Common Cause v. Rucho, 1:16-CV-1026

• Citation: 318 F.Supp.3d 777
• Decision Date: 27 August 2018
• Docket Number: No. 1:16-CV-1164,No. 1:16-CV-1026,1:16-CV-1026
• Parties: COMMON CAUSE, et al., Plaintiffs, v. Robert A. RUCHO, in his official capacity as Chairman of the North Carolina 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 Senate Redistricting Committee for the 2016 Extra Session and Co-Chairman of the Joint Select Committee on Congressional Redistricting, et al., Defendants.
• Court: United States District Courts. 4th Circuit. Middle District of North Carolina

318 F.Supp.3d 777

COMMON CAUSE, et al., Plaintiffs,
v.
Robert A. RUCHO, in his official capacity as Chairman of the North Carolina 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 Senate Redistricting Committee for the 2016 Extra Session and Co-Chairman of the Joint Select Committee on Congressional Redistricting, et al., Defendants.

No. 1:16-CV-1026
No. 1:16-CV-1164

United States District Court, M.D. North Carolina.

Filed August 27, 2018

318 F.Supp.3d 798

Benjamin W. Thorpe, Emmet J. Bondurant, Jason J. Carter, Bondurant Mixson & Elmore, LLP, Atlanta, GA, Caroline P. Mackie, Steven B. Epstein, Edwin M. Speas, Jr., Poyner Spruill, LLP, Raleigh, NC, Gregory L. Diskant, Peter A. Nelson, Patterson Belknap Webb & Tyler, New York, NY, for Plaintiffs.

Alexander McClure Peters, James Bernier, Jr., N.C. Department of Justice, Michael Douglas McKnight, Phillip John Strach, Thomas A. Farr, Ogletree Deakins Nash Smoak & Stewart, P.C., Raleigh, NC, for Defendants.

Before WYNN, Circuit Judge, and OSTEEN, District Judge, and BRITT, Senior District Judge.

MEMORANDUM OPINION

WYNN, Circuit Judge, wrote the opinion, in which BRITT, Senior District Judge, concurred.

318 F.Supp.3d 799

TABLE OF CONTENTS

I. BACKGROUND...801

A. THE MODERN HISTORY OF REDISTRICTING IN NORTH CAROLINA ...801

B. THE DRAWING OF THE 2016 PLAN ...803

C. PROCEDURAL HISTORY ...810

II. JURISDICTIONAL ARGUMENTS...814

A. STANDING ...814

1. Equal Protection Clause...815

2. First Amendment...828

3. Article I...831

B. JUSTICIABILITY ...836

1. Governing Law...837

2. Legislative Defendants' Arguments Against Justiciability...843

III. EQUAL PROTECTION...860

A. BACKGROUND LAW ...861

1. Discriminatory Intent...861

2. Discriminatory Effects...864

3. Lack of Justification...867

B. APPLICATION ...868

1. Statewide Evidence...868

2. District-Specific Evidence...923

IV. FIRST AMENDMENT...923

A. BACKGROUND LAW ...924

B. LEGAL STANDARD AND APPLICATION ...929

1. Intent To Burden Speech and Associational Rights...929

2. Burden on Speech and Associational Rights...930

3. Causation...935

V. ARTICLE I...935

A. BACKGROUND LAW ...937

B. APPLICATION ...937

VI. REMEDY...941

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 Article I of the Constitution, the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment. After conducting a four-day trial and carefully considering the parties' evidence and briefing, this Court awarded judgment in Plaintiffs' favor on all of their claims and enjoined the State from using the 2016 Plan in future elections. Common Cause v. Rucho , 279 F.Supp.3d 587, 598 (M.D.N.C. 2018), vacated sub nom. Rucho v. Common Cause , ––– U.S. ––––, 138 S.Ct. 2679, ––– L.Ed.2d –––– (2018) (mem.). On July 25, 2018, the Supreme Court vacated that judgment, and remanded the case to this Court for reconsideration in light of the Supreme Court's decision in Gill v. Whitford , ––– U.S. ––––, 138 S.Ct. 1916, ––– L.Ed.2d –––– (2018), which addressed what evidence a plaintiff must put forward to establish Article III standing to lodge a partisan vote dilution claim under the Equal Protection Clause.

As further explained below, we conclude that, under the test set forth in Gill , at least one Plaintiff registered to vote in each of the thirteen districts in the 2016 Plan has standing to assert an Equal Protection challenge to each of those districts. In particular, such Plaintiffs introduced evidence establishing that each of their districts is "packed or cracked" and, as a result, that their votes "carry less weight than [they] would carry in another, hypothetical district." Id. at 1931. We further conclude that Gill did not call into question—and, if anything, supported—this Court's previous determination that Plaintiffs have standing to assert partisan gerrymandering claims under Article I and the First Amendment.

318 F.Supp.3d 800

As to the merits, a common thread runs through the restrictions on state election regulations imposed by Article I, the First Amendment, and the Equal Protection Clause: the Constitution does not allow elected officials to enact laws that distort the marketplace of political ideas so as to intentionally favor certain political beliefs, parties, or candidates and disfavor others. In particular, Article I preserves inviolate the right of "the People" to elect their Representatives, and therefore bars the States from enacting election regulations that "dictate electoral outcomes" or "favor or disfavor a class of candidates." U.S. Term Limits, Inc. v. Thornton , 514 U.S. 779, 833–34, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995). Similarly, the First Amendment prohibits election regulations that "restrict the speech of some elements of our society in order to enhance the relative voice of others." Buckley v. Valeo , 424 U.S. 1, 48–49, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). And the Equal Protection Clause embodies the foundational constitutional principle that the State must govern "impartially"—that "the State should treat its voters as standing in the same position, regardless of their political beliefs or party affiliation." Davis v. Bandemer , 478 U.S. 109, 166, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (Powell, J., concurring in part and dissenting in part). That the framers of the Constitution and the Reconstruction Amendments sought to protect this principle through three different constitutional provisions only reinforces its centrality to our democratic system.

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 , ––– U.S. ––––, 135 S.Ct. 2652, 2658, 192 L.Ed.2d 704 (2015) —strikes at the heart of this foundational constitutional principle. By definition, partisan gerrymandering amounts to an effort to dictate electoral outcomes by favoring candidates of one party and disfavoring candidates of another. Thornton , 514 U.S. at 833–34, 115 S.Ct. 1842. By intentionally ensuring that Representatives from one party have a disproportionate voice in Congress, it also "restrict[s] the speech of some elements of our society"—voters who do not support the policies embraced by the favored party—and "enhance[s] the relative voice of others"—voters who support the favored party. Buckley , 424 U.S. at 48–49, 96 S.Ct. 612. And by favoring the viewpoints of one group of voters over another, it runs afoul of the Government's constitutional duty to "treat its voters as standing in the same position, regardless of their political beliefs or party affiliation." Davis , 478 U.S. at 166, 106 S.Ct. 2797.

Put differently, by intentionally seeking to entrench a favored party in power and make it difficult—if not impossible—for candidates of parties supporting disfavored viewpoints to prevail, partisan gerrymandering "seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion." Turner Broad. Sys., Inc. v. F.C.C. , 512 U.S. 622, 641, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). But " '[t]he best test of truth is the power of the thought to get itself accepted in the competition of the market,' and the people lose when the government is the one deciding which ideas should prevail ." Nat'l Inst. of Family & Life Advocates v. Becerra , ––– U.S. ––––, 138 S.Ct. 2361, 2375, ––– L.Ed.2d –––– (2018) (emphasis added) (quoting Abrams v. United States , 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting) ). Partisan gerrymanders, therefore, "raise the specter that the Government may effectively

318 F.Supp.3d 801

drive certain ideas or viewpoints from the marketplace." Turner Broad. , 512 U.S. at 641, 114 S.Ct. 2445 (internal quotation marks omitted).

That is precisely what the Republican-controlled North Carolina General Assembly sought to do here. The General Assembly expressly directed the legislators and consultant responsible for drawing the 2016 Plan to rely on "political data"—that is, past election results specifying whether, and to what extent, particular voting precincts had favored Republican or Democratic candidates, and therefore were likely to do so in the future—to draw a districting plan that would ensure Republican candidates would prevail in the vast majority of the State's congressional districts, and would continue to do so in future elections. Ex. 1007. And the Republican-controlled General Assembly achieved that goal. As detailed below, the 2016 Plan led to Republican candidates prevailing by "safe" margins in the vast...