Covington v. North Carolina, 1:15CV399

• Decision Date: 19 September 2017
• Docket Number: 1:15CV399
• Citation: 270 F.Supp.3d 881
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Sandra Little COVINGTON, et al., Plaintiffs, v. The State of NORTH CAROLINA, et al., Defendants.

270 F.Supp.3d 881

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.

Signed September 19, 2017

Anita S. Earls, Allison Jean Riggs, 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, N.C. Department of Justice, Raleigh, NC, Thomas A. Farr, Michael Douglas Mcknight, Phillip John Strach, Ogletree Deakins Nash Smoak & Stewart, P.C., Raleigh, NC, for Defendants.

MEMORANDUM OPINION

Circuit Judge James A. Wynn, Jr., wrote the opinion, in which District Judge Thomas D. Schroeder and District Judge Catherine C. Eagles joined:

Over two years ago, in May 2015, thirty-one registered North Carolina voters (collectively, "Plaintiffs") filed this action alleging that the North Carolina General Assembly unjustifiably, and therefore unconstitutionally, relied on race to draw dozens of state legislative district lines. Following a five-day trial, during which the Court received testimony from two dozen witnesses and reviewed more than 400 exhibits, Plaintiffs prevailed on their claim that the challenged districting plans violated their rights under the Equal Protection Clause of the Fourteenth Amendment. Covington v. North Carolina (Covington I ), 316 F.R.D. 117 (M.D.N.C. 2016). That determination has since been summarily affirmed, without dissent, by the Supreme Court of the United States. North Carolina v. Covington, ––– U.S. ––––, 137 S.Ct. 2211, 198 L.Ed.2d 655 (2017) (mem.).

Now, nearly a year after this Court held the challenged legislative districts unconstitutional and almost six years after those districts were initially put in place—during which time North Carolina has conducted three primary and three general elections using racially discriminatory districting plans—Plaintiffs ask this Court to truncate the terms of legislators serving in districts that must be redrawn and order a special election to fill those seats with representatives elected under constitutional districting plans.

We conclude that the widespread, serious, and longstanding nature of the constitutional violation—among the largest racial gerrymanders ever encountered by a federal court—counsels in favor of granting Plaintiffs' request. Likewise, any intrusion on state sovereignty associated with ordering the requested elections is more than justified by the severity and scope of that violation and its adverse impact on North Carolina voters' right to choose—and hold accountable—their representatives, especially since the legislature took no action toward remedying the constitutional violation for many weeks after affirmance of this Court's order, and the Legislative Defendants have otherwise acted in ways that indicate they are more interested in delay than they are in correcting this serious constitutional violation.

Notwithstanding these weighty considerations favoring a special election, we nonetheless conclude such an election would not be in the interest of Plaintiffs and the people of North Carolina. The compressed and overlapping schedule such an election would entail is likely to confuse voters, raise barriers to participation, and depress turnout, and therefore would not offer the vigorously contested election needed to return to the people of North Carolina their sovereignty. Accordingly, we deny Plaintiffs' request.

We recognize that legislatures elected under the unconstitutional districting plans have governed the people of North Carolina for more than four years and will continue to do so for more than two years after this Court held that the districting plans amount to unconstitutional racial gerrymanders. But at this juncture, with only a few months before the start of the next election cycle, we are left with little choice but to conclude that a special election would not be in the interest of Plaintiffs nor the people of North Carolina.

I. Factual and Procedural Background

In early 2011, the North Carolina General Assembly set about to conduct statewide redistricting to reflect new population and demographic data following 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 together led efforts to craft and approve legislative districting maps for use in both state and federal elections in North Carolina. 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, who translated the legislators' policy objectives into proposed districting maps. Id. Apart from Representative Lewis and Senator Rucho, no other legislators had a substantive role in drawing the proposed maps. Id.

Upon receiving the relevant census data, and without input from either redistricting committee, Hofeller began drawing proposed maps in the spring of 2011. Id. at 126–27. Under instruction from Senator Rucho and Representative Lewis, Hofeller first searched for geographically compact minority population centers and, where possible, drew district lines around those population centers to construct majority-minority districts. Id. at 127. Although the preferred candidates of African–American voters were consistently successful in districts that were not majority-minority during recent election cycles prior to the enactment of the 2011 districting plans, id. at 126, Senator Rucho and Representative Lewis maintained (incorrectly) that Section 2 of the Voting Rights Act of 1965 necessitated creation of the new majority-minority districts in their proposed maps, id. at 127.

As a result of this approach—which elevated race over other widely recognized legitimate districting factors such as contiguity and compactness—the number of majority-African–American districts in the resulting state House map increased from nine to thirty-two. Id. at 126, 134, 137. Similarly, the number of majority-African–American districts in the state Senate map increased from zero to nine. Id. at 126.

Senator Rucho and Representative Lewis publicly released the state House and Senate districting plans on July 12, 2011. Id. at 127. The state Senate and House considered and adopted, with minor modifications, the proposed maps on July 27 and 28, 2011, respectively. Id. Also on July 28, 2011, the General Assembly adopted a revised congressional districting plan, which Hofeller produced at the direction of Senator Rucho and Representative Lewis. Harris v. McCrory, 159 F.Supp.3d 600, 608 (M.D.N.C. 2016), aff'd sub nom. Cooper v. Harris, ––– U.S. ––––, 137 S.Ct. 1455, 197 L.Ed.2d 837 (2017). Again reflecting the legislators' stated desire to ensure compliance with the Voting Rights Act, the 2011 congressional districting map adopted by the General Assembly increased the number of majority-minority districts from zero to two. Id. at 608.

In sum, within three weeks and with minimal alteration, the General Assembly considered and adopted districting plans that significantly increased the number of majority-minority districts in maps that would be used to conduct state and federal elections in North Carolina from 2012 onward.

Soon after the General Assembly approved the maps, two groups of North Carolina voters filed actions in state and federal court alleging that numerous legislative districts approved by the General Assembly were unconstitutional racial gerrymanders, in violation of the North Carolina and United States Constitutions. See Harris, 159 F.Supp.3d 600 ; 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 separate panel of this Court concluded that the two majority-minority districts included in the state's congressional districting plan violated the Equal Protection Clause. Harris, 159 F.Supp.3d at 627. The Supreme Court—by written opinion—subsequently agreed that the majority-minority districts included in the 2011 congressional districting plan constituted racial gerrymanders in violation of the Equal Protection Clause. See Cooper, ––– U.S. ––––, 137 S.Ct. 1455.

By contrast, the Supreme Court of North Carolina held that both the federal and state 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 ruling without opinion and remanded the case for reconsideration of the federal constitutional and statutory questions presented. Dickson, ––– U.S. ––––, 135 S.Ct. 1843. On remand, the Supreme Court of North Carolina again concluded that the state and federal districting plans complied with federal law. That decision was again unanimously vacated by the Supreme Court of the United States in May 2017, Dickson v. Rucho, 368 N.C. 481, 781 S.E.2d 404, 410–11 (2015), vacated, ––– U.S. ––––, 137 S.Ct. 2186, 198 L.Ed.2d 252 (2017) (mem.), and was reheard before the Supreme Court of North Carolina on August 28, 2017.

In the meantime, while litigation regarding the state's congressional districting plan proceeded, Plaintiffs initiated this action in May 2015. Covington I, 316 F.R.D. at 128. Echoing the earlier state-court action, Plaintiffs alleged that the 2011 state legislative districting plans constituted racial gerrymanders and thus violated their rights under the Fourteenth Amendment of the U.S. Constitution. First Am. Compl. at 2, ECF No. 11. To remedy this alleged constitutional violation, Plaintiffs sought an injunction barring further use of the 2011 maps and requiring the General Assembly to adopt constitutionally adequate plans for use in any future elections. Id. at 92–93. Plaintiffs named as Defendants: (1) the State of North...