Congressional District 4 is to drawn by the panel of former judges did pack Democratic voters into the district in so by creating single district solely within an amount greater than would otherwise Wake County and not dividing the county ever naturally occur under neutral district- on partisan lines. Compare Ex. 5095, with ing criteria. See Trial Tr. I, at 55:2–6, 70:1– Ex. 3019. And none of the judges’ maps 4, 76:22–77:1; Ex. 3040. divided Wake County on partisan lines, as When considered alongside Plaintiffs’ the 2016 Plan does. Compare Ex. 5095, compelling statewide evidence, this dis- with Ex. 3019. Likewise, numerous alter- trict-specific evidence proves (1) that the native maps generated by Plaintiffs’ ex- mapdrawers predominantly intended to, perts, including Plan 2-297, demonstrate and did in fact, pack Democratic voters in that the General Assembly could have drawn District 4 without dividing Wake District 4; (2) that the packing of Demo- County on partisan lines so as to pack cratic voters in District 4 had the effect of Democratic voters in District 4. Compare, diluting such voters’ votes; and (3) that the e.g., Second Chen Decl. 3; Exs. 5026–27, packing of Democratic voters in District 4 with Ex. 4014. The district most closely was not a product of the State’s political overlapping with District 4 in Plan 2-297, geography or other legitimate, non-parti- District 11, has a substantially lower Dem- san districting considerations. Accordingly, ocratic vote share as measured by Dr. District 4 violates the Equal Protection Hofeller’s partisanship variable than Dis- Clause. trict 4. Compare Second Chen Decl. at 5 e. District 5 (expected Democratic vote share of [116] District 5 spans all or part of 63.22%), with Ex. 1018, at 2 (Democratic eleven counties in northwestern North candidate received 68% of the vote in 2016 Carolina, most of which run along the election). western portion of North Carolina’s border Plaintiffs’ statistical evidence further with Virginia. Ex. 1001. In addition to the proves that District 4’s unique partisan overwhelming statewide evidence of parti- configuration was not attributable to the san gerrymandering, Plaintiffs introduced state’s political geography or other legiti- some district-specific evidence supporting mate districting considerations. Instead, their claim that District 5 dilutes the votes the data demonstrate that Democratic vot- of Democratic voters assigned to the dis- ers in District 4 were, in fact, packed trict. In particular, as Dr. Hofeller intend- together in order to dilute the voting ed and expected, the district’s Republican strength of those Democratic voters. In the 2016 election the Democratic candidate candidate received a safe majority of the in District 4 received 68 percent of the votes cast in the 2016 election, and is vote, the second highest Democratic vote therefore likely to retain his seat in future share overall. Ex. 3040, at 29–30. By con- elections. Compare Ex. 5116, at 9 (Dr. trast, in Dr. Mattingly’s ensemble of more Hofeller averring that, using his seven- than 24,000 plans, the median Democratic race formula, Republican candidate was vote share of the second most Democratic likely to receive 55.7% of the two-party district, based on votes cast in the 2016 vote share), with Ex. 1018, at 2 (Republi- election, was 62 percent, with none of such can candidate, Rep. Virginia Fox, received districts having as high a percentage as 58.2% of the vote in 2016 election). The the level recorded in District 4 the 2016 Republican candidate also received a sig- election. Id.; Trial Tr. I, at 72:10–15. This nificantly lower share of the vote in Dis- demonstrates that the effect of the 2016 trict 5 than each of the Democratic candi- COMMON CAUSE v. RUCHO 909 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

dates received in the three districts Dr. f. District 6 Hofeller drew to be overwhelmingly Dem- District 6, which resembles a sideways ocratic. Ex. 1018, at 2–4. And Dr. Hood ‘‘H,’’ spans all or part of eight counties in characterized District 5 as ‘‘Safe Republi- northern and central North Carolina. Ex. can.’’ Ex. 5058, at 25. 1001. Dr. Hofeller testified that in drawing Unlike with other districts, however, the 2011 version of the district he Plaintiffs produced no direct evidence that ‘‘plac[ed]’’ into Districts 1 and 4 ‘‘all the the mapdrawers expressly sought to in- strong Democratic VTDs’’ in order ‘‘to increase Republican voting strength in draw- crease Republican voting strength in New ing either the 2011 version of District 5 or District[ ] TTT 6.’’ Hofeller Dep. 116:19– the 2016 version of the district. Likewise, 117:25. The version of District 6 in the Plaintiffs produced no evidence indicating 2016 Plan retains slightly more than half that District 5 splits municipalities or com- its population from the 2011 version, and, munities of interest along partisan lines. of particular relevance here, the version of Ex. 4007. To the contrary, District 5 is District 6 in the 2016 Plan follows the 2011 principally composed of predominantly Re- version in cracking Guilford County and publican precincts and does not divide ei- the City of Greensboro—the most popu- ther of the two clusters of Democratic lous part of the district—both of which precincts within it. Id. Indeed, based on traditionally support Democratic candi- historical voting patterns, it is difficult to dates. Exs. 1001; 2001. Accordingly, the imagine how one would draw a compact 2016 Plan version of District 6 carries district in the northwest corner of North forward the invidious partisan intent and Carolina that was not predominantly Re- effects motivating the lines of the 2011 publican. Id. District 5 also is, on average, version of the district. To that end, Repre- more compact than most of the other dis- sentative Lewis testified that when creat- tricts in the 2016 Plan and more compact, ing the 2016 Plan, he and Dr. Hofeller on average, than its counterpart in the ‘‘move[d] individual VTDs from District 6 2011 Plan. Ex. 5001, app. And notably, to District 13 in Guilford County, or vice District 5’s counterpart in Plan 2-297, Dis- versa, for political impact.’’ Lewis Dep. trict 5, includes many of the same counties 156:19–157:1. as the version of the district in the 2016 The results of the 2016 election demon- Plan and has a higher predicted Republi- strate that Dr. Hofeller achieved the goal can vote share than the version of the of cracking Democratic voters in Guilford district in the 2016 Plan. Compare Second County, and submerging such voters in a Chen Decl. 3, 5 (expected Republican vote ‘‘safe’’ Republican district: as Dr. Hofeller share of 63.86%), with Ex. 1018, at 2 (Re- intended and expected, the district’s Re- publican candidate received 58.4% of the publican candidate prevailed in the district vote in 2016 election). by a ‘‘safe’’ margin in the 2016 election. In sum, notwithstanding the compelling Compare Ex. 5116, at 9 (Dr. Hofeller aver- statewide evidence of cracking and pack- ring that, using his seven-race formula, ing, Plaintiffs have failed to demonstrate Republican candidate was likely to receive that District 5, in particular, cracks or 54.41% of the two-party vote share), with packs Democratic voters, or that such vot- Ex. 1018, at 2 (Republican candidate, Rep. ers’ votes would carry more weight under B. Mark Walker, received 59.2% of the an alternative plan. Accordingly, District 5 vote in 2016 election). Dr. Hood character- does not violate the Equal Protection ized District 6 as ‘‘Safe Republican.’’ Ex. Clause. 5058, at 25. And notably, the Republican 910 318 FEDERAL SUPPLEMENT, 3d SERIES

candidate received a significantly lower the city’s large cluster of historically Dem- share of the vote in District 6 than each of ocratic precincts into District 6 and placing the Democratic candidates received in the the other half into District 13. Ex. 4010. three districts Dr. Hofeller drew to be Significantly, Legislative Defendants’ ex- predominantly and overwhelmingly Demo- pert, Dr. Hood, testified that line drawn cratic. Ex. 1018. through Guilford County separating Dis- tricts 6 and 13 constituted ‘‘legislative To achieve the goal of diluting Demo- cracking of a Democratic partisan cluster cratic voting strength in District 6, the in the redistricting process.’’ Trial Tr. IV, district divides municipalities and commu- at 45:2–8. Dr. Hood further testified that nities of interest along partisan lines. As had the mapdrawers not cracked Guilford noted above, the western edge of District 6 County, one of the two districts ‘‘would splits Guilford County and the City of have been more Democratic.’’ Id. at 45:24– Greensboro, placing approximately half of 46:5.

Figure 4: The cracking of Guilford County, or split it less significantly. E.g., County between Districts 6 Exs. 5025–26, 5028, 5031. And although and 13 Dr. Chen’s Plan 2-297 divides Guilford County, it does so because Dr. Chen was Dr. Hofeller created at least one alterna- constrained to follow the General Assem- tive map that did not split the Guilford bly’s objective of avoiding the pairing of County Democratic cluster. Ex. 2004, at two incumbents who reside in Guilford 18. Not a single map submitted by the County and were elected under the 2011 retired judges splits Guilford County at Plan, Second Chen Decl. 3, which split all, let alone through the middle of the Guilford County and was expressly drawn Greensboro Democratic cluster. Ex. 5095. to increase Republican voting strength, Several other alternative maps generated Hofeller Dep. 116:19–117:25. Notably, the by Plaintiffs’ experts did not split Guilford two districts in Plan 2-297 that contain COMMON CAUSE v. RUCHO 911 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) parts of Guilford County are significantly ography, diluted the votes of Democratic more compact, on average, than their voters in District 6. counterparts in the 2016 Plan under the Viewed in conjunction with Plaintiffs’ compactness measures preferred by the statewide evidence, Plaintiffs district-spe- General Assembly. Compare Second Chen cific evidence demonstrates (1) that the Decl. 5 (reporting Reock and Polsby-Pop- mapdrawers predominantly intended to, per scores of .522 and .320, respectively, and did in fact, dilute the votes of Demo- for District 6, and scores of .481 and .248 cratic voters in District 6; (2) that the for District 7 in Plan 2-297), with Ex. 5001 cracking of Democratic voters in District 6 app’x (reporting Reock and Polsby-Popper and adjacent districts had the effect of scores of .50 and .32, respectively, for Dis- diluting such voters’ votes; and (3) that the trict 6, and scores of .36 and .23 for Dis- trict 13 in the 2016 Plan). And District 6’s cracking of Democratic voters in District 6 counterpart in Plan 2-297, District 7, has a and adjacent districts was not a product of substantially lower Republican vote share the State’s political geography or other as measured by Dr. Hofeller’s variable legitimate, nonpartisan districting consid- than that observed in District 6 in the 2016 erations. Accordingly, we conclude that election. Compare Second Chen Decl. at 5 District 6 violates the Equal Protection (expected Republican vote share of Clause. 51.49%), with Ex. 1018, at 2 (Republican g. District 7 candidate received 59.2% of the vote in District 7 spans all or part of nine coun- 2016 election). ties in southeastern North Carolina. Ex. Plaintiffs’ statistical evidence further 1001. Dr. Hofeller testified that he redrew proves that District 6’s partisan make-up a number of districts in the 2011 Plan ‘‘to is attributable to the intentional cracking weaken Democratic strength in District[ ] of Democratic voters, rather than political 7,’’ Ex. 2043, at 33–34, and ‘‘to increase geography or other legitimate non-partisan Republican voting strength in New Dis- redistricting considerations. In particular, trict[ ] 7,’’ Hofeller Dep. 116:19–117:25. Al- Dr. Mattingly found that District 13, with though the version of District 7 in the 2016 which District 6 split the historically Dem- Plan eliminates a number of appendages in ocratic precincts in Greensboro and Guil- the 2011 version, see Ex. 2001, the 2016 ford County, represents an extreme statis- Plan version includes nearly all of the tical outlier. Ex. 3040, at 30. In the 2016 counties in the 2011 version of the district election the Democratic candidate in Dis- and retains approximately 72 percent of trict 13 received 44 percent of the vote, the the population included in its 2011 version. highest Democratic vote share in any of Ex. 5001, tbl.1. Therefore, 2016 Plan ver- the ten districts in which a Republican sion of District 7 carries forward the ex- candidate prevailed and the fourth highest press partisan intent motivating the lines Democratic vote share overall. Id. at 29– of the 2011 version of the district, and the 30. Yet, in Dr. Mattingly’s ensemble of attendant discriminatory effects. more than 24,000 plans, the median Demo- cratic vote share of the fourth most Demo- The results of the 2016 election demon- cratic district was 54 percent, with only .19 strate that the mapdrawers successfully percent of such districts having a Demo- diluted Democratic voters’ votes in draw- cratic vote share at or below the level ing District 7: the Republican candidate recorded in District 13 the 2016 election. received approximately 61 percent of the Id. Accordingly, the splitting of Guilford votes cast in the 2016 election, a much County, not North Carolina’s political ge- higher percentage than Dr. Hofeller esti- 912 318 FEDERAL SUPPLEMENT, 3d SERIES

mated. Compare Ex. 5116, at 9 (Dr. Hofel- To achieve the goal of diluting Demo- ler averring that, using his seven-race for- cratic voter strength in District 7, the dis- mula, Republican candidate was likely to trict divides municipalities and communi- receive 53.7% of the two-party vote share), ties of interest along partisan lines. For with Ex. 1018, at 2 (Republican candidate, example, the northwestern edge of District 7 splits Johnston County in two—cracking Rep. David Rouzer, received 60.9% of the the county’s large cluster of historically vote in 2016 election). Yet, notwithstanding Democratic precincts into near-equal this higher-than-anticipated Republican halves between Districts 7 and 2. Ex. 4011. vote share, the Republican candidate in Similarly, the southwestern edge of Dis- District 7 still received a lower share of trict 7 splits Bladen County by meander- the vote in his district than each of the ing around more than half of the county’s Democratic candidates received in the disproportionately Democratic precincts to three districts Dr. Hofeller drew to be draw those districts into District 7, while predominantly and overwhelmingly Demo- retaining the remaining precincts in Dis- cratic. Ex. 1018. trict 9. Ex. 4007.

Figure 5: The cracking of Johnston tisan lines. Second Chen Decl. 3. Further- County between Districts 2 more, District 7’s counterpart in Plan 2- and 7 297, District 9, has a substantially lower Notably, Dr. Hofeller created several Republican vote share as measured by Dr. alternative maps that did not split John- Hofeller’s variable than that observed in ston and Bladen Counties. Ex. 2004, at 17– District 6 in the 2016 election. Compare 23. Not a single map drawn by the panel of Second Chen Decl. at 5 (expected Republi- retired judges split those counties. Ex. can vote share of 52.18%), with Ex. 1018, 5095. And a number of other alternative at 2 (Republican candidate received 60.9% maps generated by Plaintiffs’ experts kept of the vote in 2016 election). Johnston and Bladen Counties whole. E.g., Against the backdrop of Plaintiffs’ over- Exs. 5025–27. Additionally, Plan 2-297 does whelming statewide evidence, this district- not divide Bladen County, nor does it di- specific evidence proves (1) that the map- vide Johnston County as clearly along par- drawers predominantly intended to, and COMMON CAUSE v. RUCHO 913 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

did in fact, crack Democratic voters in Compare Ex. 5116, at 9 (Dr. Hofeller aver- drawing District 7; (2) that the cracking of ring that, using his seven-race formula, Democratic voters in District 7 and adja- Republican candidate was likely to receive cent districts had the effect of diluting 54.9% of the two-party vote share), with such voters’ votes; and (3) that the crack- Ex. 1018, at 3 (Republican candidate, Rep. ing of Democratic voters in District 7 and Richard Hudson, received 58.8% of the adjacent districts was not a product of the vote in 2016 election). And in the 2016 State’s political geography or other legiti- election, the Republican candidate in Dis- mate, non-partisan districting consider- trict 8 received a significantly lower share ations. Therefore, we conclude that Dis- of the vote in his district than each of the Democratic candidates received in the trict 7 violates the Equal Protection three districts Dr. Hofeller drew to be Clause. predominantly and overwhelmingly Demo- h. District 8 cratic. Ex. 1018. District 8 takes on a serpentine shape, Although the 2016 Plan substantially running more than 100 miles from the altered the boundaries of the version in outskirts of Charlotte in Cabarrus County the 2011 Plan, the 2016 version of Dis- to part of the City of Fayetteville in Cum- trict 8 continues to strongly favor Repub- berland County. Ex. 1001. According to lican candidates because, like the earlier Legislative Defendants’ expert Dr. Hood, version of the district, it divides counties Cabarrus County lies in a different politi- and communities of interest along parti- cal ‘‘subregion’’ of the State than Fayette- san lines, and joins sections of the state ville and Cumberland County, as those that have little in common. In particular, subregions have traditionally been defined the southeastern edge of District 8 cracks by political scientists. Ex. 5058, at 8–9. the City of Fayetteville and a large cluster of historically Democratic precincts in Dr. Hofeller testified that, in drawing Cumberland, Hoke, and Robeson Coun- the 2011 Plan, he intended to—and did, in ties between Districts 8 and 9. Ex. 4009. fact—‘‘weaken Democratic strength’’ in Legislative Defendants’ expert Dr. Hood District 8. Ex. 2043, at 33–34. Dr. Hofeller conceded as much, testifying that the substantially changed the shape of District three-county area constituted a ‘‘cluster 8 in the 2016 Plan, retaining only 42 per- of Democratic VTDs’’ that the 2016 Plan cent of the population in the 2011 version ‘‘split between those two districts.’’ Trial of the district. Ex. 5001, tbl.1. However, Tr. IV, at 47:10, 48:24–49:18. Dr. Hood the voting strength of Democratic voters further testified that if the 2016 Plan had in the district remains intentionally not cracked the Cumberland-Hoke-Robe- ‘‘weak[ ].’’ Ex. 2043, at 33–34. As Dr. Ho- son County Democratic cluster, either feller intended and expected, the district’s District 8 or District 9 would not have Republican candidate received a safe ma- been a safe Republican district, as is the jority of the votes cast in the 2016 election. case under the 2016 Plan. Id. at 49:12–25. 914 318 FEDERAL SUPPLEMENT, 3d SERIES

Figure 6: The cracking of Cumberland Plaintiffs’ statistical evidence further County between Districts 8 and 9 proves that District 8’s partisan make-up Dr. Hofeller created at least one alterna- did not result from the State’s political tive map that left Cumberland County geography, but rather from the mapdrawers’ successful effort to dilute Democratic whole. See, e.g., Ex. 2004, at 14. Several voters’ votes. In particular, in the 2016 other maps generated by Plaintiffs’ ex- election the Democratic candidate in Dis- perts—including Plan 2-297—did not di- trict 9—the district with which District 8 vide Cumberland County, e.g., Second split the Democratic voters in the Cumber- Chen Decl. 3; Ex. 5029, or crack the Cum- land-Hoke-Robeson County cluster—re- berland-Hoke-Robeson County cluster, ceived 42 percent of the vote, the third e.g., Exs. 5026, 5033. Also unlike the 2016 highest Democratic vote share in any of Plan, numerous maps generated by Plain- the 10 districts in which a Republican can- tiffs’ experts—including Plan 2-297—do didate prevailed and the sixth highest not place Cabarrus County and the Cum- Democratic vote share among all 13 dis- berland-Hoke-Robeson County grouping, tricts. Ex. 3040, at 29–30. Yet, in Dr. Mat- which lie in different political subregions of tingly’s ensemble of more than 24,000 the State, in the same district. E.g., Second plans—all of which conformed to tradition- Chen Decl. 3; Exs. 5025–27. Additionally, al redistricting criteria—the median Dem- although none of the districts in Plan 2-297 ocratic vote share of the sixth most Demo- take on District 8’s serpentine-shape, the cratic district was 48 percent, with only .02 district in Plan 2-297 that includes most of percent of such districts having a Demo- the Cumberland-Hoke-Robeson County cratic vote share at or below the level cluster, District 8, has a substantially low- recorded in District 9 in the 2016 election. er Republican vote share as measured by Id. Accordingly, the splitting of Democrat- Dr. Hofeller’s variable than District 8 in ic voters in the Cumberland-Hoke-Robe- the 2016 Plan. Compare Second Chen son County cluster between District 8 and Decl. 5 (expected Republican vote share of District 9 had the effect of diluting the 46.43%), with Ex. 1018, at 3 (Republican votes of Democratic voters in District 8. candidate received 58.8% of the vote in When considered in conjunction with 2016 election). Plaintiffs’ statewide evidence, we find that COMMON CAUSE v. RUCHO 915 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

Plaintiffs have proven (1) that the map- received 58.2% of the vote in 2016 elec- drawers predominantly intended to, and tion). And despite this safe margin of victo- did in fact, crack Democratic voters in and ry, the victorious Republican candidate in adjacent to District 8; (2) that the cracking District 9 received a lower share of the of Democratic voters in an adjacent to vote in his district than each of the Demo- District 8 had the effect of diluting such cratic candidates received in the three dis- voters’ votes; and (3) that the cracking of tricts Dr. Hofeller drew to be predomi- Democratic voters in an adjacent to Dis- nantly and overwhelmingly Democratic. trict 8 was not a product of the State’s Ex. 1018, at 2–4. political geography or other legitimate, To achieve the goal of diluting Demo- non-partisan districting considerations. Ac- cratic voter strength in District 9, the dis- cordingly, District 8 violates the Equal trict divides several municipalities and Protection Clause communities of interest along partisan i. District 9 lines, and joins sections of the state that District 9 spans all or part of eight have little in common. For example, the counties running along the southeastern northwestern edge of District 9 splits portion of North Carolina’s border with Mecklenburg County by drawing district South Carolina, tracking the serpentine lines so that almost all of the traditionally southern border of District 8. Ex. 1001. Republican precincts found in a small slice The District encompasses a number of pre- of southern Mecklenburg County fall with- dominantly Republican precincts in south- in District 9, while the rest of the county’s ern Charlotte and its Mecklenburg and historically Democratic precincts are Union County suburbs—the areas from packed into District 12. Ex. 4012. In par- which District 9 draws the most popula- ticular, in the 2008 gubernatorial election, tion—and then extends nearly 150 miles approximately 25 percent of the Mecklen- east, through a number of predominantly burg County voters assigned by the map- Democratic precincts, to rural Bladen drawers to District 9 in the 2016 Plan County. Id.; Ex. 3040, at 2. Legislative voted for the Democratic candidate, Defendants’ expert Dr. Hood opined that whereas more than 56 percent of the Charlotte and its Mecklenburg and Union Mecklenburg County voters assigned to County suburbs and Bladen County lie in District 12 voted for the Democratic candi- different political ‘‘subregions’’ of North date. VTD 2008 Election Results - 2 - Carolina, as the State’s political regions District 9: 2016 Contingent Congressional have been defined by political scientists. Plan Corrected (‘‘NCGA District 9 Data’’) Ex. 5058, at 8–9. 2 (Data Printed Feb. 25, 2016), with VTD The mapdrawers successfully diluted the 2008 Election Results - 2 - District 4: 2016 votes of Democratic voters by submerging Contingent Congressional Plan Corrected such voters in a predominantly Republican (‘‘NCGA District 12 Data’’) 12 (Data Print- district: as Dr. Hofeller intended and ex- ed Feb. 25, 2016). Precinct-level results pected, the district’s Republican candidate from other elections follow the same pat- received over 55 percent of the votes cast tern: the Mecklenburg County precincts in the 2016 election. Compare Ex. 5116, at assigned to District 9 tended to strongly 9 (Dr. Hofeller averring that, using his favor Republican candidates, while the seven-race formula, Republican candidate precincts assigned to District 12 favored was likely to receive 55.7% of the two- Democratic candidates. Compare NCGA party vote share), with Ex. 1018, at 2 District 9 Data 2, with NCGA District 12 (Republican candidate, Robert Pittenger, Data 3; Compare VTD 2010 Election Re- 916 318 FEDERAL SUPPLEMENT, 3d SERIES

sults - District 9: 2016 Congressional Plan place Mecklenburg County in the same Corrected 3 (Data Printed Feb. 25, 2016), district as Robeson and Bladen County, with VTD 2010 Election Results - District the district in Plan 2-297 that, like District 12: 2016 Congressional Plan Corrected 3 9, includes southeastern Mecklenburg and (Data Printed Feb. 25, 2016). Union Counties, District 4, has a slightly Additionally, as Legislative Defendants’ lower Republican vote share as measured expert Dr. Hood acknowledged, the north- by Dr. Hofeller’s variable than District 9 eastern edge of District 9 cracks Cumber- in the 2016 Plan. Compare Second Chen land County’s historically Democratic pre- Decl. 5 (expected Republican vote share of cincts between districts 8 and 9. Ex. 4012; 57.77%), with Ex. 1018, at 2 (Republican Trial Tr. IV, at 47:10, 48:24–49:18. Fur- candidate received 58.2% of the vote in ther, the southeastern edge of District 9 2016 election). cracks Bladen County’s historically Demo- Plaintiffs’ statistical evidence further cratic precincts between Districts 7 and 9. proves that District 9’s unique partisan Ex. 4012. And several Plaintiffs testified configuration did not result from the that the predominantly Republican Meck- State’s political geography, but rather lenburg County section of District 9 has from the mapdrawers’ successful effort to little in common with the predominantly dilute Democratic voters’ votes by combin- rural eastern portion of the district that ing Mecklenburg County’s populous Re- historically has favored Democratic candi- publican precincts with Democratic predates. McNeill Dep. 26:9–27:18; Klenz Dep. cincts in rural southeast North Carolina. 65:23–66:12. In particular, in the 2016 election the Notably, Dr. Hofeller created several Democratic candidate in District 9 re- alternative maps that did not split Meck- ceived 42 percent of the vote, the third lenburg, Cumberland, and Bladen Coun- highest Democratic vote share in any of ties in the same districting plan. Ex. 2004, the 10 districts in which a Republican can- at 13, 14, 15, 17–23. And not a single map didate prevailed and the sixth highest drawn by the retired judges split all three Democratic vote share among all 13 dis- counties. Ex. 5095. Nor did any of the tricts. Ex. 3040, at 29–30. By contrast, in judges’ maps place any portion of Meck- Dr. Mattingly’s ensemble of more than lenburg County in the same district as 24,000 plans the median Democratic vote parts of Cumberland County or Bladen share of the sixth most Democratic district County. Id. Nor did any of their maps was 48 percent, with only .02 percent of divide Mecklenburg County along partisan such districts having a Democratic vote lines, as the 2016 Plan does. Id. Likewise, share at or below the level recorded in numerous alternative maps generated by District 9 in the 2016 election. Id. Plaintiffs’ experts, including Dr. Chen’s This strong district-specific evidence— Plan 2-297, demonstrate that the General when coupled with the overwhelming Assembly could have drawn District 9 statewide evidence—establishes (1) that without dividing Mecklenburg County the mapdrawers predominantly intended along partisan lines or placing portions of to, and did in fact, crack Democratic voters Mecklenburg County in the same district in and adjacent to District 9; (2) that the as portions of Bladen and Cumberland cracking of Democratic voters in and adja- Counties, which lie in a different political cent to District 9 had the effect of diluting subregion of the state. E.g. Second Chen such voters’ votes; and (3) that the crack- Decl. 3; Exs. 5025–27. Additionally, al- ing of Democratic voters in and adjacent to though none of the districts in Plan 2-297 District 9 was not a product of the State’s COMMON CAUSE v. RUCHO 917 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

political geography or other legitimate, pected, the district’s Republican candidate non-partisan districting considerations. Ac- received an overwhelming majority of the cordingly, we conclude District 9 violates votes cast in the 2016 election. Compare the Equal Protection Clause. Ex. 5116, at 9 (Dr. Hofeller averring that, j. District 10 using his seven-race formula, Republican District 10 spans all or part of eight candidate was likely to receive 58% of the counties in southwestern North Carolina, two-party vote share), with Ex. 1018, at 2 running from the western suburbs of (Republican candidate, Rep. Patrick Charlotte to a bizarre, bulbous protrusion McHenry, received 63.1% of the vote in into Buncombe County and the City of 2016 election). Consistent with these re- Asheville in the Appalachian Mountains. sults, Legislative Defendants’ expert Dr. Ex. 1001. Like the 2011 Plan, the 2016 Hood characterized District 10 as ‘‘Safe Plan divides Buncombe County and Ashe- Republican.’’ Ex. 5058, at 25. And despite ville, which are composed of precincts that this safe margin of victory, in the 2016 historically favor Democrats, between Dis- election the victorious Republican candi- tricts 10 and 11. Exs. 2001, 4008. The 2016 date in District 10 received a significantly version of District 10 closely tracks the lower share of the vote in his district than version of the district in 2011 Plan, retain- each of the Democratic candidates received ing over 95 percent of the 2011 version’s in the three districts Dr. Hofeller drew to population. Ex. 5001, tbl. 1. The congres- be predominantly and overwhelmingly sional districting plan in place prior to the Democratic. Ex. 1018, at 2–4. 2011 election did not divide Buncombe To achieve the goal of diluting Demo- County or Asheville, and the district in cratic voting strength in District 10, the that plan that included all of Buncombe district divides municipalities and commu- County and Asheville elected the Demo- nities of interest along partisan lines. In cratic candidate in the 2010 election, Ex. particular, the northeastern edge of Dis- 1021; Quinn Dep. 26:17–23, 38:20–25, not- trict 10 splits Buncombe County and Ashe- withstanding that Republican candidates ville with District 11. Ex. 4008. Notably, performed strongly in the 2010 election, Legislative Defendants’ expert Dr. Hood both in North Carolina and nationwide, testified that the district line drawn Exs. 1021; 5101, at 25, 36. Although the through Buncombe County and Asheville General Assembly received ‘‘push back’’ constituted ‘‘legislative cracking of a Dem- regarding the splitting of Buncombe Coun- ocratic partisan cluster in the redistricting ty and Asheville in the 2011 Plan, Dr. process.’’ Trial Tr. IV, at 41:12–18. Dr. Hofeller and Representative Lewis deter- Hood further conceded that had Buncombe mined that it simply ‘‘wasn’t worth the County and Asheville not been divided be- effort’’ to remove the split for the 2016 tween two districts—i.e. had the ‘‘naturally version, especially since the split was pres- packed’’ Buncombe County and Asheville ent ‘‘in every scenario’’ that achieved their Democratic ‘‘cluster’’ been kept whole— partisan objectives. Lewis Dep. 62:4–19. the district containing Buncombe County The 2016 Plan successfully cracked and Asheville would have been more favor- Democratic voters in and adjacent to Dis- able to Democratic candidates. Id. at 40:1– trict 10: as Dr. Hofeller intended and ex- 43:4. 918 318 FEDERAL SUPPLEMENT, 3d SERIES

Figure 7: The cracking of Buncombe Popper scores of .320 and .324, respective- County between Districts 10 ly, for District 1, and scores of .553 and and 11 .325 for District 2 in Plan 2-297), with Ex. Significantly, Dr. Hofeller created sever- 5001 (reporting Reock and Polsby-Popper al alternative maps that did not split the scores of .35 and .26, respectively, for Dis- Buncombe County Democratic cluster. Ex. trict 10, and scores of .26 and .21 for 2004, at 11, 13, 18. And not a single map District 11 in the 2016 Plan). drawn by the retired judges splits Bun- When viewed in conjunction with Plain- combe County at all, let alone through the tiffs’ overwhelming statewide evidence, middle of the Democratic cluster. Ex. 5095; this district-specific evidence proves (1) cf. Lewis Dep. 64:25–65:1 (testifying he that the mapdrawers predominantly in- ‘‘couldn’t ever figure out a way’’ to ‘‘keep tended to, and did in fact, crack Democrat- Buncombe county whole’’). Likewise, nu- ic voters in and adjacent to District 10; (2) merous alternative maps generated by that the cracking of Democratic voters in Plaintiffs’ experts, including Plan 2-297, and adjacent to District 10 had the effect demonstrate that the General Assembly of diluting such voters’ votes; and (3) that could have drawn District 10 without the cracking off of Democratic voters in cracking the Democratic cluster in Bun- and adjacent to District 10 was not a prod- combe County. E.g., Second Chen Decl. 3, uct of the State’s political geography or Exs. 5025–27. Notably, Districts 1 and 2 in other legitimate, non-partisan districting Plan 2-297, which contain most of the area considerations. District 10, therefore, vio- encompassed by Districts 10 and 11 in the lates the Equal Protection Clause. 2016 Plan, are, on average, significantly more compact than District 10 and 11 of k. District 11 the 2016 Plan, as measured by the General District 11 spans all or part of sixteen Assembly’s preferred Reock and Polsby- counties in western North Carolina, includ- Popper metrics. Compare Second Chen ing sections of Buncombe County and Decl. 3–5 (reporting Reock and Polsby- Asheville. Ex. 1001. District 11 closely COMMON CAUSE v. RUCHO 919 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) tracks the shape and population of the To achieve the goal of diluting Demo- version of the district in the 2011 Plan, cratic voting strength in District 11, the retaining over 96 percent of the 2011 ver- district divides municipalities and commu- sion’s population. Exs. 2001; 5001, tbl. 1. nities of interest along partisan lines. As Dr. Hofeller averred that a part of the explained above, the eastern edge of Dis- ‘‘strategy’’ of the General Assembly’s Re- trict 11 splits Buncombe County and the publican leadership in drawing the 2011 City of Asheville with District 10. See su- Plan ‘‘was to weaken Democratic strength pra Part III.B.2.j; see also Exs. 3013; 4008. in District[ ] 11.’’ Ex. 2034, at 2. As ex- Notably, Legislative Defendants’ expert plained above, see supra Part III.B.2.j, Dr. Hood testified that the Buncombe notwithstanding that the General Assem- County boundary between Districts 10 and bly received ‘‘push back’’ as a result of the 11 constituted ‘‘legislative cracking of a division of Buncombe County and Ashe- Democratic partisan cluster in the redis- ville between Districts 10 and 11, Dr. Ho- tricting process.’’ Trial Tr. IV, at 41:12–18. feller and Representative Lewis deter- And Dr. Hood further conceded that had mined that it simply ‘‘wasn’t worth the Buncombe County and Asheville been kept effort’’ to remove the split for the 2016 whole, the district containing Buncombe version, especially since the split was pres- County and Asheville would have been ent ‘‘in every scenario’’ that achieved their more favorable to Democratic candidates. partisan objectives. Lewis Dep. 62:4–19. Id. at 40:1–43:4. Accordingly, the version of District 11 in Dr. Hofeller created several alternative the 2016 Plan expressly carried forward maps that did not split the Buncombe the express partisan intent and effects at- County Democratic cluster. Ex. 2004, at tributable to the version of the district 11, 13, 18. And not a single map submit- included in the 2011 Plan. ted by the retired judges splits Bun- District 11 cracks Democratic voters and combe County at all, let alone along the thereby dilutes their votes: as the map- Democratic cluster. Ex. 5095. Likewise, drawers intended and expected, the dis- numerous alternative maps generated by trict’s Republican candidate received a Plaintiffs’ experts, including Plan 2-297, safe majority of the votes cast in the 2016 demonstrate that the General Assembly election. Compare Ex. 5116, at 9 (Dr. Ho- could have drawn District 11 without feller averring that, using his seven-race cracking the Democratic cluster in Bun- formula, Republican candidate was likely combe County. E.g., Second Chen Decl. 3, to receive 57.1% of the two-party vote Exs. 5025–27. And significantly, Districts share), with Ex. 1018, at 2 (Republican 1 and 2 in Plan 2-297, which contain most candidate, Rep. Mark Meadows, received of the area encompassed by Districts 10 64.1% of the vote in 2016 election). Consis- and 11 in the 2016 Plan, are, on average, tent with these results, Dr. Hood charac- significantly more compact than District terized District 11 as ‘‘Safe Republican.’’ 10 and 11 of the 2016 Plan, as measured Ex. 5058, at 25. Although District 11 is by the Reock and Polsby-Popper metrics. safely Republican, the victorious Republi- Compare Second Chen Decl. 3–5 (report- can candidate in District 11 received a ing Reock and Polsby-Popper scores of significantly lower share of the vote in his .320 and .324, respectively, for District 1, district in the 2016 election than each of and scores of .553 and .325 for District 2 the Democratic candidates received in the in Plan 2-297), with Ex. 5001 (reporting three districts Dr. Hofeller drew to be Reock and Polsby-Popper scores of .35 predominantly and overwhelmingly Demo- and .26, respectively, for District 10, and cratic. Ex. 1018, at 2–4. scores of .26 and .21 for District 11 in the 920 318 FEDERAL SUPPLEMENT, 3d SERIES

2016 Plan). Additionally, District 11’s and expected, the district’s Democratic counterpart in Plan 2-297, District 1, has candidate received well over 60 percent of a substantially lower Republican vote the votes cast in the 2016 election. Com- share as measured by Dr. Hofeller’s par- pare Ex. 5116, at 9 (Dr. Hofeller averring tisanship variable than that observed in that, using his seven-race formula, Demo- District 11 in the 2016 election. Compare cratic candidate was likely to receive 63.8% Second Chen Decl. 5 (expected Republi- of the two-party vote share), with Ex. can vote share of 52.62%), with Ex. 1018, 1018, at 4 (Democratic candidate, Rep. at 2 (Republican candidate received 64.1% Alma Adams, received 67% of the vote in of the vote in 2016 election). 2016 election). Consistent with these results, Dr. Hood characterized District 12 When viewed in conjunction with Plain- as ‘‘Safe Democratic.’’ Ex. 5058, at 25. In tiffs’ overwhelming statewide evidence, the 2016 election, the Democratic candi- this district-specific evidence demonstrates date in District 12 received a higher share (1) that the mapdrawers predominantly in- of the vote in her district than all but one tended to, and did in fact, crack Democrat- of the Republican candidates received in ic voters in and adjacent to District 11; (2) the 10 districts Dr. Hofeller drew to be that the cracking of Democratic voters in predominantly Republican. Ex. 1018, 2–4. and adjacent to District 11 had the effect of diluting such voters’ votes; and (3) that To achieve the goal of concentrating the cracking of Democratic voters in and Democratic voters in District 12, the dis- adjacent to District 11 was not a product trict divides Mecklenburg County and Charlotte along partisan lines. In particu- of the State’s political geography or other lar, the southern edge of District 12 splits legitimate, non-partisan districting consid- Mecklenburg County by packing the coun- erations. Accordingly, District 11 violates ty’s large cluster of historically Democratic the Equal Protection Clause. precincts into District 12, while placing the l. District 12 county’s historically Republican precincts District 12 is wholly contained within into District 9. Ex. 4012. To that end, Mecklenburg County. Ex. 1001. Dr. Hofel- precinct-level election results reveal the ler testified that District 12 was one of Mecklenburg County precincts assigned to three districts in the 2016 Plan he and the District 9 tended to strongly favor Repub- Chairs drew, using past election results, to lican candidates, while the precincts as- be ‘‘predominantly Democratic.’’ Hofeller signed to District 12 favored Democratic Dep. 192:7–16. As Dr. Hofeller intended candidates. See supra Part III.B.2.i. COMMON CAUSE v. RUCHO 921 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

Figure 8: The partisan division of Plaintiffs’ statistical evidence further Mecklenburg County between demonstrates that District 12’s partisan Districts 9 and 12 make-up resulted from the mapdrawers’ successful efforts to pack Democratic vot- Although any map drawn to comply with ers, rather than the State’s political geog- the one-person, one-vote requirement must raphy or other legitimate redistricting divide Mecklenburg County, numerous al- consideration. In particular, among Dr. ternative maps drawn by the panel of re- Mattingly’s more than 24,000 simulated tired judges and generated Plaintiffs’ ex- maps—all of which conform to traditional perts, including Plan 2-297, demonstrate districting criteria—District 12 in the 2016 that the General Assembly could have Plan is an extreme statistical outlier with drawn District 12 without hewing exactly regard to its concentration of Democratic to the line formed between the Democratic voters. Ex. 3040, at 30. In the 2016 elec- and Republican precincts in Mecklenburg tion the Democratic candidate in District County, as the 2016 Plan does. Compare, 12 received 67 percent of the vote, the e.g., Second Chen Decl. 3; Exs. 5025–27, third highest Democratic vote share recorded in all 13 districts. Id. at 29–30. Yet, 5095, with Ex. 4012. Notably, the district, in Dr. Mattingly’s ensemble of more than like District 12, wholly contained in Meck- 24,000 plans, the median Democratic vote lenburg County in Plan 2-297, District 3, share of the third most Democratic district has a significantly lower predicted Demo- was 57 percent—approximately 10 per- cratic vote share, as measured by Dr. Ho- centage points fewer—with only .07 per- feller’s partisanship variable, than that ob- cent of such districts having a Democratic served in District 12. Compare Second vote share at or above the level recorded Chen Decl. 5 (expected Democratic vote in District 12 in the 2016 election. Id. This share of 54.18%), with Ex. 1018, at 2 demonstrates that the effect of the 2016 (Democratic candidate received 67% of the version of District 12 is to pack Democrat- vote in 2016 election). ic voters into the district in an amount 922 318 FEDERAL SUPPLEMENT, 3d SERIES greater than would otherwise naturally oc- dates received in the three districts Dr. cur more than 99.9 percent of the time Hofeller drew to be predominantly and under neutral districting criteria. See Trial overwhelmingly Democratic. Ex. 1018, at Tr. I, at 55:2–6, 70:1–4, 76:22–77:5. 2–4. Considered alongside Plaintiffs’ strong To achieve the goal of diluting Demo- statewide evidence, this district-specific ev- cratic voting strength in District 13, the idence proves (1) that the mapdrawers district divides municipalities and commu- predominantly intended to, and did in fact, nities of interest along partisan lines. As pack Democratic voters in District 12; (2) explained above, the northeastern edge of that the packing of Democratic voters in District 13 splits Guilford County and District 12 had the effect of diluting such Greensboro in half, cracking off approxi- voters’ votes; and (3) that the packing of mately half of the county’s large cluster of Democratic voters in District 12 was not a historically Democratic precincts into Dis- product of the State’s political geography trict 6. See supra Part III.B.2.f; see also or other legitimate, non-partisan district- Ex. 4010. Significantly, Legislative Defen- ing considerations. Accordingly, we con- dants’ expert, Dr. Hood testified that the clude that District 12 violates the Equal boundary between Districts 6 and 13 con- Protection Clause. stitutes ‘‘legislative cracking of a Demo- m. District 13 cratic partisan cluster in the redistricting District 13 spans all or part of five coun- process.’’ Trial Tr. IV, at 45:2–8. And Dr. ties in mid-western North Carolina, run- Hood further testified that had the map- ning from Charlotte’s northern suburbs to drawers not cracked Guilford County, ei- the center of Guilford County and the City ther District 6 or District 13 ‘‘would have of Greensboro. Ex. 1001. Representative been more Democratic.’’ Id. at 45:24–46:5. Lewis and Dr. Hofeller drew the version of District 13 in the 2016 Plan by ‘‘mov[ing] Dr. Hofeller created at least one alterna- individual VTDs from District 6 to District tive map that did not split Guilford County 13 TTT, or vice versa, for political impact.’’ Democratic cluster. Ex. 2004, at 18. And Lewis Dep. 156:19–157:1. not a single map drawn by the retired judges splits Guilford County at all, let The results of the 2016 election reveal alone along the Democratic cluster. Ex. that the mapdrawers effectively diluted the votes of Democratic voters in and adja- 5095. A number of other maps generated cent to District 13 in drawing the district: by Plaintiffs’ experts did not split Guilford as Dr. Hofeller intended and expected, the County, or split it far less significantly. district’s Republican candidate received E.g., Exs. 5025–26, 5028, 5031. And al- over 53 percent of the votes cast in the though Dr. Chen’s Plan 2-297 divides Guil- 2016 election. Compare Ex. 5116, at 9 (Dr. ford County, it does so because Dr. Chen Hofeller averring that, using his seven- was constrained to follow the General As- race formula, Republican candidate was sembly’s objective of avoiding the pairing likely to receive 53.5% of the two-party of incumbents elected under the 2011 Plan, vote share), with Ex. 1018, at 4 (Republi- Second Chen Decl. 3, which split Guilford can candidate, Rep. Ted Bud, received County and was expressly drawn to in- 56.1% of the vote in 2016 election). And in crease Republican voting strength, Hofel- the 2016 election the victorious Republican ler Dep. 116:19–117:25. As noted above, candidate in District 13 received a signifi- the two districts in Plan 2-297 that contain cantly lower share of the vote in his dis- parts of Guilford County are significantly trict than each of the Democratic candi- more compact, on average, than their COMMON CAUSE v. RUCHO 923 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

counterparts in the 2016 Plan under the North Carolina’s political geography, had compactness measures preferred by the the effect of diluting the votes of Demo- General Assembly. Compare Second Chen cratic voters in and adjacent to District 13. Decl. 5 (reporting Reock and Polsby-Pop- This district-specific evidence—when per scores of .522 and .320, respectively, coupled with Plaintiffs’ overwhelming for District 6, and scores of .481 and .248 statewide evidence—proves (1) that the for District 7 in Plan 2-297), with Ex. 5001 mapdrawers predominantly intended to, (reporting Reock and Polsby-Popper and did in fact, crack Democratic voters in scores of .50 and .32, respectively, for Dis- trict 6, and scores of .36 and .23 for Dis- and around District 13; (2) that the crack- trict 13 in the 2016 Plan). Additionally, ing of Democratic voters in and around although no district in Plan 2-297 closely District 13 had the effect of diluting such resembles District 13, the district in Plan voters’ votes; and (3) that the cracking of 2-297 that includes eastern Greensboro Democratic voters in and around District and Guilford County, District 6, has a sub- 13 was not a product of the State’s political stantially lower Republican vote share as geography or other legitimate, non-parti- measured by Dr. Hofeller’s partisanship san districting considerations. Therefore, variable than that observed in District 13 District 13 violates the Equal Protection in the 2016 election. Compare Second Clause. Chen Decl. 5 (expected Republican vote share of 49.30%), with Ex. 1018, at 2 (Re- * * * * * publican candidate, Rep. Ted Budd, re- All told, Plaintiffs’ statewide and dis- ceived 56.1% of the vote in 2016 election). trict-specific evidence proves that (1) in Plaintiffs’ statistical evidence further drawing Districts 1, 2, 3, 4, 6, 7, 8, 9, 10, proves that District 13’s partisan make-up 11, 12, and 13, the General Assembly’s is attributable to the intentional cracking predominant intent was to subordinate the of Democratic voters, rather than political interests of non-Republican voters and en- geography or other legitimate non-partisan trench Republicans in power; (2) the Gen- redistricting considerations. In particular, eral Assembly cracked or packed Demo- Dr. Mattingly found that District 13 repre- cratic voters in each of those districts and sents an extreme statistical outlier in thereby diluted such voters’ votes; and (3) terms of its partisan composition. Ex. the dilution of such voters’ votes is not 3040, at 30. In the 2016 election the Demo- attributable to the State’s political geogra- cratic candidate in District 13 received 44 phy or other legitimate redistricting con- percent of the vote, the highest Democratic siderations. Accordingly, we conclude that vote share in any of the ten districts in each of those twelve districts constitutes which a Republican candidate prevailed an invidious partisan gerrymander in viola- and the fourth highest Democratic vote tion of the Equal Protection Clause of the share overall. Ex. 3040, at 29–30. By con- Fourteenth Amendment. trast, in Dr. Mattingly’s ensemble of more than 24,000 plans, the median Democratic vote share of the fourth most Democratic IV. FIRST AMENDMENT district was 54 percent, with significantly [117–119] Next, we consider Plaintiffs’ less than one percent—just .19 percent—of claims under the First Amendment. The such districts having a Democratic vote First Amendment, through the Due Pro- share at or below the level recorded in cess Clause of the Fourteenth Amend- District 13 the 2016 election. Id. Accord- ment, prohibits states from making any ingly, the splitting of Guilford County, not law ‘‘abridging the freedom of speech.’’ 924 318 FEDERAL SUPPLEMENT, 3d SERIES

U.S. Const. amend. I. Partisan gerryman- disfavoring particular viewpoints, and, dering—again, ‘‘the drawing of legislative therefore, ‘‘[t]he government must abstain district lines to subordinate adherents of from regulating speech when the specific one political party and entrench a rival motivating ideology or the opinion or per- party in power,’’ Ariz. State Leg., 135 S.Ct. spective of the speaker is the rationale for at 2658—implicates First Amendment the restriction.’’ Rosenberger, 515 U.S. at rights because ‘‘political belief and associa- 829, 115 S.Ct. 2510. ‘‘At its most basic, the tion constitute the core of those activities test for viewpoint discrimination is wheth- protected by the First Amendment,’’ Elrod er—within the relevant subject category— v. Burns, 427 U.S. 347, 356, 96 S.Ct. 2673, the government has singled out a subset of 49 L.Ed.2d 547 (1976), and because ‘‘[t]he messages for disfavor based on the views First Amendment operates as a vital guar- expressed.’’ Matal v. Tam, ––– U.S. ––––, antee of democratic self-government,’’ U.S. 137 S.Ct. 1744, 1766, 198 L.Ed.2d 366 Telecom Ass’n v. Fed. Commc’ns Comm’n, (2017) (Kennedy, J., concurring in part and 855 F.3d 381, 427 (D.C. Cir. 2017) (Kava- concurring in the judgment). Viewpoint naugh, J., dissenting). Accordingly, the discrimination is ‘‘presumptively unconsti- First Amendment ‘‘has its fullest and most tutional,’’ Rosenberger, 515 U.S. at 830, 115 urgent application to speech uttered dur- S.Ct. 2510 (internal quotation marks omit- ing a campaign for political office.’’ Citi- ted), and therefore subject to ‘‘strict scru- zens United, 558 U.S. at 339–40, 130 S.Ct. 876 (internal quotation marks omitted). To tiny,’’ McCullen v. Coakley, ––– U.S. ––––, that end, the First Amendment protects 134 S.Ct. 2518, 2530, 189 L.Ed.2d 502 ‘‘the right of individuals to associate for (2014) (explaining that a governmental ac- the advancement of political beliefs, and tion amounting to viewpoint discrimination the right of qualified voters, regardless of survives strict scrutiny only if the action is their political persuasion, to cast their ‘‘the least restrictive means of achieving a votes effectively.’’ Williams, 393 U.S. at compelling state interest’’). 30-31, 89 S.Ct. 5 (emphasis added). [124–127] Relatedly, by seeking to dilute the electoral speech of supporters of A. BACKGROUND LAW disfavored parties or candidates, partisan [120–123] Several lines of precedent gerrymandering runs afoul of the First bear on the application of the First Amendment’s prohibition on laws that dis- Amendment to partisan gerrymanders. To favor a particular group or class of speak- begin, by favoring one set of political be- ers. Citizens United, 558 U.S. at 340, 130 liefs over another, partisan gerrymanders implicate the First Amendment prohibition S.Ct. 876 (explaining that ‘‘[s]peech restric- on ‘‘viewpoint discrimination.’’ See Rosen- tions based on the identity of the speaker berger v. Rector & Visitors of Univ. of Va., are all too often simply a means to control 515 U.S. 819, 829, 115 S.Ct. 2510, 132 content’’). The First Amendment prohibits L.Ed.2d 700 (1995); Vieth, 541 U.S. at 314, such laws because ‘‘[b]y taking the right to 124 S.Ct. 1769 (Kennedy, J., concurring in speak from some and giving it to others, the judgment) (‘‘First Amendment con- the Government deprives the disadvan- cerns arise where a State enacts a law that taged person or class of the right to use has the purpose and effect of subjecting a speech to strive to establish worth, stand- group of voters or their party to disfa- ing, and respect for the speaker’s voice.’’ vored treatment by reason of their views.’’ Id. at 340–41, 130 S.Ct. 876; see also Becer- (emphasis added) ). The First Amendment ra, 138 S.Ct. at 2378 (‘‘Speaker-based laws prohibits the government from favoring or run the risk that the State has left unbur- COMMON CAUSE v. RUCHO 925 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) dened those speakers whose messages are 2694, 33 L.Ed.2d 570 (1972) (internal quo- in accord with its own views.’’ (internal tation marks and alterations omitted). The quotation marks omitted) ). In the context Supreme Court’s First Amendment retali- of political speech, in particular, the Su- ation jurisprudence represents a specific preme Court repeatedly has applied the application of the general principle that First Amendment’s prohibition on ‘‘restric- even when the law affords the govern- tions on certain disfavored speakers’’ to ment the authority to make discretionary strike down electoral laws that disfavor a decisions—like firing or promoting an em- particular group of speakers. Id. at 341, ployee or allowing public use of a govern- 130 S.Ct. 876; First Nat’l Bank of Bos. v. mental facility—the government may not Bellotti, 435 U.S. 765, 784, 98 S.Ct. 1407, exercise such discretion ‘‘in a narrowly 55 L.Ed.2d 707 (1978). And when, as is the partisan or political manner.’’ Bd. of case with a partisan gerrymander, a re- Educ., Island Trees Union Free Sch. striction on one group of speakers ‘‘sug- Dist. No. 26 v. Pico, 457 U.S. 853, 870–71, gests an attempt to give one side of a 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982) debatable public question an advantage in expressing its views to the people, the (plurality op.). For example, although the First Amendment is plainly offended.’’ Bel- government retains discretion to curate lotti, 435 U.S. at 785–86, 98 S.Ct. 1407 public school libraries, ‘‘[i]f a Democratic (footnote omitted). Like viewpoint discrim- school board, motivated by party affilia- ination, governmental actions that discrim- tion, ordered the removal of all books inate against a particular group or class of written by or in favor of Republicans, few speakers are subject to ‘‘strict scrutiny.’’ would doubt that the order violated the See Citizens United, 558 U.S. at 340, 130 constitutional rights of the students de- S.Ct. 876. nied access to those books.’’ Id.; see also id. at 907, 102 S.Ct. 2799 (Rehnquist, J., [128–130] Third, by disfavoring a group of voters based on their prior votes dissenting) (‘‘I can cheerfully concede all and political association, partisan gerry- of this.’’). mandering implicates the First Amend- [131] Courts have distilled a three- ment’s prohibition on burdening or penal- prong test from the Supreme Court’s First izing individuals for engaging in protected Amendment retaliation jurisprudence, ex- speech. Vieth, 541 U.S. at 314, 124 S.Ct. amining whether (1) the plaintiff’s ‘‘speech 1769 (2004) (Kennedy, J., concurring in was protected;’’ (2) ‘‘the defendant’s TTT the judgment) (explaining partisan gerry- retaliatory action adversely affected the mandering violates ‘‘the First Amendment plaintiff’s constitutionally protected interest of not burdening or penalizing cit- speech;’’ and (3) ‘‘a causal relationship ex- izens because of their participation in the electoral process, their voting history, ists between [the plaintiff’s] speech and their association with a political party, or the defendant’s retaliatory action.’’ See, their expression of political views’’). The e.g., Suarez Corp. Indus. v. McGraw, 202 Supreme Court has explained that the F.3d 676, 686 (4th Cir. 2000). Examining government cannot ‘‘penalize[ ]’’ a person these considerations, the Supreme Court for engaging in ‘‘constitutionally protected repeatedly has struck down as violative of speech or associations’’ because such indi- the First Amendment government actions rect regulation of speech would ‘‘allow the that burden or penalize an individual or government to produce a result which it group for engaging in political speech or could not command directly.’’ Perry v. association. See, e.g., Rutan v. Republican Sindermann, 408 U.S. 593, 597, 92 S.Ct. Party of Ill., 497 U.S. 62, 65, 110 S.Ct. 926 318 FEDERAL SUPPLEMENT, 3d SERIES

2729, 111 L.Ed.2d 52 (1990) (concluding 789, 103 S.Ct. 1564; Tashjian v. Republi- that First Amendment prohibits govern- can Party of Conn., 479 U.S. 208, 213–14, ment employers from making ‘‘promotion, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986) ). transfer, recall, and hiring decisions involv- Under this test, ‘‘[e]lection regulations that ing low-level public employees TTT based impose a severe burden on associational on party affiliation and support’’); Elrod, rights are subject to strict scrutiny.’’ 427 U.S. at 373, 96 S.Ct. 2673 (holding that Wash. State Grange v. Wash. State Repub- First Amendment prohibits government lican Party, 552 U.S. 442, 451, 128 S.Ct. officials from discharging or threatening to 1184, 170 L.Ed.2d 151 (2008). By contrast, discharge lower-level public employees ‘‘[i]f a statute imposes only modest bur- based on their political affiliation). dens TTT then ‘the State’s important regu- [132–136] Finally, partisan gerryman- latory interests are generally sufficient to dering implicates First Amendment prece- justify reasonable, nondiscriminatory re- dent dealing with electoral regulations that strictions.’ ’’ Id. at 452, 128 S.Ct. 1184 (em- have the potential to burden political phasis added) (quoting Anderson, 460 U.S. speech or association. See, e.g., Burdick v. at 788, 103 S.Ct. 1564). Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992); Anderson v. Cele- [137] Applying that test, the Court has brezze, 460 U.S. 780, 103 S.Ct. 1564, 75 ‘‘repeatedly upheld reasonable, politically L.Ed.2d 547 (1983). The First Amendment neutral regulations that have the effect of demands judicial scrutiny of state election channeling expressive activity at the polls.’’ regulations because regulations that ‘‘gov- Id. at 438, 112 S.Ct. 2059 (emphasis add- ern[ ] the registration and qualifications of ed). By contrast, the Supreme Court has voters, the selection and eligibility of can- repeatedly struck down as violative of the didates, or the voting process itself, inevi- First Amendment even facially neutral tably affect[ ]—at least to some degree— electoral regulations that had the effect of the individual’s right to vote and his right burdening particular parties, candidates, to associate with others for political ends.’’ or groups of voters. See, e.g., Tashjian, 479 Anderson, 460 U.S. at 788, 103 S.Ct. 1564. U.S. at 225, 107 S.Ct. 544 (concluding that Because states’ ‘‘important regulatory in- state’s enforcement of statute requiring terests are generally sufficient to justify closed primaries, against the will of the reasonable, nondiscriminatory restric- Republican party, violated First Amend- tions,’’ id., the Supreme Court applies ment); Anderson, 460 U.S. at 806, 103 ‘‘sliding-scale’’ scrutiny to state election S.Ct. 1564 (striking down state candidate regulations, see Burdick, 504 U.S. at 433– filing deadline because it posed unjustified 34, 112 S.Ct. 2059. In particular, ‘‘[a] court burden on third-party candidates and vot- considering a challenge to a state election law must weigh ‘the character and magni- ers who supported such candidates, with tude of the asserted injury to the rights the ‘‘interests of the voters who chose to protected by the First and Fourteenth associate together’’ for political ends con- Amendments that the plaintiff seeks to stituting the Court’s ‘‘primary concern’’). vindicate’ against ‘the precise interests put These cases reflect the governing principle forward by the State as justifications for that ‘‘in exercising their powers over elec- the burden imposed by its rule,’ taking tions and in setting qualifications for vot- into consideration ‘the extent to which ers, the States may not infringe upon basic those interests make it necessary to bur- constitutional protections,’’ including en- den the plaintiff’s rights.’ ’’ Id. at 434, 112 acting ‘‘election laws [that] so impinge S.Ct. 2059 (quoting Anderson, 460 U.S. at upon freedom of association as to run afoul COMMON CAUSE v. RUCHO 927 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) of the First and Fourteenth Amendments.’’ cal speech and association. And the 2016 Kusper v. Pontikes, 414 U.S. 51, 56–57, 94 Plan’s express partisan favoritism excludes S.Ct. 303, 38 L.Ed.2d 260 (1973). it from the class of ‘‘reasonable, politically Against these many, multifaceted lines neutral’’ electoral regulations that pass of precedent, the First Amendment’s ap- First Amendment muster. Burdick, 504 plicability to partisan gerrymandering is U.S. at 438, 112 S.Ct. 2059. Indeed, if manifest. How can the First Amendment legislative mapdrawers can ‘‘rig’’ an elec- prohibit the government from disfavoring tion through the manipulation of district certain viewpoints, yet allow a legislature lines so as to ensure a favored group of to enact a districting plan that disfavors candidates widely prevails—as we find the supporters of a particular set of political North Carolina General Assembly did beliefs? How can the First Amendment here—then there would be no reason for bar the government from disfavoring a legislators to resort to second-best ap- class of speakers, but allow a districting proaches to attempt to dictate electoral plan to disfavor a class of voters and candi- outcomes and distort the marketplace of dates? How can the First Amendment pro- political ideas, such as those struck down tect government employees’ political in Anderson, Citizens United, and McCut- speech rights, but stand idle when the cheon. government infringes on voters’ political speech rights? And how can the First B. LEGAL STANDARD AND APPLICATION Amendment ensure that candidates ascrib- Notwithstanding the evident applicabili- ing to all manner of political beliefs have a ty of the First Amendment to partisan reasonable opportunity to appear on the gerrymandering, and the 2016 Plan in par- ballot, and yet allow a state electoral sys- ticular, neither the Supreme Court nor tem to favor one set of political beliefs over lower courts have settled on a framework others? As at least five Justices already for determining whether a partisan gerry- have determined, we conclude that the mander violates the First Amendment. First Amendment does not draw such fine League Plaintiffs, in accordance with the lines. See Gill, 138 S.Ct. at 1937–40 (Ka- approach taken by the district court in gan, J., concurring); Vieth, 541 U.S. at Gill, assert that the three-prong frame- 314–15, 124 S.Ct. 1769 (Kennedy, J., con- work governing partisan gerrymandering curring). claims under the Equal Protection Clause [138, 139] The 2016 Plan, in particular, also applies to partisan gerrymandering implicates all four of these lines of prece- claims under the First Amendment. This dent. The 2016 Plan discriminates against requires a plaintiff to demonstrate (1) dis- a particular viewpoint: voters who oppose criminatory intent, (2) discriminatory ef- the Republican platform and Republican fects, and (3) a lack of justification for the candidates. The 2016 Plan also discrimi- discriminatory effects. League Br. 3; Whit- nates against a particular group of speak- ford, 218 F.Supp.3d at 884. That inquiry ers: non-Republican candidates and voters mirrors the considerations the Supreme who support non-Republican candidates. Court evaluates in First Amendment retal- The General Assembly’s use of Political iation cases and First Amendment chal- Data—individuals’ votes in previous elec- lenges to election regulations, see supra tions—to draw district lines to dilute the Part IV.A; infra Part IV.C, albeit using votes of individuals likely to support non- somewhat different nomenclature. Legisla- Republican candidates imposes burdens on tive Defendants agree that to the extent such individuals based on their past politi- partisan gerrymandering is actionable un- 928 318 FEDERAL SUPPLEMENT, 3d SERIES

der the First Amendment—and we con- effects, ‘‘is itself an injury to the First clude that it is, see supra Parts II.B, Amendment rights of the intended targets IV.A 48—the governing legal framework is or victims.’’ Common Cause Br. 9. To that no ‘‘different from any test which might end, the Supreme Court repeatedly has apply under the Fourteenth Amendment.’’ struck down election laws and regulations Leg. Defs.’ FOF 105–06 (‘‘ ‘[T]he [F]irst that discriminate against a particular view- amendment, like the [T]hirteenth, offers point or group of speakers, even in the no protection of voting rights beyond that absence of evidence that the law or regula- afforded by the [F]ourteenth and [F]if- tion had, or would have, a concrete effect teenth Amendments.’ ’’ (quoting Washing- on the outcome of an election. See, e.g., ton v. Finlay, 664 F.2d 913, 927–28 (4th Citizens United, 558 U.S. at 365–66, 130 Cir. 1981) ) ). S.Ct. 876 (striking down statute placing Common Cause Plaintiffs, by contrast, certain restrictions on political advocacy by assert that once a plaintiff proves that a corporations); Fed. Election Comm’n v. redistricting body intended for a district- Wisc. Right to Life, Inc., 551 U.S. 449, 481, ing plan to discriminate against voters 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) likely to support a disfavored candidate or (opinion of Roberts, C.J.) (same); id. at party—and thereby intended to engage in 504, 127 S.Ct. 2652 (Scalia, J., concurring discrimination against a particular view- in the judgment) (same). It defies reason point and group of speakers—a court must that the First Amendment—which ‘‘has its subject the plan to strict scrutiny, uphold- fullest and most urgent application’’ to po- ing the plan ‘‘ ‘only if [Defendants] prove[ ] litical speech—would subject election regu- that [it is] narrowly tailored to serve com- lations that discriminate against associa- pelling state interests.’ ’’ Common Cause tions of individuals organized principally Br. 7–8 (quoting Reed v. Town of Gilbert, for economic gain to the most exacting ––– U.S. ––––, 135 S.Ct. 2218, 2226, 192 level of constitutional scrutiny, see Citizens L.Ed.2d 236 (2015) ). Accordingly, unlike United, 558 U.S. at 339–43, 365, 130 S.Ct. League Plaintiffs, Common Cause Plain- 876, but subject election regulations that tiffs take the position that once a plaintiff expressly discriminate against associations demonstrates that a districting plan is mo- of individuals principally organized to ad- tivated by invidious partisan intent, the vance political beliefs, like Plaintiffs North First Amendment does not require a plain- Carolina Democratic Party, League of tiff to demonstrate that a plan has con- Women Voters, and Common Cause, to crete discriminatory effects. less searching scrutiny. And we see no We agree with Common Cause Plaintiffs reason why the First Amendment would that the Supreme Court’s demonstrated provide greater protection to associations dim view of viewpoint discrimination, laws of individuals principally organized to ad- that discriminate against a class of speak- vance a single political belief, see Becerra, ers, and laws that impose severe burdens 138 S.Ct. at 2372–76 (applying strict scruti- on associational rights provides strong the- ny to content-based regulation of speech oretical support for their position that in- as-applied to state-licensed medical clinics vidious partisan discrimination, even ab- ‘‘devoted to opposing’’ abortion), than it sent a showing of concrete discriminatory does to associations of individuals, like po-

48. See also Shapiro v. McManus, ––– U.S. ticulates ‘‘a legal theory put forward by a ––––, 136 S.Ct. 450, 456, 193 L.Ed.2d 279 Justice of this Court and uncontradicted by (2015) (noting that a First Amendment claim the majority in any of our cases’’). of impermissible partisan gerrymandering ar- COMMON CAUSE v. RUCHO 929 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) litical parties and religious institutions, or- lants present today.’’); id. at 511–12, 126 ganized to support or advance a collection S.Ct. 2594 (Scalia, J., concurring in part of moral or political beliefs. and dissenting in part). To that end, the Likewise, courts reviewing election reg- one lower court to put forward a unique ulations under the Anderson/Burdick framework for adjudicating partisan gerry- framework apply strict scrutiny to election mandering claims under the First Amend- regulations that are not ‘‘even-handed’’ or ment since the Supreme Court decided ‘‘politically neutral.’’ Dudum v. Arntz, 640 LULAC required that a partisan gerry- F.3d 1098, 1106 (9th Cir. 2011); see also mandering plaintiff prove that he experi- Clingman v. Beaver, 544 U.S. 581, 603-04, enced a ‘‘demonstrable and concrete ad- 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005) verse effect’’ on his First Amendment (O’Connor, J. concurring in part) (conclud- rights. Shapiro, 203 F.Supp.3d at 598. ing that burden imposed by electoral regu- [140] In light of this precedent, we as- lation was not ‘‘severe,’’ and thus not sub- sume that the Supreme Court would reject to strict scrutiny, because it imposed view First Amendment partisan gerry- ‘‘only a modest and politically neutral bur- mandering claims in accordance with the den on associational rights’’). We can con- intermediate scrutiny standard applied in ceive of no reason why a redistricting plan retaliation cases and challenges to election that is expressly not ‘‘even handed’’ or ‘‘politically neutral’’—like the 2016 Plan— regulations that do not impose a ‘‘severe’’ 49 would not be subject to the same searching burden on voting rights. Drawing on that First Amendment scrutiny as other elec- precedent, we derive a three-prong test tion regulations enacted pursuant to a requiring Plaintiffs to prove: (1) that the state legislature’s Article I authority to challenged districting plan was intended to regulate elections. burden individuals or entities that support a disfavored candidate or political party, Nevertheless, Supreme Court precedent (2) that the districting plan in fact bur- appears to bar a plaintiff from successfully dened the political speech or associational challenging a partisan gerrymander solely rights of such individuals or entities, and based on evidence that a redistricting body enacted a districting plan with discrimina- (3) that a causal relationship existed be- tory partisan intent. See LULAC, 548 U.S. tween the governmental actor’s discrimi- at 418, 126 S.Ct. 2594 (opinion of Kennedy, natory motivation and the First Amend- J.) (‘‘[A] successful claim attempting to ment burdens imposed by the districting identify unconstitutional acts of partisan plan. gerrymandering must do what appellants’ sole-motivation theory explicitly disavows: 1. Intent To Burden Speech show a burden, as measured by a reliable and Associational Rights standard, on the complainants’ representa- The intent prong principally derives tional rights. For this reason, a majority of from the causation component in First the Court rejected a test proposed in Vieth Amendment retaliation cases. In such that is markedly similar to the one appel- cases, a ‘‘plaintiff must show a causal con-

49. We need not definitively resolve this ques- neutral explanation justified the 2016 Plan’s tion because we find (1) that the General discriminatory effect. See supra Part III; infra Assembly intended for the 2016 Plan to subor- Part IV.B. Accordingly, under either League dinate the interests of non-Republican voters Plaintiffs and Legislative Defendants’ three- and entrench Republican congressmen in of- prong framework or Common Cause Plain- fice, (2) that the 2016 Plan had that effect, tiffs’ strict-scrutiny approach, Plaintiffs pre- and (3) that no legitimate state interest or vail on their First Amendment claims. 930 318 FEDERAL SUPPLEMENT, 3d SERIES

nection between a defendant’s retaliatory intended to burden the speech and associa- animus and subsequent injury in any sort tional rights of such entities and voters. of retaliation action.’’ Hartman v. Moore, 547 U.S. 250, 259, 126 S.Ct. 1695, 164 2. Burden on Speech and L.Ed.2d 441 (2006) (emphasis added). Put Associational Rights differently, a plaintiff must show that her protected First Amendment activities were [142, 143] Next, we must determine a ‘‘motivating factor’’ behind the chal- whether the 2016 Plan in fact burdened lenged retaliatory action. Mt. Healthy City First Amendment rights. The requirement Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. that a plaintiff demonstrate that a partisan 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 gerrymander burdens political speech or (1977). The motivating-factor requirement associational rights derives from both re- in First Amendment retaliation claims par- taliation and election regulation cases. In allels the intent requirement in Equal Pro- the context of retaliation claims, even tection Claims. Id. at 287 n.2, 97 S.Ct. 568 (citing Arlington Heights, 429 U.S. at 270– when, as here, a challenged governmental 71, 97 S.Ct. 555). Relying on this prece- action does not flatly prohibit protected dent, lower courts have concluded that the speech or association, the action nonethe- motivating-factor requirement renders less burdens First Amendment rights if it proof of a governmental actor’s intent to ‘‘has a chilling effect or an adverse impact’’ burden speech or associational rights an on speech or associational rights. The Balt. essential element of First Amendment re- Sun Co. v. Ehrlich, 437 F.3d 410, 416 (4th taliation claims. See, e.g., Greenwich Citi- Cir. 2006). To constitute an actionable zens Comm., Inc. v. Ctys. Of Warren & First Amendment burden, the chilling ef- Washington Indus. Dev. Agency, 77 F.3d fect or adverse impact must be more than 26, 32 (2d Cir. 1996) (‘‘[R]etaliatory intent de minimis. See, e.g., McKee v. Hart, 436 is required for a retaliatory First Amend- F.3d 165, 170 (3d Cir. 2006); ACLU of Md., ment claim.’’); Mendocino Envtl. Ctr. v. Inc. v. Wicomico Cty., 999 F.2d 780, 786 Mendocino Cty., 14 F.3d 457, 464 (9th Cir. n.6 (4th Cir. 1993). Likewise, the 1994) (‘‘The defendant’s intent is an ele- Anderson/Burdick framework applied in ment of the [retaliation] claim.’’ (emphasis election regulation cases requires a plain- removed) ); Shapiro, 203 F.Supp.3d at 597. tiff to establish that a challenged regula- [141] Applying the guidelines for as- tion imposed a ‘‘burden’’ on political speech sessing discriminatory intent in Arlington or associational rights. Crawford v. Mar- Heights, we previously found that Plain- ion Cty. Election Bd., 553 U.S. 181, 189– tiffs adduced more-than-sufficient evidence 90, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) to prove that, in enacting the 2016 Plan, (opinion of Stevens, J.). The Court has the General Assembly predominantly in- refused to impose ‘‘any litmus test for tended to ‘‘subordinate’’ the interests of measuring the severity of a burden that a entities and voters who supported, or were likely to support, non-Republican candi- state law imposes on a political party, an dates. See supra Part III.B. Given that the individual voter, or a discrete class of vot- Arlington Heights intent inquiry parallels ers,’’ instead requiring that ‘‘[h]owever the intent inquiry in First Amendment slight [a] burden may appear TTT it must retaliation claims, see Mt. Healthy, 429 be justified by relevant and legitimate U.S. at 287 n.2, 97 S.Ct. 568, we likewise state interests sufficiently weighty to justi- find that Plaintiffs satisfied their burden to fy the limitation.’’ Id. at 191, 128 S.Ct. 1610 demonstrate that the General Assembly (internal quotation marks omitted). COMMON CAUSE v. RUCHO 931 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

Legislative Defendants argue that parti- ‘‘biggest struggle was to get people to san gerrymandering does not ‘‘burden’’ vote.’’ Peck Dep. 40:5–6. Voters and advo- First Amendment rights because it does cacy organizations elected not to partici- not ‘‘prohibit’’ supporters of a disfavored pate in congressional races because they party or candidate from speaking nor does believed they could not ‘‘have a democrat- it ‘‘chill’’ speech or ‘‘deter’’ such supporters ic—small ‘D’—democratic impact. It ‘‘from engaging in political speech or asso- doesn’t really matter for those races be- ciation.’’ Leg. Defs.’ FOF 139. Put differ- cause of the gerrymandering because ently, the 2016 Plan does not ‘‘chill’’ First they’re not competitive.’’ Peck Dep. 30:20– Amendment activities because ‘‘Plaintiffs 24. are every bit as free under [the 2016 Plan] Additionally, the League had difficulty to run for office, express their political fulfilling its mission of ‘‘inform[ing] TTT views, endorse and campaign for their fa- [and] engag[ing] voters in the process of vorite candidates, vote, or otherwise influ- voting and civic participation in their gov- ence the political process through their expression.’’ Kidd v. Cox, No. 1:06-CV- ernment.’’ Klenz Dep. 59:16–17; see id. 0997, 2006 WL 1341302, at *12 (N.D. Ga. 44:15–25 (explaining that the League of 2006). Women Voters engages in ‘‘voter registration’’ and ‘‘Get Out The Vote’’ efforts). For [144, 145] A governmental action example, the League testified that it had ‘‘chills’’ speech if it is ‘‘likely [to] deter a difficulty finding ways for their members person of ordinary firmness from the exer- to interact with ‘‘candidate[s] that [were] cise of First Amendment rights.’’ Benham expected to win and projected to win,’’ v. City of Charlotte, 635 F.3d 129, 135 (4th because those candidates were often not Cir. 2011) (alteration in original) (internal ‘‘motivated’’ to participate ‘‘in voter fo- quotation marks omitted). ‘‘Any chilling ef- rums, debates, [or] voter guides, because fect must be objectively reasonable. Nev- the outcome is so skewed in favor or in ertheless, a claimant need not show [he] disfavor of one or the other.’’ Id. at 59:16– ceased those activities altogether to dem- 17, 60:6–10. Individual Plaintiffs also testi- onstrate an injury in fact.’’ Id. (alterations fied to the adverse impact of the district- and internal citation omitted). ing plan on their ability to interact with Under that standard, the record reveals and influence their representatives. See, that the 2016 Plan has had a constitution- e.g., Brewer Dep. 24:8–25:6 (explaining ally cognizable chilling effect on reasonable that in ‘‘non-competitive districts’’ repre- North Carolinians’ First Amendment ac- sentatives from ‘‘both parties are not re- tivities. Multiple Plaintiffs testified that in quired to reach out to voters in the other ‘‘the most recent election, a lot of people party or even truly independent voters,’’ did not come out to vote’’—despite Plain- and therefore such voters tend ‘‘to be tiffs’ concerted get-out-the-vote efforts— poorly represented because their views ‘‘[b]ecause they felt their vote didn’t and their potential votes are not fairly count.’’ Evans Dep. 16:4–9; accord, e.g., considered’’). Peck Dep. 27:20–24 (‘‘I can’t tell you how many people told me this election, Republi- The 2016 Plan also chilled the speech cans as well as Democrats, ‘This system is and associational rights of voters affiliated rigged. My vote doesn’t count.’ It was real- with the North Carolina Democratic Party. ly hard to try to galvanize people to partic- Because Democratic candidates were un- ipate.’’). Likewise, in the 2016 election unlikely to prevail in districts drawn by the der the 2016 Plan, many organizations’ General Assembly to elect Republicans, it 932 318 FEDERAL SUPPLEMENT, 3d SERIES

‘‘ma[d]e[ ] it extremely difficult’’ for the in Democratic candidates’ favor of ‘‘historic North Carolina Democratic Party ‘‘to raise magnitude’’ to strip the 2016 Plan of its funds and have resources and get the at- pro-Republican bias. Trial Tr. II, at 54:24– tention of the national congressional cam- 55:9. And Dr. Hood testified that when a paign committees and other lawful poten- district’s lines are drawn so that a particu- tial funders for congressional races in lar party’s candidate is likely to prevail, those districts.’’ Goodwin Dep. 98:1–5. For the opposing party will have difficulty at- the same reasons, the party had difficultly tracting a strong candidate and raising recruiting strong candidates. Id. at 41:20– money to support that candidate. Trial Tr. 42:20; 60:23–61:16. Individual Plaintiffs IV, at 54:9–59:18. who supported Democratic candidates tes- All of these chilling effects on speech tified to similar difficulty raising money, and association—difficulty convincing vot- attracting candidates, and mobilizing voters to participate in the political process ers to support the political causes and and vote, attracting strong candidates, issues such Plaintiffs sought to advance. E.g., Quinn Dep. 39:1–3 (‘‘[Extreme gerry- raising money to support such candidates, mandering] makes it harder for me [as a and influencing elected officials—represent local organizer] to raise money; it makes it cognizable, and recognized, burdens on harder for me to recruit candidates; makes First Amendment rights. See, e.g., it harder to just mobilize a campaign.’’); Anderson, 460 U.S. at 792, 103 S.Ct. 1564 Palmer Dep. 27:19–23 (recounting that citi- (finding that plaintiff was injured by elec- TTT zens in one district asked for ‘‘help [to] tion law that made ‘‘[v]olunteers more recruit a candidate for [the citizens’] coun- difficult to recruit and retain, media pub- ty [because] TTT no Democrats [we]re go- licity and campaign contributions TTT more ing to run [t]here’’ given the significant difficult to secure, and voters TTT less in- obstacle to success posed by the partisan terested in the campaign’’); Libertarian gerrymander); Morgan Dep. 23:21–25 Party of Ohio v. Blackwell, 462 F.3d 579, (‘‘[P]eople TTT say no sense in us giving 587 (6th Cir. 2006) (recognizing that elec- money to that candidate because [he or toral restrictions that ‘‘affect a political she] is unlikely to prevail, notwithstanding party’s ability to perform its primary func- the merit of their positions.’’). tions—organizing and developing, recruit- Expert testimony confirmed the reason- ing supporters, choosing a candidate, and ableness of North Carolinians’ feelings voting for that candidate in a general elec- that their votes ‘‘did not count’’ and the tion’’—can constitute ‘‘severe’’ First corresponding chilling effects on speech Amendment burdens); Benkiser, 459 F.3d and associational activities. For example, at 586–87; Fulani v. League of Women the Republican candidate’s vote share Voters Educ. Fund, 882 F.2d 621, 626 (2d (56.10%) and margin of victory (12.20%) in Cir. 1989); Benisek v. Lamone, 266 the least Republican district which elected F.Supp.3d 799, 834 (D. Md. 2017) (Niemey- a Republican candidate under the 2016 er, J., dissenting) (‘‘[T]he purposeful re- Plan exceeded the thresholds at which po- duction of one party’s effectiveness may litical science experts, including Legisla- well chill the protected expression of that tive Defendants’ expert Dr. Hood, consider party’s voters, even if no individual plain- a district to be ‘‘safe’’—i.e., highly unlikely tiff establishes, as a factual matter, that he to change parties in subsequent elections. was so chilled.’’), aff’d on other Ex. 5058, at 25, Trial Tr. IV, at 29:16–22, grounds ––– U.S. ––––, 138 S.Ct. 1942, ––– 86:21–88:5. Likewise, Dr. Jackman testi- L.Ed.2d –––– (2018). Importantly, that fied that it would require a swing of votes partisan gerrymanders do not bar citizens COMMON CAUSE v. RUCHO 933 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

from voting or expressing their political the electoral power of supporters of a fa- views does not render these First Amend- vored party—constitutes an actionable ad- ment burdens any less significant. Cal. verse effect on political speech and associa- Democratic Party v. Jones, 530 U.S. 567, tional rights derives from bedrock First 581, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000) Amendment principles. ‘‘[T]he concept that (‘‘We have consistently refused to overlook government may restrict the speech of an unconstitutional restriction upon some some elements of our society in order to First Amendment activity simply because enhance the relative voice of others is it leaves other First Amendment activity wholly foreign to the First Amendment.’’ unimpaired.’’). Buckley, 424 U.S. at 48–49, 96 S.Ct. 612 Additionally, Legislative Defendants’ (emphasis added), superseded by statute myopic focus on whether a partisan gerry- on other grounds as stated in McConnell mander, and the 2016 Plan in particular, v. Fed. Election Comm’n, 540 U.S. 93, 124 ‘‘chilled’’ or ‘‘deterred’’ protected speech S.Ct. 619, 157 L.Ed.2d 491 (2003); see also or association ignores that a retaliatory Emily’s List v. Fed. Election Comm’n, 581 governmental action also poses a constitu- F.3d 1, 5–6 (D.C. Cir. 2009) (Kavanaugh, tionally cognizable ‘‘burden’’ when it ‘‘ad- J.) (characterizing this sentence from versely affects[s]’’ the speaker and the Buckley as ‘‘perhaps the most important candidate or political groups with whom sentence in the Court’s entire campaign he seeks to associate. Rutan, 497 U.S. at finance jurisprudence’’). Simply put, the 73, 110 S.Ct. 2729; Suarez, 202 F.3d at First Amendment does not permit the gov- 686. As detailed above, myriad evidence ernment ‘‘to restrict the political partic- establishes that the 2016 Plan makes it ipation of some in order to enhance the easier for supporters of Republican candi- relative influence of others.’’ McCutcheon, dates to translate their votes into seats in 134 S.Ct. at 1441 (plurality op.). the state’s congressional delegation and To that end, the government may not, diminishes the need for Republican repre- for example, cap the amount of indepen- sentatives to respond to the interests of dent expenditures individuals, entities, and voters who support non-Republican candi- political parties may make on behalf of a dates. See supra Part III.B. Accordingly, ‘‘clearly identified candidate.’’ Buckley, 424 even if the speech of voters who support U.S. at 45, 96 S.Ct. 612. Likewise, it is non-Republican candidates was not in fact beyond cavil that the First Amendment chilled—if, for example, they had all con- would forbid the government from making tinued to vote for, speak on behalf of, large public spaces available for speakers donate money to, and campaign for such advocating for a favored political party, candidates—the 2016 Plan nonetheless while allowing supporters of disfavored ‘‘adversely affected’’ such voters’ First speakers only to speak in smaller public Amendment rights by diluting the elector- venues, simply because government offi- al power of their votes. Shapiro, 203 cials preferred the message of the favored F.Supp.3d at 597–98 (recognizing that ‘‘di- party’s speakers. Nor is there any ques- lution’’ of disfavored party’s electoral pow- tion that the government would violate the er constitutes adverse effect cognizable First Amendment if it allowed supporters under the First Amendment). or candidates of one party to speak with a [146, 147] The principle that partisan bullhorn but barred candidates from other vote dilution—the intentional diminish- parties from doing the same. Although the ment of the electoral power of supporters supporters of the disfavored candidate or of a disfavored party and enhancement of party remain free to speak as much as 934 318 FEDERAL SUPPLEMENT, 3d SERIES they wish—i.e. their speech is not chilled— First Amendment if not supported by a the government nonetheless violates the justification of commensurate magnitude— First Amendment by ‘‘enhanc[ing] the rel- as is the case here. See Crawford, 553 U.S. ative voice’’ of the favored party. Buckley, 181, 189–90, 128 S.Ct. 1610, 170 L.Ed.2d 424 U.S. at 48–49, 96 S.Ct. 612. 574 (2008) (opinion of Stevens, J.). And the [148] Just as the government may not myriad burdens on political speech and altruistically ‘‘equaliz[e] the relative ability associational rights attributable to the of individuals and groups to influence the 2016 Plan—including decreased voter en- outcome of elections,’’ Citizens United, 558 gagement, difficulty raising money and at- U.S. at 350, 130 S.Ct. 876 (internal quota- tracting candidates, and vote dilution—are tion mark omitted), neither may the gov- of a different magnitude than numerous ernment drown out the political speech of retaliatory actions that courts have found disfavored individuals and groups ‘‘in order to constitute more than de minimis bur- to enhance the relative influence of oth- dens on First Amendment rights. See, e.g., ers,’’ McCutcheon, 134 S.Ct. at 1441; see Hines v. Gomez, 108 F.3d 265, 269 (9th also Shapiro, 203 F.Supp.3d at 598 (‘‘While Cir. 1997) (filing of single ‘‘false [disciplin- citizens have no right to be assigned to a ary] charge infringed TTT First Amend- district that is likely to elect a representa- ment right[s]’’); Crawford-El v. Britton, 93 tive that shares their views, the State also F.3d 813, 826 (D.C. Cir. 1996) (‘‘[P]ecuni- may not intentionally drown out the ary losses TTT sustained in the form of the voices of certain voters by reason of their costs of shipping TTT boxes and replacing views.’’ (emphasis added) ). That is particu- clothing, though small, might well deter a larly true in the republican form of govern- person of ordinary firmness TTT from ment adopted by the Framers, in which speaking again.’’), vacated on other elected officials represent the interests of grounds, 523 U.S. 574, 118 S.Ct. 1584, 140 ‘‘the People’’ in making governing deci- L.Ed.2d 759 (1998); Sloman v. Tadlock, 21 sions. U.S. Const. art. I, § 2; see infra F.3d 1462, 1470 (9th Cir. 1994) (holding Part V. When a legislature draws a con- that factfinder could reasonably conclude gressional districting plan designed to en- that a police officer’s ‘‘decisions to issue a hance the electoral power of voters likely citation and warnings to’’ a citizen express- to support candidates of a favored party ing his political beliefs ‘‘chilled the political and the districting plan achieves that in- expression of [the citizen] and his group’’); tended goal by electing more Representa- see also Anderson, 460 U.S. at 792, 103 tives from the favored party than would S.Ct. 1564 (1983) (finding that plaintiff can- have prevailed under a non-discriminatory didate was burdened by election law that plan—as was the case with the 2016 Plan made ‘‘[v]olunteers TTT more difficult to in the 2016 election—then the legislature recruit and retain, media publicity and unconstitutionally has ‘‘enhanced the rela- campaign contributions TTT more difficult tive voice’’ of the favored party in Con- to secure, and voters TTT less interested in gress, at the expense of the viewpoint of the campaign,’’ even in the absence of evi- the supporters of disfavored parties. dence the candidate would have prevailed [149] Contrary to Legislative Defen- in election). dants’ assertions, the 2016 Plan’s chilling Taken together, we find that Plaintiffs’ effects and adverse impacts are more than evidence establishes that the 2016 Plan’s de minimis. Even a ‘‘slight’’ burden on ‘‘a pro-Republican bias had the effect of chill- political party, an individual voter, or a ing the political speech and associational discrete class of voters’’ can violate the rights of individuals and entities that sup- COMMON CAUSE v. RUCHO 935 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) port non-Republican candidates. And we As explained above, the 2016 Plan bur- further find that the 2016 Plan adversely dens First Amendment rights both by affected such individuals’ and entities’ chilling voters, candidates, and parties’ First Amendment rights by diluting the participation in the political process and by electoral speech and power of voters who diluting the electoral power of supporters support non-Republican candidates. There- of non-Republican candidates. In evaluat- fore, we find that Plaintiffs’ evidence is ing Plaintiffs’ claims under the Equal Pro- more-than-adequate to establish that the tection Clause, we found that neither 2016 Plan burdened their political speech North Carolina’s political geography nor and associational rights. any other legitimate redistricting objective 3. Causation justified the 2016 Plan’s subordination of [150–152] Like the burden require- the interests of non-Republican voters. See ment, the causation requirement derives supra Part III.B. And it is axiomatic that from both First Amendment retaliation the government has no legitimate interest and election regulation cases. In retaliation in ‘‘restrict[ing] the speech of some ele- cases, the causation element not only re- ments of our society in order to enhance quires a plaintiff to demonstrate retaliato- the relative voice of others.’’ Buckley, 424 ry intent, it also allows a governmental U.S. at 48–49, 96 S.Ct. 612. Accordingly, actor to escape liability if the actor demon- we find that the General Assembly’s dis- strates it would have taken the challenged criminatory animus against non-Republi- action ‘‘even in the absence of the protect- can voters, candidates, and parties caused ed conduct.’’ Mt. Healthy, 429 U.S. at 287, the 2016 Plan’s burdens on such voters, 97 S.Ct. 568; Hartman, 547 U.S. at 260, candidates, and parties’ political speech 126 S.Ct. 1695 (explaining that a govern- and associational rights. mental ‘‘action colored by some degree of bad motive does not amount to a constitutional tort if that action would have been * * * * * taken anyway’’). Similarly, the In sum, we find (1) that the 2016 Plan Anderson/Burdick framework applied in was intended to disfavor supporters of First Amendment election regulation cases non-Republican candidates based on those requires that courts assess ‘‘ ‘the precise supporters’ past expressions of political be- interests put forward by the State as justi- liefs, (2) that the 2016 Plan burdened such fications for the burden imposed by its supporters’ political speech and associa- rule,’ taking into consideration ‘the extent tional rights, and (3) that a causal relation- to which those interests make it necessary ship existed between the General Assem- to burden the plaintiff’s rights.’ ’’ Burdick, bly’s discriminatory motivation and the 504 U.S. at 434, 112 S.Ct. 2059 (quoting First Amendment burdens imposed by the Anderson, 460 U.S. at 789, 103 S.Ct. 1564; 2016 Plan. Accordingly, we conclude that Tashjian, 479 U.S. at 213–14, 107 S.Ct. the 2016 Plan violates the First Amend- 544). Accordingly, under the causation ment. prong, a challenged districting plan that burdens political speech and associational rights nonetheless passes First Amend- V. ARTICLE I ment muster if legitimate state interests, Finally, we turn to Common Clause unrelated to the redistricting body’s intent Plaintiffs’ claims under Article I of the to burden the rights of supporters of a Constitution. Common Cause Plaintiffs as- disfavored party, justify the First Amend- sert the 2016 Plan runs afoul of two provi- ment burdens imposed by the plan. sions in Article I: section 2, which provides 936 318 FEDERAL SUPPLEMENT, 3d SERIES

that the ‘‘House of Representatives shall power does not exist.’’ Thornton, 514 U.S. be composed of Members chosen TTT by at 805, 115 S.Ct. 1842. the People,’’ and the Elections Clause, The plain language of the Elections which provides that ‘‘the Times, Places and Clause confers on the States the authority TTT Manner of holding Elections for Rep- to regulate the ‘‘Times, Places, and Man- resentatives, shall be prescribed in each ner’’ of holding congressional elections. State by the Legislature thereof; but the U.S. Const. art. I, sec. 4. During the Con- Congress may at any time by Law make stitutional Convention, James Madison or alter such Regulations,’’ U.S. Const. art. provided a list of examples of the types of I, § 4, cl. 1. Although Common Cause regulations that would fall within States’ Plaintiffs assert distinct claims under Arti- authority to regulate the ‘‘Times, Places, cle 1, section 2 and the Elections Clause, and Manner’’ of holding elections: ‘‘wheth- framing era records and Supreme Court er the electors should vote by ballot or doctrine reveal that the two provisions are viva voce, should assemble at this place or closely intertwined. that place; should be divided into districts A. BACKGROUND LAW or all meet at one place, sh[oul]d all vote Because the right to elect Representa- for all the representatives; or all in a dis- tives to Congress ‘‘ar[ose] from the Consti- trict vote for a number allotted to the tution itself,’’ the States have no ‘‘redistrict.’’ Debates at 423–24. The Framers, served’’ or ‘‘sovereign’’ authority to adopt therefore, ‘‘understood the Elections laws or regulations governing congression- Clause as a grant of authority to issue al elections. Thornton, 514 U.S. at 802-05, procedural regulations.’’ Thornton, 514 115 S.Ct. 1842; id. at 802, 115 S.Ct. 1842 U.S. at 833, 115 S.Ct. 1842 (emphasis add- (‘‘As Justice Story recognized, ‘the states ed). can exercise no powers whatsoever, which [153] In accordance with the intent of exclusively spring out of the existence of the Framers, the Supreme Court has held the national government, which the consti- that ‘‘[t]he Elections Clause gives States tution does not delegate to themTTTT No authority ‘to enact numerous requirements state can say, that it has reserved, what it as to procedure and safeguards which ex- never possessed.’ ’’ (quoting Story, 1 Com- perience shows are necessary in order to mentaries on the Constitution of the Unit- enforce the fundamental right involved.’ ’’ ed States § 627 (3d ed. 1858) ). Rather, the Id. (emphasis added) (quoting Smiley v. Constitution—and the Elections Clause in Holm, 285 U.S. 355, 366, 52 S.Ct. 397, 76 particular—delegates to the States the L.Ed. 795 (1932) ). Put differently, the power to impose certain types of laws and Elections Clause empowers the States to regulations governing congressional elec- promulgate ‘‘regulations designed to en- tions, including laws or regulations estab- sure that elections are fair and honest and lishing congressional districts. Id. at 802- that some sort of order rather than chaos 05, 115 S.Ct. 1842; see also Brown v. Sec’y accompanies the democratic processes.’’ of State of Fla., 668 F.3d 1271, 1283 (11th Id. at 834–35, 115 S.Ct. 1842 (emphasis Cir. 2012) (‘‘[S]tates have the delegated added) (internal quotation marks and al- power under the Elections Clause to cre- terations omitted). ate districts for congressional elections.’’). But unless the Elections Clause or another [154–156] The States’ broad, delegat- constitutional provision delegates to the ed power under the Election Clause, how- States the authority to impose a particular ever, is not without limit. See, e.g., Cook type of election law or regulation, ‘‘such a v. Gralike, 531 U.S. 510, 527, 121 S.Ct. COMMON CAUSE v. RUCHO 937 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

1029, 149 L.Ed.2d 44 (2001) (Kennedy, J. Protection Clause, and Article I, section 2; concurring) (‘‘The Elections Clause thus and (3) the 2016 Plan represents an imper- delegates but limited power over federal missible effort to ‘‘dictate electoral out- elections to the States.’’); Montano v. Lef- comes’’ and ‘‘disfavor a class of candi- kowitz, 575 F.2d 378, 385 (2d Cir. 1978) dates.’’ Thornton, 514 U.S. at 833–34, 115 (Friendly, J.) (‘‘Wesberry makes clear that S.Ct. 1842. the apparent breadth of the power grant- As to the first reason, the Elections ed to state legislatures by [the Elections Clause was the product of a vigorous de- Clause], is not a carte blanche.’’). In par- bate at the Constitutional Convention ticular, ‘‘in exercising their powers of su- among the delegates regarding whether, pervision over elections and in setting qualifications for voters, the States may and to what extent, to lodge authority over not infringe upon basic constitutional pro- the regulation of congressional elections in tections.’’ Kusper, 414 U.S. at 56–57, 94 Congress. On the one hand, those who S.Ct. 303; see also Tashjian, 479 U.S. at feared the power of the new federal gov- 217, 107 S.Ct. 544 (‘‘The power to regu- ernment did not want to give Congress the late the time, place, and manner of elec- ability to override state election regulations does not justify, without more, the tions. For example, the Anti-Federalist abridgement of fundamental rights.’’). For propagandist Federal Farmer argued that example, in Wesberry, the Court held that placing authority to promulgate election the Elections Clause does not ‘‘immunize regulations in the national government state congressional apportionment laws would allow Congress to draft election which debase a citizen’s right to vote.’’ laws that favored particular representa- 376 U.S. at 7, 84 S.Ct. 526. Likewise, the tives or viewpoints. See Greene, supra at Elections Clause does not serve ‘‘as a 1033, 119 S.Ct. 1936. ‘‘ ‘[T]he general legis- source of power [for States] to dictate lature may TTT evidently so regulate elec- electoral outcomes, to favor or disfavor a tions as to secure the choice of any partic- class of candidates, or to evade important ular description of men.’ ’’ Id. (quoting constitutional restraints.’’ Thornton, 514 Letter from the Federal Farmer (Oct. 10, U.S. at 833–34, 115 S.Ct. 1842. In other 1787), reprinted in Origins of the House of words, the States’ authority under the Representatives: A Documentary Record Elections clause extends only to ‘‘neutral 52, 53 (Bruce A. Ragsdale ed., 1990) ). provisions as to the time, place, and man- Other Anti-Federalists, including Patrick ner of elections.’’ Gralike, 531 U.S. at 527, Henry, expressed similar concerns about 121 S.Ct. 1029 (emphasis added). Congress manipulating election regulations to favor a particular group of candidates or B. APPLICATION their supporters. Id. at 1036, 119 S.Ct. [157] Under this precedent, we con- 1936. clude that the 2016 Plan exceeds the Gen- eral Assembly’s delegated authority under On the other hand, supporters of con- the Elections Clause for three reasons: (1) gressional control over state election reg- the Elections Clause did not empower ulations—the position that ultimately pre- State legislatures to disfavor the interests vailed—emphasized the risk that States of supporters of a particular candidate or would refuse to hold elections, and there- party in drawing congressional districts; by strip the federal government of power, (2) the 2016 Plan’s pro-Republican bias or, more relevant to the case at hand, violates other constitutional provisions, in- enact election regulations—including dis- cluding the First Amendment, the Equal tricting plans—that would favor particular 938 318 FEDERAL SUPPLEMENT, 3d SERIES factions. For example, James Madison ar- As explained above in drawing the 2016 gued that ‘‘[w]henever the State Legisla- Plan, the General Assembly ‘‘manipu- tures had a favorite measure to carry, lat[ed],’’ id., district lines in order to sub- they would take care so to mould their ordinate the interests of non-Republican regulations as to favor the candidates candidates and their supporters and en- they wished to succeed.’’ Debates at 424. trench Republican candidates in power. Likewise, a delegate at the Massachusetts The 2016 Plan, therefore, does not amount ratifying convention ‘‘warned that ‘when to a ‘‘neutral,’’ Gralike, 531 U.S. at 527, faction and party spirit run high,’ a legis- 121 S.Ct. 1029, or ‘‘fair’’ procedural regula- lature might take actions like ‘making an tion, Thornton, 514 U.S. at 853, 115 S.Ct. unequal and partial division of the states 1842, but rather an effort to achieve an into districts for the election of represen- impermissible substantive goal—providing tatives.’ ’’ Ariz. State Leg., 135 S.Ct. at the Republican party with a ‘‘Partisan Ad- 2672 (quoting Theophilus Parsons in De- vantage,’’ Ex. 1007. Accordingly, the 2016 bate in Massachusetts Ratifying Conven- Plan exceeds the General Assembly’s dele- tion (16–17, 21 Jan. 1788), in 2 The gated authority under the Elections Founders’ Constitution 256 (P. Kurland & Clause. R. Lerner eds. 1987) ). Turning to the second reason, the 2016 Plan’s favoring of Republican candidates [158] Accordingly, although the Fram- and their supporters and disfavoring of ers disagreed as to whether, and to what non-Republican candidates and their sup- extent, the Elections Clause should em- porters violates the Elections Clause by power Congress to displace state election ‘‘infring[ing] upon basic constitutional pro- regulations, the Framers agreed that, re- tections.’’ Kusper, 414 U.S. at 56–57, 94 gardless of whether Congress retained S.Ct. 303. As explained above, twelve dis- such authority, the Elections Clause tricts in the 2016 Plan violate the Equal should not empower legislative bodies—be Protection Clause because they reflect a they state or federal—to impose election successful, and unjustified, effort by the regulations that would favor or disfavor a General Assembly to subordinate the in- particular group of candidates or voters. terests of non-Republican voters and en- See Thornton, 514 U.S. at 833 n.47, 115 trench Republican Representatives in pow- S.Ct. 1842 (‘‘ ‘The constitution expressly er. See supra Part III. Additionally, as an provides that the choice shall be by the intentional, and successful, effort to bur- people, which cuts off both from the gener- den the speech and associational rights of al and state Legislatures the power of so supporters of non-Republican candidates, regulating the mode of election, as to de- the 2016 Plan violates the First Amend- prive the people of a fair choice.’ ’’ (quoting ment. See supra Part IV. ‘‘The Republican,’’ Connecticut Courant (Hartford, Jan. 7, 1788), 1 Bailyn 710, [159] The 2016 Plan also violates Arti- 713) ). To that end, the Supreme Court has cle I, section 2’s grant of authority to ‘‘the expressly recognized that the Elections People’’ to elect their Representatives. The Clause was ‘‘intended to act as a safeguard Framers decision to vest the power to against manipulation of electoral rules by elect Representatives in ‘‘the People’’ politicians and factions in the States to was—and is—significant. This feature dif- entrench themselves or place their inter- ferentiated the House of Representatives ests over those of the electorate.’’ Ariz. from every other federal government body State Leg., 135 S.Ct. at 2672. at the time of the Framing. It is ‘‘the only COMMON CAUSE v. RUCHO 939 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) textual reference to ‘the People’ in the sential feature of a government founded body of the original Constitution and the on democratic principles. James Madison only express, original textual right of the explained, for example, that ‘‘[a]s it is es- People to direct, unmediated political par- sential to liberty that the government in ticipation in choosing officials in the na- general should have a common interest tional government.’’ Richard H. Pildes, The with the people, so it is particularly essen- Constitution and Political Competition, 30 tial that the [House of Representatives] Nova L. REV. 253, 267 (2006). For exam- should have an immediate dependence on, ple, at the time, Senators were elected by and an intimate sympathy with, the peo- the state legislatures. U.S. Const. art. I, ple.’’ The Federalist No. 52, at 295 (James § 3 repealed by U.S. Const. amend. XVII. Madison). Other delegates at the constitu- The President was and still is elected tional convention also emphasized the crit- through an intermediate body—the Elec- ical importance of direct popular election toral College. U.S. Const. art. II, § 1. Only of representatives in any republican form the House of Representatives was directly of government. Debates at 39 (reporting accountable to the People. that George Mason ‘‘argued strongly for Article I, section 2 was a product of the an election of the larger branch by the so-called Great Compromise, which re- people, stating that ‘‘[i]t was to be the solved a bitter dispute between delegates grand depository of the democratic princi- regarding whether representation in the ple of the government’’); id. at 167 (re- national legislature would be determined porting that James Wilson stated he ‘‘con- by population, with representatives direct- sidered the election of the first branch by ly elected by the people, or would be the people not only as the corner Stone, awarded equally among the States, with but as the foundation of the fabric: and representatives elected by state legisla- that the difference between a mediate and tures. See Wesberry, 376 U.S. at 12–13, 84 immediate election was immense’’). Put S.Ct. 526. Under the Great Compromise, simply, Article I, Section 2 gives effect to the Senate represented the interests of the the Framers’ belief that ‘‘ ‘[t]he true prin- States, each State was awarded equal rep- ciple of a republic is, that the people resentation in that body, and Senators should choose whom they please to govern were elected by state legislatures. Id. at them.’ ’’ Powell, 395 U.S. at 540–41, 89 13, 84 S.Ct. 526. By contrast, ‘‘[t]he House S.Ct. 1944 (quoting Alexander Hamilton in of Represen[t]atives, the Convention 2 Debates on the Federal Constitution 257 agreed, was to represent the people as (J. Elliot ed. 1876) ). individuals, and on the basis of complete The Framers also saw popular election equality for each voter.’’ Id. at 14, 84 S.Ct. of Representatives as an important check 526. The House of Representatives, there- on the States’ power. See, e.g., Debates at fore, provided ‘‘a direct link between the 40 (reporting that James Wilson stated National Government and the people of that: ‘‘no government could long subsist the United States.’’ Thornton, 514 U.S. at without the confidence of the people. In a 803, 115 S.Ct. 1842. republican Government, this confidence The delegates at the Constitutional was peculiarly essentialTTTT All interfer- Convention decided to have the House of ence between the general and local govern- Representatives elected directly by the ment should be obviated as much as possi- People for two major reasons. First, the ble.’’); id. at 167 (reporting that Alexander Framers viewed popular election of at Hamilton did not want state legislatures to least one branch of government as an es- elect both chambers of Congress, because 940 318 FEDERAL SUPPLEMENT, 3d SERIES

‘‘State influence TTT could not be too U.S. at 331-32, 124 S.Ct. 1769 (Stevens, J. watchfully guarded against’’); id. (report- dissenting) (‘‘The problem [with partisan ing that Rufus King worried that ‘‘the gerrymandering], simply put, is that the Legislatures would constantly choose men will of the cartographers rather than the subservient to their own views as contrast- will of the people will govern.’’). By ren- ed to the general interest; and that they dering Representatives responsive to the might even devise modes of election that state legislatures who drew their districts would be subversive of the end in view’’). rather than the People, the 2016 Plan also In sum, ‘‘the Framers, in perhaps their upsets the careful balance struck by the most important contribution, conceived of Framers in the Great Compromise by ‘‘in- a Federal Government directly responsible terpos[ing]’’ the General Assembly be- to the people, possessed of direct power tween North Carolinians and their Repre- over the people, and chosen directly, not sentatives in Congress. See Gralike, 531 by States, but by the people.’’ Thornton, U.S. at 527, 121 S.Ct. 1029 (Kennedy, J., 514 U.S. at 821, 115 S.Ct. 1842 (emphasis concurring) (‘‘A State is not permitted to added). interpose itself between the people and The 2016 Plan’s invidious partisanship their National Government as it seeks to runs contrary to the Constitution’s vesting do here.’’). ‘‘Neither the design of the Con- of the power to elect Representatives in stitution nor sound principles of represen- ‘‘the People.’’ U.S. Const. art. I, § 2. To tative government are consistent with the begin, partisan gerrymanders, like the right or power of a State to interfere with 2016 Plan, violate ‘‘the core principle of the direct line of accountability between republican government’’ preserved in Arti- the National Legislature and the people cle I, Section 2—‘‘namely, that the voters who elect it.’’ Id. at 528, 121 S.Ct. 1029. should choose their representatives, not Finally, the 2016 Plan amounts to a suc- the other way around.’’ Ariz. State Leg., cessful effort by the General Assembly to 135 S.Ct. at 2677 (internal quotation marks ‘‘disfavor a class of candidates’’ and ‘‘dic- omitted). And by favoring supporters of tate electoral outcomes.’’ Thornton, 514 Republican candidates over supporters of U.S. at 833–34, 115 S.Ct. 1842. In Cook v. non-Republican candidates, the 2016 Plan Gralike, 531 U.S. 510, 121 S.Ct. 1029, 149 ‘‘defeat[s] the principle solemnly embodied L.Ed.2d 44 (2001), the Court considered an in the Great Compromise’’ because it re- amendment to a state constitution that flects a successful effort by the General ‘‘instruct[ed]’’ each member of the state’s Assembly to ‘‘draw the lines of congres- congressional delegation ‘‘to use all of his sional districts in such a way as to give or her delegated powers to pass the Con- some voters a greater voice in choosing a gressional Term Limits Amendment,’’ id. Congressman than others.’’ Wesberry, 376 at 514, 121 S.Ct. 1029 (majority op.). To U.S. at 14, 84 S.Ct. 526. advance that goal, the amendment further [160] Additionally, rather than having provided that ‘‘the statement ‘DISRE- ‘‘ ‘an habitual recollection of their depen- GARDED VOTERS’ INSTRUCTION ON dence on the people,’ ’’ as the Framers TERM LIMITS’ be printed on all primary intended, Ariz. State Leg., 135 S.Ct. at and general [election] ballots adjacent to 2677 (quoting The Federalist No. 57, at the name of a[n incumbent] Senator or 320 (James Madison) ), partisan gerryman- Representative who fails to take any of one ders render Representatives responsive to of eight [enumerated] legislative acts in the controlling faction of the State legisla- support of the proposed amendment.’’ Id. ture that drew their districts, Vieth, 541 And the amendment further required that COMMON CAUSE v. RUCHO 941 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) primary and general election ballots ex- of candidates’’); Brown, 668 F.3d at 1284 pressly indicate if a nonincumbent candi- (explaining that the Elections Clause, as date ‘‘ ‘DECLINED TO PLEDGE TO interpreted in Thornton and Gralike, does SUPPORT TERM LIMITS.’ ’’ Id. at 514– not authorize a state legislature to enact 15, 121 S.Ct. 1029. an election regulation ‘‘meant to prevent or The Court concluded that the amend- severely cripple the election of particular ment exceeded the state’s authority under candidates’’). the Elections Clause. Id. at 524–27, 121 Like the state constitutional amendment S.Ct. 1029. In reaching this conclusion, the at issue in Gralike, the Partisan Advan- Court reaffirmed that because the Elec- tage criterion—and the record evidence tions Clause constitutes the States’ sole regarding Representative Lewis, Senator source of ‘‘authority over congressional Rucho, and Dr. Hofeller’s implementation elections,’’ ‘‘the States may regulate the of that criterion in drawing the 2016 Plan, incidents of such elections TTT only within the exclusive delegation of power under see supra Parts I.B, III.B.1.a—establishes the Elections Clause.’’ Id. at 522–23, 121 that the 2016 Plan was intended to disfa- S.Ct. 1029 (emphasis added). The Court vor non-Republican candidates and sup- concluded the amendment exceeded that porters of such candidates and favor Re- delegated authority for two principal rea- publican candidates and their supporters. sons. First, the amendment was ‘‘plainly And like the constitutional amendment in designed to favor candidates who are will- Gralike, the General Assembly’s express ing to support the particular form of term intent to draw a redistricting plan that limits amendment set forth in its text and would elect a congressional delegation to disfavor those who either oppose term composed of 10 Republicans and 3 Demo- limits entirely or would prefer a different crats—coupled with the fact that the 2016 proposal.’’ Id. at 523–25, 121 S.Ct. 1029. election under the 2016 Plan yielded a Second, the placement of the ‘‘pejorative’’ congressional delegation with the intended or ‘‘negative’’ labels next to candidates who composition—demonstrates that the 2016 opposed the term limits amendment on the Plan amounted to a successful ‘‘attempt[ ] ballot ‘‘handicap[ped] [such] candidates ‘at to ‘dictate election outcomes.’ ’’ Gralike, the most crucial stage in the election pro- 531 U.S. at 526, 121 S.Ct. 1029 (quoting cess—the instant before the vote is cast.’ ’’ Thornton, 514 U.S. at 833–34, 115 S.Ct. Id. at 524–25, 121 S.Ct. 1029 (quoting 1842). Accordingly, the 2016 Plan’s demon- Anderson v. Martin, 375 U.S. 399, 402, 84 strated partisan favoritism ‘‘simply is not S.Ct. 454, 11 L.Ed.2d 430 (1964) ). By authorized by the Elections Clause.’’ Id. ‘‘handicap[ping]’’ candidates who opposed the term limits amendment, the state con- VI. REMEDY stitutional amendment represented an ‘‘attempt[t] to ‘dictate election outcomes,’ ’’ [161, 162] Having concluded that the which ‘‘simply is not authorized by the 2016 Plan violates the Equal Protection Elections Clause.’’ Id. at 524, 526, 121 Clause, the First Amendment, and Article S.Ct. 1029 (quoting Thornton, 514 U.S. at I of the Constitution, we now must deter- 833–34, 115 S.Ct. 1842); see also Chamness mine the appropriate remedy. Absent un- v. Bowen, 722 F.3d 1110, 1121 (9th Cir. usual circumstances, ‘‘such as where an 2013) (explaining that, under Gralike, the impending election is imminent and a Elections Clause prohibits state election State’s election machinery is already in regulations that ‘‘dictate political outcomes progress,’’ courts should take ‘‘appropriate or invidiously discriminate against a class action to insure that no further elections 942 318 FEDERAL SUPPLEMENT, 3d SERIES are conducted under the invalid plan.’’ lates the North Carolina Constitution by Reynolds, 377 U.S. at 585, 84 S.Ct. 1362. misleading voters regarding the nature of Here, the State held primary elections sev- the amendments. See Order on Injunctive eral months ago and the general election is Relief at 29–30, Cooper v. Berger, No. 18- only a few months away. That usually CVS-9805 (Wake Cty. Super. Ct. Aug. 21, would leave us with little choice but to 2018). Accordingly, while that injunction allow the State to use the 2016 Plan in the remains in place, any order this Court 2018 election. enters impacting the November 6, 2018, However, this case presents unusual cir- election would not seem to impose addi- cumstances. To begin, the General Assem- tional burdens on the State’s electoral ma- bly has abolished primary elections for chinery. several partisan state offices. N.C. Demo- In such circumstances, we decline to cratic Party v. Berger, 717 Fed. App’x 304, rule out the possibility that the State 305 (4th Cir. 2018) (per curiam). Accord- should be enjoined from conducting any ingly, the General Assembly has concluded further congressional elections using the that, for at least some partisan offices, 2016 Plan. For example, it may be possible primary elections are unnecessary. There- for the State to conduct a general election fore, were this Court to order the State to using a constitutionally compliant district- conduct a general congressional election ing plan without holding a primary elec- without holding primary elections, that tion. Or, it may be viable for the State to would be consistent with the General As- conduct a primary election on November 6, sembly’s policy preference as to at least 2018, using a constitutionally compliant some offices. congressional districting plan, and then Additionally, on June 26, 2018, Legisla- conduct a general election sometime before tive Defendants represented to the Su- the new Congress is seated in January preme Court that altering state legislative 2019. Accordingly, no later than 5 p.m. on districts at that time would cause ‘‘only August 31, 2018, the parties shall file minimal disruption to the ongoing election briefs addressing whether this Court process,’’ notwithstanding that the State should allow the State to conduct any fu- had already conducted primary elections ture election using the 2016 Plan. Those using the districts Legislative Defendants briefs should discuss the viability of the sought to set aside. Appellants’ Supp. Br. alternatives discussed above, as well as at 5, North Carolina v. Covington, No. 17- any other potential schedules for conduct- 1364, 2018 WL 3141446 (S. Ct. June 26, ing elections using a constitutionally com- 2018). Therefore, at least from Legislative pliant plan that would not unduly interfere Defendants’ standpoint, the completion of with the State’s election machinery or con- primary elections would not seem to preclude imposition of an alternative district- fuse voters. Regardless of whether we ulti- ing plan, at least from the perspective of mately allow the State to use the 2016 the State’s ‘‘ongoing election process.’’ Plan in the 2018 election, we hereby enjoin the State from conducting any elections Finally, we further note that North Car- using the 2016 Plan in any election after olina courts have indefinitely enjoined the the November 6, 2018, election. State from preparing or finalizing ballots for the November 6, 2018, election on [163, 164] As to the drawing of a reme- grounds that language adopted by the dial plan, as a general rule, once a federal General Assembly to describe two pro- court concludes that a state districting posed state constitutional amendments vio- plan violates the Constitution or federal COMMON CAUSE v. RUCHO 943 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

law, it should ‘‘afford a reasonable oppor- General Assembly made no discernible ef- tunity for the legislature to meet constitu- fort to take advantage of the previous op- tional requirements by adopting a substi- portunity we afforded it to draw a plan tute measure rather than for the federal that cures the partisan gerrymander. Gill court to devise TTT its own plan.’’ Wise v. also clarified the nature of the injury giv- Lipscomb, 437 U.S. 535, 540, 98 S.Ct. 2493, ing rise to a partisan vote dilution claim 57 L.Ed.2d 411 (1978). This case presents under the Equal Protection Clause, see an exceptional circumstance, however: the supra Part II.A.1, rendering somewhat General Assembly enacted the 2016 Plan less uncertain the legal standard for evalu- after another panel of this Court invalidat- ating such claims and the validity of our ed the 2011 Plan as a racial gerrymander. conclusion that twelve districts in the 2016 Harris, 159 F.Supp.3d at 627. When a Plan violate the Equal Protection Clause. court finds a remedial districting plan also violates the Constitution, courts generally Additionally, in Covington the Supreme do not afford a legislature a second ‘‘bite- Court held that several proposed remedial at-the-apple’’ to enact a constitutionally state legislative districts drawn by the compliant plan. See Covington, 138 S.Ct. at General Assembly—itself elected under 2553–54 (concluding that district court did one of the most widespread racial gerry- not abuse its discretion in denying state manders ever encountered by a federal legislature second opportunity to draw re- court—carried forward the racial gerry- medial districts when several redrawn dis- mandering that rendered the original ver- tricts failed to remedy constitutional viola- sions of the districts unconstitutional, rais- tion); Chapman v. Meier, 420 U.S. 1, 27, 95 ing legitimate questions regarding the S.Ct. 751, 42 L.Ed.2d 766 (1975) (holding General Assembly’s capacity or willingness that if a state fails to enact ‘‘a constitution- to draw constitutional remedial districts. ally acceptable’’ remedial districting plan, 138 S.Ct. at 2553–54. And during the inter- ‘‘the responsibility falls on the District vening months, the General Assembly has Court’’); Reynolds, 377 U.S. at 586, 84 enacted a number of pieces of election- S.Ct. 1362 (holding that a district court related legislation that federal and state ‘‘acted in a most proper and commendable courts have struck down as unconstitution- manner’’ by imposing its own remedial dis- al, see supra note 18, further calling into tricting plan, after the district court con- question the General Assembly’s commit- cluded that the remedial plan adopted by ment to enacting constitutionally compli- state legislature failed to remedy constitu- ant, non-discriminatory election laws. tional violation). We nevertheless previously exercised Most significantly, additional time has our discretion to allow the General Assem- passed. We continue to lament that North bly a second opportunity to draw a consti- Carolina voters now have been deprived of tutional congressional districting plan be- a constitutional congressional districting cause at the time the General Assembly plan—and, therefore, constitutional repre- drew the 2016 Plan, the Supreme Court sentation in Congress—for six years and had not established a legal standard for three election cycles. To the extent allow- adjudicating partisan gerrymandering ing the General Assembly another oppor- claims and because redistricting is primari- tunity to draw a remedial plan would fur- ly a legislative function. Common Cause, ther delay electing Representatives under 279 F.Supp.3d at 690. The intervening a constitutional districting plan, that delay months have given us some reason to re- weighs heavily against giving the General visit that determination. To begin, the Assembly another such opportunity. Ac- 944 318 FEDERAL SUPPLEMENT, 3d SERIES cordingly, in the briefs to be filed not later ship of the General Assembly or any than 5 p.m. on August 31, 2018, the parties such committee; and also shall address whether this Court 5. all criteria, formal or informal, the should allow the General Assembly anoth- General Assembly, any constituent er opportunity to draw a constitutionally committee responsible for drawing compliant congressional districting plan. the remedial plan, and the leader- Although we have not yet decided ship of the General Assembly or any whether we will afford the General Assem- such committee applied in drawing bly another chance to draw such a plan, we the proposed remedial plan, includ- conclude that if we do allow such an oppor- ing, without limitation, any criteria tunity, the General Assembly should do so related to race, partisanship, the use as quickly as possible. Accordingly, in the of political data, or the protection of event the General Assembly believes it is incumbents, and a description of entitled to another opportunity to draw a how the mapdrawers used any such constitutionally compliant plan, it should criteria. begin work immediately to draw such a In the event we decide to first consider plan. To that end, if we do allow the Gen- any remedial plan drawn by the General eral Assembly the first opportunity to Assembly before the September 14, 2018, draw a remedial plan, we will not consider deadline, we will provide Plaintiffs an op- a remedial districting plan enacted by the portunity to file objections to some or all of General Assembly after 5 p.m. on Septem- the districts in the remedial plan. ber 17, 2018. That deadline will allow the Given our uncertainty as to whether the General Assembly approximately three General Assembly should be afforded an weeks to draw a remedial plan, more than (additional) opportunity to draw a remedial the amount of time state law affords the plan—and the fast-approaching November General Assembly to draw remedial dis- 6, 2018, general election—we also find it tricting plans. N.C. Gen. Stat. § 120-2.4(a) appropriate to take steps to ensure the (2017). We further advise Defendants that timely availability of an alternative remedi- they should be prepared to file with this al plan for use in the event we conclude Court, soon after that deadline, the enact- the General Assembly is not entitled to ed proposed remedial plan, along with: such an opportunity or we conclude that 1. transcripts of all committee hearings the remedial plan enacted by the General and floor debates related to the pro- Assembly fails to remedy the constitution- posed remedial plan; al violation. To that end, we intend to 2. the ‘‘stat pack’’ for the proposed re- appoint in short order a Special Master medial plan; pursuant to Federal Rule of Civil Proce- 3. a description of the process the Gen- dure 53 to assist the Court in drawing an eral Assembly, and any constituent alternative remedial plan. Rodriguez v. committees or members thereof, fol- Pataki, 207 F.Supp.2d 123, 125 (S.D.N.Y. lowed in drawing and enacting the 2002) (‘‘[T]he ‘eleventh hour’ is upon us, if proposed remedial plan, including, indeed it has not already passed. It is without limitation, the identity of all therefore necessary for this Court to pre- participants involved in the process; pare for the possibility that this Court will 4. any alternative plans considered by be required to adopt an appropriate redis- the General Assembly, any constitu- tricting plan.’’). Accordingly, we direct the ent committee responsible for draw- parties to confer and file no later than ing the remedial plan, or the leader- August 29, 2018, a list of three qualified COMMON CAUSE v. RUCHO 945 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) and mutually acceptable candidates to two threshold questions remain: what is serve as Special Master. In the event the necessary to show standing in a case of parties fail to agree as to a list of candi- this sort, and whether those claims are dates, the Court may identify a special justiciable. Here we do not decide the master without input from the parties. The latter question because the plaintiffs in parties should also address in their August this case have not shown standing under 31, 2018, briefing whether any one of the the theory upon which they based their thousands of districting plans currently in claims for relief. the record, including Dr. Chen’s Plan 2- Id. at 1929. 297, could—or should—be adopted as a Of particular note to me are Bandemer remedial plan. and Vieth in terms of the law a district SO ORDERED court is required to apply. As Justice Sca- lia explained in Vieth, ‘‘[e]ighteen years OSTEEN, JR., District Judge, concurs ago, we held that the Equal Protection in part and dissents in part. Clause grants judges the power—and OSTEEN, JR., District Judge, duty—to control political gerrymandering, concurring in part and dissenting in part: see Davis v. Bandemer, 478 U.S. 109, 106 In Gill, prior to explaining the issue of S.Ct. 2797, 92 L.Ed.2d 85 (1986).’’ Vieth v. standing as relevant to a claim of political Jubelirer, 541 U.S. 267, 276, 124 S.Ct. gerrymandering, the Court summarized 1769, 158 L.Ed.2d 546 (2004). Bandemer the gerrymandering line of cases. Gill v. held ‘‘that a political gerrymandering claim Whitford, 585 U.S. ––––, 138 S.Ct. 1916, could succeed where plaintiffs 1926–29, ––– L.Ed.2d –––– (2018). The showed ’both intentional discrimination Court recognized, inter alia, that in Davis against an identifiable political group and v. Bandemer ‘‘[a] majority of the Court an actual discriminatory effect on that agreed that the case before it was justicia- group.’’ Vieth, 541 U.S. at 281, 124 S.Ct. ble.’’ Gill, 138 S.Ct. at 1927. The Court 1769 (quoting Bandemer, 478 U.S. at 127, concluded its summary of these cases by 106 S.Ct. 2797). Although Justice Scalia stating: posited in Vieth that political gerryman- Our considerable efforts in Gaffney, dering claims are nonjusticiable and that Bandemer, Vieth, and LULAC leave un- Bandemer was wrongly decided, Bandem- resolved whether such claims may be er was not overturned by Vieth. Similarly, brought in cases involving allegations of Gill did not overturn Bandemer, as Gill partisan gerrymandering. In particular, did not reach the question of justiciability.1

1. In my opinion previously, see Common ized grievance about the conduct of govern- Cause v. Rucho, 279 F.Supp.3d 587, 692 ment,’’ Gill, 138 S.Ct. at 1931, quoting Lance (M.D.N.C. 2018) (Osteen, J., concurring in v. Coffman, 549 U.S. 437, 442, 127 S.Ct. part and dissenting in part), vacated and re- 1194, 167 L.Ed.2d 29 (2007), I remain con- manded, ––– U.S. ––––, 138 S.Ct. 2679, ––– cerned over the justiciability of Equal Protec- L.Ed.2d –––– (June 25, 2018) (mem.), I ex- tion and First Amendment claims of political pressed my concern over Equal Protection gerrymandering. See Common Cause, 279 and First Amendment claims in this context. F.Supp.3d at 692–93. I am not sure there is a Justice Scalia, in Vieth, explained his opinion constitutional, and judicially manageable, that these claims are not justiciable because standard for limiting partisan political consid- of an inability to establish ‘‘judicially discerni- eration by a partisan legislative body in the ble and manageable standards.’’ See Vieth, discharge of its duties except by legislative 541 U.S. at 280, 124 S.Ct. 1769. After a re- action, see U.S. CONST. art. I, § 4, or by view of Gill, particularly in light of its pointed what I continue to see as an outside limit discussion of an ‘‘undifferentiated, general- established by Article I, Sections 2 and 4 of 946 318 FEDERAL SUPPLEMENT, 3d SERIES

Therefore, absent a contrary ruling from district-specific injury within the context the Supreme Court, partisan gerryman- of: dering claims are justiciable under the the familiar three-part test for Article Equal Protection Clause and lower courts III standing: that he ‘‘(1) suffered an are obliged to apply that law and articulate injury in fact, (2) that is fairly traceable a standard for adjudication. to the challenged conduct of the defen- The Supreme Court remanded this pres- dant, and (3) that is likely to be re- ent case for ‘‘further consideration in light dressed by a favorable judicial decision.’’ of Gill v. Whitford.’’ Common Cause v. Spokeo, Inc. v. Robins, 578 U.S. ––––, Rucho, 279 F.Supp.3d 587 (M.D.N.C. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 2018), vacated and remanded, ––– U.S. 635 (2016). ––––, 138 S.Ct. 2679, ––– L.Ed.2d –––– Id. at 1929–30. (June 25, 2018) (mem.). This order re- In this case, as in Gill, Plaintiffs assert- quires us to reconsider standing and related both district-specific political gerryman- ed issues in light of Gill. With respect to dering claims and statewide challenges to standing, the Court in Gill explained: the apportionment of Congressional dis- We have long recognized that a person’s tricts. The Court in Gill held that state- right to vote is ‘‘individual and personal wide challenges are not cognizable for pur- in nature.’’ Reynolds v. Sims, 377 U.S. poses of standing. In rejecting a statewide 533, 561, 84 S.Ct. 1362, 12 L.Ed.2d 506 challenge, the Court stated: (1964). Thus, ‘‘voters who allege facts showing disadvantage to themselves as The plaintiffs argue that their claim of individuals have standing to sue’’ to rem- statewide injury is analogous to the edy that disadvantage. Baker, 369 U.S., claims presented in Baker and Reyn- at 206, 82 S.Ct. 691. The plaintiffs in this olds, which they assert were ‘‘statewide case alleged that they suffered such in- in nature’’ because they rested on alle- jury from partisan gerrymandering, gations that ‘‘districts throughout a state which works through ‘‘packing’’ and [had] been malapportioned.’’ But, as we ‘‘cracking’’ voters of one party to disad- have already noted, the holdings in Bak- vantage those voters. 1 App. 28–29, 32– er and Reynolds were expressly prem- 33, Complaint ¶¶ 5, 15. That is, the plain- ised on the understanding that the inju- tiffs claim a constitutional right not to be ries giving rise to those claims were placed in legislative districts deliberately ‘‘individual and personal in nature,’’ designed to ‘‘waste’’ their votes in elec- Reynolds, 377 U.S., at 561, 84 S.Ct. 1362 tions where their chosen candidates will because the claims were brought by vot- win in landslides (packing) or are des- ers who alleged ‘‘facts showing disadvan- tined to lose by closer margins (crack- tage to themselves as individuals,’’ Bak- ing). Id., at 32–33, ¶ 15. To the extent er, 369 U.S., at 206, 82 S.Ct. 691. the plaintiffs’ alleged harm is the dilu- The plaintiffs’ mistaken insistence tion of their votes, that injury is district that the claims in Baker and Reynolds specific. were ‘‘statewide in nature’’ rests on a Gill, 138 S.Ct. at 1929–30. In determining failure to distinguish injury from reme- standing, therefore, a plaintiff in a political dy. In those malapportionment cases, gerrymandering case must demonstrate the only way to vindicate an individual

the United States Constitution prohibiting a Nevertheless, we are bound to follow existing legislature from dictating election results. Supreme Court precedent. COMMON CAUSE v. RUCHO 947 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

plaintiff’s right to an equally weighted izational Plaintiffs, I concur with the ma- vote was through a wholesale ‘‘restruc- jority that they have met their burden on turing of the geographical distribution of behalf of aggrieved individual members seats in a state legislature.’’ Reynolds, (with respect to ten challenged districts 377 U.S., at 561, 84 S.Ct. 1362. instead of thirteen) that ‘‘Plaintiffs who Here, the plaintiffs’ partisan gerry- reside and vote in each of the thirteen mandering claims turn on allegations challenged congressional districts testified that their votes have been diluted. That to, introduced evidence to support, and, in harm arises from the particular compo- all but one case, ultimately proved the type sition of the voter’s own district, which of dilutionary injury the Supreme Court causes his vote—having been packed or recognized in Gill,’’ that is, the cracking cracked—to carry less weight than it and packing of districts as described in would carry in another, hypothetical Gill. Maj. Op. at 819. I concur with the district. Remedying the individual vot- majority that Plaintiffs have shown both a er’s harm, therefore, does not necessari- partisan intent to subordinate the interests ly require restructuring all of the State’s of non-Republican voters and that those legislative districts. partisan considerations were the predomi- Id. at 1930–31 (emphasis added). nant factor in the redistricting. I also con- Applying Bandemer, Vieth, and Gill, I cur with the majority that Defendants find under Supreme Court precedent that have not justified the effects of the 2016 partisan gerrymandering claims are justi- Plan. I therefore agree with the majority’s ciable under the Equal Protection Clause. conclusion that the 2016 Plan violates the I find this to be true even in the absence of Equal Protection Clause. Finally, I concur a recognized jurisprudential remedy. I join the majority opinion to hold, as required with the majority’s remedial action. by Gill, that Plaintiffs are required to For the reasons stated hereafter and to show standing on the basis of the composi- the extent described herein, I also join the tion of his or her own district. I also join majority’s conclusion that Plaintiffs have the majority to find that some of the indi- shown that the 2016 Plan violates Article I, vidual Plaintiffs, as explained below, have Sections 2 and 4 of the United States alleged and proven both standing and a Constitution by proving that the drawers violation of the Equal Protection Clause. of the Plan intended to dictate and preor- Specifically, I concur with the opinion of dain election outcomes and disfavor a class the majority that those individual Plaintiffs of candidates. Although Gill addressed alleging ‘‘cracking’’ for purposes of parti- standing within an Equal Protection claim, san advantage have alleged and proven ‘‘an I agree with the majority that the individu- individual and personal injury’’ as opposed al Plaintiffs have established standing, as to a generalized grievance against govern- voters, to proceed with a claim under Arti- mental conduct of which he or she does not cle I, Sections 2 and 4 of the United States approve. I also concur that the organiza- Constitution for reasons similar to the tions here – Common Cause, the Demo- Equal Protection standing argument. cratic Party, and the League of Women Voters – have standing to assert the claims I disagree with the majority on several of the individual members of their respec- points. First, I disagree that a Plaintiff tive organizations with respect to the indi- who demonstrates ‘‘packing’’ but concedes vidual and personal injury sustained by election of the candidate of his or her those members residing in individual dis- choice has standing or has demonstrated a tricts which were cracked. As to the organ- constitutional injury under the facts as 948 318 FEDERAL SUPPLEMENT, 3d SERIES presently presented. Second, I disagree Spokeo. For example, in describing the that there is a distinction between ‘‘politi- plaintiffs, the Court stated: cal considerations’’ and ‘‘partisan inter- Thus, ‘‘voters who allege facts showing ests’’ or that consideration of partisan, po- disadvantage to themselves as individu- litical interests in redistricting constitutes als have standing to sue’’ to remedy that a power that was not delegated to the disadvantage. Baker, 369 U.S., at 206, 82 states or is otherwise prohibited in legisla- S.Ct. 691. The plaintiffs in this case al- tive action, including districting. I therefore weigh the maps created by Dr. Chen leged that they suffered such injury differently from the majority, as I do not from partisan gerrymandering, which find a non-partisan map drawing process, works through ‘‘packing’’ and ‘‘cracking’’ as performed by Dr. Chen, to be a neces- voters of one party to disadvantage sary or relevant comparison. Third, I dis- those voters. 1 App. 28–29, 32–33, Com- agree that any of the Plaintiffs in this case plaint ¶¶ 5, 15. That is, the plaintiffs have standing to assert a statewide claim claim a constitutional right not to be as to the statewide collective effect of any placed in legislative districts deliberately political gerrymandering. Finally, assum- designed to ‘‘waste’’ their votes in elec- ing that partisan gerrymandering claims tions where their chosen candidates will are justiciable under the First Amend- win in landslides (packing) or are des- ment, I am unconvinced that Plaintiffs tined to lose by closer margins (crack- have proven an injury to their First ing). Id., at 32–33, ¶ 15. Amendment rights and I dissent, for the Gill, 138 S.Ct. at 1929–30. The Court later same reasons I set forth previously, see stated: Common Cause, 279 F.Supp.3d at 696 (Os- teen, J., concurring in part and dissenting And the sum of the standing principles in part), from the majority’s conclusion articulated here, as applied to this case, that the 2016 Plan violates the First is that the harm asserted by the plain- Amendment. tiffs is best understood as arising from a burden on those plaintiffs’ own votes. In I. Standing this gerrymandering context that bur- Similar to this case, the plaintiffs in Gill den arises through a voter’s placement alleged vote dilution resulting from pack- in a ‘‘cracked’’ or ‘‘packed’’ district. ing and cracking districts for the purpose Id. at 1931. The Court phrased the rele- of gaining political advantage. Gill, 138 vant facts in terms of what was claimed S.Ct. at 1929–30 (‘‘The plaintiffs in this case alleged that they suffered such injury (‘‘plaintiffs claim a constitutional right’’) from partisan gerrymandering, which and how the harm is ‘‘understood,’’ such works through ‘‘packing’’ and ‘‘cracking’’ that while I am convinced that cracking voters of one party to disadvantage those and packing could provide a basis upon voters.’’) However, in my reading of Gill, I which to find standing is present, that am not convinced the Court has held that issue is dependent upon the facts found by both packing and cracking would serve to a lower court. The Court concluded with establish standing as a matter of law. In- the admonition that ‘‘[w]e express no view stead, as I read Gill, packing and cracking on the merits of the plaintiffs’ case. We may constitute a basis upon which a plain- caution, however, that ‘standing is not dis- tiff may establish standing if the criteria pensed in gross.’ A plaintiff’s remedy must for standing are met as a factual matter be tailored to redress the plaintiff’s partic- under the test for standing set forth in ular injury.’’ Id. at 1934 (quoting Daimler- COMMON CAUSE v. RUCHO 949 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

Chrysler Corp. v. Cuno, 547 U.S. 332, 354, missed sub nom., Scarnati v. Agre, ––– 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) ). U.S. ––––, 138 S.Ct. 2602, ––– L.Ed.2d Therefore, in a case involving allegations –––– (June 4, 2018) (mem.) (quoting Unit- of cracking and packing, we are to deter- ed States v. Hays, 515 U.S. 737, 744, 115 mine whether the facts associated with S.Ct. 2431, 132 L.Ed.2d 635 (1995) ). In- cracking and packing are sufficient to con- stead, I believe a Democrat plaintiff living fer standing by applying the tests set forth in a ‘‘packed’’ district is complaining about in Spokeo, 136 S.Ct. at 1547, and Lujan v. the process, the intent, and the invasion of Defenders of Wildlife, 504 U.S. 555, 560– a legally protected interest but all in the 61, 560 n.1, 112 S.Ct. 2130, 119 L.Ed. 2d absence of an injury. 351 (1992). For example, the majority describes the I am of the opinion that packing and packing in District 1 and its effect on cracking are objectively different with re- Plaintiff Larry Hall. Maj. Op. at 821. As spect to standing. Here, as in Gill, the described by the majority, ‘‘District 1 individual Plaintiffs in packed districts amounts to a successful effort by the Gen- ‘‘claim a constitutional right not to be eral Assembly to concentrate, or pack, vot- placed in legislative districts deliberately ers who were unlikely to support a Repub- designed to ‘waste’ their votes in elections where their chosen candidates will win in lican candidate, and thereby dilute such landslides (packing).’’ Gill, 138 S.Ct. at voters’ votes.’’ Id. at 821. The majority 1930. And the vote dilution alleged by finds that ‘‘Plaintiff Larry Hall resides in packing and proven at trial may establish District 1, is a registered Democrat, and an individual Plaintiff in a packed district typically votes for Democrat candidates’’, sustained the ‘‘invasion of a legally protect- id., and that ‘‘Hall’s vote would have car- ed interest’’ assuming a constitutional in- ried greater weight in numerous other terest exists in not having a vote wasted. ‘hypothetical districts.’ ’’ Id. at 48 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Gill, 138 S.Ct. at 1931). For purposes of However, standing also requires a concrete standing, I find that Plaintiff Hall has not and particularized injury which ‘‘affects established standing because his interest the plaintiff in a personal and individual as a registered Democrat in voting for way.’’ Id. at 560 n.1, 112 S.Ct. 2130. Be- Democrat candidates has not been injured. cause a Democrat plaintiff in a packed He was able to elect the candidate of his district is indisputably able to elect the choice from his district, a Democrat. I candidate of his or her choice, that individ- conclude that a Plaintiff residing in a ual has not sustained an injury which af- packed district on the facts present before fects the voter in a personal and individual this court has not sustained an individual way. A packed district does not demon- and personal injury but, instead, has prov- strably inflict ‘‘the representational injury en a ‘‘collective political interest,’’ and a articulated in racial gerrymandering ‘‘generalized grievance against governmen- claims—that ‘elected officials are more tal conduct of which he or she does not likely to believe that their primary obli- approve.’’ Gill, 138 S.Ct. at 1930, 1932. gation is to represent only the members of [the favored] group, rather than their con- Nevertheless, the majority of the dis- stituency as a whole,’ ’’ Agre v. Wolfe, 284 tricts at issue in this case are ones within F.Supp.3d 591, 641 (E.D. Pa.) (Schwarz, J., which Democrats contend and ultimately concurring), appeal dismissed, ––– U.S. proved that cracking occurred, diminishing ––––, 138 S.Ct. 2576, ––– L.Ed.2d –––– the power of Democrat voters to elect a (May 29, 2018) (mem.), and appeal dis- Democrat candidate. As to these ‘‘cracked’’ 950 318 FEDERAL SUPPLEMENT, 3d SERIES districts, I agree with the majority that ied in his right to vote for his represen- Plaintiffs have demonstrated the dilution tative. And the citizen’s abstract interest of voting strength which appears to be in policies adopted by the legislature on recognized by Gill for purposes of stand- the facts here is a nonjusticiable ‘‘gener- ing. Those Plaintiffs who contend districts al interest common to all members of were cracked have alleged and proven an the public.’’ (1) an individual injury in fact resulting Gill, 138 S.Ct. at 1931 (internal citations from their vote dilution claims, that is, the omitted). I find that the overall composi- reduced ability to elect the candidate of his tion of the congressional delegation, or her choice; (2) that is fairly traceable to whether 10-3, 9-4, or 7-6, or any other the challenged conduct of the defendant, statewide claim of injury, is a non-justicia- that is, cracking communities of interest; ble claim of ‘‘general interest common to and (3) that is likely to be redressed by all members of the public.’’ Id. (quoting Ex favorable decision. And although both parte Levitt, 302 U.S. 633, 636, 58 S.Ct. 1, cracking and packing may involve splitting 82 L.Ed. 493 (1937) (per curiam) ). To be communities of interest, only cracking has clear, I find that the admissions of certain the result of producing a concrete and legislators of an intent to create a 10-3 particularized harm. congressional delegation constitutes evi- Gill reminds us that the Federal Judi- dence which may be considered in deter- ciary is charged with respecting ‘‘the prop- mining the manner of drafting individual er—and properly limited—role of the districts and the intent to dilute certain courts in a democratic society.’’ Gill, 138 voters within those districts, but I am not S.Ct. at 1929 (quoting Allen v. Wright, 468 convinced that intent or the statewide plan U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d provides standing for any Plaintiff to as- 556 (1984) ). Consistent with that limited sert a claim based on statewide injury. role, Gill markedly, and for the first time As noted above and found by the majori- in the context of political gerrymandering, ty, the organizational Plaintiffs have stand- directed the attention of courts and parties ing, by and through their members, to to the distinction between individualized challenge individual districts on behalf of injury and general political grievance. I the individual member-voters. Maj. Op. at therefore believe, based upon those consid- 827. ‘‘An association has standing to bring erations described by Gill, that Plaintiffs suit on behalf of its members when its have not established standing as to state- members would otherwise have standing wide challenges to political gerrymander- to sue in their own right, the interests at ing. I would further find that the organiza- stake are germane to the organization’s tional Plaintiffs have standing only to the purpose, and neither the claim asserted extent they challenge the districts on the nor the relief requested requires the par- basis of district-specific injury to individual ticipation of individual members in the members. lawsuit.’’ Friends of the Earth, Inc. v. The Court in Gill reminds us, as lower Laidlaw Envtl. Servs. (TOC), Inc., 528 courts, that: U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d [P]laintiffs may not rely on ‘the kind of 610 (2000). However, I do not agree that undifferentiated, generalized grievance the organizations have standing to chal- about the conduct of government that lenge the districting plan on a statewide we have refused to countenance in the basis, nor do I find the organizational past.’ A citizen’s interest in the overall Plaintiffs have standing to assert political composition of the legislature is embod- gerrymandering claims because of other COMMON CAUSE v. RUCHO 951 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) organizational purposes. The Court in Gill, citizens of North Carolina and are regis- applying a standard derived from racial tered Democratic voters, whose votes have gerrymandering, observed that ‘‘[a] plain- been diluted or nullified TTT’’, (Complaint, tiff who complains of gerrymandering, but 1:16CV1026 (Doc. 1) at 2), and as to those who does not live in a gerrymandered dis- claims I agree with the majority that Com- trict, ‘assert[s] only a generalized griev- mon Cause has standing. However, Com- ance against governmental conduct of mon Cause further alleges that: which he or she does not approve.’ ’’ Gill, Common Cause is at the forefront of 138 S.Ct. at 1930 (quoting United States v. efforts to combat gerrymandering, no Hays, 515 U.S. 737, 744–45, 115 S.Ct. 2431, matter what party is responsible, in the 132 L.Ed.2d 635 (1995) ). belief that when election districts are For example, League of Women Voters created in a fair and neutral way, the allege in the Complaint: People will be able to elect representa- LWVNC has standing to challenge the tives who truly represent them. To that 2016 Plan. The Plan discriminates end, Common Cause has organized and against North Carolina voters who asso- led the coalitions that secured passage ciate with the Democratic Party by di- of ballot initiatives that created indepen- luting their votes for the purpose of dent redistricting commissions in Ari- maintaining a 10-to-3 Republican advan- zona and California and campaigned for tage in congressional seats. The Plan ratification of an amendment to the thus directly impairs LWVNC’s mission Florida Constitution prohibiting partisan of encouraging civic engagement and gerrymandering. nonpartisan redistricting reform. Addi- tionally, LWVNC is a membership or- Id. at 3. While those interests may or may ganization, and its members are harmed not be appropriate from a policy objective, by the Plan because it dilutes Democrat- I do not find these interests, or similar ic votes and impairs Democratic voters’ interests in statewide reform, to provide ability to elect their preferred congres- standing on a statewide basis. For similar sional candidates. LWVNC’s members’ reasons, I find the Democratic Party has right to participate freely and equally in standing on behalf of individual members the political process is burdened as well only. by the Plan, which in many cases denies II. Equal Protection and Partisan Po- the ability to cast a meaningful vote litical Considerations altogether. (Complaint, 1:16CV1164 (Doc. 1) at 7.) I do The majority’s opinion rejects Legisla- not find the League has standing to chal- tive Defendants’ arguments that some de- lenge an overall statewide plan drawn ‘‘for gree of partisan gerrymandering is per- the purpose of maintaining a 10-to-3 Re- missible, Maj. Op. at 851, and further finds publican advantage in congressional seats,’’ that: nor do I find the League has standing on neither the constitutional delegation of behalf of voters who associate with the redistricting to political bodies, nor his- Democratic Party generally. To hold oth- torical practice, nor Supreme Court erwise, in my opinion, is to recognize inju- precedent supports Legislative Defen- ry on the basis of general political griev- dants assertion that it is sometimes per- ance, a matter specifically rejected by Gill. missible for a state redistricting body to Similarly, Common Cause has asserted draw district lines for the purpose of claims ‘‘on behalf of its members who are diminishing the electoral power of voters 952 318 FEDERAL SUPPLEMENT, 3d SERIES

who supported or are likely to support a dismissed, ––– U.S. ––––, 138 S.Ct. 2576, disfavored party or candidate. ––– L.Ed.2d –––– (May 29, 2018) (mem.), Id. The majority proceeds to clarify that: and appeal dismissed sub nom., Scarnati our conclusion that twelve of the thir- v. Agre, ––– U.S. ––––, 138 S.Ct. 2602, ––– teen districts violate the Equal Protec- L.Ed.2d –––– (June 4, 2018) (mem.). tion Clause does not rest on our deter- The Constitution delegates redistricting mination that States lack authority to power for federal elections to the States engage in partisan gerrymandering TTT and their legislatures.2 Legislative action is in drawing congressional districts. In a political process, and issues addressed by particular, we assume that a congres- those legislative bodies affecting constitu- sional district amounts to an unconstitutional questions — redistricting, the Sec- tional partisan gerrymander only if the ond Amendment, the First Amendment, legislative body’s predominant purpose abortion, and the like — are all inherently in drawing the district was to subor- political in nature. All of those constitu- dinate the interests of a disfavored par- tional issues, specifically the Second ty TTTT’’ Amendment and abortion, are affected by Id. at 852. legislation passed by legislative bodies I dissent from this portion of the majori- which are partisan and political. Even if ty’s opinion and agree with the Legislative the legislative process should result in an Defendants to find that the Constitution unconstitutional law, that law can be over- does permit consideration by a legislative turned only on constitutional grounds and body of both political and partisan inter- not due to any perceived inappropriate ests in the redistricting process. This ques- level of partisan political consideration. tion has been addressed at length in a Courts have never considered or required number of cases, and I agree with those that constitutional issues be addressed cases recognizing the fact that political only in a nonpartisan, fair, and neutral consideration and partisan advantage are manner. I find the same is true for political not prohibited by the Constitution. See, and partisan consideration as part of redis- e.g., Vieth v. Jubelirer, 541 U.S. 267, 274– tricting. As the plurality in Bandemer ob- 76, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004); served, ‘‘[i]t would be idle TTT to contend Whitford v. Gill, 218 F.Supp.3d 837, 936 that any political consideration taken into (W.D. Wis. 2016) (Griesbach, J., dissent- account in fashioning a reapportionment ing), vacated and remanded, Gill v. Whit- plan is sufficient to invalidate it TTTT Poli- ford, ––– U.S. ––––, 138 S.Ct. 1916, ––– tics and political considerations are insepa- L.Ed.2d –––– (2018); Agre v. Wolf, 284 rable from districting and apportionment.’’ F.Supp.3d 591,620–24 (E.D. Pa.), appeal Bandemer, 478 U.S. at 128, 106 S.Ct. 2797

2. In North Carolina, redistricting is conduct- qualifications of its officers and the manner ed by the General Assembly, a partisan body, in which they shall be chosen.’’ Boyd v. consistent with the Constitution. As Chief Jus- Nebraska ex rel. Thayer, 143 U.S. 135, 161, tice Roberts explains: 12 S.Ct. 375, 36 L.Ed. 103 (1892). Drawing [S]tates have ‘‘broad powers to determine lines for congressional districts is likewise the conditions under which the right of ‘‘primarily the duty and responsibility of the suffrage may be exercised.’’ Carrington v. State.’’ Perry v. Perez, 565 U.S. 388, 392, Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 13 132 S.Ct. 934, 940, 181 L.Ed.2d 900 (2012) L.Ed.2d 675 (1965) (internal quotation (per curiam) (internal quotation marks marks omitted); see also Arizona, ante, at omitted). 570 U.S., 1, 133 S.Ct. at 2257–2259. And Shelby Cty. v. Holder, 570 U.S. 529, 543, 133 ‘‘[e]ach State has the power to prescribe the S.Ct. 2612, 2623, 186 L.Ed.2d 651 (2013). COMMON CAUSE v. RUCHO 953 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018)

(internal citations omitted) (quoting Gaff- into account partisan considerations, and ney v. Cummings, 412 U.S. 735, 752–53, 93 indeed partisan advantage, when produc- S.Ct. 2321, 37 L.Ed.2d 298 (1973) ). Al- ing a redistricting plan. I agree with the though Bandemer has been abrogated to majority, however, that when partisan con- some degree, see Common Cause v. Ru- siderations predominate a legislature may cho, 240 F.Supp.3d 376, 387 (M.D.N.C. act contrary to the Equal Protection 2017) (per curiam), this observation re- Clause under existing precedent. mains true today. Because I do not find the Constitution The Court has recognized many times in forbids a political body from taking into redistricting and apportionment cases that account partisan considerations, I do not some degree of partisanship and political find the North Carolina congressional consideration is constitutionally permissi- maps submitted by Plaintiff’s expert, Jow- ble in a redistricting process undertaken ei Chen, as persuasive as the majority. Dr. by partisan actors. See, e.g., Hunt v. Cro- Chen drafted maps without consideration martie, 526 U.S. 541, 551, 119 S.Ct. 1545, to partisan interests. Declaration of Dr. 143 L.Ed.2d 731 (1999) (‘‘Our prior deci- Jowei Chen, 1:16CV1026 (Doc. 130-2) at 2. sions have made clear that a jurisdiction As Dr. Chen describes: may engage in constitutional political ger- In connection with my March 1, 2017 rymandering, even if it so happens that the expert report in this litigation, I turned most loyal Democrats happen to be black over all data concerning 1,000 North Democrats and even if the State were Carolina congressional maps created as conscious of that fact.’’); Miller v. John- Simulation Set 1, produced using a com- son, 515 U.S. 900, 914, 115 S.Ct. 2475, 132 puter simulation process following only L.Ed.2d 762 (1995) (‘‘[R]edistricting in the non-partisan portions of the most cases will implicate a political calcu- Adopted Criteria used for the 2016 Plan. lus in which various interests compete for recognition TTTT’’); Gaffney, 412 U.S. at I also turned over all data concerning 753, 93 S.Ct. 2321 (‘‘Politics and political 1,000 additional congressional maps cre- considerations are inseparable from dis- ated as Simulation Set 2, produced us- tricting and apportionment.’’); see also ing a simulation process following the Cooper v. Harris, ––– U.S. ––––, 137 S.Ct. non-partisan portions of the Adopted 1455, 1488, 197 L.Ed.2d 837 (2017) (Alito, Criteria and avoiding the pairing of J., concurring in part and dissenting in any incumbents. part) (recognizing the constitutionality of Id. (emphasis added). Dr. Chen then com- at least some amount of political gerry- pared those maps as to each district and mandering); Whitford, 218 F.Supp.3d at the enacted 2016 Plan. Id. at 2–3. I do not 934–35 (Griesbach, J., dissenting) (‘‘The think there is any dispute that maps for Supreme Court has long acknowledged purposes of establishing congressional dis- partisan considerations are inevitable tricts could be drawn using non-partisan when partisan politicians draw maps.’’). criteria. It is also undisputed that partisan And Congress, though it could presumably advantage was a factor in drawing the act to limit partisan gerrymandering under 2016 Plan. See Maj. Op. at 803–04 (describ- its Article I, Section 4 authority, has cho- ing the process used to draw maps under sen only to require single-member dis- the 2016 Plan). tricts. 2 U.S.C. § 2c. In my opinion, Dr. Chen’s maps demon- I do not find, therefore, that the Consti- strate two facts. First, they provide evi- tution forbids a political body from taking dence that political partisan consideration 954 318 FEDERAL SUPPLEMENT, 3d SERIES affected the districts as drafted in the 2016 tricting inevitably is the expression of Plan, a fact which is hardly noteworthy as interest group politics TTT’’); Gaffney v. Defendants admit as much. Second, and Cummings, 412 U.S. 735, 753, 93 S.Ct. significantly, Dr. Chen’s maps have been 2321, 37 L.Ed.2d 298 (1973) (‘‘The reali- admitted and argued as the alternative to ty is that districting inevitably has and the 2016 Plan. The League Plaintiffs ar- is intended to have substantial political gue: consequences’’). Turning from the fact of the 2016 Plan’s Vieth, 541 U.S. at 285–86, 124 S.Ct. 1769. cracking and packing to their lack of Instead, I believe that only the state necessity, plaintiffs focus here on a sin- legislatures, through their power to draft gle alternative map: Professor Chen’s congressional districts in the first instance, Plan 2-297. As noted earlier, several and Congress with its power under Article types of evidence may be used at this I, Section 4 of the United States Constitu- stage of the inquiry, including the data tion, have the authority to remove political partisan considerations entirely from the about thousands of simulated maps pre- redistricting process. ‘‘It is significant that sented by the Common Cause plaintiffs. the Framers provided a remedy for such Dkt. 130-2. In the League plaintiffs’ practices in the Constitution. Article I, § 4, view, a single alternative map is a sim- while leaving in state legislatures the ini- ple and intuitive way to show that a tial power to draw districts for federal challenged plan’s cracking and packing elections, permitted Congress to ‘make or could have been avoided. A single alter- alter’ those districts if it wished.’’ Vieth, native map also has the nice property of 541 U.S. at 275, 124 S.Ct. 1769. With re- demonstrating that supporters of the spect to political or partisan considerations opposing party could be simultaneously in the drawing of congressional districts, uncracked and unpacked—within one the Constitution provides the people of this particular plan than an array of alterna- State with the power to ‘‘seek relief from tives. Congress, which can make or alter the See, e.g., League of Women Voters Plain- regulations prescribed by the legislature. tiffs’ Brief, 1:16CV1026 (Doc. 138) at 11– And the Constitution gives them another 12. But this evidence, and any remedy, is means of change. They can follow the lead based upon maps which were drafted in a of the reformers who won passage of the completely nonpartisan fashion, and I do Seventeenth Amendment.’’ Ariz. State Legislature v. Ariz. Indep. Redistricting not find that action or that remedy to be Comm’n, ––– U.S. ––––, 135 S.Ct. 2652, constitutionally required or even appropri- 2692, 192 L.Ed.2d 704 (2015) (Roberts, ate. As Justice Scalia described in Vieth: C.J., dissenting). I therefore do not assign The Constitution clearly contemplates the same weight or consideration to Dr. districting by political entities, see Arti- Chen’s maps as the majority has in its cle I, § 4, and unsurprisingly that turns opinion, and further find the comparison of out to be root-and-branch a matter of Dr. Chen’s maps to the 2016 Plan of only politics. See Miller, supra, at 914, 115 limited relevance. S.Ct. 2475 (‘‘[R]edistricting in most cases will implicate a political calculus in III. First Amendment which various interests compete for rec- Assuming that partisan gerrymandering ognition TTT’’); Shaw, supra, at 662, 113 claims are justiciable under the First S.Ct. 2816 (White, J., dissenting) (‘‘[D]is- Amendment,3 I find that the majority’s

3. As we recognized, ‘‘the splintered opinions in Bandemer and Vieth stand for, at a mini- COMMON CAUSE v. RUCHO 955 Cite as 318 F.Supp.3d 777 (M.D.N.C. 2018) adopted test would in effect foreclose all redistricting plan, but that has nothing to partisan considerations in the redistricting do with their First Amendment rights.’’ Id. process—a result I am unable to conclude (citing Washington v. Finlay, 664 F.2d that the First Amendment requires — and 913, 927–28 (4th Cir. 1981) ). would allow redress for an injury that Plaintiffs are likewise free under the Plaintiffs have not proven rises to a consti- 2016 Plan to ‘‘field candidates for office, tutional level. Therefore, I respectfully dis- participate in campaigns, vote for their sent. preferred candidate, or otherwise associate No one disputes that the First Amend- with others for the advancement of com- ment protects political expression and as- mon political beliefs.’’ Id. (quoting Kidd, sociation. Citizens United v. Fed. Election 2006 WL 1341302, at *17). The fact that Comm’n, 558 U.S. 310, 339–40, 130 S.Ct. some Plaintiffs testified about difficulties 876, 175 L.Ed.2d 753 (2010); Buckley v. involving voter outreach, fundraising, and Valeo, 424 U.S. 1, 15, 96 S.Ct. 612, 46 candidate recruitment, (see, e.g., Dep. of L.Ed.2d 659 (1976) (per curiam). But as Elizabeth Evans 16:4–9, April 7, 2017, another court aptly noted in rejecting 1:16-CV-1026, Doc. No. 101-7; Dep. of John plaintiffs’ claim that the inability to elect a J. Quinn, III 39:1–3, April 10, 2017, 1:16- preferred candidate burdened their politi- CV-1026, Doc. No. 101-22), fails to per- cal expression, ‘‘[p]laintiffs are every bit as suade me that the 2016 Plan objectively free under the new [redistricting] plan to chilled the speech and associational rights run for office, express their political views, of the citizens of North Carolina so as to 4 endorse and campaign for their favorite prove a First Amendment violation. candidates, vote, or otherwise influence the Justice Kennedy, suggesting in Vieth political process through their expression.’’ that the First Amendment may be an ap- Radogno v. Ill. State Bd. of Elections, No. plicable vehicle for addressing partisan 1:11-CV-04884, 2011 WL 5025251, at *7 gerrymandering claims, proposed that (N.D. Ill. Oct. 21, 2011) (second alteration such an analysis should ask ‘‘whether polit- in original) (quoting Kidd v. Cox, No. 1:06- ical classifications were used to burden a CV-0997-BBM, 2006 WL 1341302, at *17 group’s representational rights.’’ Vieth, 541 (N.D. Ga. May 16, 2006) ). As the Radogno U.S. at 314-15, 124 S.Ct. 1769 (Kennedy, court explained, ‘‘[i]t may very well be that J., concurring). The Vieth plurality reject- Plaintiffs’ ability to successfully elect their ed this proposal because ‘‘a First Amend- preferred candidate is burdened by the ment claim, if it were sustained, would

mum, [that] Fourteenth Amendment partisan trine of overbreadth, and describes the situa- gerrymandering claims are justiciable[.]’’ tion where persons whose expression is pro- Common Cause, 240 F.Supp.3d at 387. But tected are deterred from exercising their the justiciability (or nonjusticiability) of a rights by the existence of an overly broad claim under one legal theory does not necessi- statute regulating speech.’’ Kidd, 2006 WL tate the same result under another. See Baker 1341302, at *18 n.12 (internal citation omit- v. Carr, 369 U.S. 186, 209–11, 82 S.Ct. 691, 7 ted); see also New York v. Ferber, 458 U.S. L.Ed.2d 663 (1962). Although ‘‘nothing in the 747, 772 & n.27, 102 S.Ct. 3348, 73 L.Ed.2d Court’s splintered opinions in Vieth rendered nonjusticiable Plaintiffs’ First Amendment 1113 (1982). While Plaintiffs and other citi- claims[,]’’ Common Cause, 240 F.Supp.3d at zens may feel a sense of disillusionment to- 389, the Court has not expressly ruled in this ward the political process due to the 2016 area, which remains unsettled at best. Plan, this differs from fear of enforcement due to an ‘‘overly broad statute regulating 4. It should also be noted that the ‘‘concept of speech.’’ a ‘chilling effect’ is associated with the doc- 956 318 FEDERAL SUPPLEMENT, 3d SERIES render unlawful all consideration of politi- Article I, Sections 2 and 4, I would again cal affiliation in districting, just as it ren- find standing on behalf of those voters in ders unlawful all consideration of political cracked districts who were not able to affiliation in hiring for non-policy-level elect the candidate of their choice. Under government jobs.’’ Id. at 294, 124 S.Ct. this same theory, if such standing is ulti- 1769 (plurality op.). Common Cause Plain- mately found constitutionally proper as a tiffs essentially agree, arguing that strict matter of law by the Court, those voters scrutiny is triggered once a plaintiff shows unable to elect the candidate of their that a redistricting body intended for a choice have sustained injury due to legisla- plan to discriminate against a certain set tive control of their district’s electoral re- of voters. (Common Cause Br. at 5-8.) The sult. majority adopts an intermediate scrutiny standard requiring the showing of a con- I join the majority and find that the crete burden to political speech or associa- 2016 Plan amounts to a successful attempt tional rights. Maj. Op. at 929. However, in to dictate election outcomes. I join in the practice, I find the result to be indistin- majority’s opinion as to Article I, Sections guishable, for partisan consideration in a 2 and 4 to the extent consistent with the political process is an attempt to create discussion above. I differ slightly from the some sort of political advantage for the majority in that I do not find that the supporters of a candidate or party. This Elections Clause completely prohibits advantage necessarily comes at the ex- State legislatures from disfavoring a par- pense of or burden to the other. ticular party. See Brown v. Sec’y of State As explained above, Congress has de- of Fla., 668 F.3d 1271, 1284 & n.10 (11th clined to expressly limit partisan gerry- Cir. 2012) (rejecting the prohibition of all mandering by statute, see 2 U.S.C. § 2c, regulations influencing election outcomes and the Court’s cases accepting or tolerat- and instead reading the cases as prohibiting some amount of partisan consideration ing States from attempting ‘‘to prevent or are many, see, e.g., Cromartie, 526 U.S. at severely cripple the election of particular 551, 119 S.Ct. 1545; Miller, 515 U.S. at candidates’’). 914, 115 S.Ct. 2475; Gaffney, 412 U.S. at ‘‘[T]he people should choose whom they 753, 93 S.Ct. 2321; see also Harris, ––– please to govern them.’’ U.S. Term Limits, U.S. ––––, 137 S.Ct. at 1488, 197 L.Ed.2d Inc. v. Thornton, 514 U.S. 779, 783, 115 837 (Alito, J., concurring in part and dis- S.Ct. 1842, 131 L.Ed.2d 881 (1995) (quot- senting in part); Whitford, 218 F.Supp.3d ing Powell v. McCormack, 395 U.S. 486, at 934–35 (Griesbach, J., dissenting). It might be desirable for a host of policy 547, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) ). reasons to remove partisan considerations In this case, the legislature, not the people, from the redistricting process. But I am dictated the outcome when the districts unable to conclude that the First Amend- were drawn, and Defendants have present- ment requires it, or that Plaintiffs here ed no specific facts to support a finding have proven violations of their speech or that the election results were due to any- associational rights under the First thing other than the maps being drawn to Amendment. reach a specific result. General suggestions of other factors possibly contributing to IV. Article I, Sections 2 and 4 the election results such as fundraising I agree with the majority’s conclusion disparities, voter turnout, the quality of that Plaintiffs have alleged and proven the candidates, and unforeseen candidate standing to challenge the 2016 Plan. Under circumstances, see, e.g., Legislative Defs.’ MARSHALL v. WALT DISNEY CO. 957 Cite as 318 F.Supp.3d 957 (M.D.N.C. 2018)

Post-Trial Br. 10-11, Nov. 6, 2017, ECF relief could be granted. Plaintiff moved for No. 115; Leg. Defs.’ Proposed Findings of reconsideration, for leave to file amended Fact and Conclusions of Law 67, Nov. 6, complaint, to compel discovery, and for 2017, ECF No. 114, are insufficient to sanctions. establish that something other than parti- Holding: The District Court, Thomas D. san consideration dictated the election re- Schroeder, J., held that interests of justice sults across the State. did not support transfer of suit.

V. Remedy Motion to dismiss granted; all remaining I concur with the majority’s remedial motions denied. action. I agree that the General Assembly generally is entitled to a second opportunity to draw a constitutional congressional Federal Courts O2911, 2912 districting plan. As noted in both the majority opinion and this opinion, the adjudi- Interests of justice did not support cation of partisan gerrymandering claims transfer of suit to district with personal against a redistricting plan is a developing jurisdiction over media conglomerate, area of law, and the General Assembly where all of plaintiff’s claims, including generally should have the opportunity to claims for breach of contract, intentional remedy its plan under the standards set and negligent infliction of emotional dis- forth in the majority opinion. tress, negligence, loss of enjoyment of life, negligent entrustment, and constructive fraud, were likely subject to dismissal for , legal inadequacy. 28 U.S.C.A. §§ 1391(b), 1406(a).

Barbara Summey MARSHALL, Plaintiff, v. The WALT DISNEY COMPANY, Barbara Summey Marshall, Fayetteville, Defendant. NC, pro se. 1:17CV726 Justin D. Howard, Tracy S. Demarco, United States District Court, McGuireWoods LLP, Raleigh, NC, Kath- M.D. North Carolina. leen H. Dooley, McGuireWoods LLP, Charlotte, NC, for Tracy S. Demarco. June 19, 2018 Background: Plaintiff, acting pro se, brought action against media conglomerate ORDER OF DISMISSAL for, inter alia, breach of contract, inten- Thomas D. Schroeder, United States tional and negligent infliction of emotional District Judge distress, negligence, loss of enjoyment of life, negligent entrustment, and construc- This action came before the court this tive fraud. Media conglomerate moved for date for a hearing on all pending motions protective order and moved to dismiss for of Plaintiff Barbara Summey Marshall and lack of personal jurisdiction, improper ven- Defendant The Walt Disney Company ue, and failure to state claim upon which (‘‘TWDC’’): TWDC’s motion dismiss for