IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA COMMON CAUSE, et al., Plaintiffs, v. ROBERT A. RUCHO, in his official capacity as Chairman of the North Carolina No. 1:16-CV-1026 Senate Redistricting Committee for the 2016 Extra Session and Co-Chairman of the Joint Select Committee on Congressional Redistricting, et al., Defendants. LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, et al., Plaintiffs, v. ROBERT A. RUCHO, in his official capacity as Chairman of the North Carolina No. 1:16-CV-1164 Senate Redistricting Committee for the 2016 Extra Session and Co-Chairman of the Joint Select Committee on Congressional Redistricting, et al., Defendants. 1 Case 1:16-cv-01026-WO-JEP Document 118 Filed 01/09/18 Page 1 of 205 Before WYNN, Circuit Judge, and OSTEEN, JR., District Judge, and BRITT, Senior District Judge. * * * * * Circuit Judge Wynn wrote the majority opinion in which Senior District Judge Britt concurred. District Judge Osteen, Jr., wrote a separate opinion concurring in part and dissenting in part. MEMORANDUM OPINION WYNN, Circuit Judge: In these consolidated cases, two groups of Plaintiffs allege that North Carolina’s 2016 Congressional Redistricting Plan (the “2016 Plan”) constitutes a partisan gerrymander in violation of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and Article I, Sections 2 and 4 of the Constitution. Legislative Defendants1 do not dispute that the General Assembly intended for the 2016 Plan to favor supporters of Republican candidates and disfavor supporters of non-Republican candidates. Nor could they. The Republican-controlled North Carolina General Assembly expressly directed the legislators and consultant responsible for drawing the 2016 Plan to rely on “political data”—past election results specifying whether, and to what extent, particular voting districts had favored Republican or Democratic candidates, and therefore were likely to do so in the future—to draw a districting plan that would 1 Senator Robert Rucho, in his official capacity as co-chair of the Joint Select Committee on Congressional Redistricting (the “Committee”); Representative David Lewis, in his official capacity as co-chair of the Committee; Timothy K. Moore, in his official capacity as Speaker of the North Carolina House of Representatives; and Philip E. Berger, in his official capacity as President Pro Tempore of the North Carolina Senate. 2 Case 1:16-cv-01026-WO-JEP Document 118 Filed 01/09/18 Page 2 of 205 ensure Republican candidates would prevail in the vast majority of the state’s congressional districts. Ex. 1007. Legislative Defendants also do not argue—and have never argued—that the 2016 Plan’s intentional disfavoring of supporters of non-Republican candidates advances any democratic, constitutional, or public interest. Nor could they. Neither the Supreme Court nor any lower court has recognized any such interest furthered by partisan gerrymandering—“the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015). And, as further detailed below, partisan gerrymandering runs contrary to numerous fundamental democratic principles and individual rights enshrined in the Constitution. Rather than seeking to advance any democratic or constitutional interest, the state legislator responsible for drawing the 2016 Plan said he drew the map to advantage Republican candidates because he “think[s] electing Republicans is better than electing Democrats.” Ex. 1016, at 34:21–23. But that is not a choice the Constitution allows legislative mapdrawers to make. Rather, “the core principle of [our] republican government [is] that the voters should choose their representatives, not the other way around.” Ariz. State Leg., 135 S. Ct. at 2677 (internal quotation marks omitted). 3 Case 1:16-cv-01026-WO-JEP Document 118 Filed 01/09/18 Page 3 of 205 Accordingly, and as further explained below, we conclude that Plaintiffs prevail on all of their constitutional claims.2 I. A. Over the last 30 years, North Carolina voters repeatedly have asked state and federal courts to pass judgment on the constitutionality of the congressional districting plans drawn by their state legislators. The first such challenge involved a redistricting plan adopted by the North Carolina General Assembly after the 1990 census, which increased the size of North Carolina’s congressional delegation from 11 to 12 members. See Shaw v. Reno (Shaw I), 509 U.S. 630, 633–34 (1993). When the General Assembly set out to redraw the state’s congressional districts to incorporate the new seat, the Department of Justice, pursuant to its “max-black” policy, pushed for the creation of a second majority-black district to augment, it maintained, the representation of the state’s African-American voters in Congress. Id. at 635. In response, the General Assembly prepared a revised district map that included the majority-black First and Twelfth Districts (the “1992 Plan”). Id. Several dozen North Carolina voters, most of whom were Republican, challenged the 1992 Plan as a partisan gerrymander, in violation of the Equal Protection Clause, the First Amendment, and Article I, Section 2 of the United States Constitution. Pope v. 2 This opinion constitutes our findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a)(1). 4 Case 1:16-cv-01026-WO-JEP Document 118 Filed 01/09/18 Page 4 of 205 Blue, 809 F. Supp. 392, 394–95, 397–98 (W.D.N.C. 1992), aff’d 506 U.S. 801 (1992). A divided three-judge panel dismissed the action, holding that the plaintiffs failed to adequately allege that the redistricting plan had a legally cognizable “discriminatory effect” on any “identifiable [political] group,” under the standard set forth in the Supreme Court’s decision in Davis v. Bandemer, 478 U.S. 109, 127 (1986) (plurality op.). Pope, 809 F. Supp. at 397. Separately, a group of North Carolina voters challenged the 1992 Plan as a racial gerrymander, in violation of the Equal Protection Clause. Shaw I, 509 U.S. at 636–37. After several years of litigation, the Supreme Court held that the General Assembly’s use of race as the predominant factor in drawing the second majority-black district in the 1992 Plan violated the Equal Protection Clause, and enjoined the use of that district in future elections. Shaw v. Hunt (Shaw II), 517 U.S. 899, 905–18 (1996). In 1997, a politically divided General Assembly enacted a remedial plan expected to elect six Republican and six Democratic Representatives, rendering each party’s share of the state’s congressional delegation proportional to its share of the statewide vote in the most recent congressional election. Cromartie v. Hunt, 133 F. Supp. 2d 407, 412–13 (E.D.N.C. 2000), rev’d sub nom. Easley v. Cromartie, 532 U.S. 234 (2001); id. at 423–24 (Thornburg, J., dissenting). In 2001, after several more years of litigation, the Supreme Court approved that remedial plan. See Easley, 532 U.S. 234 (holding that three-judge panel’s finding that race constituted the predominant motivation in redrawing remedial districts was not supported by substantial evidence). 5 Case 1:16-cv-01026-WO-JEP Document 118 Filed 01/09/18 Page 5 of 205 Just as litigation regarding the 1992 Plan came to an end, the results of the 2000 census entitled North Carolina to another seat in Congress, and the General Assembly again set out to redraw the state’s congressional districts to include the additional seat. The resulting plan, which was adopted in 2001 (the “2001 Plan”), was used in each of the State’s congressional elections between 2001 and 2010. In all but one of these elections, the party receiving more statewide votes for their candidates for the House of Representatives also won a majority of the seats in North Carolina’s congressional delegation (the only exception being the 2010 election, in which Republicans won 54 percent of votes statewide but only 6 of the 13 seats). Exs. 1021–25. Although the 2001 Plan did not include any majority-black districts, black voters in the First and Twelfth Districts were consistently successful in electing their preferred candidates. Harris v. McCrory, 159 F. Supp. 3d 600, 606–07 (M.D.N.C. 2016), aff’d sub nom. Cooper v. Harris, 137 S. Ct. 1455 (2017). Unlike the 1992 Plan, the 2001 Plan did not generate significant federal litigation. Id. at 607. B. In 2010, for the first time in more than a century, North Carolina voters elected Republican majorities in both the North Carolina Senate and the North Carolina House of Representatives, giving Republicans exclusive control over the decennial congressional redistricting process.3 See id. at 607. The House of Representatives and Senate each 3 Under the North Carolina Constitution, the Governor lacks the authority to veto redistricting legislation. See N.C. Const. art. II, § 22. 6 Case 1:16-cv-01026-WO-JEP Document 118 Filed 01/09/18 Page 6 of 205 established redistricting committees, which were jointly responsible for preparing a proposed congressional redistricting plan. Id. Representative David Lewis, in his capacity as the senior chair of the House Redistricting Committee, and Senator Robert Rucho, in his capacity as senior chair of the Senate Redistricting Committee, were responsible for developing the proposed redistricting plan. Id. Through private counsel, the committees engaged Dr. Thomas Hofeller, who had previously worked as the redistricting coordinator for the Republican National Committee, to draw the new congressional districting plan. Id. Concurrent with his work on the 2011 North Carolina congressional redistricting plan, Dr. Hofeller also served on a “redistricting team” established as part of the Republican State Leadership Committee’s (“RSLC”) Redistricting Majority Project, commonly referred to as “REDMAP.” Ex.