Pender County v. Bartlett

• Decision Date: 24 August 2007
• Docket Number: No. 103A06.,103A06.
• Parties: PENDER COUNTY, Dwight Strickland, individually and as a Pender County Commissioner, David Williams, individually and as a Pender County Commissioner, F.D. Rivenbark, individually and as a Pender County Commissioner, Stephen Holland, individually and as a Pender County Commissioner, and Eugene Meadows, individually and as a Pender County Commissioner v. Gary BARTLETT, as Executive Director of the North Carolina State Board of Elections; Larry Leake, Robert Cordle, Genevieve C. Sims, Lorraine G. Shinn, and Charles Winfree, in their official capacities as members of the State Board of Elections; James B. Black, in his official capacity as Co-Speaker of the North Carolina House of Representatives; Richard T. Morgan, in his official capacity as Co-Speaker of the North Carolina House of Representatives; Marc Basnight, in his official capacity as President Pro Tempore of the North Carolina Senate; Michael Easley, in his official capacity as Governor of the State of North Carolina; and Roy Cooper, in his official capacity as Attorney General of the State of North Carolina.
• Court: North Carolina Supreme Court

649 S.E.2d 364

PENDER COUNTY, Dwight Strickland, individually and as a Pender County Commissioner, David Williams, individually and as a Pender County Commissioner, F.D. Rivenbark, individually and as a Pender County Commissioner, Stephen Holland, individually and as a Pender County Commissioner, and Eugene Meadows, individually and as a Pender County Commissioner v. Gary BARTLETT, as Executive Director of the North Carolina State Board of Elections; Larry Leake, Robert Cordle, Genevieve C. Sims, Lorraine G. Shinn, and Charles Winfree, in their official capacities as members of the State Board of Elections; James B. Black, in his official capacity as Co-Speaker of the North Carolina House of Representatives; Richard T. Morgan, in his official capacity as Co-Speaker of the North Carolina House of Representatives; Marc Basnight, in his official capacity as President Pro Tempore of the North Carolina Senate; Michael Easley, in his official capacity as Governor of the State of North Carolina; and Roy Cooper, in his official capacity as Attorney General of the State of North Carolina.

No. 103A06.

Supreme Court of North Carolina.

August 24, 2007.

Appeal pursuant to N.C.G.S. § 120-2.5 from an order entered 2 December 2005 and a judgment entered 9 January 2006 by a three-judge panel of the Superior Court, Wake County appointed by the Chief Justice under N.C.G.S. § 1-267.1. Heard in the Supreme Court 13 September 2006.

Carl W. Thurman III, Wilmington, for plaintiff-appellants Dwight Strickland, David Williams, and Stephen Holland, in their individual capacities.

Roy Cooper, Attorney General, by Tiare B. Smiley and Alexander McC. Peters, Special Deputy Attorneys General, for defendant-appellees.

Center for Civil Rights, University of North Carolina School of Law, by Anita S. Earls, Chapel Hill, for Cindy Moore, Milford Farrior, and Mary Jordan, amici curiae.

EDMUNDS, Justice.

In this case, we consider whether the current geographic configuration and racial composition of North Carolina House District 18 as established by the North Carolina General Assembly was required by Section 2 of the Voting Rights Act of 1965.¹ We conclude that the Voting Rights Act did not mandate the creation of a Section 2 "crossover" district and that House District 18 violates the Whole County Provision of the Constitution of North Carolina. Accordingly, we reverse the decision of the three-judge panel below.

The General Assembly's redistricting powers are confined and directed in several respects. In the first instance, redistricting "must comport with federal law." Stephenson v. Bartlett, 355 N.C. 354, 363, 562 S.E.2d 377, 384 (Stephenson I), stay denied, 535 U.S. 1301, 122 S.Ct. 1751, 152 L.Ed.2d 1015 (2002) (Rehnquist, Circuit Justice). In addition, the Constitution of North Carolina enumerates several limitations on the General Assembly's redistricting authority. See N.C. Const. art. II, §§ 3, 5. Those constitutional limitations are binding upon the General Assembly "except to the extent superseded by federal law." Stephenson I, 355 N.C. at 372, 562 S.E.2d at 390. None of the express limitations on redistricting in our State Constitution is facially inconsistent with federal law. Id. at 370, 562 S.E.2d at 389.

Two constitutional sections limiting redistricting, collectively known as the "Whole County Provision" (WCP), provide "[n]o county shall be divided in the formation of a senate district," N.C. Const. art. II, § 3(3), and "[n]o county shall be divided in the formation of a representative district," id. art. II, § 5(3). Although federal law is supreme, when "the primary purpose of the WCP can be effected to a large degree without conflict with federal law, it should be adhered to by the General Assembly to the maximum extent possible." Stephenson I, 355 N.C. at 374, 562 S.E.2d at 391. Moreover, "the WCP cannot be applied in isolation or in a manner that fails to comport with other requirements of the State Constitution." Id. at 376, 562 S.E.2d at 392.

Based upon data from the 2000 decennial census, an ideal single-member North Carolina House district holds 67,078 citizens. According to that census, Pender County had 41,082 residents, or 61 percent of the population required to support its own House district. That census also indicated that adjoining New Hanover County had 160,307 residents, or 239 percent of the population needed for a single House district. Combining these two counties provided the population for approximately three House districts.

The district in question, House District 18, was drawn after this Court determined that earlier redistricting efforts by the North Carolina General Assembly failed to meet federal and state standards. In Stephenson I, we held that the General Assembly's 2001 state House and Senate legislative redistricting plans violated the State Constitution's WCP. 355 N.C. at 375, 562 S.E.2d at 392. Similarly, in Stephenson II, this Court held that the General Assembly's proposed 2002 redistricting plans were also constitutionally deficient. Stephenson v. Bartlett, 357 N.C. 301, 314, 582 S.E.2d 247, 254 (2003) (Stephenson II). In the 2003 House redistricting plan promulgated after the two Stephenson opinions, Pender County was divided between two legislative districts, House District 16 and House District 18. Act of Nov. 25, 2003, ch. 434, secs. 1-2, 2003 N.C. Sess. Laws (1st Extra Sess. 2003) 1313, 1313-92. Both districts encompass portions of Pender and New Hanover Counties and thus cross county lines. Id., sec. 1 at 1327-30.

The General Assembly drew House District 18 to meet the requirements of Section 2 of the Voting Rights Act of 1965 (VRA), codified as amended at 42 U.S.C. § 1973 (2003). Section 2 of the VRA, which we discuss in detail below, "generally provides that states or their political subdivisions may not impose any voting qualification or prerequisite that impairs or dilutes, on account of race or color, a citizen's opportunity to participate in the political process and to elect representatives of his or her choice." Stephenson I, 355 N.C. at 363, 562 S.E.2d at 385 (citing 42 U.S.C. §§ 1973(a), (b); Thornburg v. Gingles, 478 U.S. 30, 43, 106 S.Ct 2752, 92 L.Ed.2d 25, 42 (1986)). Past election results in North Carolina demonstrate that a legislative voting district with a total African-American population of at least 41.54 percent, or an African-American voting age population of at least 38.37 percent, creates an opportunity to elect African-American candidates. Accordingly, in the 2003 House redistricting plan, the General Assembly fashioned House District 18 with a total African-American population of 42.89 percent, and an African-American voting age population of 39.36 percent. Defendants refer to House District 18 as an "effective black voting district," with a sufficient African-American population to elect representatives of their choice.

On 14 May 2004, plaintiffs brought the instant action. Pender County was a named plaintiff, as were five persons suing both as individuals and in their official capacities as county commissioners of Pender County. Defendants, consisting of the Executive Director and members of the North Carolina Board of Elections, the then co-Speakers of the North Carolina House of Representatives, the President Pro Tempore of the North Carolina Senate, the Attorney General, and the Governor of the State of North Carolina, were all sued in their official capacities. In their complaint, plaintiffs contended that the 2003 House redistricting plan violated the WCP by dividing Pender County into House District 16 and House District 18. Defendants responded that the division of Pender County was required by Section 2 of the VRA, which trumped the State Constitution.

Pursuant to N.C.G.S. § 1-267.1(b), on 24 May 2004 the Chief Justice appointed a three-judge panel to hear this redistricting challenge. Plaintiffs first sought a preliminary injunction to enjoin defendants from proceeding with the 2004 primary and general elections. The panel denied the injunction. On 25 February 2005, the parties filed cross-motions for summary judgment, followed by initial and amended stipulations of fact.

On 2 December 2005, the three-judge panel entered an order allowing partial summary judgment in favor of defendants and denying summary judgment for plaintiffs. In its order, the panel determined that plaintiff Pender County and its commissioners lacked standing to sue in their official capacity, although the commissioner-plaintiffs could proceed in their individual capacities. Plaintiffs do not appeal this determination. Next, the panel examined House District 18 in light of the United States Supreme Court's decision in Thornburg v. Gingles, the leading case interpreting Section 2. Gingles set out three "necessary preconditions" a plaintiff is required to demonstrate before he or she can establish that a legislative district must be drawn to comply with Section 2 or that an existing district violates Section 2. 478 U.S. at 50, 106 S.Ct. at 2766, 92 L.Ed.2d at 46. These preconditions require a plaintiff to show that: (1) a minority population is "sufficiently large and geographically compact to constitute a majority in a single-member district"; (2) the minority population is "politically cohesive" and thus votes as a bloc; and (3) the majority population "votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate." Id. at 50-51, 106 S.Ct. at 2766, 92 L.Ed.2d at 46-47. By demonstrating these three preconditions, a plaintiff can show that a particular legislative district may "impair minority voters' ability to elect representatives of their choice." Id. at 50, 106 S.Ct. at 2766, 92 L.Ed.2d at 46.

As the three-judge panel noted, the procedural posture of the case at bar differs from a typical Section 2 case. Here, defendants drew House District 18 as a preemptive measure against the possibility that a lawsuit might be...