Raleigh Wake Citizens Ass'n v. Wake Cnty. Bd. of Elections, No. 16-1270 (4th Cir. 2016)

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Justia Opinion Summary

In these consolidated cases, plaintiffs filed suit challenging two redistricting laws, alleging that some Wake County School Board and Wake County Board of County Commissioners districts have been over-populated, while others have been under-populated. Plaintiffs further assert that these discrepancies result in some votes counting more while others count less, and that the discrepancies stem from illegitimate redistricting factors. The court concluded that, to succeed on the merits, plaintiffs in one person, one vote cases with population deviations below 10% must show by a preponderance of the evidence that improper considerations predominate in explaining the deviations. In this case, plaintiffs have proven that it is more probable than not that the population deviations at issue here reflect the predominance of an illegitimate reapportionment factor, namely an intentional effort to create a significant partisan advantage. Therefore, the district court committed reversible error in granting judgment for defendants. For the same reasons that plaintiffs succeed with their federal claim, they also succeed with their North Carolina state one person, one vote claim. Finally, the district court did not commit clear error in rejecting plaintiffs' racial gerrymandering claim. Accordingly, the court reversed and remanded in part, and affirmed in part.

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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-1270 RALEIGH WAKE CITIZENS ASSOCIATION; JANNET B. BARNES; BEVERLEY S. CLARK; WILLIAM B. CLIFFORD; BRIAN FITZSIMMONS; GREG FLYNN; DUSTIN MATTHEW INGALLS; AMY T. LEE; ERWIN PORTMAN; SUSAN PORTMAN; JANE ROGERS; BARBARA VANDENBERGH; JOHN G. VANDENBERGH; AMYGAYLE L. WOMBLE; PERRY WOODS, Plaintiffs - Appellants, v. WAKE COUNTY BOARD OF ELECTIONS, Defendant - Appellee, and CHAD BAREFOOT, in his official capacity as Senator and primary sponsor of SB 181; PHILLIP E. BERGER, in his official capacity as President Pro Tempore of the North Carolina Senate; TIM MOORE, in his official capacity as Speaker of the North Carolina House of Representatives, Defendants. No. 16-1271 CALLA WRIGHT; WILLIE J. BETHEL; AMY T. LEE; AMYGAYLE L. WOMBLE; JOHN G. VANDENBERGH; BARBARA VANDENBERGH; AJAMU G. DILLAHUNT; ELAINE E. DILLAHUNT; LUCINDA H. MACKETHAN; WILLIAM B. CLIFFORD; ANN LONG CAMPBELL; GREG FLYNN; BEVERLEY S. CLARK; CONCERNED CITIZENS FOR AFRICAN-AMERICAN CHILDREN, d/b/a Coalition of Concerned Citizens for African-American Children; RALEIGH WAKE CITIZENS ASSOCIATION, Plaintiffs - Appellants, v. WAKE COUNTY BOARD OF ELECTIONS, Defendant - Appellee, and STATE OF NORTH CAROLINA, Defendant. Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:15-cv-00156-D; 5:13-cv-00607-D) Argued: May 9, 2016 Decided: July 1, 2016 Before MOTZ, GREGORY, and WYNN, Circuit Judges. Reversed and remanded in part and affirmed in part by published opinion. Judge Wynn wrote the majority opinion, in which Judge Gregory joined. Judge Motz wrote a dissenting opinion. ARGUED: Anita Sue Earls, Allison Jean Riggs, SOUTHERN COALITION FOR SOCIAL JUSTICE, Durham, North Carolina, for Appellants. Charles Foster Marshall, III, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Raleigh, North Carolina, for Appellee. ON BRIEF: George E. Eppsteiner, SOUTHERN COALITION FOR SOCIAL JUSTICE, Durham, North Carolina, for Appellants. Matthew B. Tynan, Jessica Thaller-Moran, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Raleigh, North Carolina, for Appellee. 2 WYNN, Circuit Judge: The right to vote is “fundamental,” and once that right “is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.” Bush v. Gore, 531 U.S. 98, 104-05 (2000) (quotation marks and citation omitted). “It must be remembered that” the right to vote “can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise.” Id. (quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964)). In these consolidated cases, Plaintiffs, registered voters and civic organizations in Wake County, North Carolina, claim that under the two (identically drawn) redistricting laws they challenge, some Wake County School Board and Wake County Board of County while Commissioners others have been districts have under-populated. been over-populated, Plaintiffs further assert that these discrepancies result in some votes counting more while others count less, and that the discrepancies stem from illegitimate redistricting factors. As explained below, we agree, hold that Plaintiffs have proven their state and federal one person, one vote claims, and therefore reverse. Plaintiffs also claim that one discrete district was the product of racial gerrymandering. 3 We hold that the district court did not clearly err in rejecting that claim and thus affirm. I. In the years leading up to 2013, the Wake County School Board (“School Board”) consisted of nine members elected from single-member districts. Those districts were subject to change every ten years following the decennial census. In 2010, the census showed that Wake County’s population had grown by 43.51% over the preceding decade, causing the thenexisting districting plan to have a maximum population deviation of 47.89%. 1 The School Board, at that time dominated by registered Republicans, 2 redrew its districts in light of the 2010 census. 1 “[C]ourts usually analyze[] apportionment plan[s] in terms of the maximum population deviation among the districts. Generally, to calculate maximum deviation, the court first constructs a hypothetical ideal district by dividing the total population of the political unit (e.g., state or county) by the total number of representatives who serve that population. Then, the court determines how much the actual population of each district varies from the population of the ideal district. This deviation is expressed as a percentage of the ideal population. Maximum deviation is the sum of the absolute value of the deviation of the district with the smallest population and that of the district with the largest population.” Daly v. Hunt, 93 F.3d 1212, 1215 n.2 (4th Cir. 1996). 2 While the School Board is nominally non-partisan, its members are routinely registered and affiliated with the Democratic and Republican Parties, and uncontroverted trial testimony showed a high level of partisanship in “what’s supposed to be a nonpartisan election.” J.A. 234; see also, (Continued) 4 That effort led to a redistricting plan with geographically compact districts having a maximum population deviation of 1.75% and no district deviating from the ideal district population by even 1%. The first election under the new districting, in Fall 2011, resulted in a School Board with a Democratic majority. In 2013, the Republican-controlled North Carolina General Assembly (“General Assembly”), over the objection of a majority of the School Board and every Democratic and African-American legislator in the General Assembly, passed a local bill, Session Law 2013–110, making method of selection. changed districts the School to numerous to the School Board’s Among other things, Session Law 2013-110 Board’s seven changes make-up single-member from nine districts single-member and set less geographically compact boundaries for this new set of districts. The maximum population deviation among the new single-member districts swelled to over 7%. Additionally, Session Law 2013-110 created districts” that overlaid the single-member districts. two “super J.A. 160. One super district formed a donut of outer, more rural areas of the county, while the other formed a donut hole in the inner, e.g., J.A. 254 (noting that such local races have “become more partisan-based” due to “block candidates,” the “political party machine,” and “money”). 5 urban area. The maximum population deviation between the super districts exceeded even that of the single-member districts—just shy of 10%. Session Law 2013-110 moved elections to even- numbered years, and limited the School Board’s ability to make changes to its method of election until 2021. In August 2013, thirteen individuals and two civic organizations filed suit in the United States District Court for the Eastern District constitutionality established. of The of the North districts complaint Carolina, that alleged challenging Session that the the Law 2013-110 plan unevenly weighted the votes of citizens in the county for impermissible reasons, thereby violating the one-person, one-vote guarantees of the federal and state constitutions. In March 2014, the district court dismissed Plaintiffs’ suit for failure to state a claim. Wright v. North Carolina, 975 F. Supp. 2d 539 (E.D.N.C. 2014). Plaintiffs appealed. In April 2015, while Plaintiffs’ appeal was pending before this Court, the General Assembly enacted Session Law 2015-4, making the electoral system for the Wake County Board of County Commissioners (“Board of County Commissioners”) identical to the system it had created for the School Board with Session Law 6 2013-110. 3 With Session Law 2015-4, too, the General Assembly forced a local bill on Wake County despite opposition from the majority County every of the voters, Board nearly of County every African-American Commissioners, Democratic legislator in state the polled Wake legislator, General and Assembly. Fourteen individuals and a civic organization filed suit shortly thereafter, challenging redistricting plan as the Board violating of the County one Commissioners’ person, one vote guarantees of the state and federal constitutions. In Plaintiffs’ appeal from the district court’s March 2014 dismissal, this Court, in May 2015, held that “Plaintiffs’ allegations in support of their claim that [Session Law 2013110] violates survive a the motion one to person, dismiss one for vote failure principle to state suffice a claim.” Wright v. North Carolina, 787 F.3d 256, 269 (4th Cir. 2015). therefore reinstated Plaintiffs’ complaint against to the We Wake County Board of Elections. On remand, challenging the Session expedited discovery. district Law court 2013-110 and consolidated Session Law the suits 2015-4 and Discovery was further limited by the state 3 Previously, members of the Board of County Commissioners were elected at-large, subject to the requirement that one member had to be elected from each of the county’s seven residency districts. 7 legislators’ refusing Plaintiffs’ discovery requests, claiming legislative privilege. 4 held a bench trial, In December 2015, the district court in which Plaintiffs presented numerous witnesses, including legislators, citizens, and experts, as well as copious documentary evidence, with 481 exhibits including: expert reports and supporting data; school assignment maps; campaign finance reports; results data from various elections; excerpts of legislative transcripts; and public polling results. By contrast, Defendant, the Board of Elections that administers elections with no stake in the “political interests of the General Assembly,” Trial Tr. vol. I, 13:24-25, presented none of its own. Defendant simply cross-examined Plaintiffs’ witnesses and made legal argument. Nevertheless, the district court ruled for Defendant. Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, No. 5:13-CV-607-D, 2016 WL 1060378 (E.D.N.C. Feb. 26, 2016). district court witnesses, “unhelpful,” for id. discredited every example “anecdotal,” at as *32. It single went on one id. to of at hold, The Plaintiffs’ *28-29, among and other things, that “in order to prove a prima facie case in a one 4 Pursuant to an agreement between Plaintiffs and particular legislators, certain external communications between the legislators and third parties—but no internal communications amongst the legislators—were produced. 8 person one vote challenge, plaintiffs must at least negate the most common legitimate action.” legislature’s reasons Id. citations omitted). at that *22 could explain (quotation the marks and The district court held that Plaintiffs failed to meet this and the other requisite burdens. Plaintiffs appealed. II. On appeal, “‘[w]e review judgments resulting from a bench trial under a mixed standard of review: factual findings may be reversed only if clearly erroneous, while conclusions of law are examined de novo.’” Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 502 (4th Cir. 2016) (quoting Plasterers’ Local Union No. 96 Pension Plan v. Pepper, 663 F.3d 210, 215 (4th Cir. 2011)). example, Findings “even will though be there deemed is clearly some erroneous evidence to if, for support the finding, the reviewing court, on review of the record, is left with a definite and firm conviction that a mistake has been made,” or if standards.” findings were made using “incorrect legal Consol. Coal Co. v. Local 1643, United Mine Workers of Am., 48 F.3d 125, 128 (4th Cir. 1995) (quotation marks and citation omitted). findings upon principles, the a “Of course, if the trial court bases its mistaken reviewing impression court 9 is not of applicable bound by the legal clearly erroneous standard.” Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 n.15 (1982). III. With their primary argument on appeal, Plaintiffs contend that the district court applied the wrong legal standard for adjudicating their one person, one vote claim. For the reasons explained below, we agree. A. The right to vote is “fundamental,” and once that right “is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.” citation Bush, 531 omitted). U.S. at 104-05 Indeed, (quotation allowing, marks through and unequal apportionment amongst districts, a vote to be “worth more in one district than in another would . . . run fundamental ideas of democratic government.” counter to our Reynolds, 377 U.S. at 563 (quotation marks and citation omitted). This requirement that all citizens’ votes be weighted equally, known as the one person, one government vote but principle, also to applies state and not local just to the federal governments—including school boards and county governing bodies. Avery v. Midland Cty., 390 U.S. 474, 480 (1968). Courts have recognized that “[m]athematical exactness or precision is hardly a workable constitutional requirement” and 10 thus do not require “identical government districts. governments construct must Court has “make Id. state an as honest close and to good equal and local Nevertheless, faith effort” population “as to is To assess what is “practicable,” the Supreme allowed considerations” in Reynolds, 377 U.S. at 577. districts practicable.” numbers” some such population as deviation compactness and for “legitimate contiguity, the integrity of political subdivisions, and balance among political parties. Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1306 (2016). Generally, a districting plan “with a maximum population deviation under 10% protection claim.” will not, by itself, support an equal Wright, 787 F.3d at 264 (quotation marks omitted and emphasis added). Rather, plaintiffs in such cases “must show that it is more probable than not that a deviation of less than 10% reflects the predominance of illegitimate reapportionment factors rather than” legitimate considerations such as compactness or the integrity of political subdivisions. Harris, 136 S. Ct. at 1307. In Harris, the Supreme Court’s most recent, and arguably most lucid, pronouncement as to plaintiffs’ burdens in one person, one vote cases below the 10% deviation threshold, the Court unanimously noted that the plaintiffs there had claimed that the plan’s deviations from “absolute equality of population 11 reflect . . . political efforts to help the Democratic party.” Id. Crucially, however, the plaintiffs “failed to prove this claim.” Id. Instead, “the record b[ore] out” that the deviations “predominantly reflected . . . efforts to achieve compliance with the federal Voting Rights Act, not to secure political advantage for one party.” Id. In other words, the plaintiffs in Harris foundered not because their one person, one vote challenge failed as a matter of law, but because they did not muster the evidence needed to show it to be “more probable than not that [the] deviation of less than 10% reflect[ed] factors.” the predominance of illegitimate reapportionment Id. By contrast, in Larios v. Cox, the plaintiffs succeeded in proving their one person, one vote claims. (N.D. Ga.) (mem.). In (three-judge Larios, a panel), federal aff’d, court 300 F. Supp. 2d 1320 542 struck U.S. down 947 a (2004) Georgia redistricting plan that disproportionately favored Democrats by under-populating districts in the urban Atlanta region and the rural south—both suburban Democratic districts with strongholds—while Republican-leaning over-populating voters. The redistricting created a maximum population deviation of 9.98% and disproportionately protected Democratic incumbents. Id. at 1328–31. Scalia The Supreme Court 12 (with only Justice dissenting) affirmed redistricting. As the the district court’s rejection of the Larios, 542 U.S. 947. Supreme Court has explained, in Larios, “those attacking the plan had shown that it was more probable than not that the use of illegitimate factors significantly explained deviations from numerical equality among districts.” 136 S. Ct. at 1310. Harris, The Supreme Court noted the “many examples showing that population deviation as well as the shape of many districts did not result from any attempt to create districts that were compact or contiguous, or to keep counties whole, or to preserve the cores of prior districts.” and citation omitted). plaintiffs’ Id. (quotation marks The Supreme Court contrasted the Larios successful showing with that of the failed plaintiffs in Harris, stating “[i]t is appellants’ inability to show that the present plan’s deviations and boundary shapes result from the predominance of similarly illegitimate factors that makes [Larios] inapposite here.” Id. Looking at Larios and Harris, we conclude that, to succeed on the merits, plaintiffs in one person, one vote cases with population deviations below 10% must show by a preponderance of the evidence that improper explaining the deviations. considerations predominate in This is just such a case, and that legal standard therefore applies. B. 13 1. The law in this area is challenging. In the earlier appeal of this matter, we sought to clarify some points to ease the burden on the district court. Nonetheless, there were numerous instances in which the law we set out in Wright was not adhered to. For example, in evaluating Plaintiffs’ one person, one vote claim, the district court did not properly characterize what Plaintiffs must show to succeed. The district court stated, for example, that “in order to prove a prima facie case in a one person one vote challenge, plaintiffs must at least negate the most common legitimate reasons that could explain the legislature’s action.” Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at *22 (quotation marks and citation omitted). district court indicated that “any conceivable The legislative purpose is sufficient” to support the redistricting plan and that those “attacking the rationality” thereof “have the burden to [negate] every conceivable basis which might support it.” Id. at 27 (alteration in original) (quotation marks and citation omitted). Contrary to the district court’s characterization, what Plaintiffs must actually show to succeed with their one person, one vote claims is that it is “more probable than not that a deviation of less than 10% reflects illegitimate reapportionment factors.” 14 the predominance of Harris, 136 S. Ct. at 1307. This specific, deviation-focused inquiry differs markedly from the district court’s rational-basis review of whether a rational state policy could explain the redistricting generally. 2. Further, in Wright, we emphasized the importance of the Supreme Court’s affirmance of Larios for this case. made it clear that Larios was affirmance holding little sway. more 2016 WL 1060378, at *18. than a Thus, we mere summary Raleigh Wake Citizens Ass’n, Instead, with Wright, we set forth precedent binding on the district courts of this Circuit making clear that Larios constitutes persuasive authority generally, as well as analogous authority in this concrete case. F.3d at 267. Wright, 787 The district court’s heavy emphasis on Justice Scalia’s Larios dissent—an opinion with no precedential value—is thus squarely at odds with Wright. Citizens Ass’n, Justice 2016 Scalia, WL criterion,’ “‘[f]erreting out deviations seems 1060378, ‘politics redistricting as and me more at *18-19 usual’ ‘a political to See, e.g., Raleigh Wake is (“According a ‘traditional constitutional motives likely in to to one,’” and minute population encourage politically motivated litigation than to vindicate political rights.’”). Moreover, the district court misapplied the core principles of Larios. The district court stated, for example, that, in contrast Larios, to Plaintiffs 15 here did not prove “that the General Assembly disregarded all districting principles in creating the 2013 Wake County School Board Plan, or that the 2013 Wake County School Board Plan is not rationally related to a permissible, rational state policy of improving School Board representation.” at *36. Raleigh Wake Citizens Ass’n, 2016 WL 1060378, The district court thus concluded that “unlike Larios, plaintiffs have failed to prove that the 2013 Wake County School Board Plan resulted from a desire to favor suburban and rural voters over urban voters.” Crucially, neither Id. the three-judge district court in Larios, nor the Supreme Court in affirming and later discussing Larios, ever suggested that plaintiffs in such cases need to show that “all districting principles” were “disregarded.” Id. Further, neither court focused on the challenged redistricting plans as a whole. Instead, the focus, in Larios as well as, Harris, was whether “deviation[s] of less than 10% reflect[ed] the predominance of illegitimate reapportionment factors.” Harris, 136 S. Ct. at 1307 (emphasis added); Larios, 300 F. Supp. 2d at 1338 (holding that “population deviations . . . not supported by . . . legitimate interests . . . cannot withstand constitutional state scrutiny” legislature’s (emphasis attempt to added)). privilege In Larios, rural and the urban Democrats at the expense of suburban Republicans explained the deviations in population, not the redistricting plan generally, 16 did not constitute a legitimate apportionment factor, and was prohibited. Larios, 300 F. Supp. 2d at 1338. 3. Additionally, proffered to district court support Plaintiffs’ discredited in evaluating their one improperly fifteen all the the person, discounted trial evidence one testifying vote every witnesses. Plaintiffs single For legislators claims, the one of example, it because of their “strong legislative opposition to the 2013 Wake County School Board Plan. line of [The pertinent] testimony at trial fits within the precedent giving opponents of legislation.” no weight to statements made by Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at *29. The only analogous case in the purported “line of precedent,” Veasey v. Abbott, 796 F.3d 487 (5th Cir. 2015), has been vacated and is thus no longer good law, 815 F.3d 958 (5th Cir. 2016) (granting rehearing en banc and vacating the panel opinion). The other cases the district court cited—cases dealing with statutory interpretation—stand for the unremarkable and inapposite proposition that courts usually do not “accord much weight to the statements of interpreting the words of the bill]. a bill’s opponents [when The fears and doubts of the opposition are no authoritative guide to the construction of legislation.” Shell Oil Co. v. Iowa Dep’t of Revenue, 488 U.S. 17 19, 29 (1988) (quotation marks, citation, and brackets omitted) (holding that one passing reference to preemption in a speech by an opponent of interpretation a of law that cannot law); properly see also guide the Schwegmann court’s Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394 (1951) (noting that “doubts of the opposition” do not guide “the construction of legislation”); NLRB v. Fruit & Vegetable Packers & Warehousemen, Local 760, 377 U.S. 58, 66 (1964) (same). This is not statute means. illegitimate a case about what a particular word in a Rather, at the heart of this case is whether factors predominated the General Assembly’s supplemental redistricting of Wake County such that illegitimate factors explain the population deviations in the redistricting plan. While consider we “bias recognize or that a judge when prejudice” trial generally “assessing may witness credibility,” United States v. Muse, 83 F.3d 672, 676-77 (4th Cir. 1996), the district court discredited categorically legislators’ testimony, even regarding objective facts. the Yet the district court has cited, and we see, no controlling precedent suggesting discounted that their wholesale and testimony “giv[en] should no simply have weight.” Raleigh completely rejected been Wake Citizens Ass’n, 2016 WL 1060378, at *29. Similarly, the district court as “materially flawed and unhelpful,” id. at *32, the analysis of 18 Plaintiffs’ expert Dr. Jowei Chen, a political science professor from the University of Michigan. Upon closer inspection, however, it is the district court’s own analysis of Dr. Chen’s analysis that is materially flawed. Dr. Chen analyzed whether the population deviations in the seven single-member district plans and the two super districts plans were simulation randomly motivated programming a large by a partisan techniques number of purpose that allow alternative using him computer to generate redistricting created subject to traditional redistricting criteria. traditional population redistricting equality; precincts whole; criteria keeping and Dr. Chen municipalities geographic plans The four used intact; compactness. were: keeping Dr. Chen’s computer simulations are based on the logic that if a computer randomly draws five hundred redistricting plans following traditional redistricting criteria, and the actual enacted plans fall completely outside the range of what the computer has drawn, one can conclude that the traditional criteria do not explain that enacted plan. The computer conclusion: that simulations the led “enacted Dr. Chen districting to just plans that create a partisan distribution of seats falling completely outside the range of districting outcomes process that are possible that creates 19 under equally a non-partisan populated districts while maximizing compactness municipal boundaries.” and J.A. 768. preserving precinct and Dr. Chen thus concluded “with extremely high statistical certainty, beyond any sort of doubt here” that “the only way to draw districts as extreme in partisanship as the legislature’s B and A districts is to use population deviations” that are high. J.A. 463. In other words, Dr. Chen testified that he could conclude with certainty from his simulations that the deviations at issue here are the result of using partisanship in apportioning the districts. In critiquing Dr. Chen’s analysis, the district court seized on the fact that certain criteria accounted for in the computer simulations—such deviation at 2% or less as or setting maximum “completely . . . population ignor[ing] partisanship,” Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at *30, are required by neither state nor federal law. This critique misses the point: The point is not that the simulated plans are legally required, but rather that they help demonstrate what might explain the population deviations in the enacted plan. The district court went on to “find[] that Dr. Chen’s simulations simply show that ‘better’ . . . redistricting plans were possible, but ‘better’ plans do not equate to the unconstitutionality of the 2013 Wake County School Board Plan.” Id. With that finding, the district court again missed the 20 point: The import of Dr. Chen’s simulations was not to produce better plans, apportionment but rather considerations to hold constant so several that legitimate Dr. Chen could assess whether the population deviations in the challenged plans could have been the product of something other than partisan bias. He concluded “with extremely high statistical certainty, beyond any sort of doubt here” that they could not have. 463. The district court clearly and rejecting Dr. Chen’s expert testimony. reversibly J.A. erred in Easley v. Cromartie, 532 U.S. 234 (2001) (reversing a three-judge district court panel in a racial gerrymandering case in which the district court clearly erred in rejecting expert evidence). 4. We could go on detailing the errors in the opinion below. Suffice it to say that the legal analysis of what Plaintiffs needed to Plaintiffs show as proffered well as to make the evaluation that showing of are the evidence fundamentally flawed. C. 1. When, as here, the district court applies the wrong standards, we tend to remand to allow “the trier of fact to reexamine the record” using the correct standards. Pac. Co., 419 U.S. 318, 332 (1974). 21 Kelley v. S. However, when “the record permits only Standard v. one resolution Swint, 456 of U.S. the factual 273, 292 issue,” (1982), Pullman– remand is unnecessary, and we may rule based on the record before us. Thus, for example, in the recent Class v. Towson University opinion, this Court, based on the record before it, straight-out reversed the district court, which had applied the incorrect legal standard following a bench trial. 2015). And in Cromartie, 532 U.S. 806 F.3d 236 (4th Cir. 234, the Supreme Court outright reversed a three-judge district court panel in a racial gerrymandering case because, among other things, the district court had clearly erred in rejecting pertinent expert evidence. Likewise, here, we deem remand unnecessary. At trial, in addition to copious documentary evidence, Plaintiffs presented fifteen live witnesses—two experts, four legislators, four county elected officials, and five plaintiffs and lay witnesses. 5 These witnesses and documents presented abundant support for Plaintiffs’ one person, one vote claims within the nine-hour total that the district court allowed Plaintiffs for presenting their case. Defendant, Instead, by Defendant contrast, offered expressly 5 The district court did witnesses to be untrustworthy. 2016 WL 1060378. 22 not disclaimed even any one witness. stake in not deem any of Plaintiffs’ Raleigh Wake Citizens Ass’n, “representing the political interests of the General Assembly,” Trial Tr. vol. I, 13:24-25, and essentially passed on defending the General proponents Assembly’s of the redistricting. challenged Even the redistricting laws legislative refused to defend their actions, instead claiming legislative immunity. The resulting record, discussed in more detail below, permits only one resolution of Plaintiffs’ one person, one vote claims: Plaintiffs have proven that it is more probable than not that the population deviations at issue here reflect the predominance of a illegitimate reapportionment factor, Harris, 136 S. Ct. at 13—namely an “intentional effort” to create “a significant . . . partisan advantage,” Larios, 542 U.S. at 94749 (Stevens, J., concurring). In other words, Plaintiffs have successfully made their case. 2. First putting the challenged plans in context, the evidence at trial showed that that Wake County’s population generally, and the overall population deviation amongst the School Board districts in particular, swelled significantly by the time of the 2010 decennial census. redrew its election maps. reduced maximum population Accordingly, the School Board The resulting 2011 redistricting plan deviation down to 1.75%, with single district deviation reaching even 1% from the ideal. no The districts were “vetted” by county residents and the members of 23 the School Board, and were considered relatively compact, contiguous, and respectful of communities of interest. 210. The Board of County Commissioners also J.A. redrew its residency districts after the 2010 decennial census. Despite the fact the 2011 redistricting had been shepherded by a “Republican School Board” and that a “Republican lawyer” had drafted the districts, J.A. 420, the 2011 elections, the first administered under the new plan, resulted in a “shift[] from the Republicans to the Democrats.” J.A. 200. The Republican-controlled General Assembly then intervened with the redistricting plans that are the subject of this action. Uncontroverted showed that the testimony and legislative evidence process adduced relating to at trial Session Law 2013-110 was truncated by, for example, not having “community hearings and participation of the affected parties,” J.A. 211, and failing to incorporate “any of the ideas that people . . . proffered,” id., without even “discussing it amongst the [Wake County] delegation practice, J.A. 419. first,” a “stark departure” from As School Board Member Bill Fletcher, a registered Republican, put it, “nothing was discussed. was no opportunity common to provide input, to have a There debate or discussion about different election strategies, it was simply drafted in a bill and presented opportunity for rational thought.” 24 and passed J.A. 263. with little 3. Moving on to the showing Plaintiffs needed to make on their one person, one vote claims, uncontroverted evidence at trial showed that the deviations resulting from the latter-day redistricting more likely than not reflected the predominance of illegitimate reapportionment factors. Plaintiffs illegitimate proffered factor uncontroverted predominating in evidence the skewed, of an unequal redistricting: an attempt to guaranty Republican victory through the intentional witnesses packing testified of that Democratic “the true districts. Various motivation[]” for the redistricting was to “ensure Republican control . . . at the expense of Democrats.” redistricting was J.A. 364. “[t]o ensure The “real reason” behind the a Republican majority . . . despite the vote totals,” J.A. 405, a “kind of punitive and retributive effort to punish the Democrats for winning,” J.A. 392. Plaintiffs’ expert Anthony Fairfax analyzed the challenged redistricting plans and reported, among other things, that “[t]here was a marked pattern of overpopulation in Democraticperforming districts, performing districts.” his testimony, “by and underpopulation J.A. 805. overpopulating 25 in Republican- And as Mr. Fairfax noted in you obviously minimize the Democratic performance districts.” in other districts, other surrounding J.A. 305. 6 Plaintiffs’ second expert, Dr. Chen, conducted an analysis showing that “[t]he General Assembly’s enacted districting plans create a partisan distribution of seats falling completely outside the range of outcomes that are possible under a nonpartisan districting process that creates equally populated districts while maximizing compactness and preserving precinct and municipal boundaries.” J.A. 768. In other words, as Dr. Chen testified at trial, “the only way to achieve a districting plan that allowed for such an extreme partisan Republican control over four districts out of seven, the only way to create such an extreme partisan plan was to deviate from population equality to a great extent.” J.A. 466-67. 6 The district court discounted Mr. Fairfax’s testimony just as it did every single one of Plaintiffs’ other witnesses. And in the case of Mr. Fairfax, as with the others, the bases for that discounting fall apart upon careful inspection. For example, the district court faulted Mr. Fairfax for using election results data, asserting that he “failed to analyze voter registration data in Wake County.” Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at *34. Yet in focusing on election results instead of registration data, Mr. Fairfax followed precisely what the Supreme Court has instructed those analyzing redistricting plans to do. See, e.g., Cromartie, 532 U.S. at 239 (noting its instruction that courts should look to “data showing how voters actually behave, not data showing only how those voters are registered”). 26 The legislators who hatched the redistricting plans claimed legislative immunity. Absent from the record, therefore, is any trial testimony confirming (or denying) a partisan motive behind the redistricting and its deviations. 7 contain several e-mails including The record does, however, third parties, the only category of e-mails Plaintiffs managed to obtain, that indeed suggest a deviations. partisan motive behind the redistricting and its For example, the Wake County Republican Party Chair exchanged several e-mails with, and apparently met with, key legislators involved in the redistricting, with a focus on “how we would take 5 of the 9 seats.” J.A. 1114. We do not doubt that some amount of partisan politics is par for the course in redistricting generally. For example, in Gaffney v. Cummings, a case on which the district court relied here, the Supreme Court upheld a redistricting plan drawn based on partisan considerations. 412 U.S. 735 (1973). But the facts in and consequences of Gaffney differ markedly and tellingly 7 Both the district court and Defendant make much ado of the admissions the legislators made in Larios, noting the direct evidence that legislators purposefully skewed district deviations along urban, suburban, and rural divides to achieve partisan goals. See, e.g., Appellee’s Br. at 41; Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at *18. Both Defendant and the district court contrast those facts with this case, with its lack of such direct evidence. But here, the lack of direct evidence may have its roots in the legislators’ avoiding discovery through claims of legislative immunity. Moreover, direct evidence is simply not required. 27 from those here. In Gaffney, a state legislature had drafted a redistricting plan following a decennial census; in doing so, it followed a “policy of ‘political fairness.’” Id. at 738. The plan, deviation the which exhibited less than 2% overall in state senate and less than 8% overall deviation in the state house, sought “proportional representation of the two major political parties. . . . [T]he Board took into account the party voting results in the preceding three statewide elections, and, on that basis, created what was thought to be a proportionate number of Republican and Democratic legislative seats.” Id. In this case, by contrast, rather than seeking proportional representation of the two main political parties, the evidence shows leaning that the challenged districts and plans under-populated over-populated Democratic-leaning districts in order to gerrymander Republican other words, the challenged 8 Republican- redistricting victories. 8 here In subverts The district court played up the fact that District 5 and District 6 constitute exceptions to the rule that Democraticleaning districts were over-populated and Republican-leaning districts were under-populated. Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at *35. According to the district court, “[t]his evidence belies a systematic under-population of districts to harm incumbents . . . who are registered Democrats who support ‘progressive’ education policies.” Id. What the evidence actually belies is the tenuousness of the district court’s analysis—because both District 5 and District 6 exhibit only negligible deviations from ideal population—both less than 0.2%. 28 political fairness and proportional sublimates partisan gamesmanship. representation Gaffney simply and cannot reasonably be read as supporting that; if anything, it does the opposite. Indeed, the Supreme Court suggested that partisanship is legitimate not others, a and the reason to Gaffney weight Court some itself votes more underscored than that redistricting so as to “minimize” the “political strength” of a party or group would be constitutionally “vulnerable.” Id. at 754. Further, the Supreme Court rejected just such partisan deviation games in Larios, 542 U.S. 947, indicating that “if a plan contains any population deviations, a court may decide that the deviations strike the are plan caused down person, one vote.” . . by . impermissible for failure to partisanship comply with and one Samuel Issacharoff & Pamela S. Karlan, Where to Draw the Line?: Judicial Review of Political Gerrymanders, 153 U. Pa. L. Rev. 541, 567-68 (2004); see Larios, 300 F. Supp. 2d at 1338 (holding that pertinent “population deviations” were “not the result of an effort to further any legitimate” policy but were instead “systematically and intentionally created” to “protect Democratic incumbents” and holding that that did not “withstand[] Equal Protection scrutiny”). We recognize that the Supreme Court has not yet clarified when exactly partisan considerations 29 cross the line from legitimate to unlawful. See, e.g., Harris v. McCrory, No. 1:13- CV-949, 2016 WL 3129213, at *2 (M.D.N.C. June 2, 2016) (citing Larios, 542 U.S. 947, for the proposition that redistricting plans may be challenged “when partisan considerations go ‘too far,’” while citing Vieth v. Jubelirer, 541 U.S. 267 (2004), for the lack of “judicially discernible and manageable standards for adjudicating political gerrymandering claims”). Yet it is important to bear in mind that only a plurality (i.e., not a controlling majority) of the Supreme Court has suggested that partisanship-based redistricting nonjusticiable. 9 Id. And claims shortly should after be Vieth, considered a nearly unanimous Supreme Court, including three Justices from the Vieth plurality, affirmed Larios, in which the lower court struck down a redistricting plan with population deviations under 10% as a 9 The district court incorrectly suggested that “[i]n Vieth, the Supreme Court rejected as nonjusticiable a political gerrymandering claim.” Raleigh Wake Citizens Ass’n 2016 WL 1060378, at *19, n.11. On the contrary, as we noted in Wright, “a majority of the (Vieth) Supreme Court refused to deem political gerrymandering claims to be per se nonjusticiable. And the Court has since recognized as much.” 787 F.3d at 269 (citing League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 414 (2006) (“A plurality of the Court in Vieth would have held [political gerrymandering] challenges to be nonjusticiable political questions, but a majority declined to do so.”)). 30 blatant and unlawful attempt at partisan favoritism. Larios, 542 U.S. 947. 10 4. Not only did the uncontested record evidence demonstrate that illegitimate resulting in an reapportionment overall deviation factors of barely predominated, under 10%; the evidence also exposed the stated reasons for the redistricting as pretextual. Board’s example, redistricting citizen’s voting Uncontroverted redistricting worse.” For was to resulted in stated increase districts testimony J.A. 235. one and at the their trial the goal of alignment assigned indicated opposite, the “mak[ing] School between schools. that the alignment Indeed, “[j]ust a perfect downtown example is Daniels Middle School and Broughton High School[, which] are in the same feeder pattern, they were in the same district under the 2011 maps . . . but they were in different districts under the [new] map” challenged here. 10 J.A. 424. Further, even if Stated different, “barely two months [after Vieth], three of those Justices were part of an eight-Justice majority that affirmed the judgment in Larios, a case in which the lower court struck down a plan [with] relatively minuscule population deviations . . . because they reflected ‘blatantly partisan and discriminatory’ attempts to protect Democratic incumbents while undermining Republican-held seats. As Sister Maria says in The Sound of Music, ‘When the Lord closes a door, somewhere He opens a window.’” Issacharoff & Karlan, 153 U. Pa. L. Rev. at 542. 31 increased alignment were indeed a goal, it need not necessarily have resulted in population deviations amongst the districts. A second stated rationale for the redistricting debunked at trial: reducing campaign costs. As trial testimony demonstrated, “the proponents of this legislation said that they were concerned about the cost of campaigning and that these districts would make it cheaper to run. . . . That is either inaccurate or deceptive, because Wake County is a media market and if you’re going to run in any of these widespread districts here or if you’re going to run all in the entire county you are still going to be advertising in the Raleigh/Wake media market, [and] it’s still expensive.” J.A. 395-96. Further, moving down-ballot races like those for School Board members to even years that include congressional and presidential races is “going to dramatically increase the costs of running” in those elections, J.A. 420, even simply for candidates “to have any visibility in a Presidential election cycle.” J.A. 258. again, cost nothing about this stated rationale, And, reduction, explains the population deviation amongst the districts. Another stated goal of the redistricting legislation— increasing voter turnout—also has nothing to do with re-drawing districts, much less re-drawing them unequally. court noted that “Plaintiffs do not dispute The district the other legislative goal of increasing voter turnout by having . . . 32 elections in even-numbered years.” 2016 WL 1060378, at *27 n.18. Raleigh Wake Citizens Ass’n, But they did not need to dispute that goal, because it has no logical connection to, and does not justify, re-drawing districts, much less districts with population deviations. A further rationale given for the redistricting: allowing voters greater representation. Yet the redistricting of the County Commission arguably reduced citizens’ opportunity to cast votes for their preferred commissioners by moving away from an all at-large system. As testified at trial, voters “had the ability to elect all seven members . . . . As it stands with the maps that were passed by the House and the Senate, [they] will be able to exercise [their] vote on only two of those members, so with every -- everything representation, that’s less.” about this goal explains that I know J.A. 387-88. the population about the word And again, nothing deviations of the districts as drawn. Moreover, alternatives achieved, even increased representation population Jackson more effectively, deviations. proposed an were without For amendment suggested the to stated resulting example, create that in would rationale such Representative two have purely at of great Darren large districts instead of the donut and donut hole districts, while maintaining the 2011 single-member districts. 33 Such a plan would have “accomplish[ed] both of the Republicans’ stated goals, to give you more representation on the School Board and to make sure that you had a School Board member who represented your child’s school, and it accomplished both of those goals.” 354. That amendment, representation on the which would Board, School have was achieved J.A. greater rejected—yet more evidence that the stated rationales were pretextual and fail to justify the population deviations in the challenged redistricting. The legislators pushing the redistricting also sought to ground it in administrative ease, having the School Board and Board of County Commissioners fall under the same plan. Again, that goal is wholly unrelated to, and plainly fails to justify, the deviations in population amongst the districts. Somewhat relatedly, and certainly breathtakingly under the circumstances, the Board of County Commissioners’ redistricting was ostensibly intended to “avoid litigation.” 2016 WL 1060378, at *37. Raleigh Wake Citizens Ass’n, Yet the School Board redistricting was being actively litigated and was in fact pending before this Court at that time. irrational and, The litigation rationale is thus utterly further, has no logical connection to the deviations at issue. Moving beyond the pretextual rationales, the record evidence demonstrates that traditional, legitimate apportionment 34 factors did not predominate. On the contrary, the redistricting resulted in: “a total of 31 [split] precincts” (as opposed to 12 split precincts under the 2011 plan), J.A. 805; bizarrely shaped districts, including “donut[s]” and “donut munchkin[s],” J.A. 432, “crab claw[s]” and “pincer[s],” J.A. 212; and obviously non-compact School districts Board members that “to make it have harder, more [their] own districts,” J.A. 280. 11 Dr. Chen considered for detailed example, knowledge for about Indeed, Plaintiffs’ expert several traditional, legitimate reapportionment criteria, i.e., population equality, community and precinct boundaries, and geographical compactness, and found that the redistricting “create[d] a partisan distribution of seats falling completely outside the range of outcomes that are possible under a non-partisan districting process that creates equally populated districts while maximizing preserving precinct and municipal boundaries.” Representative redistricting during Rosa the Gill also compactness J.A. 768. proposed legislative and process. an alternative Her proposal demonstrated that it was entirely possible to meet all of the stated rationales for the skewed redistricting—including giving voters the opportunity to elect 11 two school board members, No party has made an argument regarding Voting Rights Act compliance, also recognized as a legitimate apportionment factor. We therefore do not address it. 35 providing district representation for the County Commissioners, moving school board elections to even numbered years to increase turnout, reducing voter confusion by using the same districts for both the School Board and the Board of County Commissioners, and reducing costs—while creating only miniscule deviations. Representative Gill’s plan divided no precincts and had overall deviations in the single-member and super districts of less than 0.5%. J.A. 795-96. The trial court dismissed the evidence of Representative Gill’s alternative plan because it “simply shows that ‘better’ plans can be drawn, unconstitutionality.” 1060378, at *33. but ‘better’ Raleigh Wake plans do Citizens not equate Ass’n, 2016 to WL In fact, what the alternative plan shows is that legitimate considerations, including the stated rationales for the redistricting, utterly failed to explain or justify the high levels of deviation in the enacted plans—because those rationales could have been accomplished by a plan with virtually no population deviations. 5. At the end of the day, when we review the evidentiary record, we can reach only one conclusion: that Plaintiffs, the only parties to make their case at trial, successfully showed it to be more probable than not that the deviations at issue here reflect the predominance of an 36 illegitimate reapportionment factor rather than legitimate considerations. Ct. at 1307. deviations cases.” We under Id. 10% recognize will that, succeed Harris, 136 S. generally, only “attacks rarely, in on unusual But after reviewing this matter closely, and for the reasons discussed above, we are convinced that these middecade, partisan unusual case. redistricting plans constitute just such an The district court therefore committed reversible error in granting judgment in Defendant’s favor. 6. In addition to improper partisanship, Plaintiffs claimed improper regional favoritism as an illegitimate factor behind the deviations in the challenged reapportionments. Because we have already ruled in Plaintiffs’ favor based on partisanship, we need not reach this related but separate basis. We nevertheless note that “[a] citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution’s Equal Protection Clause.” Reynolds, 377 U.S. at 568. Therefore, “[i]n Larios, a federal court struck down a [state] legislative redistricting plan . . . . The plaintiffs there alleged that the plan . region . . and under-populat[ed] the rural districts south-Georgia in the area—both strongholds—while over-populating leaning voters.” Wright, 787 F.3d at 266-67. 37 urban districts with Atlanta Democratic Republican- In Wright, we left no doubt that, as in Larios, Plaintiffs here claim that “a state legislature designed a redistricting plan with a maximum deviation in population of just under 10%, designed to pit rural and urban voters against one another” and that “[e]ven if Larios does not control this case . . ., we nevertheless find it” and its rejection of regional favoritism as a basis for deviating from ideal population by such margins “persuasive.” Moreover, Assembly the district rationally court considered held the that Id. at 267. “the General of interest communities within Wake County’s urban areas and within Wake County’s rural and suburban plans. areas in adopting” the challenged redistricting Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at *40. But the pertinent inquiry is not whether it was “rational” to “consider” communities generally; instead, redistricting’s of the deviations interest proper more in adopting inquiry likely is than not the whether reflect predominance of illegitimate reapportionment factors. 136 S. Ct. at 1307. wrong legal standard plans the the Harris, The district court plainly engaged the in its analysis of this factor. But because we rule on the basis of partisanship, we need go no further of the regional favoritism issue. D. In addition to their federal constitutional one person, one vote claim, Plaintiffs brought a similar North Carolina state 38 claim. Under the North Carolina Constitution, “[t]he right to vote on equal terms in representative elections—a one-person, one-vote standard—is a fundamental right.” Blankenship Bartlett, 681 S.E.2d 759, 762–63 (N.C. 2009). analysis of the state’s “Equal v. A North Carolina Protection Clause generally follows the analysis of the Supreme Court of the United States in interpreting the corresponding federal clause.” Id. at 762. If anything, North Carolina’s one person, one vote principle applies with even more force than its federal counterpart. See, e.g., id. at 763 (deeming the one person, one vote principle applicable in North Carolina’s election of superior court judges even though person, “federal one-vote’ courts standard have is articulated inapplicable to that the state ‘one- judicial elections”); Stephenson v. Bartlett, 562 S.E.2d 377, 397 (N.C. 2002) (requiring legislative districts minus five percent of ideal population). to be within plus or Accordingly, for the same reasons that Plaintiffs succeed with their federal claim, so, too, do they succeed with their North Carolina state one person, one vote claim. IV. In addition to their one person, one vote claim, Plaintiffs have also brought a racial gerrymandering claim regarding the 39 Board of County Commissioners’ District 4. 12 Plaintiffs contend that race predominated in determining the boundaries, shape, and composition of that district without narrow tailoring to serve a compelling state interest. As explained below, the district court did not commit clear error in rejecting this claim. A. To successfully electoral district challenge under the the constitutionality Equal Protection of Clause, an a plaintiff must “show, either through circumstantial evidence of a district’s going to factor shape legislative motivating significant district.” and number demographics purpose, the of that or race legislature’s voters within more was direct the decision or without evidence predominant to a place a particular Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1267 (2015) (quotation marks and citation omitted). Such a showing requires proof that “the legislature subordinated traditional race-neutral districting principles . . . to racial considerations.” Miller v. Johnson, 515 U.S. 900, 916 race-neutral (1995). Traditional principles include “compactness, contiguity, and respect for political subdivisions or communities defined by actual 12 shared interests,” id., Even though the corresponding School Board district is identical, Plaintiffs in Wright made no such claim. We, like the district court, therefore do not address that issue. 40 incumbency protection, and political advantage, Bush v. Vera, 517 U.S. 952, 964, 968 (1996). And evidence that such traditional principles took a back seat to racial considerations may include direct and circumstantial evidence of legislative intent, indications that a district was non-negotiable, shapes, and district racial lines percentage bizarre that or within non-compact cut through geographic boundaries or election precincts. a given district traditional See, e.g., Vera, 517 U.S. at 970-71; Miller, 515 U.S. at 917-18; Shaw v. Reno, 509 U.S. 630, 646–48 (1993). If a plaintiff successfully shows racial predominance in drawing the lines of a district, the court must apply “strictest scrutiny,” Miller, 515 U.S. at 915, that is, it must determine whether the design of the challenged district was narrowly tailored to advance a compelling state interest—a burden the state must bear, Shaw v. Hunt, 517 U.S. 899, 908 (1996). If the answer to that question is no, the district must be struck as unconstitutional. B. In district contrast to court did its not one person, one miscomprehend vote the analysis, applicable the law. Accordingly, while we were “not bound by the clearly erroneous standard” regarding the one person, one vote findings, Inwood Labs., 456 U.S. at 855 n.15, the same cannot be said here. 41 Here, we must affirm if “the district court’s account of the evidence is plausible,” even if we are “convinced that we would have decided the question of fact differently.” TFWS, Inc. v. Franchot, 572 F.3d 186, 196 (4th Cir. 2009) (quotation marks and citation omitted). While we might have decided this matter differently in the first instance, we cannot say that the district court’s account of the evidence is not plausible; it is. district court considered legislator For example, the comments indicating that race was a consideration in the redistricting process, such as a representative’s observation “that at-large electoral systems submerge the views of various minorities, ‘whether it’s racial, gender, political, rural, urban or whatever.’” Citizens Ass’n, 2016 WL 1060378, at *46. evidence the fact that race was a Raleigh Wake While such comments consideration redistricting process, doing so is not unlawful. in the See, e.g., Miller, 515 U.S. at 916 (“Redistricting legislatures will, for example, almost always be aware of racial demographics; but it does not follow process.”). that race predominates in the redistricting We cannot fault the district court for determining that the comments here did not constitute direct evidence that race predominated in the drawing of District 4, i.e., of racial gerrymandering. 42 Further, advantage in may the be racial gerrymandering considered a context, traditional partisan redistricting criterion, and evidence that politics was the primary motivation for the drawing of a district can defeat an allegation that race predominated. See, e.g., Cromartie, 532 U.S. at 257–58; Vera, 517 U.S. at 968. The district court recognized this, noting that the fact that District 4 is majority-minority “alone does not mean that the General Assembly racially gerrymandered District 4,” Raleigh Wake Citizens Ass’n, 2016 WL 1060378, at *47, and that evidence supports the district’s having been drawn with a focus on partisanship rather than race. evaluating the expert support for For example, in Plaintiffs’ racial gerrymandering claim, the district court noted that the expert’s “partisan neutral” analysis did not help answer the question of whether politics or race led to District 4’s boundaries. Id. Here, too, we cannot disagree. In sum, even if we might have found otherwise in the first instance, it was determine that not implausible Plaintiffs had for fallen the district short of court proving to that traditional districting criteria were subordinated to race in the drawing of District 4. Accordingly, because the district court’s analysis of Plaintiffs’ racial gerrymandering claim is not clearly erroneous, we affirm on that issue. 43 V. For the reasons discussed above, we reverse the district court’s judgment in Defendant’s person, one vote claims. favor as to Plaintiffs’ one We remand with instructions to enter immediately 13 judgment for Plaintiffs, granting both declaratory relief and a permanent injunction, as to the one person, one vote claims. However, we affirm the district court’s judgment for Defendant as to Plaintiffs’ racial gerrymander claim. REVERSED AND REMANDED IN PART AND AFFIRMED IN PART 13 We see no reason why the November 2016 elections should proceed under the unconstitutional plans we strike down today. 44 DIANA GRIBBON MOTZ, Circuit Judge, dissenting: With respect, I dissent from the majority’s holding that the district protection court challenge redistricting plans. erred to in twin rejecting Plaintiffs’ presumptively equal constitutional Plaintiffs’ one person, one vote claim rests on their contention that improper “partisanship” rendered the challenged redistricting plans unconstitutional, even though those plans have population deviations of less than 10%. 1 If such a claim is justiciable, and it is not clear that it is, the showing necessary to prove such a claim is extremely demanding. The Supreme Court explained only a few weeks ago that challenges “will succeed only rarely, in unusual cases.” v. Ariz. (2016). 1 Indep. Redistricting Comm’n, 136 S. Ct. such Harris 1301, 1307 The challenge here, like that in Harris, is not that In their amended complaint, Plaintiffs also alleged that the plans impermissibly favored rural voters over urban voters. At trial, however, they focused on assertedly improper “partisanship” and produced scant evidence that the State sought to advantage rural over urban voters. Plaintiffs did not even offer evidence as to which districts they considered “urban” or “rural.” Their experts testified that assertedly illegitimate “partisan” motivations, not regional favoritism, predominately motivated the challenged plans. Unsurprisingly, the district court found that Plaintiffs “failed to prove” that either plan “impermissibly favors suburban and rural voters over urban voters or substantially dilutes the individual voting strength of Wake County’s urban voters.” Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, No. 5:15-CV-156-D, 2016 WL 1060378, at *40 (E.D.N.C. Feb. 26, 2016). On appeal, Plaintiffs provide no basis on which to disturb that finding. “unusual case.” the judgment For this reason, I would affirm in its entirety of the district court rejecting Plaintiffs’ challenges to the redistricting plans. I. The Equal Protection Clause requires a State to “make an honest and good faith effort to construct [state legislative] districts . practicable.” . . as nearly of equal population as Reynolds v. Sims, 377 U.S. 533, 577 (1964). is But, the Reynolds Court itself recognized that, in determining what is “practicable,” the Constitution permits some deviations from perfect population equality when justified by “legitimate considerations incident to the effectuation of a rational state policy.” Id. at 579; accord Harris, 136 S. Ct. at 1306. In a long line of cases decided in the wake of Reynolds, the Court has held that districts, like those at issue here, with a “maximum population presumptively constitutional. deviation under 10%” are See, e.g., Brown v. Thomson, 462 U.S. 835, 842 (1983); accord Harris, 136 S. Ct. at 1307 and cases cited therein. These “minor deviations from mathematical equality do not, by themselves, make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.” 46 Harris, 136 S. Ct. at 1307 (quoting Gaffney v. Cummings, 412 U.S. 735, 745 (1973)) (internal quotation marks omitted). It was because of “the inherent difficulty of measuring and comparing factors that may legitimately account for small deviations from strict mathematical equality” that the Supreme Court recently reiterated that “attacks on deviations under 10% will succeed only rarely, in unusual cases.” at 1307. Harris, 136 S. Ct. To prevail on such claims, the Harris Court held that a challenger “must show that it is more probable than not that a deviation of less than 10% reflects the predominance of illegitimate reapportionment factors rather than the ‘legitimate considerations’” cases. that the Court had identified in previous Id. In earlier cases the Supreme Court had identified numerous “legitimate considerations” justifying a State’s reapportionment plan. Among them are a State’s valid interests in: maintaining the competitive balance among political parties, Gaffney, 412 U.S. at 752-53; accord Harris, 136 S. Ct. at 1306, avoiding contests between incumbents as long as incumbents of one party are not favored over those of another, Karcher v. Daggett, 462 U.S. 725, 740 (1983), and recognizing communities of interest, Evenwel v. Abbott, 136 S. Ct. 1120, 1124 (2016). Indeed, in League of United Latin American Citizens v. Perry, the Supreme Court characterized “avoiding the pairing of incumbents” as a 47 “‘neutral’ redistricting communities of principle[ ].” standard[ interest” as a ]” and “maintaining “traditional districting 548 U.S. 399, 412 (2006) (plurality opinion) (“LULAC”); Id. at 433 (majority opinion). Thus, notwithstanding Plaintiffs’ apparent belief, the Court has expressly recognized that a redistricting plan can in these ways legitimately considerations. constitutes take account political The Court has never suggested that doing so reliance on an “illegitimate factor.” Harris, 136 S. Ct. at 1307. follows from the considerations fact are apportionment” of and that This approach necessarily “[p]olitics inseparable so reapportionment “districting from and political districting inevitably has intended to have substantial political consequences.” and and is Gaffney, 412 U.S. at 753. If those attacking a redistricting plan prove that a State has abused legitimate political considerations by systemically over- or under-populating districts to benefit one party at the expense another, then the challengers may be able to prevail as they did in Larios v. Cox, 300 F. Supp. 2d 1320, 1325 (N.D. Ga.), aff’d, 542 heavily on Larios. U.S. 947 (2004) (mem.). Plaintiffs lean Their reliance is misplaced. First, Plaintiffs ignore the very different factual record developed in that case. In Larios, the challenged plan paired 48 in the same district, and thus pitted against each other, 37 of the 74 incumbent Republicans but only 9 of the 105 incumbent Democrats. 300 F. Supp. 2d at 1326. In Larios, Georgia legislators admitted before the district court that they had intentionally drawn legislative districts to favor incumbents of one party over those of the other. Id. at 1325. Thus, in Larios, the state legislators conceded that they had not made the “good faith effort” to draw equal districts that Reynolds requires. In The record in this case contains no such evidence. addition to ignoring the very different evidentiary record in Larios, Plaintiffs turn a blind eye to the Court’s subsequent treatment explained that “addressing Larios political equal-protection opinion). reserved of that “does case. not motivation violation.” In give as 548 a LULAC, clear the guidance” justification U.S. at Court 423 for in an (plurality And in Harris, the unanimous Supreme Court expressly the partisanship question at issue of in whether Larios illegitimate redistricting factor.” 2 the even sort of abusive constitutes “an Harris, 136 S. Ct. at 1310. 2 Tellingly, the Court has never addressed the alternative holding by the lower court in Larios invalidating the challenged plans on the basis of regional favoritism. That alternative holding has little precedential or persuasive value given, as the Supreme Court has explained, “a summary affirmance is an affirmance of the judgment only,” not the rationale of the lower court, which “should not be understood as breaking new ground.” (Continued) 49 Despite Plaintiffs’ foundations of protestations Larios as to persuasive the contrary, authority rest on the shaky ground. Equally holding in constitute significantly, Harris an that, Plaintiffs even illegitimate if factor, take no notice of the abusive partisanship did those challenging the redistricting plan before it had “not carried their burden.” Id. This holding is particularly significant given that the Harris plaintiffs had made a much stronger evidentiary showing than Plaintiffs do here. For example, the Harris plaintiffs offered direct evidence of a Republican-leaning district made “more competitive” at the request of a Democratic redistricting commissioner by “hyperpacking Republicans into other districts.” Id. at 1309 (internal quotation marks omitted). The redistricting commission in Harris had overpopulated almost all the Republican-leaning while underpopulating districts in almost all the the thirty-district plan Democratic-leaning Mandel v. Bradley, 432 U.S. 173, 176 (1977). And invalidating a redistricting plan because it allegedly favors “rural” or “urban” voters would break new ground. The Supreme Court has never before or after Larios suggested that considering the urban or rural characteristics of a district is an illegitimate apportionment factor. In fact, statements in several cases suggest that these are the quintessential types of communities of interest a State may consider when redistricting. See, e.g., Dusch v. Davis, 387 U.S. 112, 117 (1967). 50 districts. the Id. at 1309-10. district court Even in the face of this evidence, did not find the redistricting unconstitutional -- and the Supreme Court agreed. Furthermore, in explaining its rejection plan Id. at 1309. of the Harris plaintiffs’ claims, the Supreme Court distinguished Larios in ways that apply with equal force here. The Harris Court held that in Larios, unlike in the case before it (and unlike in the case at hand), “the district court found that those attacking the plan had shown” that no legitimate factors explained the deviations in the plan. Id. at 1310 (emphasis added). Harris Court explained: that illegitimate inapposite “It is appellants’ inability to show” factors here.” The Id. predominated Thus the “that Court makes emphasized [Larios] and re- emphasized that those attacking a presumptively constitutional redistricting plan, like Plaintiffs here, must prove that claims are illegitimate factors predominated. In sum, even if abusive partisanship justiciable, and do provide the basis for a one person, one vote claim, Plaintiffs had to prove at trial that the State relied on this consideration in redistricting, and that this reliance took precedence over all legitimate considerations, including maintaining political balance among political parties, avoiding contests between incumbents communities of interest. of both parties, and recognizing The State, on the other hand, did not 51 need to offer constitutional any justification redistricting for its presumptively plans. See, e.g., factual record Harris, 136 S. Ct. at 1307. A fair review of the seems to me to demonstrate that, as in Harris, Plaintiffs here failed to meet their burden and so, as the Supreme Court did in Harris, we should affirm the district court’s rejection of their challenge. 3 II. In attempting to meet their substantial burden, Plaintiffs principally rely Dr. Jowei Chen. created, Dr. redistricting obtain on Chen plans districts districts. trial testimony of their expert, On the basis of statistical models that he had “Republican numbered the opined were that motivated partisan and deviations over control one of in entirely over the the by four two a of challenged desire the” lettered to seven super- But, as the district court found, Dr. Chen’s model 3 The district court also rejected Plaintiffs’ one person, one vote claim under the North Carolina Constitution. Because North Carolina courts “generally follow[ ] the analysis of the Supreme Court of the United States” when interpreting the State’s corresponding Equal Protection Clause, I would affirm the district court’s finding that Plaintiffs failed to carry their burden on their state law claims for the same reasons that apply to their federal claims. Blankenship v. Bartlett, 681 S.E.2d 759, 762 (N.C. 2009). 52 simply does not prove either conclusion. Dr. Chen’s analysis suffers from two critical flaws. First, in his model, Dr. Chen pegged the maximum tolerable level of population deviation between districts at 2%. In doing so he held the State to a standard not required by law. Of course, a State must make a “good faith effort” to draw equal districts. Reynolds, 377 U.S. at 577. But neutral factors may cause population deviations well above 10% without running afoul of the Constitution. See, e.g., Mahan v. Howell, 410 U.S. 315, 328 (1973). Moreover, Dr. Chen’s arbitrary 2% threshold seems particularly unwarranted in light of the Supreme Court’s repeated characterization of deviations below 10% as “minor” and its admonition that such minor deviations do not “substantially dilute the weight of individual votes in the larger districts so as to deprive individuals effective representation.” in these districts of fair and White v. Regester, 412 U.S. 755, 764 (1973). The second fatal flaw in Dr. Chen’s analysis is his failure to look beyond what he considered to be the only four legitimate or “traditional” districting intact municipal boundaries, factors intact 53 -- population precincts, and equality, geographic compactness. 4 Dr. Chen ignored the many apolitical and political factors States may consider during redistricting (like striking a competitive balance among political parties, avoiding contests among incumbents, and recognizing communities of interest), even if pursuing these goals causes minor population deviations. This is particularly troubling because it is undisputed that two of the legitimate districting factors Dr. Chen failed to consider -- incumbency protection and grouping communities of interest parties -- actually stipulated legislative debate to and motivated the the accuracy those legislature of transcripts here. transcripts reveal of that The the state legislators altered the district lines in the final version of the School Board redistricting bill to protect two incumbents -one registered Democrat and one registered Republican. Further, the Democratic incumbent, Christine Kushner, testified at trial that “Ms. Prickett, who is a registered Republican, had been placed into a Democratic leaning district,” but “was moved out 4 Plaintiffs actually concede the limited reach of Dr. Chen’s analysis, noting that his analysis “shows that the partisanship of the enacted districts does not happen when traditional redistricting criteria are followed.” See Plaintiffs’ Rep. Br. at 21 (emphasis added). Of course, as explained above, the Supreme Court has repeatedly recognized numerous legitimate ‘redistricting criteria’ other than those that Dr. Chen considers “traditional.” And in LULAC, 548 U.S. at 433, the Court expressly included “maintaining communities of interest” among “traditional” redistricting criteria. 54 of that district and put into a Republican leaning district, and I [Ms. Kushner] was switched out of District 2 into District 5,” which she admitted was a “more favorable district” for her. Accommodating the legitimate interest in protecting incumbents of both parties had a demonstrable impact on the population deviations across four of the seven numbered districts in the plan. District underpopulated. 1 swung from 2.76% to -0.41% District 2 swelled from -4.19% underpopulated to just -1.05% underpopulated. overpopulated overpopulated to -1.53% District 5 dipped from 0.19% underpopulated. Finally, District 6 grew from -0.14% underpopulated to 1.6% overpopulated. Dr. Chen’s model does not in any way account for these population deviations. As a result, Dr. Chen’s view that nothing but improper “partisanship” could explain the population deviations in the twin redistricting plans completely ignores the undisputed impact that the legislative effort to protect the two incumbents had on the plans. In light of that omission, I cannot agree that the district court clearly erred in concluding that Dr. Chen’s legislature testimony deviated from did not population demonstrate equality only that the for the predominant purpose of creating four safe Republican seats out of seven. Dr. Chen committed the same sort of considering the two lettered super-districts. 55 analytic error in One of the stated purposes for the super-districts was to improve representation for voters in rural areas. Without challenging the State’s consideration of communities of interest generally, Plaintiffs argue that rationales “[t]here explain is why no possible Super way District people larger than Super District B.” 12. that A needs [the to stated] be 44,117 Plaintiffs’ Rep. Br. at According to Dr. Chen, again improper “partisanship” is the only explanation. And again, conclusion. To Dr. be Chen’s sure, model the State does not support this could have overpopulated District A, an area of the County that has historically voted for Democratic candidates, to increase a Republican candidate’s odds of winning in District B. But the State also could have deviated from population equality to group more urban areas in District A based on their shared interests. was the place, purpose and interest. of for having course it the This, after all, super-districts constitutes a clearly See Evenwel, 136 S. Ct. at 1124. in the first valid State Or the State could have had the dual motivation to accomplish both. Dr. Chen’s model tells us nothing about how grouping together communities of interest excludes any motivated the consideration legislature of consideration. 56 that because legitimate it a priori redistricting Plaintiffs’ meeting their considerations remaining burden evidence of proving predominated also that here. falls far short illegitimate Plaintiffs’ of partisan expert Anthony Fairfax concluded that the legislature desired to “minimize the Democratic performance” in certain districts by overpopulating the “Democratic performing districts.” That opinion rests on his view that correlation between overpopulation and Democratic performance in the districts legislative intent themselves. The district court concluded that they do not. -- in i.e., and that of the itself demonstrates numbers speak for The record here provides no basis for holding that finding clearly erroneous. Of the four districts assertedly favorable or competitive for Democrats, three are overpopulated. five districts assertedly favorable or Of the competitive Republicans, only three are underpopulated by more than 1%. for One of these three districts, District 2, is underpopulated by just -1.05%. Thus, the asserted correlation between population and Democratic performance is, to say the least, minimal. This minimal correlation limits the strength of any inference that can be drawn. Cf. Harris, 136 S. Ct. at 1309-10 (refusing to infer predominance of illegitimate partisanship over a thirtydistrict plan where every district underpopulated by more than 1% (nine total) overpopulated by favored more Democrats than 57 1% and (twelve every total) district favored Republicans). At the very least, the district court did not clearly err when it declined, as the Supreme Court did in Harris in the face of stronger evidence, to make an inference of unconstitutional motivation. Plaintiffs also offered the lay testimony of members of the state legislature who opposed the redistricting plans. I agree with the majority that the district court erred in categorically rejecting this testimony as irrelevant. But, despite this error, the testimony does not move the needle far on the issue of intent of those voting to adopt the redistricting plans because, to a person, Plaintiffs’ lay witnesses disclaimed any knowledge of the sponsors’ motivations. 5 In sum, assertedly predominant redistricting truly faced the illegitimate motivation plans, probative tendered with of conclusions for heavy “partisanship” the Plaintiffs legislative that burden their 5 of constituted presumptively failed to intent. analyses proving offer the constitutional any Plaintiffs’ could that not evidence experts support. More probative are emails from Wake County Republican Chairwoman Donna Williams to Republican members of the state legislature and School Board. Williams expressed concern that the proposed map would not be sufficiently favorable to Republicans to permit them to “take 5 of the 9 seats.” However, the record does not contain requests for information or responses from State officials or any indication that Ms. Williams’ lobbying efforts had any effect on the legislation. 58 Plaintiffs’ remaining evidence proved little. The court refused to draw Plaintiffs’ preferred inference. so, the court did not clearly err. district In doing To the contrary, given the weakness of Plaintiffs’ case, Defendants would have had strong grounds to appeal had the district court ruled otherwise. I would affirm the judgment of the district court in its entirety. 59