Covington v. North Carolina, 1:15CV399

CourtUnited States District Courts. 4th Circuit. Middle District of North Carolina
Writing for the CourtPER CURIAM.
Citation283 F.Supp.3d 410
Parties Sandra Little COVINGTON, et al., Plaintiffs, v. The State of NORTH CAROLINA, et al., Defendants.
Docket Number1:15CV399
Decision Date21 January 2018

283 F.Supp.3d 410

Sandra Little COVINGTON, et al., Plaintiffs,
v.
The State of NORTH CAROLINA, et al., Defendants.

1:15CV399

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

Filed January 21, 2018


283 F.Supp.3d 413

Anita S. Earls, Allison Jean Riggs, Jaclyn A. Maffetore, Southern Coalition for Social Justice, Durham, NC, Adam Stein, Tin Fulton Walker & Owen, PLLC, Chapel Hill, NC, Caroline P. Mackie, John Ward O'Hale, Edwin M. Speas, Jr., Poyner Spruill, LLP, Raleigh, NC, for Plaintiffs.

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

Before WYNN, Circuit Judge, and SCHROEDER, Chief District Judge, and EAGLES, District Judge.

MEMORANDUM OPINION AND ORDER (Amended)

PER CURIAM:

On August 11, 2016, this Court held that the North Carolina General Assembly unjustifiably relied on race to draw dozens of state Senate and House of Representatives district lines, in violation of the Equal Protection Clause of the Fourteenth Amendment. Covington v. North Carolina (Covington I ), 316 F.R.D. 117 (M.D.N.C. 2016). The Supreme Court summarily affirmed, without dissent, that determination. North Carolina v. Covington , ––– U.S. ––––, 137 S.Ct. 2211, 198 L.Ed.2d 655 (2017) (mem.).

On August 31, 2017, the North Carolina General Assembly enacted Senate and House redistricting plans (the "2017

283 F.Supp.3d 414

Plans") intended to remedy the constitutional violations. Plaintiffs, thirty-one North Carolina voters, lodged objections to 12 of the 116 proposed remedial districts, arguing that those districts failed to remedy the identified racial gerrymanders or were otherwise legally unacceptable. Finding 9 of Plaintiffs' 12 objections potentially had merit, this Court identified its concerns and appointed Dr. Nathaniel Persily of Stanford University as Special Master (the "Special Master") to assist the Court in evaluating and, if necessary, redrawing those 9 district configurations (the "Subject Districts") in light of the fast-approaching filing period for the 2018 elections. Thereafter, the Special Master filed draft reconfigurations of the 9 districts for the parties' consideration, invited and considered comments and objections from the parties, and revised his draft plan in light of those comments and objections.

On December 1, 2017, the Special Master submitted to the Court recommended remedial plans (the "Recommended Plans") for the Subject Districts, as well as a report explaining his process for drawing the Recommended Plans and why the Recommended Plans remedy the identified legal problems with the Subject Districts. As further explained below, after careful consideration of the 2017 Plans, the Special Master's report, and the parties' evidence, briefing, and oral arguments, we sustain Plaintiffs' objections to the Subject Districts, approve the Special Master's Recommended Plans for reconfiguring those districts, reject Plaintiffs' challenge to one Senate district, and decline to consider Plaintiffs' remaining objections.1

I.

In early 2011, the North Carolina General Assembly set out to redraw state Senate and House districts to account for changes in population and demographic data revealed in the most recent decennial census. See N.C. Const. art. II, §§ 3, 5. As the appointed chairs of the redistricting committees in their respective chambers, Senator Robert Rucho and Representative David Lewis (collectively, the "Chairs"), both Republicans, led efforts to draw and enact legislative districting maps for use in state elections in North Carolina (the "2011 Plans"). Covington I , 316 F.R.D. at 126. To that end, Representative Lewis and Senator Rucho engaged the assistance of an outside expert, Dr. Thomas Hofeller, to draw the new Senate and House district maps. Id.

Senator Rucho and Representative Lewis instructed Dr. Hofeller to follow three "primary" criteria in drawing the new districting plans, all of which "centered around the creation of what the Chairs called ‘VRA districts’ "—geographically compact minority population centers for which there was some evidence of a history of racially polarized voting. Id. at 130. The first criterion required that Dr. Hofeller "draw all purported VRA districts to reach a 50%–plus-one [Black Voting Age Population ("BVAP") ] threshold." Id. This instruction stemmed from Senator Rucho's and Representative Lewis's belief that the Supreme Court's plurality opinion in Bartlett v. Strickland , 556 U.S. 1, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009), required that any district drawn to comply with the Voting Rights Act be majority-minority. Id.

Second, Senator Rucho and Representative Lewis directed Dr. Hofeller to draw the so-called "VRA districts" first. Id. at 131. This instruction derived from the North Carolina Supreme Court's opinions in

283 F.Supp.3d 415

Stephenson v. Bartlett (Stephenson I ), 562 S.E.2d 377 (N.C. 2002) and Stephenson v. Bartlett (Stephenson II ), 357 N.C. 301, 582 S.E.2d 247 (N.C. 2003), both of which sought to harmonize federal election law with the North Carolina Constitution's so-called "Whole County Provision," N.C. Const. art. II, §§ 3 (3), 5 (3), which requires that, where possible, legislative district lines adhere to county lines, Covington , 316 F.R.D. at 131–32. According to the Chairs, the Stephenson decisions required Dr. Hofeller to identify and draw any VRA districts first. Id.

Third, Senator Rucho and Representative Lewis instructed Dr. Hofeller to draw VRA districts "everywhere there was a minority population large enough to do so and, if possible, in rough proportion to their population in the state." Id. at 130. This instruction again derived from the Chairs' incorrect understanding of governing law. In particular, Senator Rucho and Representative Lewis errantly believed that the Supreme Court's decision in Johnson v. De Grandy , 512 U.S. 997, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994), held that in order to comply with Section 2 of the Voting Rights Act, the number of majority-minority districts in a state must be proportional to minority voters' share of the state's overall voting population. Covington , 316 F.R.D. at 133. Although the Chairs did not expressly instruct Dr. Hofeller to maximize the number of VRA districts, "the proportionality target functionally operated as a goal to maximize the number of majority-black districts." Id. at 134.

Senator Rucho and Representative Lewis further instructed Dr. Hofeller that any districting proposal had to comply with these three "primary" criteria, two of which—the 50%–plus-one target and the proportionality goal—amounted to " ‘mechanical racial targets.’ " Id. at 135 (quoting Ala. Legislative Black Caucus v. Alabama , ––– U.S. ––––, 135 S.Ct. 1257, 1267, 191 L.Ed.2d 314 (2015) ). In accordance with Senator Rucho's and Representative Lewis's instructions, Dr. Hofeller first "drew VRA ‘exemplar districts,’ which were ‘racially defined’ in that they embodied nothing more than ‘concentrations of minority voters’ capable of constituting a district that could satisfy the 50%–plus-one BVAP threshold." Id. at 135 (quoting Trial Tr. vol. IV, 228:5–12 (Hofeller); Trial Tr. vol. V, 104:4–105:1 (Hofeller) ). By drawing, where feasible, district lines around the black population centers identified in the "exemplar districts," Dr. Hofeller then constructed as many majority-black districts as possible. Id. at 136–37.

Because the Chairs had instructed Dr. Hofeller that the three "primary" criteria could not be compromised, in drawing the districting plans Dr. Hofeller subordinated other race-neutral districting principles such as preserving political subdivisions and communities of interest, compactness, and complying with state districting laws such as the Whole County Provision. Id. at 137–39. As a result of the decision to adhere to the Chairs' mechanical racial targets over traditional race-neutral districting principles, the number of majority-black districts in Dr. Hofeller's proposed state House map increased from nine to thirty-two. Id. at 126, 134, 137. Similarly, the number of majority-black districts in the proposed state Senate map increased from zero to nine. Id. at 126. The state Senate and House considered and adopted, with minor modifications, the 2011 Plans on July 27 and 28, 2011, respectively. Id.

Soon after the General Assembly approved the 2011 Plans, North Carolina voters filed actions in state court alleging that the lines of numerous legislative districts enacted by the General Assembly amounted to unconstitutional racial gerrymanders, in violation of the North Carolina and United States Constitutions. See

283 F.Supp.3d 416

Dickson v. Rucho , 367 N.C. 542, 766 S.E.2d 238 (2014), vacated , ––– U.S. ––––, 135 S.Ct. 1843, 191 L.Ed.2d 719 (2015) (mem.). A divided Supreme Court of North Carolina held that both the Senate and House districting plans satisfied all "state and federal constitutional and statutory requirements." Dickson , 766 S.E.2d at 260. In April 2015, the Supreme Court of the United States unanimously vacated the state court's...

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4 practice notes
  • Gonidakis v. LaRose, 2:22-cv-0773
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • April 20, 2022
    ...outside plans or undertake their own map-drawing when a valid and approved plan is unavailable. See, e.g., Covington v. North Carolina, 283 F.Supp.3d 410 (M.D. N.C. 2018), aff'd in part, rev'd in part, 138 S.Ct. 2548 (2018) (panel adopted General Assembly plans of court-appointed special ma......
  • Common Cause v. Rucho, No. 1:16-CV-1026
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • August 27, 2018
    ...Assembly in an effort to remedy the constitutional violation constituted racial gerrymanders themselves, Covington v. North Carolina , 283 F.Supp.3d 410, 429–42 (M.D.N.C. 2018) —a decision the Supreme Court again affirmed, ––– U.S. ––––, 138 S.Ct. 2548, 2552–54, ––– L.Ed.2d –––– (2018). The......
  • Common Cause v. Lewis, No. 19-1091
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 16, 2020
    ...Plaintiffs’ challenged districts were previously mandated for use in future elections by the court in Covington v. North Carolina , 283 F. Supp. 3d 410, 458 (M.D.N.C. 2018).3 The Legislative Defendants alleged that compliance with any remedy Plaintiffs obtained in this action would necessar......
  • North Carolina v. Covington, No. 17–1364.
    • United States
    • United States Supreme Court
    • June 28, 2018
    ...of the House [and] Senate" and not to use "[d]ata identifying the race of individuals or voters" in the drawing of the new districts. 283 F.Supp.3d 410, 417–418 (M.D.N.C.2018) (per curiam ). The plaintiffs filed objections to the new maps. They argued that four legislative districts—Senate ......
5 cases
  • Gonidakis v. LaRose, 2:22-cv-0773
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • April 20, 2022
    ...outside plans or undertake their own map-drawing when a valid and approved plan is unavailable. See, e.g., Covington v. North Carolina, 283 F.Supp.3d 410 (M.D. N.C. 2018), aff'd in part, rev'd in part, 138 S.Ct. 2548 (2018) (panel adopted General Assembly plans of court-appointed special ma......
  • Common Cause v. Rucho, No. 1:16-CV-1026
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • August 27, 2018
    ...Assembly in an effort to remedy the constitutional violation constituted racial gerrymanders themselves, Covington v. North Carolina , 283 F.Supp.3d 410, 429–42 (M.D.N.C. 2018) —a decision the Supreme Court again affirmed, ––– U.S. ––––, 138 S.Ct. 2548, 2552–54, ––– L.Ed.2d –––– (2018). The......
  • N.C. State Conference of The Nat'l Ass'n v. Moore, 261A18-3
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • August 19, 2022
    ...the remedial maps approved by the federal courts to correct the 2011 unconstitutional racial gerrymander. Covington v. North Carolina, 283 F.Supp.3d 410, (M.D. N.C. 2018), aff'd in part, rev'd in part, 138 S.Ct. 2548 (U.S. 2018). 27. On December 28, 2018, Plaintiffs voluntarily dismissed th......
  • Common Cause v. Lewis, No. 19-1091
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 16, 2020
    ...Plaintiffs’ challenged districts were previously mandated for use in future elections by the court in Covington v. North Carolina , 283 F. Supp. 3d 410, 458 (M.D.N.C. 2018).3 The Legislative Defendants alleged that compliance with any remedy Plaintiffs obtained in this action would necessar......
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