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Common Cause V. Lewis, 358 F

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Common Cause V. Lewis, 358 F C. The 2017 Plans Were Designed Intentionally and Effectively to Maximize Republican Partisan Advantage Within Specific County Groupings ..........................................................................................................109 1. Senate County Groupings ................................................................. 109 2. House County Groupings .................................................................. 149 D. The 2017 Plans Protected the Republican Majorities in the 2018 Elections ............................................................................................................223 E. The 2017 Plans Harm the Organizational and Individual Plaintiffs ............................................................................................................224 1. The 2017 Plans Harm the North Carolina Democratic Party ...................................................................................................... 224 2. The 2017 Plans Harm Common Cause .......................................... 230 3. The 2017 Plans Harm the Individual Plaintiffs .......................... 231 F. Defendants Offered No Meaningful Defense of the 2017 Plans............238 1. No Witness Denied That the Plans Are Intentional and Effective Partisan Gerrymanders ................................................... 238 2. Defendants’ Criticisms of Plaintiffs’ Experts Were Not Persuasive ............................................................................................ 239 3. Dr. Karen Owen’s Testimony on “Representation” and “Competitive Elections” and Representative John Bell’s Testimony on Competitive Districts Was Unpersuasive ........... 272 4. The Whole County Provision Did Not Prevent Systematic Gerrymandering of the Plans for Partisan Gain ......................... 277 5. Plaintiffs Do Not Seek Proportional Representation ................. 278 6. Legislative Defendants Did Not Seek to Comply with the VRA and Did Not Show Nonpartisan Plans Would Violate the VRA ................................................................................................. 279 7. Legislative Defendants, through Dr. Hofeller, substantially completed drafting the Enacted Maps in June 2017 ............................................................................................. 284 2 CONCLUSIONS OF LAW .....................................................................................................292 I. THE STANDING OF PLAINTIFFS ........................................................................292 A. The North Carolina Democratic Party Has Standing .............................293 B. Common Cause Has Standing ......................................................................295 C. The Standing of Individual Plaintiffs .........................................................296 II. THE 2017 PLANS VIOLATE THE NORTH CAROLINA CONSTITUTION’S FREE ELECTIONS CLAUSE ..................................................................................298 III. THE 2017 PLANS VIOLATE THE NORTH CAROLINA CONSTITUTION’S EQUAL PROTECTION CLAUSE ............................................................................307 A. North Carolina’s Equal Protection Clause Provides Greater Protection for Voting Rights Than its Federal Counterpart ......................................307 B. The 2017 Plans Were Created with the Intent to Discriminate Against Plaintiffs and Other Democratic Voters .....................................................309 C. The 2017 Plans Deprive Plaintiffs and Other Democratic Voters of Substantially Equal Voting Power and the Right to Vote on Equal Terms ..................................................................................................................312 D. The 2017 Plans Cannot be Justified by any Legitimate Governmental Interest ...............................................................................................................315 IV. THE 2017 PLANS VIOLATE THE NORTH CAROLINA CONSTITUTION’S FREEDOM OF SPEECH AND FREEDOM OF ASSEMBLY CLAUSES ......317 A. North Carolina’s Constitution Protects the Rights of Free Speech and Assembly Independently from the Federal Constitution .......................318 B. Voting, Banding Together in a Political Party, and Spending on Elections Are Protected Expression and Association ..............................320 C. The 2017 Plans Burden Protected Expression and Association ...........322 1. The 2017 Plans Burden Protected Expression Based on Viewpoint by Making Democratic Votes Less Effective ............ 322 2. The 2017 Plans Burden Plaintiffs’ Ability to Associate ............. 326 3. The 2017 Plans Burden the NCDP’s Expression Through Financial Support for Candidates ................................................... 328 3 D. The 2017 Plans Fail Strict Scrutiny—and Indeed Any Scrutiny .........328 E. The 2017 Plans Impermissibly Retaliate Against Voters Based on Their Exercise of Protected Speech .............................................................329 V. PARTISAN GERRYMANDERING CLAIMS ARE JUSTICIABLE UNDER THE NORTH CAROLINA CONSTITUTION .......................................................331 VI. ANY LACHES DEFENSE LACKS MERIT ...........................................................342 VII. DEFENDANTS’ FEDERAL DEFENSES LACK MERIT ...................................343 A. The Covington Remedial Order Does Not Bar Changes to the 2017 Plans ..................................................................................................................343 B. There Is No Conflict with Federal Civil Rights Laws .............................344 C. Granting Relief Will Not Violate the Fundamental Right to Vote .......346 VIII. THE COURT WILL ENJOIN USE OF THE 2017 PLANS IN FUTURE ELECTIONS AND THE GENERAL ASSEMBLY IS TO IMMEDIATELY BEGIN THE PROCESS OF REDRAWING THE RELEVANT DISTRICTS ...................................................................................................................347 A. The Court Will Require the Redrawing of Specific County Groupings ..........................................................................................................347 B. The Court Will Require the Use of the Adopted Criteria, with certain exceptions, and Prohibit the Use of Other Criteria in Redrawing the Districts..............................................................................................................348 C. The Court Will Not Stay the Remedial Process Pending Appeal .........351 D. The Court Retains Discretion to Move the Primary Dates ....................352 DECREE ....................................................................................................................................352 4 The People of North Carolina have delegated, through the State’s Constitution, the drawing of the State’s legislative districts to the General Assembly. The delegation of this task, however, is not so unconstrained that legislative discretion is unfettered. Rather, the power entrusted by the People to the General Assembly to draw districts is constrained by other constitutional provisions that the People have also ordained. Some of these constitutional constraints are explicit—for example, the Whole County Provision of the Constitution limits a mapmaker’s discretion to traverse county boundaries. But other constitutional constraints that limit the legislative process of map drawing are not explicit or limited in applicability only to map drawing—some constraints apply to all acts of the General Assembly, and indeed all acts of government. These principles include the obligation that our government provide all people with equal protection under law, that our government not restrict all peoples’ rights of association and political expression, and that our government allow for free elections. Plaintiffs in this case challenge the legislative districts enacted by the General Assembly in 2017 and assert that the General Assembly has exceeded the map drawing discretion afforded to it by the People by creating maps that impermissibly infringe upon the equal protection, speech, association, and free election rights of citizens. The People of North Carolina have also entrusted, through the State’s Constitution, the task of reviewing acts of other branches of government to the judicial branch. While it is solely the province of the General Assembly to make law reflecting the policy choices of the People, it is the province—and indeed the duty—of the courts of our State through judicial review to ensure that enacted law comports with the State’s Constitution. The Court cannot indiscriminately wield this power because the Court is also appropriately constrained by long-standing principles of law. Significantly, the Court must presume the constitutionality of acts of the General Assembly and must declare acts unconstitutional 5 only when such a conclusion is so clear that no reasonable doubt can arise or the statute cannot be upheld on any ground.1 The voters of this state, since 2011, have been subjected to a dizzying succession of litigation over North Carolina’s legislative and Congressional districts in state and federal courts. Today marks the third time this trial court has entered judgment. Two times, the North Carolina Supreme Court has spoken. Eight times, the United States Supreme Court has ruled. Yet, as we near the end of the decade, and with another decennial census and round of redistricting legislation ahead, the litigation rages on with little clarity or consensus. The
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